Bangalore District Court
State Through Subramanyapura Police vs R.S.Harinath Son Of S.R.Prabhu on 29 September, 2020
1 CC.No:14401/2015
1IN THE COURT OF THE II ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU
:: PRESENT ::
Sri Aravind N.V.,
B.A.L., LL.B.,
II A.C.M.M, Bengaluru.
C.C.No.14401/2015
DATED THIS 29th DAY OF SEPTEMBER 2020
COMPLAINANT:
State through Subramanyapura Police
Station, Bengaluru.
(Senior Asst. Public Prosecutor)
// Versus //
ACCUSED:
1. R.S.Harinath son of S.R.Prabhu,
Age: 47 years.
2. Gautham son of Harinath,
Age: 25 years,
both are residents of No.29, Maruthi Arcade,
K.S.R.T.C. Layout, Uttarahalli Main Road,
Bengaluru City.
(A1 & 2 by Sri. Munishamanna.Y, Advocate)
2 CC.No:14401/2015
JUDGMENT
The accused No.1 and 2 are facing trial for the charge sheet submitted by the Subramanyapura Police for the offences punishable U/Secs., 323, 448, 504 and 506 R/w Section 34 IPC.
2. The brief facts of the prosecution case are as follows: C.W1 was running the xerox business in a shop at K.S.R.T.C. Layout, Subramanyapura main road, Bengaluru by obtaining the said shop for rent per month Rs.4,750/ by paying advance of Rs.50,000/. On 02032015, in the morning at 1130, when C.W1 was doing his business, the accused No.1 and 2 picked up quarrel with C.W.1 by illegally entering into the shop of C.W.1 and abused him in the filthy language. They gave a fist blow to the face of C.W.1 and pushed him out from the shop and had put a lock to the said shop by threatening him that if he again came near the shop, the accused No.1 and 2 would do away with his life and thereby have committed the alleged offences.
3. After the submission of charge sheet against the accused No.1 and 2, this court has taken the cognizance for the above said offences. The summons is issued to the accused No.1 and 2. In response to the summons, accused No.1 and 2 have appeared before the Court and get enlarged on bail. Copy of the charge sheet and other prosecution papers are furnished to the accused No.1and 2 in compliance of Sec.207 of 3 CC.No:14401/2015 Cr.P.C. After furnishing the copies, charges are framed, read over and explained to them. They do not plead guilty, but claim to be tried. Hence, the matter has been posted for recording of evidence.
4. To prove the charges levelled against the accused No.1 and 2, the prosecution has examined 11 witnesses as per PW.1 to PW11 and get marked 05 documents as per Ex.P.1 to 05. No material objects are got marked. After completion of the prosecution side evidence, statement of the accused No.1 and 2 is recorded as contemplated U/s.313 of Cr.P.C and incriminating materials appeared in the evidence has been read over and explained to the accused No.1 and 2. Accused No.1 and 2 have denied all the incriminating circumstances that appeared against them and have chosen to adduce defense evidence. The accused No.1 and 2 have examined the accused No.1 as D.W.1. He has deposed that the shop has been in the name of his wife and there was no agreement in between him and P.W.1. He has denied the incident but states that a false case is registered against him.
5. Heard both side and perused the evidence available on record. The counsel for accused No.1 and 2 has filed written argument and also has relied upon 3 decisions as follows: (1) 2015 AIR SCW 6079 Supreme Court (C) Cr.P.C. S.154FIRDelay in filing. (D) Delay in lodging FIR not explained. Para 06 - The FIR was contended to be delayed by more than 6 hrs and owing to the relationship between the parties, the said time was used to built up a story wherein 4 CC.No:14401/2015 as many as nine members of the Accused family were named. The Learned Senior Counsel pointed out various lapses in the prosecution story and contended that the Prosecution to explain few facts. Para 13 - the golden thread which runs though the web administration of justice in criminal cases is that if 2 views are possible on the evidence adduced in the case, 1 pointing to the guilt of the Accused and the other to his innocence, the view which is favorable to the Accused should be adopted.
(2) LAWS (MAD 2005 1279) para 04 - further there is a delay in lodging of the case about the incident. The occurrence took place on 18.10.1998 in the night. The present complaint was filed only in the morning of 21.10.1998. The delay was also not explained properly. Para 05, the delay in lodging the FIR is fatal to the case of the prosecution.
(3) LAWS (GAU 2009 661) para 17 - it is not the number of days which is fatal to the prosecution but unexplained and unjustified delay in recording the statement of the material witness always goes against the prosecution.
6. Upon the hearing arguments advanced from the both side and the perusal of materials placed on record, following points arise for consideration:
1. Whether the prosecution proves beyond reasonable doubt that on 02032015 at 1130 am, within the limits of Subramanyapura Police Station, at the shop of PW1 situated at K.S.R.T.C Layout, Subramanyapura Main road, Bengaluru, the accused No.1 and 2 in furtherance of common intention had illegally trespass and thereby have committed the offence punishable under section 448 readwith Section 34 Indian Penal Code?
5 CC.No:14401/20152. Whether the prosecution proves beyond reasonable doubt that on the above said date, time and place, accused No.1 and 2 in furtherance of common intention had abused PW1 in filthy language in order to provoke him to commit breach of public peace and thereby have committed the offence punishable under section 504 readwith Section 34 Indian Penal Code?
3. Whether the prosecution proves beyond reasonable doubt that on the above said date, time and place, accused No.1 and 2 in furtherance of common intention, accused No.1 and 2 gave a fist blow upon the face of P.W.1 and thereby have committed the offence punishable under section 323 readwith Section 34 Indian Penal Code?
4. Whether the prosecution proves beyond reasonable doubt that on the above said date, time and place, the accused No.1 and 2 in furtherance of common intention gave life threat to PW1 by committing an act of criminal intimidation so as to cause alarm in his mind and thereby have committed the offence punishable under section 506 readwith Section 34 Indian Penal Code?
5. What order?
7. The findings of this court to the above points are: Point No.1: In the Negative;
Point No.2: In the Negative;
6 CC.No:14401/2015
Point No.3: In the Negative;
Point No.4: In the Negative;
Point No.5: As per final order for the
following:
REASONS
POINTS NO.1 TO 4:
8. All points are interconnected to each other and they have taken up together for common discussion in order to avoid repetition of facts and evidence.
9. PW.1 is First Informant who has deposed that he knows the accused No.1 and 2 and he was lessee in their shop for the monthly rent of Rs.4,750/ by paying advance of Rs.50,000/. C.W.2 is his wife and he knows C.W.3 to 5. On 09/06/2014, P.W.1 made a payment of Rs.38,500/ to the accused No.1 through a cheque in respect of the lease of shop. The said building is in the name of the wife of the accused No.1. In the said shop, P.W.1 had put a xerox machine, computer and colour printer. There was an agreement in between the accused persons and P.W.1 to which accused persons did not affix their signature. P.W.1 paid the rent regularly for 6 months but the xerox machine was not in a working condition, hence the shop was closed. To purchase a new xerox machine, he had kept a sum of Rs.1,15,000/ in the cash box of the shop. On the date of incident in the morning at 11 30, the accused No.1 came with his uncle Panduranga Shetty and 7 CC.No:14401/2015 dragged out P.W.1 from the shop by holding his shirt collar and gave a fist blow on his face. Later the accused persons, closed the door of the shop and threatened with dire consequences that again if he came near the shop. Later he visited the Vanivilas Hospital for treatment. On 05/03/2015, he lodged first information to the Subramanyapura Police. Police visited the spot on 19/03/2015 and drew up the mahazar in the morning between 10 and 11. He has identified the accused No.1 and 2.
10. P.W.2 is the wife of P.W.1 has deposed that she knows accused No.1 and 2. Her husband was running a xerox business in the rented shop belonged to accused persons. To the said shop, her husband paid advance of Rs.50,000/ and was paying a rent of Rs.4,750/ per month. About 4 years back, in the morning at 9.00, when her husband was doing business, the accused persons dragged him out from the shop, abused him in the filthy language and caused assault to him. They had put lock to the shop and threatened with dire consequences to P.W.1.
11. P.W.3 and P.W.4 are the eye witnesses have deposed similar in line to that of P.W.2 that the accused persons abused P.W.1 in the filth language, caused assault and threatened with dire consequences by putting lock to the shop.
12. PW5 and 6 are the spot mahazar witnesses have deposed 8 CC.No:14401/2015 similar line to each other that in the month of March 2015 in the morning at 1000 police called them for the purpose of mahazar and drew up spot mahazar in the place of occurrence as shown by the PW1.
13. PW9 is the doctor has deposed that on 03/03/2015 in the afternoon at 0315,when she was on duty in the hospital, PW1 came to the hospital for treatment with a history of assault. After examination, she found abrasion of 2 x 2 cm on the right eyelid and 4 x 2 cm abrasion below the right eye. There was no damage to the eyesight. She has opined that the said injuries found on the person of PW1 are simple in nature.
14. PW10 is the doctor has deposed that on 03/03/2015 in the afternoon at 0240, when she was on duty in the hospital, PW1 was brought by B.J.Kishore Kumar to the hospital for treatment with a history of assault. After examination, she found tenderness upon back, right eye and also found reddish colour within the eye. She has opined that the injury No.1 and 2 found on the person of PW1 are simple in nature. Later she advised to examine the eye of P.W.1 by an ophthalmologist.
15. PW11 has deposed that as per the order of CW11, he went to trace the accused No.1 and 2 and found them at Maruthi Arcade. After taking them to his custody on 24042015, he produced them before C.W.11.
9 CC.No:14401/201516. PW7 has deposed that on 18032015, in the evening at 630, when he was in charge of police station, he received an information in writing from PW1. Later he registered the case in crime No.230/2015 and submitted the FIR to the court and to his superior Officers. On the very next day, he visited the place of occurrence and drew up the mahazar infront of CW2 and CW3 as shown by PW1 as per Ex.P2. Later he recorded the statement of CW2 to CW4. Later he handed over the records to the PW8.
17. PW8 has deposed that on 24042015, C.W.9 produced the accused No.1 and 2 before him. After obtaining the bail bond, he got released the accused No.1 and 2 by completing the arrest procedure. By completing the investigation, he has submitted the chargesheet against the accused No.1 and 2.
18. The learned Senior App has argued that P.W.1 was running a xerox business in the shop of accused persons for which he was paying monthly rent of Rs.4,750/. There was no document for lease but P.W.1 to 5 have specifically stated that the accused persons leased out the said shop in favour of P.W.1. The said evidence of P.W.1 to 5 is not discarded by the counsel for accused by eliciting contrary to their statement. The accused No.1 and 2 had caused assault and also used 10 CC.No:14401/2015 criminal force upon PW1 which is stated by the PW1 and is supported by the eye witnesses that are PW 2 to 5. The said evidence of eye witnesses is supported by the expert evidence of P.W.9 and 10 who are the doctors treated P.W.1. There is no reason to disbelieve the evidence of prosecution witnesses. In order to discredit the said prosecution witnesses, nothing contrary is elicited from their mouth. The delay in lodging the first information is not intentional one, but it is for a bonafide reason that PW1 enquired to lodge the complaint after incident. Hence, prays to convict the accused.
19. The counsel for the accused No.1 and 2 has argued that the first informant has stated that he was the tenant in the shop of accussed No.1 and 2 but he has stated in the examinationinchief that the said building was in the name of wife of the accused No.1. In this regard, the accused No.1 has entered into the witness box and has deposed the fact that his wife is the owner of the said building. There is no such agreement as stated by the first informant in respect of the lease of shop and he was not in possession of the said shop.
20. The counsel for the accused no.1 and 2 has argued that the name of the eyewitnesses is not stated in the first information. It is also not stated by the prosecution that why the eye witnesses came to the spot on the date of incident, as they were residing far away from the place of occurrence. The said PW2 is the wife of PW1 and Pw.3,4 are 11 CC.No:14401/2015 all interested witnesses. The first informant was treated by the doctors P.W.9 and P.W.10 but the said information of medico legal case was not given by the said doctors to the concerned police. There is delay in lodging first information which shows the consultation and deliberations for 16 days and first information is intentional one against the accused. Hence, prays to acquit the accused No.1 and 2.
21. The first aspect that has to be seen is that the accused No.1 and 2 made illegal trespass to the shop of PW.1. In this regard, the first informant has clearly stated in the first information as well as in his examinationinchief that he was a tenant in the shop of accused No.1 to which he was paying monthly rent of Rs.4,750/ and also has paid advance of Rs.50,000/.
22. PW1 has stated that on the date of incident the accused No.1 and 2 dragged him out from the shop and had put lock to the shop. P.W.1 has clearly stated that there was no agreement in writing with the accused for the lease of the shop where the incident took place. But he has stated that on 09/06/2014, he made a payment of Rs.38,500/ to the accused No.1 through a cheque. But no evidence is given to the investigation officer for the said payment as there was no agreement of lease in writing. Even the investigation officer has not examined any person who witnessed the agreement of lease in between P.W.1 and the 12 CC.No:14401/2015 accused No.1.
23. The accused No.1 is examined himself as D.W.1 and has stated that the shop was in the name of his wife. The said fact is supported by the P.W.1 who has stated in the examinationinchief that the building was in the name of wife of the accused No.1. The entire case of the P.W.1 that he was a tenant under accused No.1 but has not stated anything about the agreement in between the wife of the accused No.1 for the lease of said shop. In order to prove the trespass, the prosecution has to establish the possession of the first informant in respect of the shop. The investigation officer had not made effort to record the statement of the owner of the said building and not collected any documents to establish the ingredients of trespass. Except the oral evidence of P.W.1 to 5, there is no evidence on record to show that the P.W.1 was in possession of the shop in the name of wife of the accused No.1. When the prosecution has failed to prove the possession of the P.W.1 over the said shop, the question of deciding the illegal trespass made by accused No.1 and 2 does not arise. Hence, the prosecution has failed to prove the ingredients of Section 448 IPC.
24. P.W.1 has stated in the first information that accused No.2 and Panduranga Shetty entered his shop and gave a fist blow upon his face. But in the examinationinchief, P.W.1 has specifically stated that accused No.1 dragged him from the shop and gave a fist blow upon his 13 CC.No:14401/2015 face. In the medical certificate i.e., Ex.P.4 which was issued by the Ophthalmologist contains the name of three persons that are accused No.1, 2 and Panduranga Shetty. The Ex.P.5 was issued by the doctor who examined P.W.1 for the first time at 2.40 pm on 03/03/2015 does not contain the name of the persons who caused assault to P.W.1. On the combined reading of the above documents, the first informant has not stated name of accused No.1 in the first information and also in the medical certificate at Ex.P.5 but has stated only in the examinationin chief. The injured is not clear about the person who caused him assault by giving a fist blow. Even the eye witnesses that are P.W.2 to 5 have not stated the name of accused No.1 that he caused assault to the face of P.W.1. For the above said inconsistency, there is no explanation by the prosecution that when the name of accused No.1 does not find place in the first information, how the investigation officer made him as accused. Therefore, the version of prosecution creates doubt that accused No.1 gave a fist blow to P.W.1.
25. The incident took place on 02/03/2015, but the injured went to the hospital on 03/03/2015. There is no proper explanation by the prosecution that why the delay was caused to take treatment for the injuries upon the person of P.W.1. Nothing is elicited from the mouth of P.W.1, P.W.9 and P.W.10 for the delay in taking treatment by the injured. Even the said doctors had not intimated to the concerned police about the said medico legal case, as P.W.1 made statement before 14 CC.No:14401/2015 them that the injury was due to the assault.
26. P.W.10 has stated that on the back of P.W.1, she found tenderness. But there was no allegation of assault on the back of P.W.1 in the first information or in the examinationinchief of the injured. The prosecution has not offered any explanation for the said injury on the back i.e., stated by the P.W.10. The injury found on the person of P.W.1 and the medical certificate issued by PW.10 does not corroborate each other.
27. P.W.1 has stated that after taking the treatment in the hospital, on 05032015, he lodged the first information. In fact, the first information was lodged on 18/03/2015. But, there is no specific reason mentioned in Ex.P.1 that why the 16 days delay was caused for the delay in lodging first information by the PW1. The said delay is not explained by the prosecution by eliciting plausible explanation from the mouth of P.W.1 and P.W.7 during the course of examination. The said delay of 16 days would create doubt as there might be chances of consultation and deliberations. The three decisions relied by the counsel for accused in respect of delay in lodging first information are aptly applicable to the case on hand. Therefore, the delay in lodging of the first information of 16 days by PW1 is not properly explained by the prosecution which is fatal.
15 CC.No:14401/201528. The prosecution has examined PW1 who has not stated the abusive words in his chiefexamination and in his First Information i.e., Ex.P1 that were used to abuse him in filthy language. Mere utterance of the abusive words itself does not constitute an offence under Section 504 IPC. The prosecution has not explained that which were the abusive words and how the said abusive words gave provocation to PW1 to commit breach of public peace. There is no overtact of PW1 in response to the abusive words used by the accused No.1 and 2. Therefore, the prosecution has failed to prove the ingredients of Section 504 IPC.
29. Mere stating that the accused persons threatened with life does not itself amount to criminal intimidation U/Sec.506 IPC. When the prosecution has failed to prove that the accused persons created fear in the mind of PW1 by threatening with life, it cannot be held that the ingredients of Section 506 IPC are fulfilled. Therefore, the prosecution has failed to prove the alleged offences against the accused No.1 and 2. Hence, this court answer the Point No.1 to 4 in the Negative.
POINT NO.5:
30. In view of the above findings, this court proceed to pass the following order: :ORDER:
16 CC.No:14401/2015In exercise of powers conferred U/Sec.248(1) of Cr.P.C., the accused No.1 and 2 are hereby acquitted of the offences punishable U/Secs.,323, 448, 504 and 506 R/w Section 34 IPC.
The accused No.1 and 2 are set at liberty. Bail bonds of accused persons and surety stands continue till the 6 months as per the amended provision of 437(A) of Cr.P.C.
(Dictated to the stenographer online, typed on laptop, then corrected by me and pronounced in open court on this the 29th day of September 2020).
(Aravind N.V.) II A.C.M.M., Bengaluru.
:ANNEXURE:
LIST OF WITNESSES EXAMINED FOR PROSECUTION: PW.1 Sri. Subramanya Naidu S/o. Doreswamy Naidu;
PW.2 Smt. Padma W/o Subramanya Naidu;
PW.3 Sri. Nandeesh S/o Venkataramanachari;
PW.4 Sri. Dileep Kumar S/o Narayana;
PW.5 Sri. Mahesh S/o Janu;
PW.6 Sri. Manjunath S/o Rajanna;
PW.7 Sri. Narasimhaiah S/o Ramanjinaiah;
17 CC.No:14401/2015
PW.8 Sri. Arjun S/o Ravi;
PW.9 Dr. Chinmayee W/o. Guruprasad;
PW.10 Dr. Shylaja D/o. Doddalingaiah;
PW.11 Sri. Syed Musthafa S/o Syed Sujath Ali.
LIST OF WITNESSES EXAMINED FOR DEFENSE:
DW.1 Sri. Harinath S/o. S.R.Prabhu;
LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1 Complaint;
Ex.P.1(a) Signature of PW.1
Ex.P.2 Panchanama;
Ex.P.3 FIR;
Ex.P.3(a) Signature of PW.7;
Ex.P.4 Wound certificate;
Ex.P.4(a) Signature of the ophthalmologist;
Ex.P.5 Another wound certificate;
Ex.P.5 Signature of Casualty Medical Officer.
LIST OF DOCUMENTS MARKED FOR DEFENSE:
NIL
II A.C.M.M.,
Bengaluru.
18 CC.No:14401/2015
29/09/2020
(Judgment pronounced in the
open Court vide separate order)
:ORDER:
19 CC.No:14401/2015
In exercise of powers conferred U/Sec.248(1) of Cr.P.C., the accused No.1 and 2 are hereby acquitted of the offences punishable U/Secs.,323, 448, 504 and 506 R/w Section 34 IPC.
The accused No.1 and 2 are set at liberty.
Bail bonds of accused persons and surety stands continue till the 6 months as per the amended provision of 437(A) of Cr.P.C. II A.C.M.M., Bengaluru.