Bangalore District Court
State By Siddapura Police Station vs ) Santhosh on 20 September, 2021
IN THE COURT OF THE LII ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-53)
Dated this the 20th day of September, 2021
PRESENT
Sri.B.G.Pramoda, B.A.L., LL.B.,
LII Addl. City Civil & Sessions Judge,
Bangalore.
S.C. No.1118/2013
Complainant : State by Siddapura police station,
Bangalore.
(By learned Public Prosecutor)
-V/S-
Accused : 1) Santhosh
S/o Chandrappa,
Aged about 22 years,
R/at No.199, Dayananda Slum,
1st Block, Jayanagara,
Bengaluru.
(Accused No.1)
2) Irfan Pasha @ Rizwan
(As per order dated 27.12.2019,
split up case against Accused No.2
is registered as SC.195/2020 on
30.01.2020)
(A.1 By Sri.H.C.S., Advocate)
1. Date of commission of offence 15.03.2013
2. Date of report of occurrence 15.03.2013
3. Date of commencement of 25.02.2021
evidence
4. Date of closing of evidence 12.08.2021
2 S.C.No.1118/2013
5. Name of the complainant Sri.Venkatesh
6. Offences complained of S.307 r/w. S.34 of IPC
7. Opinion of the Judge As per final order
8. Order of sentence Offence not proved
JUDGMENT
The Police Sub-Inspector of Siddapura police station has filed the charge sheet against the accused No.1 and 2 before the 2nd ACMM Court, Bangalore, alleging the offence punishable u/s.307 r/w. S.34 of IPC.
2. It is alleged in the charge sheet that there was old enmity between Accused No.1 and CW.1-Venkatesh. On 15.03.2013 at about 8.50 p.m., when C.W.1 was purchasing vegetables in Guttepalya Main Road, the Accused No.1 and others are have from his back side and Accused No.1 by keeping in mind about old enimity with C.W.1 had assaulted C.W.1 with Long and Accused No.2 assaulted C.W.1 with Club on his head and other parts of the body and thereby they have attempted to commit murder of C.W.1.
3. After filing of the charge sheet, the learned 2 nd ACMM Court, Bangalore, took cognizance for the offence 3 S.C.No.1118/2013 punishable u/s.307 r/w. S.34 of IPC against Accused No.1 and 2 and registered criminal case in C.C.No.11647/2013 against the Accused No.1 and 2.
4. Accused No.1 and 2 were arrested by the complainant police during the investigation stage itself. On production of accused before Learned Magistrate, the Learned Magistrate had complied the mandatory provisions of Sec.207 of Cr.P.C., by furnishing the copy of charge sheet and other papers annexed with the charge sheet to Accused No.1 and 2. Since the alleged offence which is punishable u/s.307 of IPC is exclusively triable by the court of Sessions, the Learned Magistrate acting u/s.209 of Cr.P.C., committed the case for trial to this court.
5. After committal of the case to this court SC.No.1118/2013 was registered. Accused No.1 was produced before the court from judicial custody. During the trial of the case, Accused No.2 was granted regular bail. Thereafter, the Accused were heard on the charge. Since there are sufficient prima facie materials in the 4 S.C.No.1118/2013 charge sheet to proceed with trial against the accused for the offence punishable u/s.307 r/w. Sec.34 of I.P.C., charge was framed for the said offence and read over and explained to the accused in the language known to them. The accused pleaded not guilty and claimed to be tried. Then, the matter was posted for evidence of the prosecution.
6. The prosecution in order to bring home the guilt of the accused has got examined 5 witnesses as P.Ws.1 to 5. The prosecution has produced 8 documents on its behalf and got them marked as Ex.P.1 to P.8. The prosecution has produced 2 material objects and got them marked as M.Os.1 and 2 and closed its side. Thereafter, the matter was posted for recording the statement of the accused u/s.313 of Cr.P.C.,
7. It is to be noted hear that during the trial of the case, Accused No.2 did not appeared before court on many hearing dates and his presence was also not secured inspite of issuance of warrant. As such, the case against Accused No.2 was ordered to be split up. Split 5 S.C.No.1118/2013 up charge sheet was also ordered to be filed. As such, on 30.01.2020 split up charge sheet was filed against Accused No.2 and separate SC.No.195/2020 was registered against Accused No.2. The statement of Accused No.1 u/Sec.313 of Cr.P.C., alone was recorded.
8. All the incriminating evidence appearing against accused in the evidence of P.W.1 to 5 were read over and explained to the accused in the language known to him. Accused No.1 has denied all the incriminating evidence appearing against him. Accused No.1 has submitted that he has no defence evidence. Hence, the matter was posted for arguments.
9. Heard the arguments of Learned counsel for the Accused No.1 and Learned Public Prosecutor.
10. Perused the charge sheet, oral and documentary evidence adduced on behalf of the prosecution and other materials available on record.
11. Having done so, the following points will arise for my consideration :
6 S.C.No.1118/2013
(1) Whether the prosecution proves beyond all reasonable doubt that the Accused No.1 in furtherance of common intention with Accused No.2 has assaulted C.W.1-
Venkatesh with Long and Accused No.2 assaulted C.W.1 with Club on his head, hand and all over the body on 15.03.2013 at about 8.50 p.m. near vegetable market situated on Guttepalya Main Road having knowledge that if he did so it will cause the death of C.W.1 and thereby attempted to commit the murder of C.W.1 and committed the offence punishable u/Sec.307 r/w Sec.34 of IPC?
(2) What order?
12. My findings on the above points are as under:
(1) Point No.1 .. In the Negative
(2) Point No.2 .. As per final order
for the following:
REASONS
13. Point No.1 :- It is the case of the prosecution that there was old enmity between Accused No.1 and CW.1-Venkatesh. On 15.03.2013 at about 8.50 p.m., when C.W.1 was purchasing vegetables in Guttepalya 7 S.C.No.1118/2013 Main Road, the Accused No.1 and others have came from his back side and the Accused No.1 by keeping in mind about old enimity with C.W.1, had assaulted C.W.1 with Long and Accused No.2 assaulted C.W.1 with Club on his head and other parts of the body and thereby they have attempted to commit murder of C.W.1.
14. In order to prove the aforesaid allegations, the prosecution has examined in all 5 witnesses as P.W.1 to P.W.5. Among them, P.W.1 is the first informant and victim. P.W.2 is eyewitness. P.W.3 and 5 are the Investigating Officers. P.W.4 is doctor who has treated the victim. Now, let us examine the evidence of aforesaid prosecution witnesses in order to adjudicate whether the prosecution has proved the alleged charge against the accused beyond reasonable doubt or not.
15. P.W.1 in his examination-in-chief has not deposed anything about the commission of alleged offence by Accused No.1 against him. He has not stated anything about the Accused No.1 beating him with Long and Accused No.2 beating with Club. He has not 8 S.C.No.1118/2013 deposed anything about the Accused No.1 and 2 attempting to commit his murder. He also not identified the club and long alleged to have been seized by the police in this case. P.W.1 in his examination-in-chief has deposed that he do not know about the contents of Ex.P.1/Complaint and he has not given Ex.P.1 to the police. P.W.1 has deposed that he had put his signature on Ex.P.1 in the year 2013 as per request of the police. Hence, P.W.1 treated as hostile and he was cross- examined by the Learned Public Prosecutor.
16. But nothing has been elicited during the course of cross-examination of P.W.1, in order to elicit that on 15.03.2013 at about 9.00 p.m. on Guttepalya Main Road, infront of Dilip Medical Store, when he was purchasing the vegetables, the Accused No.1 and 2 was assaulted him with Long and Club and they have attempted to commit his murder. Further nothing has been elicited during the course of cross-examination of P.W.1 to prove that he has given complaint as per Ex.P.1 to the police by alleging that the accused have attempted 9 S.C.No.1118/2013 to commit his murder. Further nothing has been elicited during the course of cross-examination of P.W.1 to prove that he was present at the time of mahazar and he has shown the Long and Club to the police which were alleged to have been used by the accused for commission of alleged offence. As such, the evidence of P.W.1 is not helpful to the prosecution to prove the alleged charge against the accused.
17. P.W.2, the eyewitness to the alleged incident and mahazar witness, has also not supported the prosecution case. He has not deposed anything about conduct of mahazar in his presence and seizure of M.O.1 and 2. P.W.2 in his chief-examination has deposed that police have took his signature on Ex.P.2/mahazar in the police station. He has also stated in his chief- examination that he has not given any statement before the police about the incident. Hence, P.W.2 was treated as hostile and he was cross-examined by Learned Public Prosecutor. But nothing has been elicited during the course of cross-examination of P.W.2 to prove that he has 10 S.C.No.1118/2013 witnessed commission of alleged offence by the accused on 15.03.2013 at about 8.50 p.m. on Guttepalya main road. Further nothing has been elicited during the course of cross-examination to prove that on 16.03.2013, in between 7.00 to 7.45 a.m., police have conducted spot mahazar in his presence and in the presence of C.W.3 and 6 and police have seized M.O.1 and 2 from the said place which were shown by C.W.1. Further nothing has been elicited during the course of cross-examination to prove that he has also put his signature on M.O.1 and 2. He has denied all the suggestions put to him about prosecution case and also denied the suggestions that he has given statement about the alleged incident. Hence, the evidence of P.W.2 is not helpful to the prosecution to prove the commission of alleged offence by the accused.
18. P.W.4-Doctor, in his examination-in-chief has deposed that on 15.03.2013 on 10.20 p.m. he has examined P.W.1 with the history of assault. He has further deposed that P.W.1 had sustained incised wound over left occipital behind left ear and over palmar aspect 11 S.C.No.1118/2013 of left middle finger and in between 2 nd and 3rd finger. P.W.4 has further deposed in his examination-in-chief that he has given the wound certificate as per Ex.P.4 and further deposed that the aforesaid injuries are simple in nature and may be caused if assaulted with M.O.1 and 2 weapons. P.W.4 in his cross-examination has admitted that the injuries mentioned in Ex.P.4 might occur if any person met with an accident.
19. P.W.5, in his examination-in-chief has deposed that he has receiving the information from P.W.1 as per Ex.P.1 and deposed about registering Cr.No.58/2013 against the accused on the basis of said information. He has also deposed about conducting of seizure mahazar as per Ex.P.2 and seizure of M.O.1 and 2 at the time of conducting spot mahazar. P.W.5 has also deposed about recording the statement of C.W.2 and 3. P.W.3 in his examination-in-chief has deposed that he has recorded the voluntary statement of Accused No.1 and 2. He has also deposed about obtaining the wound certificate of P.W.1. He has also deposed about completing the 12 S.C.No.1118/2013 investigation of the case and filing of the charge sheet against Accused No.1 and 2.
20. If the evidence of aforesaid witnesses examined on behalf of prosecution is perused, it could be seen that the complainant/victim himself has not supported the prosecution case. He has not stated anything about commission of alleged offence on him by the accused. He has not stated anything about the accused attempting to commit his murder on the alleged date, place and time by assaulting with M.O.1 and 2. Further one of the independent eyewitness examined on behalf of the prosecution, has also not stated anything about accused committing the alleged offence on P.W.1. Further he has also not deposed anything about conducting of spot mahazar and seizure of M.O.1 and 2. Since the informant/victim himself has not supported the prosecution case, the evidence of the Investigating Officer and doctor is not helpful to the prosecution to prove the guilt of the accused beyond reasonable doubt. The evidence of Investigating Officer about receipt of 13 S.C.No.1118/2013 Ex.P.1/Information and about conduct of spot mahazar and seizure of M.O.1 and 2 is not corroborated by the evidence of informant and mahazar witnesses. Further the allegations made in the charge sheet against the accused is also not corroborated by the evidence of the informant and eyewitness. Under these facts and circumstances, I am of the opinion that only on the basis of uncorroborated evidence of the doctor and Investigating Officer, it cannot be come to the conclusion that the accused has committed the alleged offence on P.W.1. The prosecution has failed to adduce the sufficient evidence to prove beyond reasonable doubt that Accused No.1 has committed the offence punishable u/Sec.307 of IPC against the P.W.1. Under these facts and circumstances, I am of the opinion that the Accused No.1 is entitled to get benefit of doubt with respect to commission of alleged offence. The prosecution has failed to prove beyond reasonable doubt that the Accused No.1 has committed the offence punishable u/Sec.307 14 S.C.No.1118/2013 r/w 34 of IPC. Accordingly, I answer Point No.1 in the Negative.
21. Point No.2: In view of my findings on point No.1, I proceed to pass the following:-
O RDE R Acting u/s.235(1) of Cr.P.C., the Accused No.1 is hereby acquitted for the offence punishable u/s.307 r/w Sec.34 of IPC.
The bail bond of accused No.1 and surety bond of Accused No.1 are hereby stands cancelled.
Since separate split up charge sheet against Accused No.2 bearing SC.No.195/2020 is pending, no order regarding disposal of M.O.1 and 2 is passed. The office is hereby directed to keep the said properties till disposal of S.C No.195/2020 or until further order of the Court.
Accused No.1 is set at liberty. Issue release intimation of Accused No.1 to jail authority, if he is not required in any other case.
(Dictated to the Stenographer, transcribed by her, corrected and then pronounced by me in the open court on this the 20th day of September, 2021).
(B.G.Pramoda) LII Addl. City Civil & Sessions Judge, Bangalore.15 S.C.No.1118/2013
A N N EXU RE Witnesses examined for the prosecution:
P.W.1 Venkatesh P.W.2 Ayyappa P.W.3 Mohan D. Patel P.W.4 Dr.Kumar P.W.5 Vijay R.
Documents marked for the prosecution :
Ex.P.1 Complaint Ex.P.1(a) Signature of P.W.1 Ex.P.2 Mahazar Ex.P.2(a) Signature of P.W.2 Ex.P.3 Statement of P.W.2 Ex.P.4 Wound certificate Ex.P.4(a) Signature of P.W.3 Ex.P.4(b) Signature of P.W.4 Ex.P.5 FIR Ex.P.5(a) Signature of P.W.5 Ex.P.6 P.F.No.26/2013 Ex.P.6(a) Signature of P.W.5 Ex.P.7 & 8 Receipts
Witnesses examined for the Accused:
NIL Documents marked for the Accused:
NIL Material Objects marked for the prosecution:
M.O.1 Long MO.2 Club
LII Addl. City Civil & Sessions Judge, (CCH-53), Bangalore.16 S.C.No.1118/2013