Bangalore District Court
By Vyalikaval Police Station vs A-1 Kumar S/O.A Venkatesh on 30 June, 2015
30IN THE COURT OF THE LXI ADDL.CITY CIVIL &
SESSIONS JUDGE: BANGALORE CITY
(CCH-62)
Dated : This the 30TH day of JUNE, 2015
-: PRESENT :-
SRI. N.P.KOPARDE B.A., LL. B.(Spl.)
LXI Addl.City Civil & Sessions Judge.
SESSIONS CASE NO.198/2013.
The State of Karnataka
Complainant:
By Vyalikaval Police Station,
Bangalore.
Reptd. by Public Prosecutor,
City Civil Court Complex,
Bangalore.
V/s.
ACCUSED : A-1 Kumar s/o.A Venkatesh, 31 yrs,
R/o.No.16/3, 17th Main, J.C.
Nagar, Kurubarahalli,
Bangalore-86.
A-2 Raghuraj Rathod s/o.Banavalilal
Rathod, 20 yrs, Sumakhli,
Oraallapura, Mureja District.
2 S.C.No.198/2013
1. Date of occurrence of 07-05-2012
offence
2. Date of report of 15-05-2012
offence
3. Date of Arrest of 14-05-2012
accused
4. Commencement of trial 22.03.2013
5. Closing of trial 12.09.2014
6. Name of the Sri Subramani
complainant
7. First information 14.05.2012
report reached to the 11.00 A.M.
Magistrate
8. Offences complained U/s.342, 363, 307
of r/w.34 of IPC.
9. Opinion of the Judge Accused Nos.1 and 2
are not found guilty
10. Sentence or order Accused Nos.1 and 2
are acquitted as per
the Judgment
J U D G M E N T
The Sub-Inspector of Police Vyalikaval Police Station, submitted charge sheet against the accused for the offences punishable U/s. 342, 363, 307 r/w.S.34 IPC. 3 S.C.No.198/2013
2. The brief facts of the case of the prosecution are as under :
That on 07-05-2012 at about 8.30 a.m. the accused persons with past enmity between accused No.1 and the complainant-Sri Subramanya in respect of property. The accused in furtherance of their common intention kidnapped the complainant while he was going in front of a shop in Sheshadripuram within the jurisdiction of Vyalikaval Police Station on a Motor-cycle of accused No.1 bearing No.KA-04-HB-3095 and took the complainant to a shed behind Ledge Apartment in Jakkur village Yelhanka. Then the accused tied the hands and legs of the complainant by level pipe and wrongfully confined him in the shed and assaulted him by hands and tried to strangulate the complainant by level pipe and caused injury on his cheek by knife and attempted to commit murder of the complainant. Then at about 6.00 p.m. the complainant told the accused No.1 that someone has to pay him Rs.15,000/- and asked the accused to recover the said amount of Rs.15,000/- and then he would pay 4 S.C.No.198/2013 commission. For that accused No.1 that he would pay Rs.5,000/- towards commission he would do that work, then accused No.1 took him to pipeline road, where the accused No.1 searched for Ghanashyam and he was not traced him, then accused No.1 left complainant near the house of Ghanshyam and went away from the spot, thereafter, the complainant went to K.C.General Hospital took treatment and on 13.5.2012 at about 8.00 p.m. he lodged complaint before the Police, on the basis of which, the Police registered case in Cr.No.73/2012 for the offences punishable U/s.143, 363, 307 r/w.149 of IPC. The Police after completion of investigation, submitted charge sheet to the Court for the offences punishable U/s.342, 363, 307 r/w.34 of IPC.
3. On receipt of the charge sheet the committal Court i.e. 8th ACMM, Bangalore took cognizance of the offences cited therein against the accused. The prosecution papers were furnished to accused, since the offence punishable U/s.307 of IPC is exclusively triable by the court of Sessions. The committal Court committed 5 S.C.No.198/2013 the case to Hon'ble Prl.City Civil & sessions Judge, Bangalore U/s.209 of Cr.P.C., who inturn registered the case in S.C.No.198/2013 and please to makeover the case to this court for disposal in accordance with law.
4. After receipt of the records, after hearing the prosecution and learned Counsel for the accused, charge U/s.342, 363 and 307 r/w.34 of IPC was framed, readover and explained to the accused, the accused pleaded not guilty and claimed for trial.
5. The prosecution in order to prove its case examined in all 12 witnesses out of 19 witnesses as P.ws.1 to 12 and got marked 18 documents at Exs.P.1 to P.18 and M.Os.1 to 7. The evidence of C.Ws.16, 17 and 18 was recorded. Inspite of sufficient opportunity given to the prosecution, the concerned Police, failed to secure the presence of C.Ws.7 to 10, so the prayer of the prosecution for re-issue NBW to those witnesses was rejected and evidence of the prosecution was taken as closed. After closure of the prosecution evidence, I examined the accused U/s.313 of cr.P.C., so as to enable 6 S.C.No.198/2013 them to explain the circumstances appearing against them, but the accused did not choose to lead any defence evidence on their behalf.
6. I heard the arguments on both sides and perused the materials placed on record.
7. The following points arise for my consideration :-
1. Whether the prosecution proves beyond all reasonable doubts that on 07.05.2012 at about 8.30 a.m. the accused in furtherance of their common intention kidnapped the complainant with an intention to commit murder of him from Sheshadripuram and thereby committed an offence punishable U/s.363 r/w.34 o IPC?
2. Whether the prosecution proves beyond all reasonable doubts, that on the above said date, time and place, in furtherance of their common intention, the accused persons kidnapped the complainant and wrongfully confined him in a shed situated behind Ledge Apartment Jakkur village Yalahanka by tying hands and legs by level pipe and 7 S.C.No.198/2013 thereby committed an offence punishable U/s.342 r/w.34 of IPC?
3. Whether the prosecution proves beyond all reasonable doubts, that on the above said date, time and place, in furtherance of their common intention, the accused No.1 assaulted on the complainant by hands and tried to kill him by strangulating his neck by level pipe and caused injury on cheek by knife with an intention of causing his death and thereby committed an offence punishable U/s.307 r/w.34 of IPC?
4) What order?
8. My findings on the above said points are as under:
Point No.1 : In the negative.
Point No.2 : In the negative,.
Point No.3 : In the negative.
Point No.4 : As per final order,
for the following :
8 S.C.No.198/2013
R E A S O N S
9. Point Nos.1 to 3:- In order to avoid repetition of facts and since the above points are interlinked with each other, I would like to discuss all points together.
Out of 12 witnesses examined by the prosecution, P.w.1 Orialal is an attestor of the spot panchanama. P.w.2 Ghouse is an alleged witness. P.w.3 Subramnya is the complainant. P.w.4 Pramoda is an attestor of the spot panchanama. P.W.5 Ravi is the son of complainant. P>W.6 Kishore Kumar is the another son of the complainant. P.w.7 Srinivasa is the alleged eye witness. P.W.8 Pushparaj is another eye witness to the incident. P.w.9 Smt.Fatima is circumstantial witness and neighbor of the complainant. P.w.10 Shakila is neighbor of the complainant and another circumstantial witness. P.w.11 Fayaz is neighbor of the complainant and another circumstantial witness. P.W.12 Nagaraj the PSI is I.O., who conducted the investigation and submitted charge sheet to the Court.
9 S.C.No.198/2013
10. P.W.1 Orilal and P.W.4 Pramod are spot panchas who have turned hostile to the prosecution and denied the suggestion of learned public prosecutor that on 13.5.2012 the Police called them to Sheshadripuram Main Road in front of United Shop conducted the spot panchanama as per EX.P.1 and on 14.9.2012 the police called them to police station and the Police seized Motor-cycle No.KA- 04-HB-3095, conducting seizure panchanama as per Ex.P.2, and they further denied the suggestion that the Police called them to a shed situated at Arkavathi Layout in Sy.No.6, near a building which was under construction and conducted panchanama as per Ex.P.3, and seized one knife, pillow, two pieces of level pipe, two whisky bottles i.e. M.Os.1 to 7.
11. P.W.2 Ghouse, P.W.7 Srinivas and P.W.8 Pushparaj are the alleged eye witnesses who said to have seen the accused kidnapping the complainant from Sheshadripuram Main Road towards Bellary Road. These witnesses have turned hostile to the prosecution and denied the suggestion of learned public prosecutor that, 10 S.C.No.198/2013 on 7.5.2012 at 8.30 a.m. the accused quarrelling with complainant kidnapped him on a motor-cycle bearing No.KA-04-HB-3095 towards Bellary Road and accordingly gave statement before the Police as per Ex.P.4, P.5, P.7, P.8, P.9 and P.10 respectively.
12. P.W.9-Smt.Fathima, P.W.10-Smt.Shakhila and P.W.11 Fiyaz the neighbours of the complainant have also turned hostile to the prosecution and denied the suggestion that, the accused No.1 on 1.5.2012 at about 10.00 A.M. came near the house of the complainant and quarreled with him and then after one week they came to know that the accused kidnapped the complainant and kept him under confinement in a shed at Yelahanka and in that regard the complainant lodged complaint before the Police. They further denied the suggestion that, accordingly, they gave statements before the police as per Ex.P.11, P.12 and P.13 respectively. So the evidence of P.W.1, P.w.2, P.W.7, P.W.8, P.W.9 and P.W.10 is in no way helpful to the prosecution. So the evidence of P.W.3 Subramani the complainant, P.W.5 Ravi, P.W.6 11 S.C.No.198/2013 Kishorekumar, P.W.12 Nagaraj P.I. alone is left for my consideration. So far as the evidence of P.W.5 and P.W.6 is concerned they are the sons of complainant. They deposed as to there is a quarrel between the accused No.1 and his father in respect of house property. That on 1.5.2012 at about 5 p.m. the accused No.1 had come to their house by that time, the accused No.1 was asked by their father Subramani to leave the space which was to be given to him for that, the accused quarreled with their father and went away threatening him to do whatever he could do. They further stated that, on 7.5.2012 at about 8.30 a.m. their father was going to his brother's shop at Sheshadripuram Main Road, by that time, the accused No.1 and another kidnapped him on a motor-cycle and confined him in a shed at Yelahanka and tried to kill him by strangulating with level pipe and pillow and then they left his father in pipeline road at about 8.30 p.m. and their father on 13.5.2012 lodged complaint before the police. They stated that this fact came to their knowledge from their father. So from the evidence of 12 S.C.No.198/2013 these witnesses it becomes clear that, they are not the eye witnesses to the incident and their evidence is only a hearsay evidence.
14. P.W.3 the complainant stated in his evidence that, there is a quarrel in respect of house property in between him and father of accused No.1 and in that regard some quarrels took place between them. On 1.5.2012 when the accused No.1 had come near his house, by that time, he asked the accused No.1 to call his father as he wanted to talk with him, for that, the accused No.1 told that whatever he wanted to talk, he should talk with him, because he was having responsibility of the house and accused No.1 went away saying that he could do whatever he wanted to do. On 7.5.2012 when he was going to the shop of his son at Sheshadripuram Main Road, Matador stand, by that time, 4-5 persons came there and assaulted him by hands, then accused No.1 came on a pulsor Bike and forcibly made him to sit on bike alongwith another accused and took him towards Yelahanka and confined him wrongfully in a shed near under constructed 13 S.C.No.198/2013 apartment, tied his hands and legs by level pipe and gave original choice Brandy to him and he himself poured brandy in his mouth and gave a beedi to him then, putting the pipe over the neck and pressed, but the pipe was cut, then he pressed the pillow on his face so as to kill him and thereafter cut his banian by knife and caused cut injury on chin, He further stated that, at about 9.30 p.m. he told the accused No.1 that one GhanaShyam was to pay Rs.15,000/- to him and asked the accused No.1 to get it recovered, for that accused asked as to whether he would pay Rs.5,000/- as commission, when he accepted for that, the accused No.1 untied the pipe from hands and legs and took him near the shop of Ghanashyam and went away from the spot saying that, he would come after some time, and he would bring Ghanshyam, by that time, his sons and his brother's sons took him to K.C.General Hospital and where he took treatment. He further stated that since the accused is his younger brother's son, he waited for some days, so that, the matter may be compromised in panchayat and when they did not heed for 14 S.C.No.198/2013 compromise, lodged complaint on 13.5.2012 before Vyalikaval Police. From the evidence of this witness, it appears that he alleged against the accused that, they wrongfully confined him in a shed and attempted to commit murder of him. But on perusal of evidence it becomes clear that if at all the accused No.1 was intended to kill the complainant, he had got every opportunity of killing him, because he was having a knife, a pillow and level pipe. He could have easily killed the complainant either by stabbing with knife or by strangulating him by level pipe or by stopping his breath by pressing pillow on his face, but nothing such acts have been made by the accused. It was not necessary for the accused to supply the complainant with brandy, tea and beedi. If at all the complainant was assaulted by the accused No.1 certainly it could have been reflected in wound certificate i.e. Ex.P.18. If at all the accused assaulted the complainant such injuries such as abrasions incised wound or laceration etc. could have been found on the body of the complainant. But in Ex.P.18, it is mentioned that the 15 S.C.No.198/2013 complainant sustained a superficial abrasion over the right leg and which is simple in nature. So the evidence of P.W.3 does not inspire confidence in the mind of the Court. The explanation given by the complainant with regard to filing of complaint after six days is not proper. It is unbelievable that he waited for seven days, that the accused may come for compromise. Since there is long standing enmity between the complainant and accused No.1 in respect of immovable property. The evidence of the complainant and his sons P.Ws.4 and 5 is not trust- worthy. Evidence of these witnesses is not in a position to inspire the confidence in the mind of then Court. If the incident was taken place as averred by the prosecution certainly other witnesses who said to be eye witnesses in this case could have supported the case of the prosecution. So far as the evidence of P.W.12 is concerned, is a Police official interested in securing the conviction of the accused, and his interested testimony, is not safe to be relied upon in the absence of independent, consistent and corroborative testimony. P.W.12 deposed 16 S.C.No.198/2013 in accordance with investigation conducted by him. So, from my above discussion, I am constrained to hold the prosecution has utterly failed to prove the guilt of the accused beyond all reasonable doubts. Accordingly, I answer point No.1 to 3 in negative.
11. Point No.3:- For the fore going reasons and my finding on above point No.1 to 3 in the negative, extending the benefits of doubts to the accused persons, I proceed to pass the following:-
O R D E R Acting U/s.235(1) Cr.P.C. I do hereby acquit accused Nos.1 and 2 for the offence punishable under Sections 342, 363, 307 r/w.34 of Indian Penal Code.
The bail bonds and surety bonds of accused Nos.1 and 2 are stands cancelled.
The accused Nos.1 and 2 are set at liberty.17 S.C.No.198/2013
MOs-1 to 7 being worthless, are ordered to be destroyed, after the appeal period is over.
(Dictated to the Judgment-Writer, typed by her, corrected and then pronounced by me in the open Court on this the 30th day of June, 2015).
(Sri.N.P.KOPARDE) LXI Addl.City Civil & Sessions Judge, Bangalore.18 S.C.No.198/2013
ANNEXURES LIST OF WITNESSES EXAMINED FOR THE PROSECUTION :-
P.W.1 - Orilal P.w.2 - Ghouse P.W.3 - Subramani P.W.4 - Pramoda P.W.5 - Ravi P.w.6 - Kishore Kumar P.W.7 - Srinivasa P.W.8 - Pushparaj P.W.9 - Fatima P.w.10 - Shakhila P.w.11 - Fayaz P.w.12 - Nagaraj, PSI, Vyalikaval P.S.
LIST OF WITNESSES EXAMINED FOR THE DEFENCE :-
- NIL -
LIST OF DOCUMENTS MARKED FOR THE PROSECUTION :-
Ex.P.1 - Spot Mahazar
Ex.P.1(a) - Signature of P.W.1
Ex.P.1(b) - Signature of P.w.3
Ex.P.1© - Signature of P.w.4
Ex.P.1(d) - signature of P.w.12
Ex.P.2 - Seizure Mahazar of Motor-cycle
Ex.P.2(a) - Signature of P.w.1
Ex.P.2(b) - Signature of P.w.4
Ex.P.2© - Signature of P.w.12
Ex.P.2(d) - Signature of A-1
19 S.C.No.198/2013
Ex.P.3 - Seizure Mahazar
Ex.P.3(a) - Signature of P.w.1
Ex.P.3(b) - Signature of P.w.3
Ex.P.3© - Signature of P.w.4
Ex.P.3(d) - Signature of P.w.12
Ex.P.4 - Statement of P.W.2
Ex.P.5 - Further Statement of P.W.2
Ex.P.6 - Complaint
Ex.P.6(a) - Signature of P.W.3
Ex.P.7 - statement of P.W.7
Ex.P.8 - Further statement of P.W.7
Ex.P.9 - Statement of P.W.8
Ex.P.10 - Further statement of P.W.8
Ex.P.11 - Statement of P.W.9
Ex.P.12 - Statement of P.W.10
Ex.P.13 - Statement of P.W.11
Ex.P.14 - FIR
Ex.P.14(a) - Signature of P.w.12
Ex.P.15 - Voluntary statement of A-1
Ex.P.16 - P.F.
Ex.P.16(a) - Signature of P.w.12
Ex.P.17 - PF No.37/12
Ex.P.17(a) - Signature of P.w.12
Ex.P.18 - Wound certificate
Ex.P.18(a) - Signature of P.w.12
LIST OF DOCUMENTS MARKED FOR THE DEFENCE:-
-NIL-20 S.C.No.198/2013
LIST OF MATERIAL OBJECTS MARKED FOR THE PROSECUTION :-
M.O.1 - Knife
M.O.2 - Pillow
M.O.3 - Piece of Level Pipe
M.O.4 - Piece of Level Pipe
M.O.5 - Whisky Bottle
M.O.6 - Whisky Bottle
M.O.7 - Pulsor Motor-cycle
No.KA-04-HB-3095
LIST OF MATERIAL OBJECTS MARKED FOR THE DEFENCE :-
- NIL -
(N.P.KOPARDE) LXI Addl.City Civil & Sessions Judge, Bangalore.21 S.C.No.198/2013
Order pronounced in open Court vide detailed order passed separately.
O R D E R Acting U/s.235(1) Cr.P.C. I do hereby acquit accused Nos.1 and 2 for the offence punishable under Sections 342, 363, 307 r/w.34 of Indian Penal Code.
The bail bonds and surety bonds of accused Nos.1 and 2 are stands cancelled.
The accused Nos.1 and 2 are set at liberty.
MOs-1 to 7 being worthless, are ordered to be destroyed, after the appeal period is over.
(Sri. N.P.Koparde) LXI ACC & SJ