Bangalore District Court
(Represented By The Learned Senior App) vs No.4 Has Been Reported Dead on 31 December, 2021
1 CC 5888 of 2018
IN THE COURT OF XLI (41ST) ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
DATED THIS THE 31st DAY OF DECEMBER 2021
PRESENT
SRI S.S.BHARATH M.A. LL.M.,
ST
XLI (41 ) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BENGALURU
CRIMINAL CASE NUMBER 5888 OF 2018
BETWEEN
1. STATE represented by
Kormangala Police. ....COMPLAINANT
(Represented by the learned Senior APP)
AND
1. LOKESH.M S/o Munegowda.M,
Aged about 42 years,
R/at No.134, 1st Main Road,
1st E Cross, 1st Block,
Jakkasandra Extension,
Kormangala, Bengaluru.
2. RAKESH M.L. S/o Lokesh,
Aged about 20 years.
R/at No.134, 1st Main Road,
1st E Cross, 1st Block,
Jakkasandra Extension,
Kormangala,Bengaluru.
3. VICKY.M S/o Marappa,
Major,
2 CC 5888 of 2018
st
R/at No.132, 1 Cross,
1st Main Road, Jakkasandra,
1st Block, Kormangala,
Bengaluru.
4. PRASHANTH KUMAR B.R.
S/o Ramachandrappa,
Accused No.4 has been reported dead.
Hence case against A4 has already been abated.
5. VELU NAYAK S/o Murugappa,
Aged about 42 years.
R/at 1st Cross, Rangappa Garden,
near Ice factory,
Ejipura, Bengaluru.
(Case has been split against A5)
....ACCUSED
( A1 to A3 Represented by Sri.K.Prakash., Advocate)
KORMANGALA POLICE HAVE CHARGE SHEETED THE
ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 143, 147, 323, 354, 504, 506, 509, 427, 448
R/W SECTION 149 OF IPC.
AFTER COMPLETION OF ADJUDICATION, THIS CASE
COMING ON FOR JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING...
Offences alleged u/s : 143, 147,323, 354, 504,
506, 509, 427, 448
R/W Section 149 of IPC
Charge sheet filed on : 26022018
Trial commenced on : 21122021
Trial completed on : 21122021
Judgment date : 31122021
Total duration : DaysMonths Years
05 03 03
3 CC 5888 of 2018
JUDGMENT
1. Case of the prosecution is as under; It is alleged that all these accused with common object on 25/01/2018 at about 4.30 in the evening, trespassed inside the house property of PW1 bearing No.296, at 1st Block, 1st Main, Jakkasandra Extension. Thereafter they did damage the Carrom Board placed thereof. PW1 and 2 rushed to the spot. All these accused together started scolding PW02 using filthy language and they have put life threat on him. PW1 tried to pacify. These accused scolded him using filthy language and they did hold her hands knowingly well that she is a woman aged beyond 60 years and dragged her in the way they wanted and they outraged her modesty etc.
2. This court has taken the cognizance of the offences punishable under sections 143, 147, 323, 354, 504, 506, 509, 427, 448 R/w Section 149 of IPC. As per the directions of the court, CC.No.5888 of 2018 came 4 CC 5888 of 2018 to be registered. In compliance of section 207 of Cr.P.C, the copies of the charge sheet and other prosecution papers came to be supplied to the accused.
3. The court, after being satisfied as to existence of materials against the accused to proceed further in this matter, framed the charge, read over the same to the accused in Kannada language in which they claimed then to be conversant with. But they did not plead guilty and they claimed then, to be tried.
Therefore, this court issued summons to the witnesses.
4. Prosecution has examined CW1 as PW1 and CW4 as PW2 and the examination of the above witnesses have been done by way of VC as the learned Senior App and learned advcoate for accused both consented for it. They did not support the case of the prosecution. Keeping in mind, the nature of their 5 CC 5888 of 2018 evidence, this court has dropped other witnesses CW2, 3 and 5 to 12. They have been dropped to minimize the time consumption on adjudication of this matter as well, as PW1 and 2 being the material witnesses in this matter, did turn hostile to the case of the prosecution. Accordingly this court has dispensed with the statement of accused, which ought to have been recorded under section 313 of Cr.P.C., if any incriminating evidence would have been adduced by the prosecution against accused.
5. Heard the learned Sr.APP.
6. Heard the learned counsel for accused.
7. Following points arise for determination;
1) Whether the prosecution proves beyond reasonable doubt that on the aforementioned date, time and place, these accused have trespassed inside the house premises of PW1 illegally with a common object to trouble PW1 and 2 and 6 CC 5888 of 2018 therefore, their act amounts to an offence punishable under section 448 R/w Section 149 of IPC ?
2) Whether the prosecution proves beyond reasonable doubt that on the aforementioned date, time and place, after trespassing inside the house property of PW1 as above, the accused altogether have damaged the Carrom Board property of PW1 and she suffered monetary loss beyond Rs.50/ and therefore, their act shall be punished in accordance with section 427 R/w Section 149 of IPC ?
3) Whether the prosecution proves beyond reasonable doubt that on the aforementioned date, time and place, these accused together with common object have held the hands of PW1 knowingly well that she is a woman and they dragged her in the way they wanted and they behaved badly and their act outraged her modesty and therefore, they are liable to be punished as per section 354 R/w Section 149 of IPC ?
4) Whether the prosecution proves beyond reasonable doubt that on the aforementioned date, time and place, all these accused have assaulted both PW1 and 2 using their bare hands and they suffered pains and therefore, their act is liable to be punished for an offence punishable under section 323 R/w Section 149 of IPC ?
7 CC 5888 of 2018
5) Whether the prosecution proves beyond reasonable doubt that on the aforementioned date, time and place, these accused scolded both of them using filthy language with an intention to insult both of them knowingly well that their words would insult them and provoke them to breach the public peace and therefore, their act is liable to be punished as per section 504 R/w Section 149 of IPC ?
6) Whether the prosecution proves beyond reasonable doubt that on the aforementioned date, time and place,in the course of their assault as above, these accused have put life threat upon both PW1 and 2 asserting that they will be killed etc, and therefore their act is liable to be punished for an offence punishable under section 506 R/w Section 149 of IPC ?
7) Whether the prosecution proves beyond reasonable doubt that on the aforementioned date, time and place, in the course of their assault on PW1 and 2, accused have used such words and gestures on PW1 knowingly well that those gestures and words would insult the modesty of a woman and accordingly their act intruded upon her privacy and therefore, their act is liable to be punished for an offence punishable 8 CC 5888 of 2018 under section 509 R/w Section 34 of IPC ?
8) Whether the prosecution proves beyond reasonable doubt that on the aforementioned date, time and place, these accused with an intention to trouble PW1 and 2 have formed an unlawful assembly and they have committed the aforementioned offences on both PW1 and 2 and therefore, their act is liable to be punished for an offence stated in section 143 R/w Section 149 of IPC ?
9) Whether the prosecution proves beyond reasonable doubt that on the aforementioned date, time and place, these accused have formed an unlawful assembly with an intention to riot and they have committed aforementioned offences with common object by way of forming a wrongful assembly and therefore their act shall be punished in accordance with section 147 R/w Section 149 of IPC ?
10) what order ?
8. Above points have been answered as under; Points' no.01 to 09: In the Negative Point no.10: As per final orders for the following reasons...;
9 CC 5888 of 2018 REASONS The prosecution is duty bound to prove the guilt alleged as above against accused. The burden to prove the aspects stated herein above against the accused, heavily rests upon the prosecution.
The points aforementioned have been taken up for discussion together.
9. Points No.01 to 09; For the purpose of clarity this court deems it appropriate to extract the sections 141, 143, 146, 147, 149, 323, 354, 504, 506, 509, 425, 427, 448, 445, 442 and 441 of IPC;
Section 141 in The Indian Penal Code
141. Unlawful assembly.--An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is (First) -- To overawe by criminal force, or show of criminal force, 1[the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or (Second) -- To resist the execution of any law, or of any legal process; or (Third) -- To commit any mischief or criminal trespass, or other offence; or (Fourth) -- By means of criminal force, or show of criminal force, to any person, to take or obtain 10 CC 5888 of 2018 possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or (Fifth) -- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation.--An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.
Section 143 in The Indian Penal Code
143. Punishment.--Whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
Section 146 in The Indian Penal Code
146. Rioting.--Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.
Section 147 in The Indian Penal Code
147. Punishment for rioting.--Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 149 in The Indian Penal Code
149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.--If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be 11 CC 5888 of 2018 committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
Section 323 in The Indian Penal Code
323. Punishment for voluntarily causing hurt.-- Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 354 in The Indian Penal Code
354. Assault or criminal force to woman with intent to outrage her modesty.--Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 504 in The Indian Penal Code
504. Intentional insult with intent to provoke breach of the peace.--Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 506 in The Indian Penal Code
506. Punishment for criminal intimidation.-- Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.--And if the 12 CC 5888 of 2018 threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Section 509 in The Indian Penal Code
509. Word, gesture or act intended to insult the modesty of a woman.--Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
Section 425 in The Indian Penal Code
425. Mischief.--Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief". Explanation 1.--It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not. Explanation 2.--Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly.
13 CC 5888 of 2018 Section 427 in The Indian Penal Code
427. Mischief causing damage to the amount of fifty rupees.--Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 448 in The Indian Penal Code
448. Punishment for housetrespass.--Whoever commits housetrespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 445 in The Indian Penal Code
445. House breaking.--A person is said to commit "housebreaking" who commits housetrespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter described; or if, being in the house or any part of it for the purpose of committing an offence, or, having committed an offence therein, he quits the house or any part of it in any of such six ways, that is to say--
(First) --If he enters or quits through a passage by himself, or by any abettor of the housetrespass, in order to the committing of the housetrespass. (Secondly) --If he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building.
(Thirdly) --If he enters or quits through any passage which he or any abettor of the house trespass has opened, in order to the committing of the housetrespass by any means by which that 14 CC 5888 of 2018 passage was not intended by the occupier of the house to be opened.
(Fourthly) --If he enters or quits by opening any lock in order to the committing of the house trespass, or in order to the quitting of the house after a housetrespass.
(Fifthly) --If he effects his entrance or departure by using criminal force or committing an assault or by threatening any person with assault. (Sixthly) --If he enters or quits by any passage which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the housetrespass. Explanation.--Any outhouse or building occupied with a house, and between which and such house there is an immediate internal communication, is part of the house within the meaning of this section.
Section 441 in The Indian Penal Code
441. Criminal trespass.--Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".
Section 442 in The Indian Penal Code
442. House trespass.--Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "housetrespass". Explanation.--The introduction of any part of the criminal trespasser's body is entering sufficient to constitute housetrespass. 15 CC 5888 of 2018
10. In the course of trial PW1 and 2 deposed in the court that there were exchanges of words between them.
The accused did not put threat on them and none of them have assaulted and none of them have scolded them. Even in their cross examination, nothing much has been elicited by the learned Senior APP. 16 CC 5888 of 2018
11. Inspite of a serious case is being alleged by the prosecution against accused, the witnesses examined by the prosecution, did not support the case. They did turn hostile to the case of the prosecution and they have not deposed any incriminating aspects against accused herein. They have been consistent in deposing that there were some exchanges of words.
Accused did not assault him and did not put life threat and did not insult him etc. Therefore, nothing remains in the matter against accused. None of the ingredients present in the sections stated herein above is forthcoming in the evidence of the prosecution.
12. Learned Senior APP requested the court to punish the accused on the basis of the charge sheet materials.
But it is settled in law that if any case is alleged against accused by way of filing a charge sheet, the burden to prove the charge sheet contents beyond 17 CC 5888 of 2018 reasonable doubt, heavily rests upon the prosecution.
It is clear in this case for the foregoing reasons that the prosecution did fail to prove the contents of the charge sheet. Therefore, there is no impediment for the court to answer the above points in the Negative for want of incriminating evidence. Accordingly all the above points are hereby answered in the Negative.
13. Point No.10; The circumstances warrant the following operative portion for the foregoing reasons;
OPERATIVE PORTION Invoking section 248(1) of Cr.P.C, accused Nos.1 to 03 are hereby acquitted of the offences punishable U/s.143, 147, 323, 354, 504, 506, 509, 427, 448 R/w Section 149 of IPC.
The bail bonds and surety bonds of the accused Nos.1 to 03 will be in force till completion of 18 CC 5888 of 2018 the appeal period, thereafter, they shall stand cancelled.
Case against A4 is abated, as he is reported dead.
(Dictated to the stenographer, typed by him, corrected by me and then pronounced in the open court today, that is on 31122021) S.S.BHARATH XLI (41ST) ACMM, BENGALURU 19 CC 5888 of 2018 ANNEXURES List of witnesses examined on behalf of prosecution: PW.1 : Smt.Sunanda Bai PW.2 : Kishan Nayak List of documents marked on behalf of the Prosecution: Ex.P1 : Complaint Ex.P1(a) : Signature of PW1 Ex.P2 : Mahazar Ex.P2(a) : Signature of PW1 List of witnesses examined on behalf of accused : NIL List of documents marked on behalf of the accused : NIL S.S.BHARATH XLI (41ST) ACMM, BENGALURU