Bangalore District Court
The State By vs Devaraju on 18 January, 2020
IN THE COURT OF THE LXX ADDL. CITY CIVIL
& SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU
CITY (CCH-71)
Dated this the 18 th day of January, 2020
:PRESENT:
Sri. MOHAN PRABHU,
M.A., LL.M.
LXX Addl. City Civil & Sessions
& Special Judge, Bengaluru.
S.C.No. 578/2017
COMPLAINANT: The State by
Yalahanka Police Station,
BENGALURU.
(By Special Public Prosecutor)
V/s
ACCUSED: 1. Devaraju,
S/o Paliniswamy,
Aged about 52 years,
R/at: Hosahalli Main Road,
Near Airtel Tower, Hunasamaranahalli,
Yelahanka, Bengaluru.
2. Tangavelu,
S/o Paliniswamy,
Aged about 29 years,
R/at: Hosahalli Main Road,
Near Airtel Tower, Hunasamaranahalli,
Yelahanka, Bengaluru.
3. Keshavamurthy,
S/o Paliniswamy,
Aged about 45 years,
R/at: Vidyanagar Cross, Jala Hobli,
Bengaluru North Taluk.
2 S.C. No. 578/2017
4. Ananda,
S/o Devaraj,
Aged about 20 years,
R/at: Hosahalli Main Road,
Near Airtel Tower, Hunasamaranahalli,
Yelahanka, Bengaluru.
5. Kumar,
S/o Somanath,
Aged about 23 years,
R/at: Vidyanagar Cross, Jala Hobli,
Bengaluru North Taluk.
6. Shanthamma,
W/o Devaraj,
Aged about 40 years,
R/at: Hosahalli Main Road,
Near Airtel Tower, Hunasamaranahalli,
Yelahanka, Bengaluru.
7. Lakshmamma,
W/o Paliniswamy,
Aged about 54 years,
R/at: Hosahalli Main Road,
Near Airtel Tower, Hunasamaranahalli,
Yelahanka, Bengaluru.
(By T. Govindaraju, Advocate)
1. Date of commission of offence: 01.08.2014
2. Date of report of occurrence : 01.08.2014
3. Date of commencement of : 10.04.2019
recording of evidence
4. Date of closing of evidence : 25.10.2019
5. Name of the Complainant : Shiva Shankar
3 S.C. No. 578/2017
6. Offences Complained of : Secs. 143, 147, 148, 504,
323, 324, 506-B of IPC r/w
149 of IPC.
7. Opinion of the Judge : Accused are convicted.
JUDGMENT
The PSI of Yalahanka Police Station has filed the Charge Sheet against the accused No.1 to 7 for the offences punishable under Sections 143, 147, 148, 504, 323, 324, 506B of IPC r/w 149 of IPC.
2. Based upon the first information lodged by CW.1 Shivashankar, Yalahanka Police registered the case in Crime No.217/2014 and sent FIR to the jurisdictional CMM Court, Bengaluru. The Investigation Officer/PSI of Yalahanka Police Station after completion of investigation has filed the charge sheet against the accused before CMM Court. This case which was pending before XLIV Addl. Metropolitan Magistrate, Bengaluru committed to Sessions and Special Court as per order dated 27.7.2017 u/s 323 of Cr.P.C., as counter case in Spl. C. No.497/2014 pending before II Addl. City Civil Court, CCH-17. After establishing this Exclusive Special Court, this 4 S.C. No. 578/2017 case and another counter case in Spl. C. No.497/2014 transferred to this court from II Addl. City Civil & Sessions Court and Special Court as per Notification ADM I (A) 599/17 dated 29.7.2017.
3. The accused No.1 to 7 are on bail.
4. The case of the prosecution is as under:
There was a dispute between Venugopal brother of accused No.1 and C.W.1 and CW.8 in respect of the setback area between their house. It is alleged that accused No.1 and 2 are agreed to leave the passage between these houses. That on 1.8.2014 at about 11 AM C.W.1 and CW.8 visited near their house in order to see whether accused No.1 and 2 were constructing the house by leaving setback area. When they went near that place and asked the accused No.1 and 2 why they without leaving the setback constructing the house, at that time accused No.1 and 2 picked up quarrel with CW.1 and CW.8 and abused CW.1 and CW.8 in filthy language as "ಬಬಬಳ ಮಕಕಳದ ಸಬಳ ಮಕಕಳ ನಬವ ಹಬಳದದತ ನವ ಮನ ಕಟಟಬಬಕ, ನವ ಯವ ಪಪಸಬಜಬಡಡವದಲಲ." At that time, when CW.1 and 8 requested the accused No.1 and 2 to leave passage as they required light 5 S.C. No. 578/2017 and air to their house. At that time the accused No.3 to 7 also joined with the accused No.1 and 2 and all the accused persons with common object picked up quarrel with CW.1 and 8 and abused them in filthy language and accused No.1 to 3 assaulted CW.1 and CW.2 with wooden stick and caused them injuries and accused No.4 to 7 by holding CW.1 and CW.8 pulled their clothes and assaulted them with hands and voluntarily caused them simple injuries. The accused No.1 to 7 criminally intimidate CW.1 and CW.8 by giving life threat to them.
5. Based on the first information statement lodged by CW.1 on 1.8.2014 at 14.15 hours, the Yalahanka Police registered the case in Crime No. 217/2014 and sent FIR to the court. The Investigation Officer visited to the place of incident and conducted the panchanama. The I.O., recorded the statement of the witnesses. The I.O., after collecting the wound certificate of CW.1 and 8 after collecting all the materials on completion of investigation has filed the charge sheet against the accused No.1 to 7 for the aforesaid offences. 6 S.C. No. 578/2017
6. On 24.10.2017, charges are framed against the accused No.1 to 7 for the offences punishable under Sections 143, 147, 148, 504, 323, 324, 506-B of IPC and R/w 149 of IPC for which accused pleaded not guilty and claimed to be tried.
7. During the trial, the prosecution has examined 9 witnesses as PW.1 to PW.9 and documents Ex.P1 to Ex.P3 are marked. M.O.1 to M.O.4 wooden stick are marked. During the course of cross-examination of PW.2 document Ex.D1 marked on the side of the defence.
8. On 16.11.2019 the statement of the accused as required u/s 313 Cr.P.C. is recorded by putting all the incriminating circumstances available in the prosecution evidence to them. The accused have denied all such circumstances and did not lead any defence evidence on their behalf.
9. I have heard the arguments of the Learned Special Public Prosecutor and the Learned Counsel for the accused. I have also perused the entire case papers.
7 S.C. No. 578/2017
10. The learned Spl.P.P. submitted that, P.W.1 Shiva Shankar is the informant and injured who has spoken in detail about the incident. P.W.2 Vijay Kumar is the injured and eye witness has clearly deposed about the injuries sustained by him and P.W.1 Due to assault made by accused and had also deposed about the accused persons abused them in filthy language and given life threat to them. P.W.3 is the mahazar witness has supported the case of the prosecution. P.W.4 K.M.Nagesh and P.W.5 Shantha Kumar, P.W.6 Ravi, P.W.8 Srinivas, P.W.9 Santhosh Kumar who are all eye witnesses have supported the case of the prosecution. P.W.7 Dr. Asma Tabassum who examined the injured P.W.1 Shiva Shakar issued Ex.P.3 wound certificate. He argued that from the evidence of P.W.1 to P.W.9, since the prosecution has established the charges framed against the accused beyond all reasonable doubt, Hence, the accused are liable to be convicted for the charges framed against them.
11. The learned counsel for the accused argued that, the ingredients of Sections 143, 147, 148, 504, 323, 324, 8 S.C. No. 578/2017 506-B of IPC r/w 149 of IPC are not proved by the prosecution. He argued that, the oral evidence of P.W.1 to P.W.6, P.W.8 and P.W.9 are not corroborating with each other. They are all interested witnesses. He submitted that, the oral evidence of P.W.1 and P.W.2 is also not corroborated with the medical evidence of P.W.7 and the document of Ex.P.3 wound certificate. He submitted that in Ex.P.3 wound certificate it is mentioned that, the alleged incident was occurred at 10.30 a.m., but the case of the prosecution is that, the incident was occurred at 11 a.m. He submitted that, there is dispute between the accused and P.W.1 and P.W.2 regarding the setback area. The document Ex.D1 endorsement issued by the PDO of Hunasemaranahalli Grama Panchayat would go to show that P.W.2 Vijay Kumar has already constructed the house measuring 31 feet X 41 feet even though the site measurement was 30 feet X 40 feet. He submitted that, the very document Ex.D.1 would go to show that P.W.2 by encroaching upon the property belongs to the Venugopal who is the brother of accused No.1 constructed the house. He argued that in order to counter blast the case registered 9 S.C. No. 578/2017 against P.W.1 and P.W.2 and others. P.W.1 has filed false complaint against the accused. He submitted that the prosecution has failed to establish the charges framed against the accused beyond all reasonable doubt. Hence, accused are liable to be acquitted from the said charges.
12. Upon hearing, the following points arise for my determination:-
POINTS
1) Whether the prosecution proves beyond all reasonable doubt that on 1.8.2014 at about 11 AM, at Hunasemaranahalli, Hosahalli Main Road, near Airtel Tower, near the house of P.W.1 the accused persons with common object formed an unlawful assembly with an intention to assault C.W.1 and C.W.8 armed with deadly weapons like wooden stick quarrelled with C.W.1 and C.W.8 and committed rioting and thereby committed the offence punishable u/s 143, 147, 148 r/w Sec.149 of IPC?
2) Whether the prosecution proves beyond all 10 S.C. No. 578/2017 reasonable doubt that on the above said date, time and place the accused persons being the members of the unlawful assembly in furtherance of their common object abused C.W.1 and C.W.8 in filthy language and insulted them and thereby committed the offence punishable u/s 504 r/w Sec.149 of IPC?
3) Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place the accused persons in furtherance of common object assaulted C.W.1 and C.W.8 with hands and voluntarily caused them simple injuries and thereby committed the offence punishable u/s 323 r/w Sec.149 of IPC?
4) Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place the accused persons of common object picked up quarrel with CW.1 and C.W.8 and accused No.1 to 4 assaulted C.W.1 and C.W.8 with wooden stick and voluntarily caused them simple 11 S.C. No. 578/2017 hurt and thereby committed the offence punishable u/s 324 r/w Sec.149 of IPC?
5) Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place the accused persons in furtherance of their common object criminally intimidated C.W.1 and C.W.8 by giving life threat to them and thereby committed the offence punishable u/s 506-B r/w Sec.149 of IPC?
6) What order?
13. My findings on the above points are as follows:
Point No.1:- In the affirmative Point No.2:- In the affirmative Point No.3:- In the affirmative Point No.4:- In the affirmative Point No.5:- In the affirmative Point No.6:- As per final order for the following REASONS
14. POINT No.1 to 5 :- Since these points are interlinked with each other, for the sake of convenience and 12 S.C. No. 578/2017 to avoid repetition of facts and evidence, I would like to take all these points together for consideration.
15. PW.1 Shivashankar is the complainant injured. PW.2 Vijaya Kumar is the victim and eye witness. PW.3 Rakesh is the mahazar witness. PW.4 K.M. Nagesh, PW.5 Shantha Kumar, PW.6 Ravi are the eye witnesses. PW.8 Srinivas, PW.9 Santhosh Kumar are the eye witnesses. PW.7 Dr. Asmath Tubussaum examined the PW.1 Shivashankar and issued Ex.P3 wound certificate. In this case, despite of sufficient opportunity given to the prosecution, the prosecution has not examined CW.12 Prashanth R. Vani, PSI/ Investigation Officer. Out of 12 witnesses cited in the charge sheet, nine witnesses have been examined on the side of the prosecution as PW.1 to PW.9 and documents Ex.P1 to P3 are marked.
16. PW.1 Shivashankar has deposed that he along with his brother PW.2 Vijaya Kumar residing in House No.386 situated at Sonapanahalli. His brother CW.8/PW.2 constructed one house at Hunasaemaranahalli at about 8 years back. He and his brother used to visit to that house. 13 S.C. No. 578/2017 One Venugopal, brother of the accused No.1 started to construct the house adjacent to the house of CW.8/PW.2 Vijaya Kumar at Hunasemaranahalli. 15 days prior to this incident on 1.8.2016, he along with his brother CW.8/PW.2 went near the house at Hunasemaranahalli and told the accused No.1 Devaraju to leave the setback area/passage while constructing the house, for which accused No.1 agreed. That on 1.8.2016 at about 11 am he along with CW.8/PW.2 Vijaya Kumar had been to Hunasemaranahalli, near the house of PW.8/PW.2. At that time they found accused No.1 constructing the house without leaving the space for passage. Hence, they asked the accused No.1 Devaraju why he is constructing the house without leaving the passage. At that time accused No.1 and 2 picked up quarrel with them by saying that they will construct the house as they like, who are you to ask. The accused persons quarrelled with them and abused them in filthy language as "Boli Makkala, Sule Makkala". At that time the accused No.3 to 7 also joined with accused No.1 and 2 and the accused persons by forming unlawful assembly, abused him and CW.8/PW.2 in filthy 14 S.C. No. 578/2017 language as "Sule Makkala, Boli Makkala". Accused No.1 to 3 by using the wooden stick assaulted him and his brother CW.8/PW.2 and caused them injuries. Due to assault made by the accused with wooden stick, he has sustained bleeding injuries. His brother CW.8/PW.2 has sustained body pain. He has deposed that accused No.4 to 7 assaulted him and his brother CW.8 with hands and pulled them by holding their clothes. The accused persons also given life threat to them by saying that they will do away their life if they again came to ask about passage. He has deposed that he along with his brother went to Yalahanka Police Station in motorcycle. The police by seeing the bleeding injuries taken him to Yalahanka Hospital for treatment. He after taking treatment in Yalahanka Hospital came to the police station at 2.30 to 3 PM and thereafter lodged the complaint against the accused as per Ex.P1. On the following of this incident, the police visited to the place of incident and conducted the panchanama as per Ex.P2 in presence of panchas as he was shown the place of incident to the police. The police seized four wooden sticks M.O.1 o M.O.4 used by the accused for commission of 15 S.C. No. 578/2017 offences. During the course of his cross-examination by the learned counsel for the accused, PW.1 has deposed that at the time of this incident, the house which was constructed by the accused No.1 at the stage of lintel level. He has denied the suggestion that he along with Vijaya Kumar and others criminally trespassed into the house of the accused and abused them in the name of caste and assaulted them and caused them injuries. He has denied the suggestion that even though he has not sustained any injuries in order to counter blast the case registered against them he has created wound certificate and lodged the false complaint against the accused. He has denied all other suggestions made to him.
17. PW.2 Vijaya Kumar has deposed that he has house at Hunasamaranahalli which has given on rent. Adjacent to his house the accused No.1 constructed the house of his brother Venugopal. 15 days prior to this incident he along with PW.1 Shivashankar came near the house situated at Hunasamaranahalli at that time they advised accused No.1 to construct the house by leaving the setback area for which accused No.1 agreed. Thereafter on 1.8.2014 at about 11 AM 16 S.C. No. 578/2017 when he along with PW.1 visited near his house at that time they found that the accused No.1 constructing house without leaving setback are. Hence, they asked accused No.1 and 2 why ehy were not left the space of passage at that time the accused No.1 and 2 picked up quarrel with them and abused them as "Soole Makkala, Boli makkala." Then the accused No.3 to 7 have also joined with the accused No.1 and 2 and abused him and his brother PW.1 as "Soole makkala, Boli makkala". The accused No.1 to accused No.3 took the wooden club and assaulted him and PW.1 with wooden clubs and accused No.4 to 7 assaulted him and PW.1 with hands and pushed them by holding their clothes and also abused them as "Loafer makkala" and assaulted them with hands. PW.2 has deposed that as the accused No.1 to 3 have assaulted his brother PW.1 with wooden stick on his head. PW.1 has sustained bleeding injuries. PW.2 has also deposed that the accused persons given life threat to them that they will take away their life if they once again came to ask regarding the setback area. After this incident he along with PW.1 went to Yalahanka police station in motor cycle. Then 17 S.C. No. 578/2017 the police by seeing the bleeding injuries took PW.1 and him to the Yalahanka Govt., Hospital for treatment. After taking treatment in the Yalahanka Government Hospital again they came to the police station and PW.1 lodged the complaint to the police. PW.2 has identified M.O.1 to M.O.4 by stating that those wooden clubs were used by the accused to assault them. During the course of his cross-examination by the learned counsel for the accused, PW.2 has denied the suggestion that in order to preserve their encroached area they have picked up quarrel with accused contending that accused No.1 and 2 have not left setback area. PW.2 has denied the suggestion that he along with his brother and others criminally trespassed into the house of the accused and abused accused in the name of caste and abused them in filthy language and abused them in the name of caste and abused them in filthy language and assaulted them with wooden club and given their life threat to them and caused them injuries. He has denied the suggestion that in order to counter blast the case registered against them, his brother PW.1 has created the wound certificate and has filed the false 18 S.C. No. 578/2017 complaint against the accused. PW.2 has denied all other suggestions made to him.
18. PW.3 Rakesh is the mahazar witness. PW.3 has deposed that on 2.8.2014, the police called him to the place of incident and conducted the panchanama as per Ex.P2 as the place of incident was shown by PW.1 Shivashankar and the police seized M.O.1 to M.O.4 in his presence. During the course of his cross-examination by the defence, PW.3 has denied the suggestion that he has put his signature on Ex.P2 in the police station. PW.3 Has denied all other suggestions made to him.
19. PW.4 K.M. Rakesh has deposed that in the month of August 2014 on first or second at about 11 AM when he was proceeding towards Hunasamaranahalli at that time he saw number of persons gathered near the house of PW.2 Vijaya Kumar, hence he went to that place. Accused No.1 Devaraju and accused No.2 Thangavelu came there. Then the PW.2 Vijaya Kumar asked the accused No.1 and 2 and others why they have not left setback area. At that time accused No.1 and 2 picked up quarrel with PW.2 Vijaya Kumar and abused 19 S.C. No. 578/2017 in filthy language as "Boli makkala". Along with PW.2 Vijaya Kumar PW.1 Shivashankar was also there in that place. Accused No.1 Devaraju and accused No.2 Thangavelu, Accused No.3 Keshavamurthy assaulted PW.1 and PW.2 with wooden club, then the accused Lakshmamma, Shanthamma, Anand, Kumar also came there and assaulted PW.1 Shivashankar, PW.2. Vijaya Kumar with hands and abused PW.1 and PW.2 in filthy language as "Bosudi nanna makkala". Accused persons also given life threat to PW.1 and PW.2. He and witnesses by name Ravi, Shantharaju, Srinivas pacified the quarrel. PW.4 has identified M.O.1 to M.O.4. During the course of the cross-examination by learned counsel for the accused PW.4 has denied all the suggestions made to him. He has denied the suggestion that M.O.1 to M.O.4 are created for the purpose of filing this case.
20. PW.5. Shantha Kumar has deposed that he was running the shop at Hosur Main Road corner. From his shop the house the house of CW.8/PW.2 is situated at a distance of 13 houses. On 1.8.2014 at about 11 AM he heard the quarrel sound near the house of CW.8/PW.2. Hence, he went to that 20 S.C. No. 578/2017 place. At that time PW.1 and 2 asked the accused Devaraju, Thangavelu why they are not left the setback while constructing the house. The remaining accused persons also joined accused No.1 and 2. Accused No.1 to 3 assaulted PW.1 and 2 with wooden club and remaining accused persons assaulted PW.1 and PW.2 with hands and pushed them. In this case, PW.5 partly chief-examined by learned Special Public Prosecutor on 25.9.2019. Further, chief-examination of PW.5 deferred at the request of learned Spl.P.P. Thereafter PW.5 not appeared before the court. Hence, the incomplete chief-examination of PW.5 who is also not tendered for cross- examination cannot be considered.
21. PW.6 Ravi is the eye witness to the incident supported the case of the prosecution. PW.6 has deposed that on 1.8.2014 at 11.00 AM when he was near the house of the accused then the accused No.1 and 2 quarrelled with Shivashankar (PW.1) and Vijaya Kumar (PW.2) and abused them in filthy language as "Boli makkala, Sule makkala". Then remaining accused Keshava, Anand, Shanthamma, Lakshmamma and one in all 5 accused came there. Accused 21 S.C. No. 578/2017 Ananda, Devaraju assaulted PW.1 and PW.2 with wooden club and remaining accused assaulted PW.1 and PW.2 with hands. Due to assault made by accused PW.1 has sustained bleeding injuries. PW.6 has deposed that he and one Arun and others pacified the quarrel. He has identified M.O.1 to M.O.4 wooden clubs. Since PW.6 is not fully supported the case of the prosecution at the instance of learned P.P., PW.6 treated as hostile and permitted to cross-examine. During the course of cross-examination by the learned PP PW.6 admitted the suggestion that accused No.3 to 7 by forming unlawful assembly came from the house of accused Devaraju. PW.6 admitted the suggestion that accused No.3 to 7 abused PW.1 and PW.2 in filthy language and assaulted them with hands. PW.6 admitted the suggestion that accused persons given life threat to PW.1 and PW.2. During the course of cross-examination by the learned counsel for the accused PW.6 has denied the suggestion that no such incident was occurred on 1.8.2014. He has denied the suggestion that PW.1, PW.2 and others quarrelled with accused and abused them in the name of caste and assaulted them and caused 22 S.C. No. 578/2017 them injuries. PW.6 has denied all other suggestions made to him.
22. PW.7 Dr. Asma Tabassum, Doctor of Yelahanka General Hospital has deposed that on 1.8.2014 at 12.20 PM injured Shivashankar was brought by PC No. 10641 Munendra of Yelahanka Police Station with history of assault. On examination of injures Shivashankar she found 3 cm fresh lacerated wound over vertex of scalp. This injury is simple in nature. She issued Ex.P3 wound certificate. The injury mentioned in Ex.P3 is possible with stick. During the course of cross-examination of PW.7 by the defence nothing is elicited from her mouth to discard her chief-examination version.
23. PW.8 Srinivas has deposed that on 1.8.2014 at 11.00 AM he had been to the house of his friend situated at Hunasamaranahalli. At that time he saw PW.1 and PW.2 who telling accused No.1 and 2 to leave the setback area while constructing the house. Then altercation taken between accused No.1, 2 and PW.1, PW.2. Then accused No.3 to 7 are all came there and joined with accused No.1 and 2. Accused 23 S.C. No. 578/2017 persons abused PW.1 and PW.2 in filthy language as "Boli makkala, sule makkala". Accused No.1 to 3 assaulted PW.1 and Pw.2 with wooden club. Accused No.4 to 7 assaulted PW.1 and PW.2 with hands and pulled them by holding their cloths. Accused persons have also given life threat to PW.1 and PW.2. PW.8 has deposed that he and Shantha Kumar, Santhosh Kumar and other 7-8 persons pacified the quarrel. He has given statement before the police. During the course of his cross-examination by the learned counsel for the accused PW.8 has denied the suggestion that he is working as driver in the lorry of PW.2 Vijayakumar. He has denied the suggestion that on 1.8.2014 he has not went to the place of incident. He has denied the suggestion that PW.1, PW.2 and others criminally trespassed into the house of the accused and assaulted the accused and caused them injuries. PW.8 has denied all the suggestions made to him.
24. PW.9 Santhosh Kumar is the eye witness to the incident has deposed that there was dispute between accused and PW.1, PW.2 in respect of setback area. That on 1.8.2014 at 11.00 Am when he went near the house of PW.2 Vijaya 24 S.C. No. 578/2017 Kumar quarrel taken place between accused No.1, 2, Accused No.1 and 2 abused PW.1 and PW.2 in filthy language as "Boli Makkala, Sule Makkala". Accused No.3 to 7 have joined to Accused No.1 and 2 and all the accused persons quarrelled with PW.1 and PW.2. Accused No.1 to 3 have assaulted PW.1 and PW.2 with wooden club and caused to PW.1 bleeding injuries to head. Accused No.3 to 7 have caught hold and pulled the clothes of PW.1 and PW.2. Accused persons have also given life threat to PW.1 and PW.2. PW.9 has deposed that he has given statement before the police. He has identified M.O.1 to M.O.4 used by the accused for commission of the offences. During the course of cross- examination by the learned counsel for accused PW.9 has deposed that he went to the Hunasamaranahalli near the house of PW.2 in search of house for rent. He has deposed that the accused persons quarrelled with PW.1 and PW.2 on the subject matter of setback area. He has denied the suggestion that on 1.8.2014 PW.1, PW.2 and others criminally trespassed into the house of accused and abused them in 25 S.C. No. 578/2017 filthy language and in the name of caste and assaulted them. PW.9 has denied all other suggestions made to him.
25. Based on the above evidence, it has to be seen if the prosecution has proved the charges against the accused beyond all reasonable doubt. In this case all the witnesses PW.1 to PW.9 examined on the side of the prosecution supported the case of the case of the prosecution. PW.1 is the complainant and injured. PW.2 is the eye witness and victim. PW.3 is the mahazar witness, PW.4, PW.5, PW.6, PW.8, PW.9 are all eye witnesses. PW.7 is the doctor who examined PW.1 injured and issued Ex.P3 wound certificate. Prior to discuss in detail regarding oral and documentary evidence placed on record it is pertinent to note some of the undisputed facts in this case. PW.1 is the brother of PW.2. Accused persons are the members of same family. There is dispute between PW.1, PW.2 and accused No.1, 2 with respect to setback area. It is not in dispute that one Venugopal brother of accused No.1 constructing house adjacent to the house of PW.2 at Hunasamaranahalli. It is not in dispute that accused No.1 was looking the construction work of house 26 S.C. No. 578/2017 of his brother Venugopal. It is undisputed fact that while constructing the said house of Venugopal the dispute arose between accused No.1 and PW.2 in respect of set back area. It is not in dispute that the house of accused No.1 is situated near the newly constructing house of Venugopal. The presence of the accused and PW.1 and PW.2 near the newly constructing house is not in dispute. In this case the accused persons have taken defence that PW.1, PW.2 and remaining accused of counter case criminally trespassed into the house of accused No.1 to 7 in filthy language and in the name of caste and assaulted them and caused them injuries. It is the defence of the accused that in order to counter blast the criminal case registered against PW.1, PW.2 and others (Spl.C. No. 497/2014) PW.1 has filed false complaint. The very defence taken by the accused would indicates that the presence of accused and PW.1, PW.2 in the place of incident is not seriously disputed by the accused. Since this court also giving finding in counter case also this court in the present case cannot discuss regarding the evidence of connected case. Since in another connected case the alleged incident occurred 27 S.C. No. 578/2017 in two places hence about that incident this court discussed about two incidents in connected case. Now in this whether the accused persons quarrelled with PW.1 and PW.2 and abused them in filthy language, assaulted them with wooden clubs, hands and given life threat or not to be considered.
26. PW.7 Doctor Asma Tabassum who examined PW.1 and given treatment has clearly deposed that on 1.8.2014 at 12.20 PM injured PW.1 was brought by PC No. 10641 Munendra of Yelahanka Police Station with history of assault. On examination of PW.1 she found 3 cm fresh lacerated wound over vertex of scalp. She issued Ex.P3 wound certificate. PW.7 opined that the injuries mentioned in Ex.P3 wound certificate is possible if assault made with stick. Even though learned counsel for accused cross-examined PW.7 in detail nothing is elicited from the mouth of PW.7 to discard her chief-examination version. PW.1 has deposed that due to assault made by the accused with wooden clubs he has sustained bleeding injuries. PW.2 has also deposed that due to assault made by the accused to PW.1 on his head, PW.1 has sustained bleeding injuries. PW.4, PW.6, PW.8, PW.9 eye 28 S.C. No. 578/2017 witnesses have also deposed that accused No.1 to 3 assaulted PW.1 and PW.2 with wooden stick and accused No.4 to 7 have assaulted PW.1 and PW.2 with hands. In this case PW.2 has deposed that as the accused persons have beaten him he has suffered body pain but not sustained bleeding injuries. The prosecution has not produced any documents such as wound certificate and medical documents to show that PW.2 has sustained injuries and taken treatment in hospital. The document Ex.P3 is the wound certificate to show that PW.1 has sustained simple injuries to his head. The oral evidence of PW.7 doctor who has given treatment to PW.1 and issued Ex.P3 wound certificate cannot be doubted.
27. In this case, PW.4, PW.6, PW.8, PW.9 are all independent eye witnesses. The Hon'ble Supreme Court in the decision reported in 1996 SC 326 in Rama Sanjeev vs. State of Bihar and our Hon'ble High Court in the decision reported in 1996 Crl.L.J. 848 enunciating the principles governing the assessing of evidence of eye witness they are 1) Whether in the circumstances of the case it is possible to believe his presence at the scene of occurrence or ensure 29 S.C. No. 578/2017 situation as would makes it possible for him to witness the facts deposed by him. 2) Whether there is anything inherently improbable or unreliable in his defence. If we applies these principles to the evidence of PW.4, PW.6, PW.8, PW.9 their presence in the place of incident cannot be doubted. PW.4, PW.6, PW.8, PW.9 in their examination-in-chief have deposed regarding why they have gone near the place of incident. During the course of cross-examination of PW.4, PW.6, PW.8, PW.9 by the defence nothing is elicited from their mouth to show that they had any enemity with the accused so as to depose against the accused. During the course of cross- examination of PW.4, PW.6, PW.8, PW.9 nothing is elicited from their mouth to suggest that they are interested witnesses.
28. PW.3 Rakesh is mahazar witness. PW.3 has deposed that on 2.8.2014 the Yelahanka police visited to the place of incident and conducted the panchanama as per Ex.P2 and seized M.O.1 to M.O.4 in the place of incident. PW.3 has deposed that place of incident was shown to the place by PW.1 Shivashankar. PW.1 has also deposed that on 30 S.C. No. 578/2017 the following day of incident and conducted the mahazar as per Ex.P2 and seized M.O.1 to M.O.4 in that place. In this case even though the prosecution has not examined CW.12/I.O., but PW.1 complainant and PW.2 mahazar witnesses clearly deposed about conducting the mahazar as per Ex.P2 in their presence and seizure of M.O.1 to M.O.4 in the place of incident. PW.1, PW.2, PW.4, PW.6, PW.8, PW.9 are all identified M.O.1 to M.O.4 wooden clubs which were used by the accused to assault PW.1 and PW.2.
29. The learned counsel for the accused argued that in Ex.P3 wound certificate the time of incident mentioned as 10.30 AM but PW.1, PW.2 and remaining witnesses deposed that the incident occurred at 11.00 AM hence case of the prosecution is doubtful. This arguments of learned counsel for accused is not acceptable. The variance in Ex.P3 and deposition of PW.1, PW.2, PW.4, P4.6, PW.8, PW.9 regarding the time of incident is trivial in nature. Admittedly, Ex.P3 is issued by PW.7 doctor. PW.7 is not the eye witness to the incident. Merely because PW.7 in Ex.P7 mentioned the history of incident and time of incident mentioned as 10.30 31 S.C. No. 578/2017 AM the entire prosecution evidence cannot be doubted. The learned counsel for the accused much argued about the document Ex.D1 endorsement given by the Gram Panchayath Authorities by contending that PW.2 has constructed house measuring 31 feet x 41 feet even though he has site measuring 30 fee x 40 feet. No doubt in Ex.D1 it is mentioned that Vijaya Kumar constructed house measuring 31 feet x 41 fee that itself not sufficient to hold that the accused persons have not committed the offences. It is the specific case of the prosecution is that when PW.1 and PW.2 questioned accused No.1 and 2 regarding not leaving the passage area while constructing the house the quarrel taken place. Whether the PW.1 and 2 were encroached the property belongs to brother of PW.1 is matter to be decided by the civil court. In this case, no such charge is framed for the criminal trespass. However, the fact remains that the dispute between PW.1, PW.2 and accused No.1 regarding leaving the passage area between the house of Venugopal and house of PW.2 is root cause for quarrel between the parties is not in dispute. The oral evidence of PW.1, PW.2, PW.4, PW.6, PW.8, PW.9 who 32 S.C. No. 578/2017 have clearly deposed about the overt act of the accused in assaulting PW.1 with wooden stick and with hands corroborate with the medical evidence of PW.7 Doctor and Ex.P3 Wound Certificate issued by the doctor. PW.1, PW.2, PW.4, PW.6, PW.8, PW.9 are all clearly deposed that the accused No.1 and 2 have started to quarrel with PW.1 and 2 and abused PW.1 and 2 in filthy language at that time the accused No.3 to 7 have joined with the accused No.1 and 2 and accused No.1 to 3 have assaulted PW.1 and 2 with wooden clubs and accused No.4 to 7 assaulted PW.1 and 2 with hands and pulled them by holding their clubs and also abused them in filthy language and given life threat to PW.1 and 2. The oral evidence of PW.1, PW.2, PW.4, PW.6, PW.8, PW.9 are corroborating with each other. Their oral evidence is consistent with regarding the derogatory words used by the accused in order to abuse PW.1 and 2. All these witnesses have clearly deposed that the accused persons have also given life threat to PW.1 and 2. In this case, PW.4, PW.6, PW.8, PW.9 are all independent eye witnesses, their presence in the place of incident cannot be doubted. During the course 33 S.C. No. 578/2017 of their cross-examination by the defence, nothing is elicited from their mouth to show that they had any enimity or illwill against accused in order to depose against the accused. PW.4, PW.6, PW.8, PW.9 have clearly deposed that all the accused persons quarrelled with PW.1 and PW.2 with wooden clubs and remaining accused persons assaulted PW.1 and PW.2 with hands and pulled them by holding their clubs. The learned counsel for the accused argued that non-seizure of the bloodstained clothes of PW.1 is fatal to the case of the prosecution. These submissions pertaining to shortcomings falling within the erena of investigation. Merely because the I.O., has not seized the clothes of PW.1 and 2, it cannot be ground to disbelieve the oral evidence of PW.1, PW.2, PW.4, PW.6, PW.8, PW.9 who are all deposed about the overt act of the accused in assaulting PW.1 and 2 with wooden club and with hands. The oral evidence of PW.7 doctor and the document Ex.P3 wound certificate also support the version of PW.1, PW.2, PW.4, PW.6, PW.8, PW.9 which would go to show that PW.1 has sustained simple injuries. There is clear evidence on the side of the prosecution to show that on 34 S.C. No. 578/2017 1.8.2014 at 11 AM near the house of PW.1, the accused persons formed an unlawful assembly with common object to quarrel with PW.1 and 2 and accused No.1 to 3 armed with the deadly weapons like wooden clubs in their hands assaulted PW.1 with wooden clubs and accused No.4 to 7 assaulted PW.1 and PW.2 with hands and voluntarily caused simple injuries to PW.1. The oral evidence of PW.1, PW.2, PW.4, PW.6, PW.8, PW.9 is also sufficient to hold that the accused persons abused PW.1 and 2 in filthy language such as "Boli makkala, soole makkala" so as to provoke them and insulted them. There is clear evidence on the side of the prosecution to show that the accused persons criminally intimidated by giving life threat to PW.1 and PW.2. There is clear evidence on the side of the prosecution to show that when PW.1 and PW.2 questioned accused No.1 regarding setback area, the quarrel taken place between both the parties. The prosecution has successfully proved that the accused persons with common object formed unlawful assembly with an intention to assault PW.1 and PW.2 armed with deadly weapon like wooden club committed rioting and 35 S.C. No. 578/2017 in furtherance of their common object accused persons abused PW.1 and 2 in filthy language and accused No.1 to 3 assaulted PW.1 with wooden club and accused No.4 to 7 assaulted PW.1 and PW.2 with hands and pushed them and voluntarily caused simple injuries to PW.1 and criminally intimidated PW.1 and 2 by giving life threat to them. The prosecution has successfully proved that the accused persons have committed the offences punishable u/s 143, 147, 148, 504, 506, 323, 324 r/w 149 of IPC. Hence, I answered point No.1 to 5 in the affirmative.
30. Point No.6:- In view of my findings on point no.1 and point no.5 as the prosecution successfully proved that the accused persons have committed the offences punishable u/s 143, 147, 148, 504, 506, 323, 324 r/w 149 of IPC, I proceed to pass the following O R DE R Exercising jurisdiction conferred upon me under Section 235(2) of Cr.P.C., I hereby find accused No.1 to 7 guilty of the offences 36 S.C. No. 578/2017 punishable under Sections 143, 147, 148, 504, 506, 323, 324 r/w 149 of IPC., accordingly they are convicted for the said offences.
M.O.1 to M.O.4 wooden clubs being worthless are ordered to be destroyed after the completion of the appeal period.
The case is posted for hearing on the quantum of sentence to be imposed on the accused.
(Dictated to the Judgment Writer directly on the computer, transcript corrected, signed and then pronounced by me in open Court on this the 18th day of January, 2020.) Sd/-
(MOHAN PRABHU) LXX Addl. City Civil & Sessions Judge & Special Judge, Bengaluru.
37 S.C. No. 578/2017ORDER REGARDING SENTENCE DATED 12.02.2020 Heard the learned counsel for the accused/convict and learned Public Prosecutor on the quantum of sentence to be imposed on the convict/accused No.1 to 7 for the offences punishable u/s 143, 147, 148, 504, 506B, 323, 324, r/w 149 of IPC which are proved against them.
The learned counsel for the accused submitted that the accused persons are innocent of the alleged offences. He submitted that the accused are all belongs to Scheduled Caste and are belongs to same family. The accused are not involved in any other cases or convicted in any other criminal cases. They are permanent residents of Bangalore. He thus prays for taking a lenient view in the matter in imposing sentence.
On the other hand, the learned Public Prosecutor prays to impose maximum sentence as prescribed in each sections.
Considering the nature of the injuries sustained by injured due to assault and by considering the manner in which the quarrel taken place between the accused and PW.1, PW.2, and such offence committed by the accused on the 38 S.C. No. 578/2017 ground of leaving of passage, I am of the view that the accused/ convict are not entitled any benefit u/s 3 and 4 of the Probation of Offenders Act. Hence, this court is declined to grant any benefit to the accused/ convict under the provisions of Probation of Offenders Act.
The accused are all belongs to Scheduled Caste. They are all members of same family and residing within the jurisdiction of this court. It is not the case of the prosecution is that they are involved in any other case or convicted in any other cases. These are the mitigating circumstances. It can be seen that due to assault made by accused PW.1 has sustained simple injuries, this is the aggravated circumstance.
Considering the facts of the case and considering the nature of injuries sustained by PW.1, I am of the opinion that the accused shall be punished with sentence of imprisonment and fine. Considering the facts and circumstances of the case, I pass the following:
39 S.C. No. 578/2017
ORDER The convicts/accused No.1 to 7 are sentenced to undergo simple imprisonment for one month for the offence punishable u/s 143 r/w 149 of IPC.
The convicts/accused No.1 to 7 are sentenced to undergo simple imprisonment for three months for the offence punishable u/s 147 r/w 149 of IPC.
The convicts/accused No.1 to 7 are sentenced to undergo simple imprisonment for three months for the offence punishable u/s 148 r/w 149 of IPC.
The convicts/accused No.1 to 7 are sentenced to undergo simple imprisonment for one month for the offence punishable u/s 504 r/w 149 of IPC.
The convicts/accused No.1 to 7 are sentenced to undergo simple imprisonment for three months for the offence punishable u/s 506 r/w 149 of IPC.
The convicts/accused No.1 to 7 are sentenced to undergo simple imprisonment for three months for the offence punishable u/s 323 r/w 149 of IPC and shall pay fine 40 S.C. No. 578/2017 of Rs.1000/- each in default to pay fine they shall further undergo simple imprisonment for 15 days.
The convicts/accused No.1 to 7 are sentenced to undergo simple imprisonment for six months for the offence punishable u/s 324 r/w 149 of IPC and shall pay fine of Rs.2000/- each in default to pay fine they shall further undergo simple imprisonment for 15 days.
The substantive sentence shall run concurrently. Office is directed to furnish the copy of the judgment to the convicts as required u/s 363(1) of Cr.P.C. (Dictated to the Judgement Writer, transcribed by him, corrected, signed and then pronounced in open court on this the 12th day of February, 2020.) Sd/-
(MOHAN PRABHU) LXX Addl. City Civil & Sessions Judge and Special Judge, Bengaluru.
A N NE X U R E
1.WITNESSES EXAMINED FOR THE PROSECUTION:
P.W.1 : Shiva Shankar
P.W.2 : Vijay Kumar
P.W.3 : Rakesh
P.W.4 : K.M.Nagesh
P.W.5 : Shantha Kumar
41 S.C. No. 578/2017
P.W.6 : Ravi
P.W.7 : Dr.Asma Tabassum
P.W.8 : Srinivas
P.W.9 : Santhosh Kumar
2. DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1 : Complaint
Ex.P.1(a) : Signature of PW.1
Ex.P. 2 : Mahazar
Ex.P.2(a) : Signature of PW.1
Ex.P.2(b) : Signature of PW.3
Ex.P.3 : Wound Certificate
3. WITNESSES EXAMINED FOR THE DEFENCE:
Nil
4. DOCUMENTS MARKED FOR THE DEFENCE:
Ex.D1 : Endorsement given by PDO.,
Hunasamaranahalli Grama Panchayath
5. LIST OF MATERIAL OBJECTS:
M.O.1 to 4 : Wooden clubs
Sd/-
(MOHAN PRABHU)
LXX Addl. City Civil & Sessions Judge
& Special Judge, Bengaluru.
42 S.C. No. 578/2017