Bangalore District Court
State By Kamakshiplaya vs Sri. Manu S/O Ramanna on 6 June, 2018
IN THE COURT OF THE V ADDL. C.M.M., BENGALURU.
Dated this the 6th day of June 2018.
Present:
Sri.A SOMASHEKARA, BA.L., LLM.,
V ADDL. C.M.M., BENGALURU.
C.C. NO.19772/2013
Complainant : State by Kamakshiplaya
police station.,
(Rep; by Sr.Asst. Public Prosecutor)
-VS-
Accused : 1. Sri. MANU S/o Ramanna,
Aged about 21 years,
2. Sri. MUKESH S/o Ramanna,
Aged about 26 years.
3. Smt. DAKSHAYINI,
W/o Ramanna
Aged about 50 years,
4. Sri. RAMANNA
S/o Venkatappa
Aged about 55 years.
(Abetted)
All are r/at No.79, 1st Cross,
1st Main Road, Muneshwara
Nagara, Pattegarapalya,
Bengaluru .
2 CC No.19772/2013
Judgment
JUDGMENT U/S 355 OF THE Cr.P.C. 1973.
1. Date of commencement of 07.07.2013
offence
2. Date of report of offence 08.07.2013
3. Arrest of the accused Accused obtained
anticipatory Bail
4. Name of the complainant H.Shivaraju s/o
Hanumegowda
5. Date of recording of 12.01.2016
evidence
6. Date of closing of evidence 15.07.2017
7. Offences complained of 448, 323, 504 354,
506 r/w sec. 34 IPC
8. Opinion of the Judge Accused found guilty
9. Complainant by Asst.Public Prosecutor
10 Accused defence by Sri. M.V.N.G adv,
.
JUDGMENT
This is the charge sheet filed by the PSI, Kamakshipalya P.S., against the accused No.1 to 4 for the offences punishable U/sec. 448, 323, 354, 504 506 r/w 34 of IPC.
2. The brief facts of the prosecution case are that:
It is alleged that the Accused No.1 to 4 in furtherance of common intention to commit an offence on 08.07.2013 3 CC No.19772/2013 Judgment during night hours at about 11.30 p.m. near residential house bearing No.82(42), situated at 1st Main, I Cross, Muneshwara Block, Shettigarapalya, within the jurisdiction of Kamakshipalya P.S., Bengaluru, the accused No.1 and 2 while parking their Indica car near they dashed to the Kabab cart of CW.1 and when complainant questioned the same, all the accused persons caused tress-pass into the house of complainant, picked up quarrel, abused in filthy language, accused-1 and 2 assaulted with hands to CW.3, and when CW.2 tried to pacify the quarrel, accused persons slapped over her cheek, dragged her by holding her hairs, outraged her modesty, caused damage to the gate by hitting with the help of stones, and caused loss of Rs. 10,000/- to the complainant and when CW.1 and CW.4 questioned the same all the accused abused them in filthy language put treat to their life and thereby committed the alleged offences.4 CC No.19772/2013
Judgment
3. The accused No.1 to 4 are on bail. As required u/sec. 207 of Cr.P.C., the copies of the charge sheet were furnished to the accused. The accused on framing the charges, denied the charges and thereupon the prosecution was directed to lead the evidence on its side to prove the allegations. As such the prosecution examined PWs:1 to 9 and got marked Ex.P.1 to P7 and MO-1 and 2. On closure of the evidence on the side of the prosecution, the statement of the accused u/sec. 313 Cr.PC came to be recorded. The answer of the accused is total denial of prosecution case and not examined any defense witness.
4. I have heard the arguments from both the sides.
5. The following points that arise for my consideration are:
1. Whether the prosecution proves beyond all reasonable doubt that on accused-1 to 4 in furtherance of common intention to commit an offence on 8.7.13 during night hours at about 11.30 p.m. near residential house bearing No.82(42), situated at I 5 CC No.19772/2013 Judgment Main, I Cross, Muneshwara Block, Shettigarapalya, within the jurisdiction of Kamakshipalya P.S., Bengaluru, accused-1 and 2 dashed to the Kabab cart of CW.1 and when complainant questioned the same, all the accused persons caused tress-pass into the house of complainant and thereby committed an offence punishable U/sec.448 r/w 34 of IPC.?
2. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place accused-1 to 4 in furtherance of common intention to commit an offence picked up quarrel with CW.1 and in the above said transaction accused-1 and 2 assaulted with hands to CW.3 and thereby committed an offence punishable U/sec.323 r/w 34 of IPC.?
3. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place accused-1 to 4 in furtherance of common intention to commit an 6 CC No.19772/2013 Judgment offence picked up quarrel with complainant and in the above said transaction slapped on CW.2's cheek, dragged her by holding her hairs, outraged her modesty and thereby committed the offence punishable U/sec.354 r/w 34 of IPC?
4. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place accused No. 1 to 4 in furtherance of common intention to commit an offence picked up quarrel with complainant and in the above said transaction abused CW.1 and 4 in filthy language, knowingly such insult will provoke breach of peace and thereby committed the offence punishable U/sec.504 r/w 34 of IPC.?
5. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place accused No.1 to 4 in furtherance of common intention to commit an offence picked up quarrel with CW.1 7 CC No.19772/2013 Judgment and in the above said transaction gave life threat to CW.1 and 4 with dire consequences thus committed criminal intimidation and thereby committed an offence punishable u/sec. 506 r/w 34 of IPC?
6. What order?
6. My finding on the above points are held as under:
Point No.1: In the Affirmative Point No.2: In the Affirmative Point No.3: In the Affirmative Point No.4: In the Negative Point No.5: In the Negative Point No.6: As per final order for the following:
REASONS
7. Point Nos.1 to 5:- All these points are interrelated to each other and involve common appreciation of evidence and facts. Finding on point No.1 will have bearing on finding on point Nos.2 to 5. Hence to avoid repetition, all these points are taken together for common discussion. 8 CC No.19772/2013
Judgment The learned Sr. APP during his arguments submitted that, P.W.1 and 2 are being the injured witnesses categorically speaks about the incident and they have also identified M.O.1 and 2. He further submitted that, their evidence is corroborated by the testimony of eye and independent witnesses and accordingly, the guilt of the accused is proved by the prosecution beyond all reasonable doubt and as such, the prosecutor prayed to convict the accused.
9. On the other hand, Sri. MVNG, the learned Advocate for the Accused No.1 to 3 pointed out some of the contradictions in the evidences of injured witnesses P.W.1 and 2. According to her, the recovery of M.O.1 and 2 from the spot as set out by the prosecution is not established. More particularly, she stressed her arguments about the delay in hostility of the independent eyewitness. With these submissions, he has vehemently argued the prosecution case is doubtful. Therefore, he prayed to acquit 9 CC No.19772/2013 Judgment the Accused No.1 to 3 in the ends of justice. In the light of submission of both sides, I have carefully made scrutiny of the evidence of prosecution.
10. M.O.1 is a club, M.O.2 is stone. According to the prosecution, these weapons armed in the hands of A-1 and 2 on 08.07.2013 during the night hours at about 11.30 PM in front of the house of CW.1 and during the incident A-1 and 2 have were assaulted the PW.1 and into that effect. P.W.2 to 6 are the eyewitness admittedly. It is also its specific case that, during the incident A-1 to 3 and abetted Accused No.4 abused and put threat to kill life of P.W.1 to 4 and accordingly, the specific allegation of commission of the offences by the accused under Section 448, 323, 354, 504, 506 R/w Section 34 IPC. In these facts and circumstances on the record, naturally P.W.1 to 4 and P.W.5 and 6 are being direct witnesses they are material star witnesses to the prosecution case. 10 CC No.19772/2013
Judgment I have carefully evaluated the evidences on record. P.W.1 is the injured and also the complainant. Ex.P.1 is said to be his statement recorded by the police in the police station. Ex.P.1 discloses that, the incident was happened in connection with previous incident. PW.1 specifically speaks that, 0n 07.07.2013 during night hours while parking his push cart in front of his residential house, his son informed him about the Accused No.1 and 2 dashed to his push cart, when he questioned the same, all the accused persons picked up quarrel with him, abused in filthy language and put life threat and as such he lodged a complaint before the police and after securing the Accused, the police have compromised the same. It is pertinent to note here that the prosecution has placed the copy of said complaint on the file, I have taken the judicial notice of the same. on perusal of the said complaint it appears that the police have treated the said complaint as NCR No.677/2013 and 11 CC No.19772/2013 Judgment secured the Accused No.2 to police station and wherein he given undertaking cum statement before the police, the said statement plays vital role to the case of prosecution and as such the same has been extracted herein below:
ºÉýPÉ :- ªÀÄÄPÉÛñÀégÀ ©£ï gÁªÀÄtÚ 28 ªÀµÀð ªÀÄ£É. £ÀA. 79, 1 £Éà ªÀÄÄRå gÀ¸ÉÛ, 1 £Éà PÁæ¸ï, ªÀÄÄ£ÉñÀégÀ £ÀUÀgÀ , ¨ÉAUÀ¼ÀÆgÀÄ 79. ªÉÆ: 9620475666 ¢£ÁAPÀ: 08-07- 2013 F ªÉÄîÌAqÀ «¼Á¸ÀzÀ°è ªÁ¸À«zÀÄÝ PÁgï qÉæöʪÀgï ºÁV PÉ®¸À ªÀiÁrPÉÆAqÀÄ fêÀ£À ªÀiÁqÀÄvÉÛÃ£É ¢£ÁAPÀ-7/8-07-2013 gÀAzÀÄ ¤ªÀÄä ªÉÄï É ²ªÀgÁdÄgÀªÀgÀÄ zÀÆgÀÄ ¤ÃrzÁÝgÉ. ¤ÃªÀÅ oÁuÉUÉ §gÀ¨ÉÃPÉAzÀÄ w½¹zÀgÀÄ. CzÀgÀAvÉÛ £Á£ÀÄ oÁuÉUÉ §AzÀÄ £À£Àß ªÉÄï É PÉÆnÖzÀÝ zÀÆgÀ£ÀÄß N¢ w½zÀÄPÉÆAqÉ£ÀÄ. £Á£ÀÄ ªÀÄvÀÄÛ £À£Àöß vÀªÀÄä ªÀÄ£ÉÆWÀß. E§âgÀÆ ¸ÀºÀ AiÀiÁjUÀÆ ºÉÆqÉ¢®è £ÀªÀÄUÀÆ ªÀÄvÀÄÛ ²ªÀgÁdÄgÀªÀjUÀÆ ¨Á¬Ä ªÀiÁw£À dUÀ¼À ªÁ¬ÄvÀÄ. 4 ZÀPÀæzÀ vÀ¼ÀÄîªÀ UÁr ¤°è¸ÀĪÀ «ZÁgÀzÀ°è ¨Á¬ÄªÀiÁw£À dUÀ¼ÀªÁ¬ÄvÀÄ CµÉÖ, E£ÀÄß ªÀÄÄAzÉ £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß vÀªÀÄä 12 CC No.19772/2013 Judgment ªÀÄ£ÉÆÃWÀß E§âgÀÆ ¸ÀºÀ CªÀgÀ vÀAmÉUÉ ºÉÆÃUÀĪÀÅ¢®è , CªÀgÀÆ ¸ÀºÀ £ÀªÀÄä vÀAmÉUÉ §gÀĪÀÅzÀÄ ¨ÉÃqÀ E£ÀÄß ªÀÄÄAzÉ £ÁªÉãÁzÀgÀÆ CªÀgÀ vÀAmÉUÉ ºÉÆÃzÀgÉ £ÀªÀÄä ªÉÄï É PÁ£ÀÆ£ÀÄ jÃw PÀæªÀÄ vÉUÉzÀÄ PÉƼÀÀÄzÉAzÀÄ PÉýPÉƼÀÄîvÉÛÃ£É ªÀÄvÀÄÛ £À£Àß vÀAzÉ vÁ¬ÄAiÀĪÀjUÀÆ ¸ÀºÀ CªÀgÀ vÀAmÉUÉ ºÉÆÃUÀĪÀÅ¢®è ªÀÄvÀÄÛ ºÉÆÃUÀzÀAvÉ £ÉÆÃrPÉƼÀÄîvÉÛãÉ, £À£Àß ¸ÀªÀÄPÀëªÀÄ N. ºÉÃ. PÉÃ.¸Àj EzÉ ¸À» ¸À» The contents of the above said statement of Accused No.2 makes it clear that the incident was happened between the complainant and Accused in respect of parking of vehicles in front of the house of PW.1. This fact has been clearly elicited in the cross examination of PW.1 by the Accused counsel, and thus there is no doubt that the alleged incident occurred.
PW.1 further testified that after the compromise in the police station again at about 12.30 to 12.45 AM on 13 CC No.19772/2013 Judgment 08.07.2013 the Accused set fire to his push cart, picked up quarrel with PW.2 and 3 and assaulted them with club and put life threat and thrown stones to his gate and door of the house. In the cross examination except some bare denials nothing has been culled out from the mouth of PW.1 to disbelieve the case of prosecution.
9. PW.2: Ashwini, PW.3:Anandh and PW.4: Jayamma are the daughter, son and wife of PW.1 respectively. They have categorically deposed their evidence in consonance with the evidence of PW.1, they specifically stated the incident occurred on 07.07.2013 at about 11.30 PM and after compromise in the police station the Accused again picked up quarrel with the PW.2 and 3 and caused tress-pass into the house of complainant, abused them in filthy language, further the Accused-1 and 2 assaulted with hands to PW.2 and with club to PW. 3, and when PW.2 tried to pacify the quarrel, accused persons slapped over her cheek, dragged her by holding her hairs, outraged her modesty, caused 14 CC No.19772/2013 Judgment damage to the gate by hitting with the help of stones, and caused loss of Rs. 10,000/- to the complainant and when CW.1 and CW.4 questioned the same all the accused abused them in filthy language put treat to their life During the course of cross examination, accused have taken a defence that police have not collected turned clothes of PW.2. But, she has given the explanation that her dress was not contained the blood stains and such the police have not colleted her cloths. The explanation offered by the PW.2 cannot be doubted. On overall evaluation of the testimony of PW.2 it appears that she has categorically narrated the incident in her chief and cross examination. It is worth to note here the incident occurred during the night odd hours and as such we cannot expect the gathering of public or neighbors surrounding to the house of PW.2 and thus the case of the prosecution cannot be doubted.15 CC No.19772/2013
Judgment
12. PW.5/Venkatappa is the eye witness cum spot mahazar witness, he testified that he was present at the time of incident he specifically deposed that on 7/7/13 during night hours complainant parked his push cart in front of his residential house, accused-1 and 2 dashed to push cart of complainant, who enquired the same with the accused and the accused persons picked up quarrel with him, abused him in filthy language and put life threat , complainant lodged a complaint before the Kamakshipalya P.S. against the accused persons, police have compromised the same and after the compromise the accused set fire to push cart of complainant, when questioned the same, accused persons picked up quarrel with CWs.1 to 4, assaulted them, abused them in filthy language and put life threat, further complainant lodged complaint to the police and on the next day police have conducted mahazar as per Ex.P.2. the testimony of this witness corroborates the evidence of PW.1: complainant and PW.2 injured 16 CC No.19772/2013 Judgment witness. The learned counsel for accused cross examined this witness at length but has not shaken and nothing has been culled out from his mouth to disbelieve his version and his presence in the place of occurrence is also not denied by the Accused.
13. PW.6:Raju is the eye witness to the incident he being independent witness he testified about the incident occurred on 07.07.2013. he specifically stated that the Accused No.1 was slapped the CW2 on her cheek and abused them in filthy language. No doubt the PW.6 partly turned hostile. But in the cross-examination made by learned Sr.APP, PW.6 has admitted that accused persons have dragged the CW.2 and outraged her modesty and by throwing stones on the kabab cart and got damaged it. PW.6 is subjected for cross examination and wherein he denied the suggestions posed to him.
17 CC No.19772/2013
Judgment
14. PW.7:Narashimaiah and PW.8 Nanjaiah, the than ASI and Head constable of Kamakshipalya police station, in their evidence they deposed that on 10.07.2013 they apprehended the accused-1 and produced them before PSI along with report Ex.P.6. their evidence is formal in nature.
15. PW.9: Vasimulla, the than PSI of K.M.Palya police station, in his evidence he deposed that on 10/07/13 he took up further Investigation from CW.9, verified the documents and after completion of Investigation on 6.12.13 he submitted charge sheet to the court.
16. It has been contended on behalf of the accused that PW.1 to 4 are the interested witnesses, who are highly interested in false implications of the accused persons and in their ultimate conviction. Ordinarily offences like assault, outraging modesty of women and life threat against neighbors have been committed in the public place and normally direct evidence regarding assault and other acts 18 CC No.19772/2013 Judgment on the victim is not believable available. Hence, other probable circumstances can be considered by the Court.
17. In cases of offences against the woman, normally evidence of close relatives or friends would be available and normally strangers would neither be aware or willing to come forward to depose in favour of the prosecution. The testimony of close relatives and friends therefore cannot be disbelieved only on the ground that they are relatives and on that ground she or he had come forward to depose for the prosecution. Disclosure of assault or suffering of pain is normally be made to the related persons and hence their testimonies cannot be rejected as interested witnesses. We cannot ignore the sad, but basic truth that for so-called independent witnesses tend to stay far away and or not willing to come forth to depose on behalf of prosecution, as they often face grave consequences. The prosecution has to call back on the testimonies of witnesses who are friends or 19 CC No.19772/2013 Judgment family members of the victim. Further it is also well settled legal principle that the close relative who is a natural witness cannot be regarded as interested witnesses. The term interested witness postulates that the witness must have some direct interest having the accused some how or other convicted for the animous or for some other reason.
18. The Hon'ble Supreme Court of India in Randir Singh Vs. State of Panjab (2004) 13 SCC 129, has observed as under:
"9. Great stress was laid on the victim's statement having not expressed before her friends about any harassment. In a tradition and custom-bond Indian society no conservative woman would disclose family discords before a person, however close he or she may be. Merely because the deceased had not told close friends about the demand of dowry or harassment that does not positively prove the absence of demand of dowry. The said circumstance has to be weighed along with the evidence regarding demand of dowry. If the evidence regarding demand of dowry is established, is cogent and reliable merely because the victim had not stated before some persons about the harassment or torture that would be really of no consequence."
It was also observed:
13. In State of W.B. v. Orilal Jaiswal this Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding 20 CC No.19772/2013 Judgment whether the cruelty meted out to the victim had in fact induced here to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty."
19. In this regard it is pertinent to note the decision of Hon'ble Supreme Court of India in AIR 2009 SUPREME COURT 760 "Sonelal v. State of M.P.", which reads as under:
"Merely because the eye witnesses are family members their evidence cannot per se discarded. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
The over insistence on witnesses having no relation with the victims often results in criminal justice going away. When any incident happens in a dwelling house the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen any thing. "21 CC No.19772/2013
Judgment
20. In the light of principles emerging from the above referred decisions, PW.2 to 4 who are the relatives of the victim cannot be termed as interested as they are natural witnesses.
21. While scanning the evidence of the various witnesses the Court has to inform itself that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony, provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered. The sluggish chronometric sense of the country-side community in India is notorious since time is hardly of the essence of their slow life; and even urban folk make mistakes about time when no particular reason to observe and remember the hour of minor event like taking a morning meal existed. Too much 22 CC No.19772/2013 Judgment play on such slippery facts goes against realism so essential in a testimonial appraisal.
22. It is true that both PW2 to PW4 have not narrated the incident in a similar manner. There are some discrepancies in their evidence. The discrepancies in their evidence are bound to occur. There are several reasons for these discrepancies. Hon'ble Supreme Court of India in AIR 1983 SUPREME COURT 753 "Bharwada Bhoginbhai Hirjibhai v. State of Gujarat" has summarized the reasons for discrepancies. The relevant portion of the judgment reads as under:
"Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:-
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed in the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events, the witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.23 CC No.19772/2013
Judgment (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross- examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is 24 CC No.19772/2013 Judgment giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
22. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses.
23. It is also equally settled principle that truth suffers some infirmity when it is projected through human agency, due to several reasons as stated in the decision referred infra. In this connection I am persuaded to refer immortal words of Justice V.R.Krishna Iyer in Indersingh V/S State of Delhi - AIR 1978 SC 1091, the relevant portion of the judgment reads as under:
"(2) Credibility of testimony, oral circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it 25 CC No.19772/2013 Judgment is not necessary that it should be perfect. If a case is proved too perfectly, it is urged that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fool-proof concoction. Why fake up?
Because the court asks for manufacture to make truth look true? No, we must be realistic".
24. Learned counsel for the accused has strenuously contended that except the testimony of PW-2 to 7, there is no corroborative evidence and other cited eyewitnesses have turned hostile. Therefore, prosecution version cannot be believed. It is also trite that corroborative evidence is not an imperative component of judicial credence. Further section 134 of the Evidence Act states that no particular number of witnesses is required to establish the case. Conviction can be based on the testimony of single witness, if he is wholly reliable. Corroboration is necessary only 26 CC No.19772/2013 Judgment when witness is partially reliable and partially not reliable. This proposition has been pithily elaborated in Vadivelu Thevar Vs. State of Madras (AIR 1957 SC 614) the Hon'ble Supreme Court had gone into this controversy and divided the nature of witnesses in three categories, namely, wholly reliable, wholly unreliable and lastly neither, wholly reliable nor wholly unreliable. In the case of the first two categories the Hon'ble Supreme Court said that they pose little difficulty but in the case of the third category of witnesses, corroboration would be required. The relevant portion is quoted as under:
"Hence, in our opinion, it is sound and well-established rule of law that the Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely;
(1) Wholly reliable (2) Wholly unreliable (3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the Court should have no difficulty in coming to its conclusion either way- it may 27 CC No.19772/2013 Judgment convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty incoming to its conclusion. It is in the third category; the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses." (Paras 11-12)
25. It is also worth to note that PW.2 and 3 are injured witness. The testimony of injured witness stands on higher footing than the testimony of other witness and it carries higher efficacy. Normally injured witness will not falsely implicate any person unconnected with the crime. He will point out only the assailant. This proposition finds support from the ratio laid down by Supreme Court of India in (2008) 8 SCC 270 (Dinesh Kumar V/S State of Rajasthan), which reads thus:-
"The mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. In law testimony of an injured witness is given importance.28 CC No.19772/2013
Judgment When the eye-witnesses are stated to be interested and inimically deposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons."
26. The same principle has been reiterated in a recent decision of the Hon'ble Supreme Court of India reported in 2011 SAR (Criminal) 37 (Ranjit Singh and others V/S State of Madhya Pradesh), which reads as under:
"Out of these witnesses, Gangaram (PW.24) and Kailash (PW.25) are injured witnesses. The injuries found on the person of Kailash (PW.25) were of a grievous nature. Their evidence had to be given due weightage as they are the stamped witnesses. (Vide: Sarwan Singh v. State of Punjab, AIR 2002 SC 3652; State of U.P. v. Jagdeo and Ors., (2003) 1 SCC 456; State of U.P. v. Kishan Chand and Ors., (2004) 7 SCC 629; Krishan and Ors. v. State of Haryana, (2006) 12 SCC 459; Anna Reddy Sambasiva Reddy and Ors. v. State of Andhra Pradesh, AIR 2009 SC 2661; and Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673).
Injured witnesses would definitely not shield the real culprits of the crime, and name somebody else because of enmity. The defence did not ask the injured witnesses as to how they received the injuries mentioned in the medical reports. (See: Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC 270; Arjun Mahto v. State of Bihar, (2008) 15 SCC 604; and Akhtar and Ors. v. State of Uttaranchal, (2009) 13 SCC 722)."29 CC No.19772/2013
Judgment
27. Hon'ble Supreme Court of India in JT 2011 (3) (SC) 508 (State of U.P. Vs. Naresh & Others), the Hon'ble Supreme Court of India emphasizing the importance of injured witness has proceeded to hold thus:
"The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the asis of major contradictions and discrepancies therein. (Vide: Jamail Singh Vs. State of Punjab, (2009) 9 SCC 719, Balraje @ Trimbak Vs. State of Maharashtra, (2010) 6 SCC 673, and Abdul Sayed VS. State of Madhya Pradesh, (2010) 10 SCC 259)"30 CC No.19772/2013
Judgment
28. Now turning to the factual matrix of the present case, PW.2 in her evidence has clearly stated that, accused persons assaulted her and outraged her modesty. Except bare denial, nothing has been elicited in her cross-examination so as to discredit her testimony. Therefore, she withstood the rigor of cross- examination. Moreover her testimony is corroborated by the testimonies of PW.3 to 6. Hence her testimony is cogent, reliance and believable. All these aspects point out that, accuse Nos.1 to 4 have committed the offence punishable under Sections 354 and 323 of Indian Penal Code.
29. Now turning to the offence punishable under Section 504 of Indian Penal Code, it is allegation of PW.1 to 4 that accused persons abused them in filthy language and knowing it would cause her to break public peace or to commit any other offence. Merely uttering the words as are not sufficient to constitute 31 CC No.19772/2013 Judgment the insult. The term abusive language is very elastic and of wide amplitude and the words within the ambit of this term may not always amounts to insult. Mere allegation that the accused abused the informant in filthy language would not be sufficient to sustain charge under Section 504 of Indian Penal Code. This proposition finds support from the decision of Hon'ble High Court of Calcutta in Hiralal Dutta Vs. Jayagopal reported in 1981 Crl.L.J. (NOC) 195 (CAL).
30. Now we shall consider whether the prosecution is able to prove the offence punishable under Section 506 of Indian Penal Code against the accused persons. The prosecution has alleged that accused persons criminally intimidated the informant with dire consequences. It cannot be stated by uttering the words the informant could not have been alarmed by the alleged threat. No overt act is attributed on the 32 CC No.19772/2013 Judgment part of the accused in this connection. Therefore, prosecution has failed to prove the offence punishable under Section 506 of Indian Penal Code.
31. On overall scrutinize of the entire evidence of the prosecution placed on record it appears that the evidence of PW.1 is corroborated by the documentary evidence as well as the evidence of PW.2, 3, 4 and 5. therefore the case of the case of prosecution is believable of beyond all reasonable doubts. There is a convincing evidence to show that the accused-1 to 2 in furtherance of common intention to commit an offence dashed to the Kababk cart of PW.1 and when complainant questioned the same, all the accused persons caused tress-pass into the house of complainant, picked up quarrel , abused in filthy language, accused-1 and 2 assaulted with hands to CW.3, and when CW.2 tried to pacify the quarrel, accused persons slapped over her cheek, dragged her by holding 33 CC No.19772/2013 Judgment her hairs, outraged her modesty, caused damage to the gate by hitting with the help of stones, and caused loss of Rs. 10,000/- to the complainant and when CW.1 and CW.4 questioned the same all the accused abused them in filthy language put treat to their life and thereby committed the alleged offences.
32. The accused during their questioning U/sec.313 of Cr.PC have not given any explanation and the accused have not brought out anything to dis-believe the evidence of the witnesses. There is no believable defence set out by the accused as to why the evidence of PW.1 to 5 and 7 to 9 shall not be believed and why PW.1 has lodged the false complaint against the accused.
33. On careful and meticulous evaluation of evidence led on behalf of the prosecution, prosecution has successfully established beyond reasonable doubt that 34 CC No.19772/2013 Judgment the accused No.1 and 2 have committed the offences punishable under Sections 448, 354 and 323 of Indian Penal Code. But the prosecution has miserably failed to prove beyond all reasonable doubts the charges leveled against Accused No 3 for offences punishable under Sections 448, 354 and 323 of Indian Penal Code and in respect of offence under Sections 504 and 506 of Indian Penal Code. Hence, I answer point Nos.1 and 2 in the Affirmative and point Nos.3 and 4 in the Negative.
34. Point No.6:- In the result, I proceed to pass the following:
ORDER Accused-1 and 2 found guilty for the offences punishable U/sec. 448, 323, 354 r/w 34 of IPC.
By acting under section 248(1) of Cr.P.C. I hereby acquitted the Accused No.3 for the offences punishable under section 448,323, 354, 504 and 506 r/w section 34 of IPC. And Accused 35 CC No.19772/2013 Judgment No. 1 and 2 are acquitted for the offences punishable under section 504 and 506 of IPC.
The Bail bonds of Accused No.3 stands cancelled To hear on sentence call on 07.06.2018 (A Somashekara) V Addl.C.M.M. Bangalore.
ORDER ON SENTENCE:
Accused Nos.1 and are present. Heard learned Sr. APP and learned counsels for the accused Nos.1 and 2 on sentence.
Learned APP submits that, the accused persons have committed heinous offence and they may be dealt with stringently. Per contra learned counsels for the accused Nos.1 and 2 have submitted that the accused Nos.1 and 2 are young persons and they are poor. Hence, Probation of Offenders Act may be invoked.36 CC No.19772/2013
Judgment
2. I have given my thoughtful consideration to the submission made at the bar.
3. Sentence should be proportionate to the gravity of the offence. Nature of sentence should depend upon the facts and circumstances of each case having regard to factors, such as nature of offence, manner in which it was committed or executed, motive for crime, conduct of the accused and all other attendant circumstances. It is also trite that, aggravating and mitigating factors should be balanced. In this connection, it is profitable to place reliance on the decision of Hon'ble Supreme Court of India in 359- "Shailesh Jasvantbhai v. State of Gujarat", which reads as below:
"12. In Dhananjoy Chatterjee v. State of W.B. (1994 (2) SCC 220), this Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminal and in the ultimate making justice suffer by weakening the system's creditability. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not 37 CC No.19772/2013 Judgment only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment.
13. Similar view has also been expressed in Ravji v. State of Rajasthan (1996 (2) SCC 175). It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance. In State of M.P. v. Ghanshyam Singh (2003 (8) SCC 13), Surjit Singh v. Nahara Ram and Anr. (2004 (6) SCC 513) and State of M.P. v. Munna Choubey and Anr. (2005 (2) SCC 710) the position was again highlighted.
Further this view is reiterated by Hon'ble Supreme Court in (2008) 7 Supreme Court Cases 550 (State of Punjab Vs. Prem Sagar & Others) which reads thus:
"The Indian judicial system has not been able to develop legal principles as regards sentencing. The superior courts except making observations with regard to purport and object for which punishment is imposed upon an offender, have not issued any guidelines. Other developed countries have done so. At some quarters, serious concerns have been expressed in this behalf.38 CC No.19772/2013
Judgment Some committees as for example Madhava Menon Committee and Malimath Committee have advocated introduction of sentencing guidelines.
Whether the Court while awarding a sentence would take recourse to principle of deterrence or reform or invoke doctrine of proportionality, would no doubt depend upon the facts and circumstances of each case. While doing so, however, nature of offence plays an important role. The offences which affect public health must be dealt with severely. For the said purpose, the courts must notice the object for enacting Article 47 of the Constitution. There are certain offences which touch social fabric. Even while introducing doctrine of plea bargaining in Cr.P.C. certain types of offences have been kept out of its purview. While imposing sentences, the said principles should be borne in mind.
Although a wide discretion has been conferred upon court, the same must be exercised judiciously. It would depend upon circumstances in which crime has been committed and criminal's mental state and age are relevant factors.
What would be the effect of sentencing on the society is a question which has been left unanswered by the legislature. The superior courts have come across a large number of cases which go to show anomalies as regards the policy of sentencing. Whereas quantum of punishment for commission of a similar type of offence varies from minimum to maximum, even where same sentence is imposed, the principles applied are found to be different. Similar discrepancies have been noticed in regard to imposition of fine.
To what extent should the Judges have discretion to reduce the sentence so prescribed under the statute has remained a vexed question. However, in India, the view always has been that the punishment must be proportionate to the crime. Applicability of the said principle in all situations, however, is open to question. Judicial discretion must be exercised objectively having regard to the facts and circumstances of each case."39 CC No.19772/2013
Judgment
4. In the light of the above referred decisions, this court has drawn balance sheet of aggravating and mitigating circumstances. The only mitigating circumstance aggravating by both the accused and for the accused is that and they are handicapped and they are poor. This court has already opined that, merely on the ground that the accused are handicapped, it is not sufficient to hold that they have not committed offence punishable under Section 354, 323 of Indian Penal Code. This court has already opined that offence under Section 354 of Indian Penal Code can be committed by uttering words. The aggravating circumstance is that the accused persons subjected the informant physical assult and outraged her modesty. Indisputably this is an alarming incident. In Indian ancient jurisprudence it is considered that Gods used to reside where woman folk are regarded with utmost respect. Accused Nos.1 and 2 have committed heinous offence affecting the health of the society. The mitigating circumstance must yield to this aggravating circumstance. Therefore, it is not 40 CC No.19772/2013 Judgment fit case to invoke the provisions of Offenders Act. The sentence must be befitting to the crime.
5. It is also trite that every crime is necessarily tort. Therefore, compensation shall be awarded to the victim without driving her to file Civil suit for compensation.
6. Considering all these aspects of the case, I proceed to pass the following:
:ORDER:
Accused Nos.1 and 2 are sentenced to rigorous imprisonment for six months for the offence punishable under Section 448 of Indian Penal Code and sentenced to pay fine of Rs.1,000/- each In default Simple Imprisonment for 01 month.
Accused Nos.1 and 2 are sentenced to undergo Simple Imprisonment for one year for the offence punishable under Section 354 of Indian Penal Code and sentenced to pay fine of Rs.1000/- each In default to undergo Simple Imprisonment for 01 month.
Accused Nos.1 and 2 are sentenced to undergo Simple Imprisonment for six months for the offence punishable under 41 CC No.19772/2013 Judgment Section 323 of Indian Penal Code and sentenced to pay fine of Rs.1000/- each In default to undergo Simple Imprisonment for 01 month.
Acting under Section 357 of Code of Criminal Procedure, 1973 it is ordered that out of fine amount Rs.4,000/- shall be given to the victim i.e. PW.2 as compensation.
Office is directed to furnish free certified copy of this judgment to accused Nos.1 and 2 in compliance of Section 363(1) of Code of Criminal Procedure, 1973.
M.O 1 club and M.O.2 is stone are worthless, it is ordered to destroy after appeal period.
(Dictated to the Stenographer through online and corrected by me, then the judgment pronounced in the open court, on this 7th June 2018) (A Somashekara) V Addl.C.M.M. Bangalore ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE PROSECUTION PW.1 Shivaraju P.W.2 Ashwini P.W.3 Anand P.W.4 Jayamma P.W.5 Venkatappa P.W.6 Raju P.W.7 Narasimhaiah P.W.8 Nanjaiah 42 CC No.19772/2013 Judgment P.W.9 Vasimulla
2. LIST OF THE DOCUMENTS MARKED FOR THE PROSECUTION Ex.P1 Complaint Ex.P.1(a) Signature of CW1 Ex.P.1(b) Signature of CW10 Ex.P2 Spot Mahazar Ex.P.2(a) Signature of CW1 Ex.P.2(b) Signature of CW5 Ex.P3to 6 Photos Ex.P.7 Report of CW10
3. LIST OF THE MATERIAL OBJECTS MARKED FOR THE PROSECUTION:
MO1: Rock MO2: Two wooden clubs
4.List of witnesses and documents marked on behalf of the accused:- - NIL -
V Addl.C.M.M., B'lore.