Bangalore District Court
Smt. Jayanth vs Aged About 27 Years on 10 February, 2015
IN THE COURT OF THE ADDL. SESSIONS JUDGE , FTC-X AT
BANGALORE.
DATED: THIS THE 5th DAY OF JULY, 2014
P R E S E N T:-
Sri. PATIL MOHAMMADGOUSE MOHIDDIN
B.Com, LL.B (Spl.).,
PRESIDING OFFICER,
FTC-X, BANGALORE CITY.
CRIMINAL APPEAL No.823/2011
BETWEEN:-
APPELLANTS/ 1. Smt. Jayanth,
ACCUSED: Aged about 27 years,
C/o. Sri.T.Sampangaiah,
2. Smt. Anusuyadevi,
Aged about 35 years,
C/o.Sri.Sridhara,
3. Sri. Lakshmikantha,
Aged about 25 years,
S/o. Sri.S. Ramakrishna,
All are R/at.No.453,
3rd Main, I Cross,
Mathikere,
Bangalore city.
(By Sri.S.Satyanarayana Chalke,
Advocate)
Vs/-
RESPONDENT/ State of Karnataka by the SHO.,
COMPLAINANT: Yeshwanthpura Police Station,
Bangalore North Taluk,
Bangalore city.
( By learned Public Prosecutor)
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JUDG MENT
This is a criminal appeal preferred by the appellants/accused
against the respondent/complainant U/Sec.374 of Cr.P.C., being
aggrieved by the judgment of conviction and sentence passed by
the learned I - A.C.M.M., Bangalore, dated 23.11.2011 in
C.C.No.11334/2010.
2. For the sake of convenience, the appellants and
respondent of the present case shall be referred with their original
status as referred in the Trial Court. The appellants are the
accused persons and respondent is the complainant before the
trial court.
3. The brief facts of the case of prosecution are that:
On 7.10.2009 at about 5.45 p.m., when the complainant
Smt. Choodamani came along with her husband and children to
their residence where they residing along with the accused
persons as common tenaments. The accused persons picked up a
quarrel with the complainant and abused them in filthy language
and assaulted with the club( small stick) and threatened to their
life, for the reason that, when the complainant questioned the
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accused persons why they not opened the door when they arrived
at last night after celebrating the function at the house of the
complainant's sister and thereby committed the offences
punishable U/s. 324, 504, 506(B) R/w.Section 34 of I.P.C.
4. After the investigation, the police have filed the
charge sheet against the accused persons for the offences
punishable U/s.324, 504, 506(B) R/w. Section 34 of I.P.C.
5. Thereafter, the accused persons got released
themselves on bail by appearing before the trial court. Thereafter
the prosecution papers were furnished to accused persons as
required U/s. 207 of Cr.P.C., and on subsequent date the charge
against the accused persons for the offences punishable U/s. 324,
504, 506(B) R/w.Section 34 of I.P.C., has been recorded, to
which the accused persons pleaded not guilty and claimed to be
tried by the court.
6. The prosecution in order to prove its case, examined Pw.1
to Pw.10 and got produced documents at Ex.P.1 to Ex.P.6.
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7. On completion of the evidence of the prosecution, the
accused statement as required U/s.313 of Cr.P.C. has been
recorded after giving an opportunity explaining incriminating
circumstances appearing in the evidence of prosecution.
8. The accused persons have not adduced any defence
evidence.
9. After appreciating the oral and documentary evidence on
record and after hearing both the sides, the trial court has
convicted the accused/appellants U/s. 255(2) of Cr.P.C., for the
offences punishable U/s.324, 504, 506(B) R/w. Section 34 of
I.P.C. and sentenced them to under go simple imprisonment for
two months each and to pay fine of Rs.500/- each, in default of
payemtn of fine the accused No.1 to 3 shall undergo S.I. for one
month each for the offence punishable U/s. 324 R/w.Section 34
of I.P.C., and to pay fine of Rs.500/- each and in default of
payment of fine, the accused No.1 to 3 shall under go simple
imprisonment for one month each, for the offence punishable
U/s. 504 R/w.Section 34 of I.P.C., and to pay fine of Rs.500/-
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each in default of payment of fine the accused No.1 to 3 shall
undergo S.I. for one month each for the offence punishable U/s.
506(B) R/w.Section 34 of I.P.C.
10. The appellants/accused persons being aggrieved by
the aforesaid conviction and sentence passed by the Trial Court
have filed this appeal, on the ground that, the trial court has
not applied its judicial mind to the fact, circumstances, events,
evidence and the materials placed on record. The trial court has
also not applied the appropriate provisions of law. The necessary
ingredients required for an offence punishable U/s. 324 of I.P.C.
to be attracted are not made out by prosecution and cannot be
gathered upon the materials placed on record in the case.
Necessary ingredients required for an offence U/s. 504 of I.P.C. to
be attracted are not made out by the prosecution. Likewise the
prosecution has not made out a necessary ingredients required
for attracting the offence punishable U/s. 506(B) of I.P.C.
Hence, the trial court without appreciating the evidence of
prosecution witnesses has wrongly convicted the
accused/appellants. Hence, prays to set aside the judgment of
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conviction and sentence passed in C.C.No.11334/2010 dated
23.11.2011 on the file of I- A.C.M.M., Bangalore and acquit the
appellants/accused persons from the offences punishable U/s.
324, 504, 506(B) R/w.Section 34 of I.P.C.
11. I have secured the trial court records. Perused the
same and impugned judgment passed by the trial court.
12. Heard the learned advocate for the
appellants/accused persons and learned Public Prosecutor for the
respondent/complainant.
13. The following points that have arisen for my
consideration:-
1) Whether the appellants/accused persons
have made out any grounds warranting
interference with the judgment of
conviction and sentence passed by the
learned I- A.C.M.M., Bangalore, in
C.C.No.11334/2010 dated 23.11.2011 for
the offences punishable U/s. 324, 504,
506(B) R/w. Section 34 of I.P.C.?
2) What order ?
14. My findings on the aforesaid points are as under :
Point No.1 :- In the Affirmative
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Point No.2 :- As per final order, for the following :
REASONS
15. POINT NO. 1 :- I have perused the lower court
records and impugned judgment passed by the trial court.
16. I have perused the evidence of Pw.1 to Pw.10. Pw.1
is the complainant, Pw.2 is husband of Pw.1 complainant, Pw.3 is
father of Pw.1, Pw.4 is friend of Pw.3, Pw.5 is mother of Pw.1,
Pw.6 is son of Pw.1 and Pw.2, Pw.7 is husband of Pw.1's sister.
17. Pw.1 to Pw.3, Pw.5 and Pw.6 in their evidence have
stated that, on the date of alleged incident i.e. on 6.10.2009 the
complainant along with her family members had been to her
sister's house to celebrate birthday party and when she returned
back, the accused persons not opened the door, for that reason,
they returned back. On next day came at 10.30 p.m. at that
time, the accused persons quarreled with the complainant and
her family members by claiming that, they will not allowed them
to reside with them and assaulted P.W.1 with MO.1 stick (club)
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and caused simple injuries and abused them in filthy language
and also threatened to their lives.
18. During the course of cross-examination, it is elicited
that, Pw.2 has filed a suit for partition against the accused
persons and for that reason the complainant and her family
members filed a false suit in order to claim partition in the family
property.
19. In the chief examination itself, Pw.1 has stated that,
about 4 to 5 years prior to this incident her husband has lost the
sight. When her husband was alright he was looking after
entire family out of his income. Further during the course of
cross-examination Pw.1 has denied that, they have filed a suit for
partition and in order to claim partition, they have filed false
complaint against the accused persons. During the course of
cross-examination Pw.1 has stated that, her husband became
blind. The entire responsibilities of maintaining the family was
taken up by mother in law. Further, Pw.1 has specifically denied
that in order to claim share in the property and to reside
separately, they have filed a false complaint against the accused.
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While the husband of the complainant Pw.1 i.e. Pw.2 in his
cross-examination has specifically stated that, he has filed a suit
for partition against the accused persons. Further, Pw.2 in his
cross-examination has specifically stated that, since the date of
marriage till he lost of his sight he was residing happily with the
accused in the house. On going through the said version of
Pw.2, it clearly evident that, as complainant's husband i.e. Pw.2
lost his sight and there was no earning to the complainant's
husband i.e. Pw.2, a dispute or difference of opinion erupt in
between the complainant's family and accused family, for that
reason Pw.2 has filed a suit for partition. No doubt Pw.1 to Pw.3
and Pw.5 and Pw.6 have stated that, the accused persons have
assaulted the Pw.1 with Mo.1 by abusing them in filthy language
and also threatened to their life, the said version is not
supported by any independent witnesses as the prosecution has
not examined any one independent witnesses of the locality
where the alleged incident is taken place. As the version of Pw.1
to Pw.3 and Pw.5 to Pw.7 who are close relatives, is not
supported by any independent witnesses, their version is not
reliable one and is not of trustworthy. All of them have personal
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interest to effect partition in between the complainant family and
accused family. Therefore, Pw.1 to Pw.3 and Pw.5 to Pw.7 are
interested persons. Thus, they have personal interest to see that
the accused should be forced to effect partition in between
themselves. Therefore, in the absence of the independent
witnesses, the version of Pw.1 to 3 and Pw.5 to 7 is not reliable
one and is not of trustworthy. Pw.2 is spot panch who is also
friend of father of the complainant, Pw.7 is brother-in-law of the
complainant i.e. complainant's sister's husband. Hence, they are
also interested witnesses. Pw.7 is hear say witness. Pw.3 is not
resident of locality where the alleged incident is taken place. Pw.2
no where in his evidence has stated that, why he came to the
spot on the alleged date and time of panchanama. Thus, the
version of Pw.2 that, the police have conducted the spot panch on
the said date, time and place is not reliable one and is not of
trustworthy. Therefore, I have no hesitation whatsoever to come
to the conclusion that, the prosecution has failed to prove the
guilt of the accused persons beyond all reasonable doubt.
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20. It is alleged that, the accused assaulted the
complainant with Mo.1 stick [stick used to prepare ragi ball
(mudde)]. The prosecution has not adduced any evidence to
show that, the said MO.1 is dangerous weapon. Therefore, even
though for a while assumed that the said weapon is used in the
alleged incident, unless and until it proved that the said weapon is
dangerous weapon use of it likely to cause death it cannot be said
that, the offence punishable U/s. 324 is made out. Further, the
prosecution has not examined the medical officer who has issued
wound certificate as per Ex.P.6. Ex.P.6 got marked through
Pw.10, Investigating Officer. The contents of the Ex.P.6 are not
proved. Further, on going through the Ex.P.6, it reveals that, the
alleged injuries are simple in nature. The prosecution has not
examined medical officer to make it clear that, the weapon at
Mo.1 is dangerous weapon, who is competent person to say that,
the injuries as per Ex.P.6 are likely to be caused with Mo.1 which
is weapon of offence likely to cause the death. Therefore, under
these circumstances, I am of the view that, the offence
punishable U/s. 323 of I.P.C. is attracted but not the offence
punishable U/s. 324 of I.P.C. The offence punishable U/s. 323 of
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I.P.C. is non-cognizable offence. Further, the other offences
punishable U/s. 504 and 506(B) of I.P.C. are also non-cognizable
offences. To register and investigate the offence which is
non-cognizable, the Investigating Officer has to obtain
permission of the court. On perusal of the charge sheet nothing is
elicited to show that, the Investigating Officer has obtained any
permission from the court to register and investigate the
non-cognizable offences i.e. offences punishable U/s. 323, 504,
506(B) of I.P.C. Therefore, the non-obtaining of permission from
the court to registration and investigation of non-cognizable
offences is fatal to the prosecution and entire proceedings
vitiates. Therefore, the entire proceedings are liable to be set
aside. Therefore, I have no hesitation whatsoever to come to the
conclusion that, the prosecution has failed to prove the guilt of
the accused persons beyond all reasonable doubt. On the ground
that, the Investigating Officer has failed to obtain prior permission
of the court to register the non-cognizable offences against the
accused persons, the proceedings are liable to be rejected and
the accused persons are entitled for acquittal on that ground
itself.
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21. I have gone through the judgment of conviction and
sentence passed by the trial court. The learned trial judge has
failed to consider the fact that, the prosecution has failed to
examine the medical officer who has issued Ex.P.6 wound
certificate to corroborate with the evidence of Pw.1 to Pw.3 and
Pw.5 to Pw.7 with regards to injury sustained by the P.W.1 and
to ascertain whether weapon at Mo.1 is a dangerous weapon
likely to cause death or not. In the absence of evidence of
medical officer, the version of Pw.1 to Pw.3 and Pw.5 to Pw.7
that the Pw.1 sustained injuries due to assault with Mo.1 is not
reliable one and is not of trustworthy. Therefore, the learned trial
judge has failed to consider the defect of prosecution i.e.
non-examination of medical officer in proof of injuries caused to
the Pw.1/complainant. Further, the learned trial judge has failed
to consider the fact that, the complainant party i.e. Pw.2 has filed
a suit for partition against the accused persons and P.W.1 to
P.W.3 and P.W.5 to 7 are close relatives to each other and they
are interested witnesses and have personal grudge against the
accused persons, and has wrongfully come to conclusion that,
the prosecution has proved the guilt of the accused persons
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beyond all reasonable doubt for the offences punishable U/s. 324,
504 and 506(B) R/w.Section 34 of I.P.C. Further, the learned trial
judge has failed to consider whether an offence punishable U/s.
323 is attracted or offence punishable U/s. 324 is attracted. The
trial judge has failed to consider the MO.1 club is not a dangerous
weapon likely to cause death. Therefore, I have no hesitation
whatsoever to come to the conclusion that, the trial judge has
totally misunderstood the evidence of Pw.1 to Pw.7 and has
wrongly come to the conclusion that, the accused persons have
committed the offences punishable u/s. 324, 504 and 506(b)
R/w.Section 34 of I.P.C. Therefore, I am of the view that, the
appellants/accused persons have made out sufficient grounds to
set aside the judgment of conviction and sentence passed by the
I- A.C.M.M., Bangalore in C.C.No.11334/2010 dated 23.11.2011.
Accordingly, I answer this point No.1 in the affirmative.
22. POINT NO.2 :- In view of my findings on the above
point, I proceed to pass the following:
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ORDER
The Criminal Appeal filed by the appellants/accused persons U/Sec.374 of Cr.P.C., is hereby allowed.
The judgment of conviction and sentence passed in C.C.No.11334/2010 dated 23.11.2011 on the file of I- A.C.M.M., Bangalore is hereby set aside.
The appellants No.1 to 3 who are accused No.1 to 3 in C.C.No.11334/2010 on the file of I -A.C.M.M., Bangalore are hereby acquitted from the offences punishable U/s. 324, 504 and 506(B) R/w. Section 34 of I.P.C.
Send back the L.C.R. forthwith.
(Dictated to the Judgment Writer, script typed by her and corrected, signed and then pronounced by me in the open court on this the 5th day of July, 2014.) (PATIL MOHAMMADGOUSE MOHIDDIN) PRESIDING OFFICER, F.T.C -X, BANGALORE CITY.
16 Crl.A.No.823/2011 17 Crl.A.No.823/2011 18 Crl.A.No.823/2011 19 Crl.A.No.823/2011 Orders pronounced in the open court. The operative portion of the same is extracted as hereunder:
O R D ER The Criminal Appeal filed by the appellants/accused persons U/Sec.374 of Cr.P.C., is hereby allowed.
The judgment of conviction and sentence passed in C.C.No.11334/2010 dated 23.11.2011 on the file of I- A.C.M.M., Bangalore is hereby set aside.
The appellants No.1 to 3 who are accused No.1 to 3 in C.C.No.11334/2010 on the file of I -A.C.M.M., Bangalore are hereby acquitted from the offences punishable U/s. 324, 504 and 506(B) R/w. Section 34 of I.P.C.
Send back the L.C.R. forthwith.
PRESIDING OFFICER, F.T.C -X, BANGALORE CITY.
20 Crl.A.No.823/2011