Bangalore District Court
4. Name Of The Accused 1.Sunil ... vs And 2 Are Acquitted on 14 September, 2016
IN THE COURT OF THE VIII ADDL. C.M.M., BENGALURU.
Dated this the 14th day of September 2016.
Present : Sri. Mohamed Ashraf Aris, B.A., LL.B.
VIII ADDL. C.M.M., BENGALURU.
C.C. NO. 24489/2007
JUDGMENT U/S 355 OF THE Cr.P.C. 1973.
1. Sl. No. of the Case 24489/2007
2. The date of 07/09/2007
commission of the
offence
3. Name of the State by R.T. Nagar P.S.
complainant
4. Name of the accused 1.Sunil Manikantan,
S/o. late P.Krishnan, 32 years.
2.Smt.Raji Sunil, W/o. Sunil
Manikantan, 24 years,
Both are R/at No.93/2A/1,
Ayyappa Nivas, 6th A Main, HMT
Layout, Bengaluru .
1. The offence U/sec.323, 324 r/w 34 of IPC.
complained of or
proved
2. Plea of the accused Pleaded not guilty
and his examination
3. Final Order Acting U/sec. 248(1) Cr.PC
Accused -1 and 2 are acquitted
4. Date of such order 14/09/2016
For the following:-
2
JUDGMENT
This is the charge sheet filed by the PSI of R.T. Nagar Police station against the accused-1 and 2 for the offences punishable U/sec.323, 324 r/w 34 of IPC.
2. The case of the prosecution in brief is as follows:
On 7/9/2007 at 8.30 a.m. when CW.1 Nanda Kumar was constructing a compound wall on the side of his residential house bearing No.93/2A/1, 6th A Main, H.M. Layout, Bengaluru, the accused-1 and 2 i.e., Sunil and Rajee came and picked up quarrel with CW.1 and the accused-1 voluntarily assaulted CW.2 (Rajee Nandakumar) with a small crow bar and caused simple hurt and the accused-2 caught hold of the hair lock of CW.2 and pulled her and slapped her and thereby the accused-1 and 2 are said to have committed the alleged offences.
3. Accused-1 and 2 are on bail. They pleaded not guilty to the charge framed. The prosecution examined PWs:1 to 7 and got marked Ex.P.1 to 3 and MO-1. Accused have been 3 questioned u/sec. 313 of Cr.PC. The answer of accused is total denial of prosecution case and not chosen to place any defense evidence except marking of the document as Ex.D1.
The first information in this case has been lodged by the accused-1 in the counter case. The accused-3 in that case is the injured CW.2 in this case. The accused-1, 3 and accused-1 in that case have been examined as PW.1, 2 and PW.6 in this case.
The counter case has been registered as CC No.24488/2007. The said case has been registered on the basis of the charge sheet filed by the R.T. Nagar Police arising out of the same incident. The first information in that case has been lodged by accused-1 in this case. In the counter case CW.1 has been examined as PW.1, CW.2 has been examined as PW.2, CW.3 and 5 have been examined as PW.3 and 4, CW.8 and 10 have been examined as PW.6 and 7. CW.7, 9 and 6 have been dropped. CW.4 has been given up. Two wooden clubs (lathi) have been marked as MO-1 and 2. The First Information, Spot 4 mahazar, Wound Certificate of CW.2 have been marked as Ex.P1 to P4 in the counter case.
Investigating Officer in that case is the ASI - Siddalingaiah. The Investigating Officer in this case i.e., in CC No.24489/2007 is PSI Basavaraj. CW.1 (Sunil Manikantan) and CW.2 (Smt.Rajee Sunil) , who are CW.1 and 2 in that case are the accused in this case.
In that case, the prosecution has been conducted by the Sr.APP of this court. The prosecution in this case CC No.24489/2007 has been conducted by another Sr.APP of 1st A.C.M.M., Bengaluru, who has been appointed to conduct this case.
It is well settled that, in a case and counter case, the same court has to try both the cases and that the judgment in both the cases will be passed at a time. In the decision of the Hon'ble High Court of Karnataka reported in ILR 2010 Karnataka 1719 it has been held as follows:
In case and counter case, in the filing report of both the cases, the Investigating Officer has to necessarily furnish all the 5 documents pertaining to the other case and should explain the genesis of the incident explain whether it is a free fight between 2 persons or groups and that both are aggressors. The Investigating Officer should state whether one of the persons or groups is an aggressor and that whether the other has caused injuries in exercise of the right of private defence. It is necessary that the Investigating Officer should explain injuries on the accused - It is well settled principle in a case and counter the same Investigating Officer should investigate both the cases and should file final report - final report should necessarily contain material to enable the prosecutors to lead evidence correctly and for the judge to understand in a proper legal perspective to understand the guilt of the accused - the different prosecutors should conduct prosecution, the same Judge should try the cases simultaneously and render separate judgments. It is a judicial dieta that the court should not read or get influenced by the evidence recorded in the other case, unless the said material in the other case, is marked as an evidence in the case in question. To say that the court should not read or get 6 influenced by the evidence recorded in the other case under all circumstances would be a perverse view and runs counter to the logic of holding simultaneous investigation by the same Investigating Officer and trial of the Judge. Otherwise it is impossible for the Judge to appreciate the guilt of the accused to find out whether both are aggressor and both are guilty of indulging in a free fight or one of them is an aggressor and the other caused injuries on the accused in exercise of right of private defense.
The principles laid down in the aforesaid decision is kept in mind while deciding this case.
4. Heard arguments of both the sides .
5. The points that arise for determination are as follows:
1) Whether the prosecution proves beyond all reasonable doubt that on 7/9/2007 at 8.30 a.m. when CW.1 Nanda Kumar was constructing a compound wall on the side of his residential house bearing No.93/2A/1, 6th A Main, H.M. 7 Layout, Bengaluru, the accused-1 and 2 i.e., Sunil and Rajee came and picked up quarrel with CW.1 and the accused-1 voluntarily assaulted CW.2 (Rajee Nandakumar) with a small crow bar and caused simple hurt and the accused-2 caught hold of the hair lock of CW.2 and pulled her and slapped her and thereby the accused-1 and have committed the offence punishable U/sec.323, 324 r/w 34 of IPC.?
2) What order?
6. The answer to the above points are as follows:
Point No.1 In the negative Point No.2 As per final order for the following:
REASONS
7.Point No.1 :-
Place, Date and Time of Incident.
In this case, the first information has been lodged by the accused-1 in the counter case, i.e., P.Nanda Kumar. The first information given by P.Nanda Kumar is marked as Ex.P1 in 8 this case. As per his complaint, he is in possession of the property and the vacant land. He has stated that, since his sister, who is staying Ground Floor, used to harass the tenants and they often vacated the premises and hence a separate entrance was constructed. He has stated that, Sunil Manikantan and his wife and his mother Sita Lakshmi broke open the lock with a Kadapare infront of the police at the premises to hit his wife i.e., CW.2 in this case namely Raji Nanda Kumar and the left hand of CW.2 was injured. There is no mention of the time. The said first information was given on 7/9/2007 at 10.45 p.m. In the counter case First Information is lodged by CW.1 Manikantan.B in Cr.No.272/2007 i.e., CCNo.24488/2007, the place of incident is at Site No.93/2A/1 Devi Nilaya, VI Main, HMT Layout and the incident took place on 7/9/2007 at 8.30 a.m. The first information is marked as Ex.P1. In Ex.P1 he has stated that, on the previous day i.e., 6/9/2007 at 8 p.m. the police asked the accused to demolish the illegal wall constructed on the common property , but inspite of the 9 instruction by the police, on the next day i.e., on 7/9/2007 the accused went ahead with the construction and when CW.1 and 2 i.e., Sunil Manikantan and his wife questioned the accused, the accused manhandled his wife i.e., CW.2 and beat her with the lathi and that the accused warned that they will not keep CW.1 and 2 alive, if the work is interfered.
Spot Mahazar:
In this case i.e., in CC No.24489/2007 the spot mahazar has been conducted between 12.30 a.m. to 1.15 p.m. as per Ex.P2. The same spot is shown in the mahazar. The said spot mahazar is marked as Ex.P2 in that case, same is attested by the panch witnesses i.e., CW.3 and 4. CW.3 has been examined as PW.3. He has stated about conducting the spot mahazar by the police and about seizure of Gadapare, which is marked as MO-1 in this case. Another witness i.e., CW.4 has been examined as PW.7. He has stated about signing the spot mahazar as per Ex.P2, but he has stated that he does not know the contents of the mahazar. Further, he has stated that the police have not seized any articles in his presence. He has been 10 treated as hostile by the prosecution, but he has denied about seizure of the property. PW.1 in this case i.e., Nanda Kumar has also stated in his chief-examination that, the property before the court is not the property used by the accused for the offence and that he has got it prepared and handed over to the accused. Further, he has stated that the property, which was used for the offence have not been seized by the police. Further, he states that the police have visited the spot and seized the property, but property before the court is not the said property. The Investigating Officer, who has conducted investigation in this case, has not been examined, since he did not turn up.
The spot mahazar in the counter case CC No.24488/2007 has been conducted on 7/9/2007 between 11.00 - 11.45 a.m. The spot mahazar is marked as Ex.P2. The spot is shown as the place infront of House Site No.93/2A/1 Ayyappa Nivas, VI A Main, Chowdaiah Block, HMT Layout, R.T. Nagar. The attesting witnesses to this spot mahazar are CW.4 and 3. CW.3 has been examined as PW.3 namely Sri.Kiran. He has stated in his evidence that, the police conducted mahazar on 7/9/2007 11 between 11.00 to 11.30 a.m. and seized 2 lathies. The lathies marked as MOs-1 and 2 The Investigating Officer PW.7 has also stated about conducting of spot mahazar Ex.P2 in the presence of the witnesses and about seizure of MOs-1 and 2.
Wound Certificate:
In this case, the wound certificate of CW.2 i.e., Rajee Nanda Kumar is produced, but not marked. The Doctor, who has issued it, has not been examined and the Investigating Officer has also not been examined. They have been dropped, since they did not turn up inspite of taking coercive steps. As per the wound certificate produced in this case, CW.2 Rajee Nanda Kumar has sustained Lacerated wound measuring 3 X half inch on the left forearm and the patient was examined at 10 a.m. on 7/9/2007 .
The written complaint of CW.2 in counter case CC No.24488/2007 has been marked as Ex.P4. The Doctor, who has issued the wound certificate has been cited as CW.7. CW.7 has not been examined. It has been got marked through the Investigating Officer. As per the wound certificate, CW.2 has 12 sustained 4 inch X 1 centimeter wheal on the left forarm Extensor aspect. As per Ex.P4, patient was examined at 10.05 a.m. on 7/9/2007.
Arrest of the accused:
In this case i.e., CC No.24489/2007, P.C. No.8875 namely Venkatesh has stated that on 7/9/2007 he and CW.7 were deputed to trace out the accused in this case and accordingly he had been to VI Main, HMT Layout and at 2 p.m. traced the accused and apprehended both of them and produced them before the SHO.
P.C.No.9151 namely Yeshwanth has been examined as PW.6 in the counter case. He has stated that on 7/9/2007 he brought the accused-1 to 3 of that case CC No.24488/2007 from their house at 2.00 - 2.30 p.m. and produced them before the PSI in the police station. PW.7 the Investigating Officer has stated that he arrested the accused-1 to 3 and produced them before the court on the same day.13
Eye witnesses:
In this case, apart from CW.1 and 2, who are the husband and wife, their son Rakesh has been examined as PW.6. Further one family friend of CW.1 has been examined as PW.5. PW.5 has stated in his evidence that on 7/9/2007 at about 8.00 - 8.30 a.m. when he was going to the house of complainant-Naveed Kumar blood was coming out from the hands of wife of the complainant and at that time both the accused and the mother of the accused -1 were present there. He has stated that the son of CW.1 came there and took the injured to the hospital. He has stated that no incident has taken place in his presence and that the police have not enquired him about the incident . This witness is not an eye witness to the incident.
In the counter case CC No.24488/2007 apart from CW.1 and 2 i.e., husband and wife, one independent witness has been examined as PW.4 namely Sashidhar. PW.4 has stated that on 6/9/2007 CW.1 Sunil Manikantan told that the accused has obstructed the passage and thereafter he went to 14 the house of CW.1 Sunil and found that the passage was obstructed and thereafter he went to the police station and the police summoned the accused-1 - Nandakumar to the police station and the accused-1 i.e., P. Nanda Kumar admitted before the police of demolishing the said obstruction and that on the next day, CW.1 Sunil Manikantan called him over the phone at about 9 a.m. and informed that the accused-1 and 2 i.e., Nanda Kumar and his wife have assaulted his wife CW.2 i.e., Rajee Nanda Kumar, over her hand with lathi. He has further stated that thereafter he went to the house of CW.1 and then to the police station and PW.1 lodged the complaint. This witness is not an eye witness to the alleged incident.
The eye witnesses:
The evidence which is available and to be appreciated are that of CW.1 and his wife in that case and CW.1, 2 and 5 in this case, who are accused-1 to 3 in that case.
There is a civil dispute between accused and CW.1 though there are no cases filed in the civil court. Accused-1 in this case is none other than the nephew of the CW.1. The property in which accused is residing is a disputed property. 15 CW.1 contends that, 3/4th of the right has been bequeathed to him by the grand-father and he contends that he has constructed the entire building situated in the said property. Accused is residing in an extent of 650 sq. feet on the ground floor along with his wife CW.2. The upstairs in the I Floor are leased out by CW.1 to the tenants. These facts are un-disputed and have been elicited in the cross-examination. The dispute leading to the alleged incident is said to have commenced when CW.1 started to put up a compound wall in order to separate the way leading to the I Floor stating that accused-1 is obstructing the tenants. A copy of mutual agreement is got marked in the cross of PW.1 in CC No.24489/2007.
8. In the case on hand, though this case and connected case are case and counter case, the Investigating Officer has not stated anything about the counter case in the entire investigation papers. As per the decision discussed earlier by this court, at page - 4 & 5, the Investigating Officer has to furnish all the documents pertaining to the other case and should explain the genesis of the incident and should explain 16 whether it is a free fight between the 2 persons or groups. In the case on hand, the investigation is done by different officers in the case and counter case. As per the settled principles of law, the case and counter should be investigated by the same officer and should file the final report. In the case on hand, different Investigation Officers investigated the matter without mentioning about the other case and has filed separate charge sheets. The Final Report does not contain materials to enable the prosecutors to lead the evidence correctly. Though different prosecutors have been appointed and conducted the counter case. The Final Report does not contain the necessary materials so as to enable the prosecution to lead evidence correctly.
9.On going through the evidence of CW.1 and 2 in that case, who have been examined as PW.1 and 2 and also going through the evidence of CW.1, 2 and 5 in this case CC No.24489/2007, who have been examined as PW.1, 2 and 6 in this case, this court is of the opinion that, the true facts are not forth coming from both the sides. They have adduced evidence 17 suppressing the actual facts. These witnesses are highly interested witnesses and have adduced evidence only to suit their contentions. In the absence of independent witnesses, it is not safe to rely only on their evidence. CW.2 in this case has sustained lacerated wound according to the wound certificate. However, the wound certificate is not marked and the doctors are not examined and Investigating Officers of that case has not been examined. Further, the material object, which is said to be a Gadapare has not been properly identified by the complainant in this case. In that case, CW.2 Rajee Sunil is said to have sustained an injury. But the wound certificate does not clearly show what type of injury it is. The Doctor, who has been cited as CW.7, has not been examined. It is not known as to what type of injury it is and whether it is injury at all.
10.Without placing the material facts and reference by the Investigating Officer and the prosecution, it is not possible to come to the conclusion as to who is the aggressor. Under these circumstances, the benefit of doubt needs to be given to the 18 accused in both the cases. Therefore, point no.1 is answered in the negative.
11.Point No.2:- For the aforesaid reasons, the following order is passed:
ORDER Acting under Section 248 (1) of Cr.P.C., the accused-1 and 2 are hereby acquitted of the offences punishable U/sec.323, 324 r/w 34 of IPC.
Bail bonds of accused and their surety bonds stand cancelled.
Mo-1 being worthless, ordered to be destroyed after appeal period is over.
(Dictated to the stenographer, transcript thereof, corrected and then pronounced by me in the open court this the September 14, 2016.) (Mohamed Ashraf Aris) VIII Addl.C.M.M. Bengaluru.
Annexure:
1.List of Witnesses examined on behalf of the prosecution: P. Ws:
1. Nandakumar
2. Rajinanda Kumar
3. G.Srinivas 19
4. Venkatesh
5. Pranesh Paduval
6. Rakesh Kumar
7. Srinivas.
2.List of Documents marked on behalf of the prosecution:- Ex.Ps:
1. Complaint
2. Spot Mahazar
3. Statement of PW.4.
3.List of Material objects marked on behalf of the prosecution:- Mos:
1. Gadapari.
4. List of witnesses and documents marked on behalf of the accused:
Dws:- -Nil-
Ex.Ds:-
1. Document.
VIII Addl. C. M. M. Bangalore.