Bangalore District Court
State By Chandralayout P.S vs Is Acquitted on 1 February, 2021
IN THE COURT OF THE VIII ADDL. C.M.M., BENGALURU.
Dated this the 1st Day of February 2021
Present: Sri.Jayaprakash D.R, B.A.LL.M.
VIII ADDL.C.M.M., BENGALURU.
C.C. NO.26806/2015
JUDGMENT U/S 355 OF THE Cr.P.C. 1973.
1. Sl. No. of the Case 26806/2015
2. The date of commission 01/06/2015
of the offence
3. Name of the complainant State by Chandralayout P.S.
4. Name of the accused R.G.Somashekar Gowda s/o
Ramegowda, aged 40 years,
r/at No.124, 12th B Main, 6th
Block, Rajajinagara,
Bangalore.
5. The offence complained of U/s. 341, 323, 504, 506, 448,
or proved 354 and 509 of IPC
6. Plea of the accused and Pleaded not guilty
his/her examination
2 C.C.No.26806/2015
7. Final Order Acting U/sec.248(1) Cr.P.C.
accused is acquitted
8. Date of such order 01022021
For the following:
JUDGMENT
This case is arising out of charge sheet submitted by the Police Inspector of Chandralayout PS against the accused for an offence Punishable U/Sec. 341, 323, 504, 506, 448, 354 and 509 of IPC.
2. The case of the prosecution in brief is as under:
The accused is the brother of CW1 and in the background on civil litigation between the accused and CW1 on 0106 2015 at the midnight at 2.00 a.m., at No.19, 4 th Main Road, Dwaraka Nagara, accused committed criminal trespass into the front portion of house of CW1 and abused CW1 and 2 in filthy language and threatened to take away their life and 3 C.C.No.26806/2015 outraged the modesty of CW1 by insulting her and restrained CW1 and 2 from coming out of their house. Hence, it is alleged that the accused has committed the offences u/s 504, 506, 448, 509, 354, 341 of IPC.
3. The accused appeared before the Court by obtaining the anticipatory bail and he was enlarged on bail. After taking cognizance, in pursuance of summons the accused appeared before the Court. The provision of Section 207 of Cr.P.C. was complied by furnishing charge sheet and its enclosures to the accused. The charge was read over and explained to the accused. Accused has pleaded not guilty and claimed to be tried.
4. The prosecution has examined 5 witnesses and got marked 5 documents and one material object in its favour. In spite of repeated issuance of process to CW4 to 6, the 4 C.C.No.26806/2015 prosecution has failed to secure their presence. Hence, they were dropped from examination. The provision u/s 313 of Cr.P.C. was complied by recording the statement of accused. The accused denied the incriminating evidence against him and submitted that he has got no defence evidence.
5. Heard arguments both sides.
6. From the material available on record, the following points arise for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that in the background of civil litigation between the accused and CW1 on 01062015 at the midnight at 2.00 a.m., at No.19, 4th Main Road, Dwaraka Nagara, accused committed criminal trespass into the 5 C.C.No.26806/2015 front portion of house of CW1 and thereby committed offence punishable U/sec.448 of IPC?
2. Whether the prosecution proves beyond reasonable doubt that at the above place, and time, accused abused CW1 and 2 in filthy language knowingly such insult will provoke breach of peace and thereby committed offence punishable U/sec.504 of IPC?
3. Whether the prosecution proves beyond reasonable doubt that at the above place, and time, the accused threatened to take away the life of CW1 and 2 and thereby committed offence punishable U/sec.506 of IPC? 6 C.C.No.26806/2015
4. Whether the prosecution proves beyond reasonable doubt that at the above place, and time, the accused outraged the modesty of CW1 by insulting her and thereby committed offence punishable U/sec.354 and 509 of IPC?
5. Whether the prosecution proves beyond reasonable doubt that at the above place, and time, the accused wrongfully restrained CW1 and 2 from coming out of their house and thereby committed offence punishable u/s 341 of IPC?
6.What order?
7. My findings on the above points are as under:
Point No.1 : In the Negative.
7 C.C.No.26806/2015
Point No.2 : In the Negative.
Point No.3 : In the Negative.
Point No.4 : In the Negative.
Point No.5 : In the Negative.
Point No.6 : As per final order,
for the following:
REASONS
8. Points No.1 to 5: In order to avoid repetition of discussion, I have taken up these points together for discussion.
9. It is the case of the prosecution that the accused is the brother of CW1 and in the background of civil litigation between the accused and CW1 on 01062015 at the midnight at 2.00 a.m., at No.19, 4th Main Road, Dwaraka Nagara, accused committed criminal trespass into the front portion of house of CW1 and abused CW1 and 2 in filthy language and 8 C.C.No.26806/2015 threatened to take away their life and outraged the modesty of CW1 by insulting her and restrained CW1 and 2 from coming out of their house. Hence, it is alleged that the accused has committed the offences u/s 504, 506, 448, 509, 354, 341 of IPC.
10. From the averments of complaint and from the evidence of PW1 and 3, it is very clear that there was civil litigation between the accused and CW1. Said previous dispute between the accused and CW1 maybe a motive for the accused to commit the offence or it may be a reason to foist a false case against the accused. In this regard evidence on record has to be appreciated carefully.
11. The prosecution has alleged that the accused has committed criminal trespass into the house of CW1 and 2. In this regard, spot mahazar at Ex.P2 assumes importance. Both 9 C.C.No.26806/2015 independent witnesses to spot mahazar at Ex.P2 were not secured and examined by the prosecution. Therefore, there is no independent witness supporting too prove the spot mahazar at Ex.P2. Even otherwise according to averments of Ex.P2 the alleged incident has taken place near the front gate of the house of CW1 and 2. It is only stated that the accused was kicking the gate. There is no evidence which shows that he has crossed the said gate and committed the trespass into the property of CW1 and 2. In Ex.P1 it is stated that as they have not opened the gate lock, the accused has gone back. This shows that accused has not entered the premises of house of CW1 and 2. Therefore, there is no evidence which shows that the accused has committed offence u/s 448 of IPC.
12. Further, it is the case of the prosecution that the accused by abusing CW1 and 2 has committed the offence u/s 504 of 10 C.C.No.26806/2015 IPC. In order to constitute an offence u/s 504 of IPC, the prosecution has to prove that:
(a) The accused intentionally insulted someone;
(b) He thereby intended to give him provocation;
(c) He knew that it was likely that such provocation would cause that person to commit a breach of the peace or to commit any other offence.
13. It is the case of the prosecution that the CW1 has recorded the abuse by accused in her mobile handset. In this regard, prosecution has got marked CD alleged to be containing the voice of accused at MO1. PW5 who is the IO in his chief examination states that the complainant has produced CD and he has received the same and placed in the record. Prosecution has not produced certificate as contemplated u/s 65B of the Indian Evidence Act so as to place reliance on the said CD. PW5 has not stated that the 11 C.C.No.26806/2015 said CD was subjected to scientific examination and they have ascertained that it contains the voice of accused. Therefore, the reliance cannot be placed on MO1CD produced by the prosecution.
14. Of course in this case, PW1 to 4 in their evidence have stated that the accused has abused them. However, all the witnesses have not stated what were the words uttered by the accused so as to ascertain whether such words really insulted someone and whether such words would provoke leading to breach of peace. In the absence of actual words used by the accused in the testimony of prosecution witnesses, it is difficult to hold that the accused has committed offence punishable u/s 504 of IPC.
15. Further, it is the case of the prosecution that the accused has given life threat to CW1 and 2 by stating that "ಇವತತತ 12 C.C.No.26806/2015 ಲ ಒಒದತ ಗತ ಕಣಸದದ ಬಡತವದಲಲ ನಮ ನಮಗಲ ಲ ಎತತಬಡತತತದನ." Above ಮ ನನಲ words are not stated by any of the witnesses in their evidence. PW1 in her evidence has stated that "ಕದಸನತ ಸ ತಗದತಕಕಳಳದದದರ ನ ವಪಸತ ಕಕಲ ಮಡತತತದನ ಎಒದತ ಹದಳರತತತರ." Whereas PW2 does not state anything about the accused giving life threat on the other hand PW2 has stated that the accused has abused them on the ground that why they have kept his parents with them. Even PW3 and 4 does not state anything about the accused giving life threat to CW1 and 2. Therefore, there is no sufficient evidence which shows that the accused has committed offence punishable u/s 506 of IPC.
16. It is also alleged by the prosecution that the accused has committed offences u/s 509 and 354 of IPC. In order to constitute an offence punishable u/s 509 of IPC following ingredients must be established:
13 C.C.No.26806/2015
(1) The accused uttered some words, or made some sound or gesture or exhibited any object or intruded upon the privacy of a woman; (2) The accused must have intended that the words so uttered or the sound or gesture so made or the object to exhibited should be heard or seen respectively by the woman;
(3) The accused thereby intended to insult the modesty of the woman.
17. In order to constitute an offence u/s 354 of IPC following ingredients must be established by the prosecution:
(a) A woman was assaulted or subjected to use of assault criminal force on her; and
(b) The intention of the accused was to outrage her modesty.
(c) The accused knew that her modesty will be outraged thereby.
18. Even if the version of prosecution witnesses are accepted, then also there is no evidence which shows that the accused 14 C.C.No.26806/2015 has uttered some words intended to insult the modesty of CW1 who is his own sister and there is no evidence which shows that the accused had used criminal force with an intention to outrage the modesty of CW1. Therefore, the prosecution has failed to establish that the accused has committed offences u/s 354 or 509 of IPC.
19. Further, it is the case of the prosecution that the accused has wrongfully restrained CW1 and committed offence u/s 341 of IPC. In order to prove this allegation prosecution has to establish that ingredients of Section 341 of IPC.
(1) Accused obstructed a person;
(2) He did it voluntarily;
(3) It prevented such person from proceeding in certain direction in which he had the right to proceed.15 C.C.No.26806/2015
20. In Ex.P1 it is only stated that as the accused was abusing them they have not come out of the house feeling ashamed. This version cannot be termed as wrongful restraint. None of the prosecution witnesses in their evidence have stated that the accused has wrongfully restrained CW1. Therefore, the prosecution has failed to prove that the accused has committed the offence u/s 341 of IPC.
21. The lacunas in the prosecution case assumes importance in the background of previous dispute between the parties.
22. In view of the above discussions the prosecution has failed to prove beyond all reasonable doubts that the accused has committed the offences alleged against him. Accordingly, I answer point no.1 to 5 in the negative.
23. Point No.6: In the result, I proceed to pass the following: 16 C.C.No.26806/2015 17 C.C.No.26806/2015
ORDER Acting under Section 248 (1) of Cr.P.C., accused is hereby acquitted of the offences punishable U/sec. 341, 504, 506, 448, 354 and 509 of IPC.
Bail bond of accused and his surety bond stand cancelled after the appeal period is over.
(Dictated to the stenographer computerised by her, verified and corrected by me, then the judgment pronounced by me in the open court, on this 1 st day of February 2021) (Jayaprakash D.R.) VIII Addl. CMM, Bangalore.
ANNEXURE
1. Witnesses examined for the prosecution :
P.W.1 : Sujatha
P.W.2 : Suresh
P.W.3 : Siddalingaiah
P.W.4 : Vinay
18 C.C.No.26806/2015
P.W.5 : Ravikumar C
2. Documents marked on behalf of the prosecution:
Ex.P.1 : Complaint Ex.P.1(a) : Signature of P.W.1 Ex.P1(b) : Signature of witness Ex.P2 : Mahazar Ex.P2(a) : Signature of PW1 Ex.P2(b) : Signature of witness Ex.P3 : FIR Ex.P3(a) : Signature of PW5 Ex.P4 : Spot Mahazar Ex.P4(a) : Signature of PW5 Ex.P5 : Letter Ex.P6 : Permission etter Ex.P6(a) : Signature of PW5
3. Witnesses examined for the defence:
NIL
4. Documents marked on behalf of the defence:
NIL
5. Material Object:
MO1 : CD VIII Addl. C. M. M. Bangalore.19 C.C.No.26806/2015
Judgment pronounced in the open court (vide separate order) ORDER Acting under Section 248 (1) of Cr.P.C., accused is hereby acquitted of the offences punishable U/sec. 341, 504, 506, 448, 354 and 509 of IPC.
Bail bond of accused and his surety bond stand cancelled after the appeal period is over.
VIII Addl. C. M. M. Bangalore.