Bangalore District Court
State By Chamarajpet Police Station vs Anilkumar on 1 April, 2022
1
S.C.No.1731/2019
KABC010350882019
IN THE COURT OF THE LXIV ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH-65) AT BENGALURU.
Dated this 1 st day of April, 2022
-: P R E S E N T :-
Sri. RAJESHWARA,
B.A., L.L.M.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY.
SESSIONS CASE NO.1731/2019
COMPLAINANT:- State by Chamarajpet Police Station,
Bengaluru.
-Vs-
ACCUSED : : Anilkumar,
S/o.Late Sridhar,
Aged about 28 years,
R/at. 5th Cross, Old Pension Mohalla,
Mysore Road, Cottonpet,
Bengaluru.
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S.C.No.1731/2019
1. Date of commission of offence : 15.06.2019
2. Date of report of offence : 16.06.2019
3. Date of arrest of the Accused :
4. Name of the complainant : Setu
5. Date of recording evidence : 08.03.2021
6. Date of closing evidence : 22.02.2022
7. Offences complained of : U/Sec.307 of I.P.C.,
8. Opinion of the Judge : Offence against
Accused not proved
9. State represented by : Public Prosecutor
10. Accused defended by : Sri Sudheendra Prasad, Advocate
JUDGMENT
In the present case accused stands charged for offence punishable U/s.307 of I.P.C. in Cr.No.91/2019.
2. There are no undisputed facts in this case.
3. Case of the prosecution in nutshell is that on 15.6.2019 night at 8.30 p.m., Cw.1/Setu and Cw.2/Vinayaka have tea at "Selva Tea stall" situated at Mysore Road within the jurisdiction of Chamarajpete police station. In order to take revenge of murder of 3 S.C.No.1731/2019 his brother, accused suddenly attacked on Cw.1/Setu by stabbing with knife on his right forearm, head causing bleeding injuries. On the basis of the complaint lodged by the complainant, this case came to be registered for offence punishable U/s.307 of I.P.C.
4. Charge get framed, read over and explained to the accused as per Section 228 of Cr.P.C. He pleaded not guilty and claimed to be tried. In the personal examination U/s. 313 of Cr.P.C., accused denied all incriminating circumstances appeared in the prosecution side evidence.
5. To establish the case against accused, prosecution side examined 7 witnesses as Pw.1 to Pw.7 and got marked 11 documents at Ex.P.1 to Ex.P.11.
6. Heard arguments submitted by Learned Public Prosecutor appearing for the State as well as counsel appearing for the accused as per Section 234 of Cr.P.C.
7. Now, the points arising for determination are follows:
1. Whether prosecution proves beyond any reasonable doubt that on 15.6.2019 night at 8.30 p.m., in order to take revenge of murder of his brother, accused 4 S.C.No.1731/2019 attacked on Cw.1/Setu by stabbing with knife on his right forearm, head, caused bleeding injuries thereby committed offence punishable under Sec.307 of the Indian Penal Code as alleged in the charge sheet?
2. What Order ?
8. It is answered for the aforesaid points are as under:-
Point No.1 : In the Negative
Point No.2 : As per final order
for the following:
REASONS
9. POINT NO.1:- Reasons for determination:- Cardinal principle of the criminal trial is that accused shall be presumed to be innocent, till guilty is proved. As per Section 102 of Indian Evidence Act, burden of proof to prove ingredients of the charges framed against accused beyond any reasonable doubts is on the prosecution. To determine whether prosecution succeeded in discharge of burden of proof casts U/s.102 of Indian Evidence Act, it is just and necessary to assess evidence adduced, documents produced on behalf of the prosecution.
10. Cw.7/ Srinivas is examined as Pw.1. Pw.1 is a panch witness for Ex.P.1/seizure mahazar. In his evidence Pw.1 has stated that one day in the year 2019 he went to Chamarajpete police 5 S.C.No.1731/2019 station to lodge complaint. At that time, police took his signature on Ex.P.1. Police did not prepare mahazar in his presence. No materials are seized in his presence. He had not seen the accused produced through VC ever before. He had not given statement before the police. Pw.1 was treated as hostile witness by the prosecution side. Learned Public Prosecutor appearing for the State sought permission to question Pw.1 by treating him as hostile as per Section 154 of Indian Evidence Act. Even in the cross-examination, no such admissions get elicited to show that Pw.1 deposed falsely. No such admission get elicited to prove the fact that accused win over the Pw.1.
11. Cw.9/Dr.Priyadarshini is examined as Pw.2. Pw.2 is doctor who treated the injured. In her evidence Pw.2 has deposed that on 15.6.2019 she was on night duty. Night at 8.50 p.m., a person by name Setu aged about 30 years brought for treatment by his relative Sampath with history of assault. On examination, she found 2 x 4 cm wound on his right wrist. Patient was feeling pain on touch at the part of the body sustained injury. She sent him to plastic surgery department for further treatment. On the basis of report submitted by the surgeon, she got issued Ex.P.3/wound certificate. In her opinion wound found on the body of the injured was greivious in nature. In her opinion such injury might have been caused in the 6 S.C.No.1731/2019 event of assault by using knife. As the advocate for accused remained absent cross-examination of Pw.2 was taken as nil.
12. Cw.1/Setu who is complainant and injured in this case is examined as Pw.3. In his evidence Pw.3 has deposed that he do not know accused Anilkumar. Similarly he do not know Cw.5/Ramu, Cw.6/Shivakumar. Around 3 years ago one day while returning from his work at 7.30 p.m., he was having tea at Selva Tea stall. A motor cycle rider wearing helmet caused assault on his right side with knife. He sustained bleeding injury. He was admitted to Victoria hospital for treatement. He lodged complaint as per Ex.P.4 to the police. He cannot identify the knife used for assault. He had not seen the person who assaulted him. Pw.3 was treated as hostile witness by the prosecution side. Learned Public Prosecutor appearing for the State sought permission to question Pw.3 by treating him as hostile as per Section 154 of Indian Evidence Act. Even in the cross-examination, no such admissions get elicited to show that Pw.3 has deposed falsely. No such admissions is elicited to prove the fact that accused won over Pw.3.
13. Cw.3/Sendil panch witness for Ex.P.5/ spot mahazar is examined as Pw.4. In his evidence Pw.4 has deposed that around 3 years ago, when he was returning from work Chamarajpet police 7 S.C.No.1731/2019 called him, took his signature on Ex.P.5. He don/t know the contents mentioned in Ex.P.5. Police didn't prepare panchanama in his presence. Police did not seize any materials. He had not given any statement before the police. Pw.4 was treated as hostile witness by the prosecution side. Learned Public Prosecutor appearing for the State sought permission to question Pw.4 by treating him as hostile as per Section 154 of Indian Evidence Act. Even in the cross- examination, no such admissions elicited to show that Pw.4 has deposed false. No such admissions is elicited to prove the fact that accused won over this Pw.4.
14. Cw.5/Ramu is examined as Pw.5. According to the prosecution Pw.5 is an eyewitness to the incident. In his evidence Pw.5 has deposed that he don't know Cw.1/Srinivas and accused/Anilkumar. He do not know Cw.6/Shivakumar also. He had not seen the incident alleged in this case. He had not given any statement to the police. Pw.5 was treated as hostile witness by the prosecution side. Learned Public Prosecutor appearing for the State sought permission to question Pw.1 by treating him as hostile as per Section 154 of Indian Evidence Act. Even in the cross- examination, no such admissions get elicited to show that Pw.5 has deposed false. No such admissions is elicited to prove the fact that accused won over Pw.5.
8S.C.No.1731/2019
15. Cw.6/Shivakumar is another eyewitness to the incident, is examined as Pw.6. In his evidence Pw.6 stated that he do not know Cw.1/Srinivas and accused/Anilkumar. He do not know Cw.5/Ramu also. He had not seen the incident taken place between complainant injured and accused. He had not given statement to the police. Pw.6 was treated as hostile witness by the prosecution side. Learned Public Prosecutor appearing for the State sought permission to question Pw.6 by treating him as hostile as per Section 154 of Indian Evidence Act. Even in the cross-examination, no such admissions elicited to show that Pw.6 has deposed falsely. No such admissions get elicited to prove the fact that accused won over Pw.6.
16. Cw.11/Praveen is the Investigation Officer of this case is examined as Pw.7. In his evidence Pw.7 has deposed in respect of registration of F.I.R. Ex.P.9 on the basis of the complaint lodged by Cw.1 as per Ex.P.4, for offence punishable U/s.307 of I.P.C. in station Cr.No.91/2019. Pw.7 further deposed in respect of recording statement of witnesses namely K.Ramu as per Ex.P.7, Shivakumar as per Ex.P.2, Shivakumar as per Ex.P.8. Further he deposed in respect of preparation of Ex.P.5 spot mahazar collecting Ex.P.3 wound certificate of the injured from Victoria Hospital, taking the 9 S.C.No.1731/2019 accused to police custody, interrogation and recording his statement, collecting information as per Ex.P.10. Pw.7 further deposed in respect of recovery of knife on the basis of information given by the accused under Ex.P.10 voluntary statement, seizing knife under the cover of Ex.P.1/panchanama. Pw.7 identified Mo.1 knife produced before the court. Pw.7 identified the accused produced through VC. Pw.7 further deposed that he recorded statement of panch witnesses and after completion of the investigator on 20.8.2019 he filed final report against the accused. Pw.7 stands unrebutted during cross-examination.
17. Complainant injured victim is a prime witness in the case alleging offence of assault, to establish the ingredients of charge framed against the accused. In this case charge framed against the accused is in respect of attempt to murder punishable U/s.307 of I.P.C. Causing assault with mens-rea to murder the victim by using deadly weapons are necessary ingredients required to be proved by the prosecution.
18. Complainant/injured/ victim/Setu is examined as Pw.3. Pw.3 though explained the incident, failed to identify the accused before the court to explain whether the accused is same person who assaulted him. In his evidence, Pw.3 clearly stated that he had not seen the person who assaulted him. In the cross-examination after 10 S.C.No.1731/2019 treating Pw.3 as hostile, prosecution did not get elicited any admissions to establish the fact that Pw.3 was deposing falsely in order to help the accused. Following Pw.3, eyewitness to the incident Pw.5/Ramu, Pw.6/Shivakumar are also deposed by not supporting the case of the prosecution. So, as complainant injured and eyewitness failed to identify the accused before the court to explain the fact that it was the accused who assaulted on Pw.3 by using deadly weapon Mo.1/knife in order to commit his murder, it is difficult to accept the version of the prosecution that accused is guilty for offence punishable U/s.307 of I.P.C.
19. Actus-reas and mens-rea are two factors to be proved by the prosecution against the accused to bring home the guilty of the accused. Even though act of assault is explained, evidence adduced by the prosecution witnesses failed to identify the accused to prove the fact that alleged incident of assault on Pw.3 was caused by the accused only.
20. Even though investigation officer Pw.7 explained the fact of recovery of Mo.1/ knife said to be used to commit assault on Pw.3, mere recovery of knife is not sufficient to prove the ingredients of offence punishable U/s.307 of I.P.C., unless the evidence of recovery is corroborated with the evidence of complainant injured and eyewitnesses. In addition to that panch 11 S.C.No.1731/2019 witnesses for mahazar Pw.1/ Srinivas, Pw.4/Sendhil Kumar, turned hostile to the case of the prosecution.
21. Evidence adduced by Pw.2/Dr.Priyadarshini medical officer at Victoria hospital who explained in respect of treatment given by her to the injured Pw.5/Setu her evidence is sufficient to prove the fact of injury sustained by Pw.3/ Setu. Evidence adduced by medical officer is supported by the evidence adduced by the Investigation Officer Pw.7 but not supported by injured Pw.3, eyewitnesses Pw.5 and Pw.6. Therefore, prosecution failed to bring home the guilt of the accused beyond any reasonable doubt because hostile evidence adduced by the complainant, injured and eyewitnesses create 'reasonable doubt' on the case of the prosecution.
22. Seizure mahazar, portion of statement, wound certificate, complaint mahazar, statements, F.I.R. Statement, property form are marked at Ex.P.1 to Ex.P.11.
23. All incriminating circumstances appeared in the prosecution side evidence are explained to the accused No.313 of Cr.P.C. Accused denied entire incriminating circumstances as false and not choose to say anything in respect of registration of the case.
12S.C.No.1731/2019
24. Learned advocate for accused submitted arguments stating that ingredients required to prove offence punishable U/s.307 of I.P.C. is not made out in the entire evidence produced by the prosecution side. Learned Public Prosecutor appearing for the State has submitted that evidence adduced by witnesses examined on behalf of the prosecution side established case against the accused and hence prayed to convict the accused.
25. As discussed above and for the reasons stated herein above, this court is of the opinion that, prosecution failed to prove beyond any reasonable doubt that on 15.6.2019 night at 8.30 p.m., when Cw.1/Setu and Cw.2/Vinayaka have tea at Selva Tea stall situated at Mysore Road within the jurisdiction of Chamarajpete police station, to take revenge of murder of his brother, accused suddenly attacked on Cw.1/Setu by stabbing with knife on his right forearm, head, caused bleeding injuries thereby committed offence punishable U/s.307 of I.P.C. Accordingly, point No.1 is answered in the Negative.
26. POINT NO.2: In view of the above findings on point No.1, accused is entitled for acquittal. Hence, the following order is made;
13S.C.No.1731/2019 ORDER Invoking provisions U/s.235(1) of Cr.P.C., accused is hereby acquitted for the offence punishable U/s.307 of I.P.C.
Accused is hereby directed to execute fresh bail bond for Rs.1,00,000/- (one lakh) as required U/s.437-A of Cr.P.C., and the same shall be in force for a period of six months from this day.
Office is directed to take fresh bail bond of accused for Rs.1,00,000/-(one lakh) as per Section 437-A of Cr.P.C.
Office is hereby directed to issue intimation to the jail authorities to release the accused if he is not required in any other case.
Jail authorities are hereby directed to release the accused if he is not required in any other case after obtaining fresh bail bond of accused for Rs.1,00,000/-(one lakh) as per Section 437-A of Cr.P.C.
Mo.1/knife is ordered to be confiscated to the State after expiry of appeal period.
14S.C.No.1731/2019 Further, office is directed to send the certified copy of this judgment to the District Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C.
(Dictated to the Judgment writer, script typed by her and corrected, signed and then pronounced by me in the open court on this 1st day of March 2022.) (RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
ANNEXURE I. List of witnesses examined on behalf of the Prosecution:-
Pw.1 Srinivas Pw.2 Dr.Priyadarshini Pw.3 Setu Pw.4 Sendhil Pw.5 Ramu Pw.6 Shivakumar Pw.7 Praveen II. For Defence:- -Nil-
III. List of exhibits marked on behalf of the Prosecution side:-
15S.C.No.1731/2019 Ex.P.1 Seizure mahazar Ex.P.1(a) Signature of Pw.1 Ex.P.1(b) Signature of Pw.7 Ex.P.2 Statement of Pw.1 Ex.P.3 Wound Certificate Ex.P.4 Complaint Ex.P.4(a) Signature of Pw.3 Ex.P.5 Mahazar Ex.P.5(a) Signature of Pw.3 Ex.P.5(b) Signature of Pw.7 Ex.P.6 Statement of Pw.4 Ex.P.7 Statement of Pw.5 Ex.P.8 Statement of Pw.6 Ex.P.9 F.I.R.
Ex.P.9(a) Signature of Pw.7
Ex.P.10 Voluntary statement of accused
Ex.P.11 Property form
Ex.P.11(a) Signature of Pw.7
IV. For Defence side:-
-Nil-
V. List of material objects marked:-
Mo.1 Knife
Mo.1(a) to (c) Signatures on the chit.
(RAJESHWARA)
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY
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S.C.No.1731/2019
17
S.C.No.1731/2019
01.04.2022
Accused produced from JC through VC
Judgment pronounced in the open Court
(Vide separate judgment)
ORDER
Invoking provisions U/s.235(1) of Cr.P.C., accused is hereby acquitted for the offence punishable U/s.307 of I.P.C.18
S.C.No.1731/2019 Accused is hereby directed to execute fresh bail bond for Rs.1,00,000/- (one lakh) as required U/s.437-A of Cr.P.C., and the same shall be in force for a period of six months from this day.
Office is directed to take fresh bail bond of accused for Rs.1,00,000/-(one lakh) as per Section 437-A of Cr.P.C.
Office is hereby directed to issue intimation to the jail authorities to release the accused if he is not required in any other case Jail authorities are hereby directed to release the accused if he is not required in any other case after obtaining fresh bail bond of accused for Rs.1,00,000/-(one lakh) as per Section 437-A of Cr.P.C.
Mo.1/knife is ordered to be confiscated to the State after expiry of appeal period.19
S.C.No.1731/2019 Further, office is directed to send the certified copy of this judgment to the District Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C.
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, CCH-65, BENGALURU CITY.