Bangalore District Court
State By Police Sub-Inspector vs A4 Raju S/O Kallaswamy on 20 June, 2016
IN THE COURT OF LXV ADDL CITY CIVIL AND SESSIONS
JUDGE: BANGALORE CITY
(CCH.NO 66)
PRESENT
SRI.N.R.CHENNAKESHAVA B.A.,LL.B.,
LXV ADDL CITY CIVIL & SESSIONS JUDGE,
Bengaluru
DATED THIS THE 20th DAY, JUNE, 2016
S C No. 1132/2010
COMPLAINANT: State By Police Sub-Inspector,
Srirampura Police Station,
Bengaluru:
(Reptd by Public Prosecutor.)
/ Vs /
ACCUSED:
A4 Raju S/o Kallaswamy, aged
28 years, R/at Anganavadi,
No.30, 2nd Cross,
Sanjaygandhi Nagara,
Sriramapura, Bengaluru, C/o
Near Ganesh Temple, Jalara
Nagara, Srirampura,
Bengaluru.
(By Sri.T.S.Adv for A4)
Date of 29.9.2008
Commencement of
offences
Date of report of 29.09.2008
offences
Name of complainant Sri.Manikanta
2 S.C.No.1132/2010
Date of recording of 19.04.2013
evidence
Date of closing of 31.05.2016
evidence
Offence complained U/s. 504 and 307 r/w Sec.
34 of IPC
of
Opinion of the judge Acquittal
****
JUDGMENT
Police Sub-Inspector, Srirampura Police Station, Bengaluru, has filed this split up charge sheet against A4, of the offences u/Sec.504 and 307 r/w Sec.34 of IPC.
2. Brief facts of prosecution case are as follows:
On 29.9.2008, at about 5.30Pm while CW1 Manikanta sitting near the water tank, at Sanjaygandhi Nagar, within the limits of Srirampura Police station, A4 along with A1 to A3 in S.C.No.459/2009, having enmity with CW1, holding with deadly weapons like chopper and wooden clubs, have abused CW1 in filthy language and with their common intention to murder CW1, A4 tried to assault on the neck of CW1 by means of chopper and at that juncture CW1 raised his hands to escape from the possible blow and as a result the said blow of the chopper, hit on 3 S.C.No.1132/2010 his left fore hand and as a result CW1 suffered grievous injuries.
That apart at that juncture A1 to A3 assaulted CW1 on his back and buttock by means of wooden clubs with such intention or knowledge and under such circumstances, that if the act of accused had caused the death of the complainant and they would have been guilty of murder and thereby A4 along with A1 to A3 have committed the offences alleged.
3. According to prosecution, due to the alleged assault inflicted by A4 on the left fore arm of CW1, he suffered grievous injuries. Hence, he rushed to Srirampura PS and lodged first information. In turn SHO, Srirampura Police station registered the case against A1 to A4 and lodged FIR to the court. After completion of investigation, I.O has submitted the final report before the committal court, who took cognizance of the offences p/u/Sec.504 and 307 r/w Sec.34 of IPC and then committed the case to Sessions, which has been registered as S.C.No.459/2009 and then made over to this court for disposal, in accordance with law. During the pendency of said case, A4 remained absent. Hence, my learned predecessor has ordered to split up the case against A4 and directed the I.O to submit split up charge sheet 4 S.C.No.1132/2010 against A4. Accordingly, I.O has submitted the split up charge sheet against A4.
4. In spite of taking coercive steps A4 has not been secured before this court. Hence, this court ordered to issue proclamation and arrest warrant against A4 and then proceeded u/Sec.299 of Cr.P.C by examining 4 prosecution witnesses as PW1 and PW4. However, during the course of proceedings, A4 secured under NBW and he has been sought legal assistance to defend him in this case. Hence, A4 is provided with legal assistance by appointing legal counsel to defend A4 in this case.
5. After hearing, this Court has framed charges against A4, of the offences P/U/Sec.504 and 307 r/w Sec.34 of IPC. A4 pleaded not guilty of the charges leveled against him and he claimed to be tried. Hence the case has been posted for trial. Prosecution in all examined 13 witnesses as PW1 to PW13, got exhibited 15 documents at Ex.P.1 to Ex.P.15, got identified M.O.1 to M.O.7 and closed its side. After conclusion of evidence from prosecution side, A4 is examined as required under Sec.313 of 5 S.C.No.1132/2010 Cr.P.C However, he denied the incriminating evidence adduced against him and he has not chosen defense evidence.
6. Heard argument from both side.
7. Now the points that arise for my consideration are:
1. Whether the prosecution beyond all reasonable doubt proves that on 29.9.2008 at about 5.30PM within the limits of Srirampura Police station at Sanjay Gangi Nagar, while CW1 Manikanta was sitting nearby the water tank, A4 along with A1 to A3 in original proceeding in S.C.No.459/2009 with their common intention to commit his murder, have abused in filthy language and thereby A4 has committed an offence p/u/Sec.504 r/w Sec. 34 of IPC?
2. Whether the prosecution beyond all reasonable doubt proves that on the aforesaid date, time and place A4 along with A1 to A3 in original proceedings S.C.No.459/2011 in furtherance of their common intention, having enmity, holding with chopper and wooden clubs and with an intention to murder CW1, A4 assaulted on his left hand and caused grievous injury, with such intention or knowledge and under such circumstances, that if the act of accused had caused the death of CW1, they would have been guilty of murder and thereby A4 has committed an offence p/u/Sec. 307 r/w Sec. 34 of IPC?
3. What Order?
8. My answer to the above points are:
POINT NO.1 : In the Negative 6 S.C.No.1132/2010 POINT NO.2 : In the Negative POINT NO.3 : As per final order for the Following:
REASONS
9. POINT NOs.1 & 2: Since these two points are interconnected with each other, for the sake of convenience, I would like to take down these points together for discussion and answer.
10. In order to connect the guilt of A4, prosecution in all examined 13 witnesses as PW1 and PW13. It is pertinent to note that PW1 Hanumantharayappa has been examined by the prosecution in connection with publication of Proclamation as against A4 and hence evidence of PW1 is not of much importance. Therefore, I need not discuss much about his evidence.
11. PW2 Manikanta who is the victim and first informant in this case. PW3 Balagopal Rao and PW4 Lakshmi are the parents of PW2 and are circumstantial witnesses. PW5 Mutthuraj who is stated to be the direct witness. PW6 Subramani and PW7 Ambarish who are stated to be the attesters to mahazar at 7 S.C.No.1132/2010 Ex.P.9. PW8 Narayanaswamy PC 3302 Srirampura PS. said to have been accompanied the victim to K.C.General hospital as well as Victoria Hospital for getting treatment. PW9 Dr.Renuka then medical officer, K.C.G hospital, who said to have given first Aid to PW2. PW10 Sathyanarayana then PC-5505, attached to Srirampura PS who to said to have been assisted I.O in arresting A1 to A4. PW11 Dr.Ramesh medical officer, Victoria Hospital, deposes with regard to further examining PW2 and giving necessary medical treatment to him. PW 12 Venkataramanaiah then PSI, Srirampura PS., forwarded PW2 to K.C.G. hospital for medical examination through PW8 Narayanaswamy. PW13 B.Mallikrajuan then PSI Srirampura PS conducted investigation in this case.
12. It is the case of prosecution that scene of offence is located at first cross, near public water tank road, Sanjay Gandhi Nagar, within the limits of Srirampura PS. In order to prove the scene of offence, prosecution has relied the evidence of PW2 Manikanta and PW13 Mallikarjunaiah, PSI who being I.O. in this case and mahazar at Ex.P.7. PW2 Manikanta who being victim, first informant in this case and attester to Ex.P.7, deposes that 8 S.C.No.1132/2010 after lodging of first information, I.O has visited the scene of offence and drawn mahazar at Ex.P.7 and he also seized M.O.1 to M.o.3 which are pant, shirt and bed sheet respectively. PW2 in his cross examination denies the suggestion that I.O has not at all visited the scene of offence nor drawn Ex.P.7 and seized M.O.1 to M.o.3. PW13 categorically deposes that he has drawn mahazar at Ex.P.7 at the scene of offence in the presence of panchas and he has also drawn rough sketch at Ex.P.14, showing the location of scene of offence. That apart, PW13 deposes that since pant, shirt and bed sheet pertains to PW2 were bloodstained, he seized those objects as M.O.1 to M.O.3. During the course of evidence PW12 also identified M.O.1 to M.O.3. In the cross examination of PW12, nothing much contrary elicited from his mouth to disbelieve his evidence. That apart contents of Ex.P.7 clearly disclose that scene of offence is located at first cross, near Public water tank, Sanjay Gandhinagar. Therefore, I safely rely the contents of Ex.P.7 and evidence of PW2 and PW13, to come to the conclusion that scene of offence located as narrated at Ex.P.7.
9 S.C.No.1132/2010
13. According to prosecution, PW2 Manikanta, suffered simple injuries on his left forearm due the alleged assault inflicted by the A4, beating him means of M.O.4. In order to prove the nature of injuries, prosecution has relied the wound certificate at Ex.P.12 and opinion at Ex.P.12(B) and evidence of PW9 Dr.Renuka, medical officer KCG hospital, Bengaluru and PW11 Dr.Ramesh medical officer, Victoria Hospital, Bengaluru.
14. PW9 Dr.Renuka deposes that on 29.9.2008 at about 5.30 PM, while she was discharging duty at K.C.G.Hospital, PW2 Manikanta was brought by PW8 Narayana Swamy, PC, with an history of assault and on examination of PW2, she found deep incised wound over his left forearm and there was abrasion found over the left shoulder. Hence, she gave first aid to PW2 and then she referred PW2 for Victoria Hospital for further treatment . PW9 deposes that she issued Wound certificate at Ex.P.12 pertains to PW2 and she opines that injuries which were found over the person of PW2, were simple in nature and the said injuries could be caused, assaulting by means of sharp edged weapon like M.O.4. That apart, PW9 deposes that on 6.1.2009 she received M.O.4 to give her opinion that whether injuries found over the 10 S.C.No.1132/2010 person of PW2, could be caused, assaulting by means of M.O.4 to M.O.7. Hence, she examined M.O.4 to M.O.7 and then she come to the conclusion that injuries found over the person of PW2 could be happen, assaulting by means of M.O.4 to M.O.7 respectively. PW9 in her cross examination admits the suggestion that at the time of admission of PW2, she was told by PW2 that he was assaulted by one Manju and Ranju. PW9 in her cross examination deposes that if sharp edged weapon forcibly came into the contact the body, then injury No.1 found over PW2 could be caused.
15. PW11 Dr.Ramesh Medical officer, Victoria Hospital deposes that on 29.9.2009 at about 8.20PM while he was discharging duty at casualty Sec., PW2 Manikanta was brought to the hospital through PW8 Narayanaswamy PC3302, Sriramapura PS, and upon examination, PW2 was found chop wound measuring 5 cm x 2 cm x 1 cm found over the left forearm. It is deposed by PW11 that later he referred PW2 for surgical section.
16. I have carefully gone through the evidence of PW9 and PW11. On going through the evidence of PW9 and PW11 11 S.C.No.1132/2010 coupled with Ex.P.12, which clearly disclose that PW2 suffered simple injuries on his left arm. Suffice it to say, PW2 during the course of his evidence also deposes that he suffered injuries on his left forearm. It is opined by PW9 that similar kind of injuries found over the person of PW2, could be caused by means of assaulting M.O.4. Added to this evidence of PW9 and PW11 disclose that injuries found over the person of PW2, was simple in nature. Hence, I hold that injuries found over the forearm of PW2 was simple in nature.
17. Proving the nature of injuries found over the person of PW2, which itself not sufficient to prove the guilt of A4. It is the specific case of prosecution that A4 caused the said injury, beating left forearm of PW2, by means of M.O.4. Hence, now the main aspect arises before the court is whether the prosecution proves the recovery of M.O.4 under Ex.P.9.
18. According to the prosecution, under Ex.P.9, PW13 being the I.O in this case has seized M.O.4 in the presence of PW6 Subramani and PW7 Ambaraish. That apart, it is the case of prosecution that A4 had given voluntary statement; at Ex.P.15 12 S.C.No.1132/2010 before PW13 and on that basis PW13 has managed to seize M.O.3 along with M.O.5 to M.O.7 under Ex.P.9, in the presence of panchas. It is important to note that PW6 and PW7 being so called independent attesters to Ex.P.9, have not supported the case of prosecution. They categorically depose in their presence I.O has not seized M.O.3 nor they have given their previous statement at Ex.P.10 and Ex.P.11 respectively before the I.O. Since PW6 and PW7 have not supported the case of prosecution, they are subjected to cross examination by the prosecution, after treating them as hostile witnesses. In spite of it, nothing much contrary elicited from their mouth to hold that they depose falsely before the court. They also deny their previous statement at Ex.P.10 and Ex.P.11 respectively, said to have been given by them before the I.O. PW13 deposes that he has seized M.O.4 under Ex.P.9 at the instance of A4 and he has given voluntary statement at Ex.P.15. It is relevant to note that on going through evidence of PW13, which clearly disclose that M.O.4 along with M.O.5 to M.O.7 were not at all recovered by PW13 as per Sec.27 of Indian Evidence Act, at the alleged instance of A4. Since the evidence of PW6 and PW7 does not disclose that that A4 alleged to have been led them and PW13 to his house for the alleged 13 S.C.No.1132/2010 recovery of M.O.4 to M.O.7. Suffice it to say as far as the alleged seizure of M.O.4 to M.O.7 is concerned, evidence of PW13 is not corroborated by the evidence of PW6 and PW7. Assuming that PW13 deposes that he has seized M.O.4 to M.O.7 under Ex.P.9 in the alleged presence of PW6 and PW7, certainly based on his sole testimony, holding that he has seized M.O.4 to M.O.7 under Ex.P.9 on the basis of alleged voluntary statement of A4 at Ex.P.15, which cannot be believed at all. Therefore, under such circumstances, I have no hesitation to hold that prosecution has failed to prove the alleged recovery of M.O.4 under Ex.P.9.
19. According to prosecution, A4 assaulted on the left hand of PW2, by means of M.O.4. In order to connect the guilt of A4, prosecution has relied the evidence of PW2 to PW4. It is important to note that PW2 who is stated to be the victim and first informant in this case, PW3 Balagopala Rao and PW4 Lakshmi who are the parents of PW2, are the circumstantial witnesses in this case. Therefore, under these circumstances, prosecution in order to connect A4, has much relied the evidence of PW2. PW2 deposes par with the allegation made in the first information at Ex.P.6. Contents of Ex.P.6 also disclose that prior 14 S.C.No.1132/2010 to the alleged incident, there exists enmity between PW2 and A4. Therefore, under these circumstances, assuming that PW2 deposes few incriminating circumstances as against A4, certainly, evidence of PW2 is to be corroborated by the evidence of independent witnesses. Added to this, to corroborated the testimony of PW2, absolutely prosecution has not placed any iota of direct are circumstantial evidence. Suffice it to say, evidence of PW3 and PW4 clearly establishes that they have not witnessed the alleged incident. More so, admittedly PW3 and PW4 are the parents of PW2. Contents of Ex.P.6 clearly establishes that there exists enmity between PW2 and the accused, in connection with drawing water from the public water tank. Added to this, the wound certificate at Ex.P.12 disclose that injuries found over the left forearm of PW2, was simple in nature. Suffice it to say, PW9 also opines that similar kind of injury found over the left forearm PW2, could also be happen, if sharp edged weapon forcibly came into contact the forearm. As I already come to the conclusion that prosecution has failed to prove the alleged recovery of M.O.4 under Ex.P.15. It is also relevant to note that A1 in the original proceeding in S.C.No.459.2009 and A2 & A3 in S.C.249/2011, respectively, were acquitted by this court. Though it is alleged 15 S.C.No.1132/2010 that A4 alleged to have been abused A4 in filthy language, at the same time, to strength very case of prosecution that A4 alleged to have been abused PW2 in filthy language, prosecution has failed to place any iota of convincing and cogent evidence. Therefore, without placing any iota of convincing and cogent evidence, holding that A4 alleged to have been abused PW2 in filthy language, which cannot be acceptable at all. More so, as I already observed above that prosecution has failed to prove the alleged recovery of M.O.4 under Ex.P.15. Hence, failure to prove the alleged recovery of M.O.4 by the prosecution goes to the very root of prosecution case. I have already observed that evidence of PW2 as well as contents of Ex.P.6 disclose that there exists enmity between PW2 and this accused, in connection with drawing water from the public water tank in their locality. In addition to this evidence of PW2 is not corroborated by any independent evidence nor any circumstantial evidence. Assuming that prosecution has proved the nature of injuries found over the person of PW2, at the same time, very evidence of PW9 disclose that the said injury was simple in nature and it could be happen when a sharp edged weapon forcibly came into the contact to the left forearm. More importantly evidence on record disclose with 16 S.C.No.1132/2010 material contradictions and inconsistencies, since PW6 and PW7 who are the prime witnesses in this case, have turned hostile. Therefore, I am of the considered view that, certainly A4 is entitled to an acquittal, since prosecution has failed to prove the guilt of A4, beyond all reasonable doubt by placing convincing and cogent evidence. In my view, in view of evidence of PW2 to PW7, whatever the evidence adduced by PW8, PW10, PW12 and PW13, are of no consequence in connecting the guilt of A4. PW8 deposes about accompanying PW2 to K.C.G. hospital for providing treatment to PW2. PW10 deposes with regard to arrest of A4. PW12 deposes that on 29.9.2008 at about 6.30Pm while he was discharging SHO at Srirampura PS, PW2 came to the police station, with an history of assault. Accordingly, PW12 directed PW8 to accompany PW2 to the hospital for getting treatment. PW13 B.Malikarjun-PSI, who conducted major portion of investigation in this case. In this regard, I have already discussed above and his evidence will not assist the prosecution in connecting the guilt of A4.
20. Viewed from any angle, I am of the considered view that certainly available evidence on record, are not at all 17 S.C.No.1132/2010 sufficient to connect the guilt of A4. Prosecution has failed to bring home the guilt of A4 beyond all reasonable doubt , by placing convincing and cogent evidence. Therefore, I am of the considered view that A4 is entitled to an acquittal. For the foregoing reasons, I answer the above points in the "Negative".
21. POINT NO.4: In view of my findings above, I proceed to pass the following:
ORDER Acting under Sec.235(1) of Cr.P.C., A4 is acquitted of the offences p/u/Sec.504 and 307 r/w Sec.34 of IPC.
A4 is ordered to be set at liberty forthwith, if he is not required in any other cases.
M.O.4 chopper is confiscated to State and M.O.1 to M.O.3 and M.O.5 to M.O.7 since worthless, are ordered to be destroyed, after Appeal period is over.
*** (Dictated to the Stenographer, transcribed by her, corrected and then pronounced by me in the Open Court on this 20th day of June, 2016) (N.R.CHENNAKESHAVA ) LXV ADDL CITY CIVIL & SESSIONS JUDGE, BANGALORE 18 S.C.No.1132/2010 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW-1 Hanumantharayappa PW-2 Manikanta PW-3 Balagopala Rao PW-4 Lakshmi PW-5 Muthuraj PW-6 Subramni PW-7 Ambarish PW-8 Narayanaswamy PW-9 Dr.Renuka PW-10 Satyanarayana PW-11 Dr.Ramesh PW-12 Venkataramanaiah PW-13 B.Mallikarjuan LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P.1 Proclamation Ex.P.2 Proclamation Ex.P.3 Mahazar Ex.P.4 Declaration Ex.P.5 Requisition Ex.P.6 Complaint Ex.P.7 Mahazar Ex.P.8 Statement of PW5 Ex.P.9 Mahazar Ex.P.10 Statement of PW6 Ex.P.11 Statement of PW7 Ex.P.12 Wound certificate Ex.P.13 Arrest warrant Ex.P.14 Rough Sketch Ex.P.15 Voluntary statement of A4 19 S.C.No.1132/2010 LIST OF MATERIAL OBJECTS MARKED MO-1 Pant MO-2 Shirt MO-3 Bed Sheet MO-4 Chopper MO-5 Wooden Club MO-6 Wooden Club MO-7 Wooden Club LIST OF WITNESS EXAMINED, DOCUMENTS AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(N.R.CHENNAKESHAVA )
LXV ADDL CITY CIVIL & SESSIONS JUDGE,
BANGALORE
*ic
20 S.C.No.1132/2010
A4 denies the
incriminating evidence of
prosecution witnesses and he
has not chosen to lead defense
evidence.
Hence, for arguments.
K/B,
Again called,
Heard both on merits.
Hence, judgment by
20.6.2016. JC of A4 is extended
till next hg date.
Issue direction to
concerned PI to cause produce
A4 from JC by 20.6.2016.
LXV ACC&SJ
21 S.C.No.1132/2010
Judgment pronounced in open court, vide separately, ORDER Acting under Sec.235(1) of Cr.P.C., A4 is acquitted of the offences P/U/Sec.504 and 307 r/w Sec.34 of IPC.
A4 is ordered to be set at liberty forthwith, if he is not required in any other cases.
M.O.4 chopper is confiscated to State and M.O.1 to M.O.3 and M.O.5 to M.O.7, since worthless are ordered to be destroyed, after Appeal period is over.
(N.R.CHENNAKESHAVA ) LXV ADDL CITY CIVIL & SESSIONS JUDGE, BANGALORE