Bangalore District Court
State By Upparpet vs Nos.: 1. Ameed Khan on 17 October, 2017
IN THE COURT OF THE LIX ADDL.CITY CIVIL
& SESSIONS JUDGE, BANGALORE CITY
Dated this the 17th day of October 2017
PRESENT
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Sri B. B. Jakati, B.A., LL.B., (Spl.)
LIX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY
S.C.No.688/2013
COMPLAINANT: State by Upparpet
Police Station,
Bangalore.
(Represented by Learned
Public Prosecutor, Bangalore.
Vs.
ACCUSED Nos.: 1. Ameed Khan,
S/o Sathar Khan,
Aged about 37 years,
R/at No.292, 3rd cross,
Tippu Nagar,
Chamarajpet,
Bengaluru.
2. Shabeer,
S/o Late Ameer Jaan,
Aged about 33 years,
R/at No.38, 4th A Cross,
Haleguddadahalli,
Mysore road,
2 SC.No.688/2013
Bengaluru.
3. Shabeer,
S/o Khasim,
Aged about 32 years,
R/.at No.27,
11th cross,
Haleguddadahalli,
Mysore road,
Bengaluru.
(Represented by Sri
S.S.H., Advocate)
1. Date of Commission : 17/08/2010
of Offence
2. Date of Report : 17/08/2010
of Offence
3. Status of the accused : Accused No.1 to 3
are in J.C.
4. Name of the complainant : Sri Jagadish B.N.
5. Date of Commencement :
23.07.2014
of evidence
6. Date of Closing of :
12.09.2017
Evidence
7. Offences complained of : Sections 436, 324, 353
and 506 read with
Section 34 of I.P.C.
3 SC.No.688/2013
8. Opinion of the Judge : Accused Nos.1 to 3
found guilty for the
offences under
Sections 324, 353, 436
read with Section 34 of
IPC and not found guilty
for the offence under
Section 506 read with
Section 34 of IPC.
JUDGMENT
The Police Inspector of Upparpet P.S. Bengaluru city filed this charge sheet against the accused Nos.1 to 3 for the offence punishable under Sections 435, 324, 353, 506 read with Section 34 of I.P.C.
2. The case of the prosecution in brief is that, there was a footpath opposite to K.G. Bus stand, Majestic, Bengaluru. In that footpath many hawkers were selling their products. That footpath area is coming within the jurisdiction of BBMP. The BBMP was allotting hawking places to the various merchants by issuing license and by collecting license fee. There was litigation between BBMP and hawkers in respect of allotment of 4 SC.No.688/2013 places in footpath and certain Orders were passed in W.P.15513-15514/2000. As per the guidelines issued by the Hon'ble High Court of Karnataka in those Writ Petitions the BBMP prepared list allotting hawking places through Resolution dated 30.11.2009. The merchants who were earlier occupied the shops not ready to vacate and not allowing to new licensees to occupy the shops. Therefore, the Karnataka Footpath Merchants' Association given representation to the BBMP on 17.06.2010 to evict the persons who were in unlawful possession of the shops. Accordingly BBMP decided to evict such persons and on 11.08.2010 the BBMP written letter to Police Inspector, Upparpet P.S. to give assistance. It has been alleged that on 17.08.2010 the Officers and officials of BBMP including Police Personnel of Upparpet P.S. went to the footpath and tried to evict the persons who were in unlawful possession of the shops.
3. It is the allegation of the prosecution that BBMP authorities evicting the unauthorized persons on 17.08.2010 at about 10.30 a.m. The accused Nos.1 to 3 who were also in 5 SC.No.688/2013 occupation of certain shops opposed the eviction drive and even they obstructed the official duty of BBMP authorities. It has been alleged that the accused Nos.1 to 3 have set fire to shop No.43 and even they have caused hurt to Mohammed Khan who was in shop No.14 with wooden piece and thereby voluntarily caused hurt to him. It is further alleged that the accused Nos.1 to 3 in furtherance of their common intention abused the BBMP authorities and others who were engaged in filthy language and even given life threat. On these contentions, the prosecution has alleged that the accused Nos.1 to 3 have committed the above said offences.
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4. The Committal Magistrate secured the presence of accused Nos.1 to 3 after filing of the final report. All the accused appeared through their counsel and they were enlarged on bail. Even though the charge sheet has been filed against the accused Nos.1 to 3 for the offence under Sections 435, 324, 353, 506 read with Section 34 of I.P.C., the learned Magistrate invoked Section 323 of IPC stating that the allegations made in 6 SC.No.688/2013 the charge sheet attract the offence under Section 436 of IPC. Thereafter, the case has been committed to the Court of Sessions as the offence under Section 436 is exclusively triable by Court of Sessions. Such Order has not been challenged by the accused and it reached its finality. After committal the accused appeared through their counsel. On hearing both sides, charge has been framed against the accused Nos.1 to 3 for the offence 436, 324, 353, 506 read with Section 34 of IPC. The accused pleaded not guilty and claim to be tried.
5. The prosecution in order to prove the guilt of the accused examined nine witnesses as PW.s 1 to 9, got marked documents at Ex.P.1 to P.16 and Material Objects at M.O.1 to M.O.3.
6. The accused were examined under Section 313 of Cr.P.C and the accused denied the incriminating evidence appearing against them. The accused have not adduced any evidence in their defence.
7 SC.No.688/2013
7. Heard the arguments of both sides and perused the records.
8. I have meticulously gone through the materials evidence on record and the defence taken by the accused. Having regard to the evidence on record and the submissions made by the learned Public Prosecutor, the following points arise for my determination:
1. Whether the prosecution proves beyond reasonable doubt that on 17.08.2010 at about 10.30 A.M. the accused Nos.1 to 3 with common intention committed mischief by fire intending to cause or knowing it likely to cause damage to the clothes shop bearing No.43 of CW.15/Manohar to the tune of Rs.10,000/-
at Gandhinagar BBMP Limits, Pedestrian area at Majestic T.B. Road, Bengaluru and thereby committed offence punishable under Section 436 read with 34 of I.P.C.?
2. Whether the prosecution proves beyond reasonable doubt that on the above said 8 SC.No.688/2013 date, place and time the accused Nos.1 to 3 with common intention voluntarily caused hurt to CW.2/Mohammed Khan with the help of wooden piece and thereby 2 committed the offence punishable under Section 324 read with Section 34 of IPC?
3. Whether the prosecution proves beyond reasonable doubt that on the above said date, place and time the accused Nos.1 to 3 with common intention used criminal force on CW.1 and CW.8 to 12 who are public servants in the execution of their duty as such public servant and thereby committed the offence punishable under Section 353 read with Section 34 of IPC?
4. Whether the prosecution further proves beyond reasonable doubt that on the above said date, place and time the accused Nos.1 to 3 with common intention committed criminal intimidation by threatening CW.1 and 8 to 12 with threat to cause death or grievous hurt and thereby 9 SC.No.688/2013 committed the offence punishable under Section 506 read with Section 34 of IPC?
9. My findings to the above points are as under:-
POINT Nos.1 TO 3 :- In the Affirmative POINT No.4 :- In the Negative for the following:-
REASONS
10. Point Nos.1 TO 3 :- P.W.1 is the victim, P.W.2 and 4 to 7 are the eye-witnesses to the incident. P.W.3 is one of the panch witnesses to scene of offence Panchanama, P.W.9 is the Medical Officer who has given treatment to P.W.1 and P.W.8 is the Investigating Officer.
11. The prosecution has produced proceedings at Ex.P.5 of BBMP including the list of beneficiaries at Ex.P.6 and P.7. These proceedings indicate that on 30.11.2009 BBMP passed a Resolution for allotment of hawking places in the footpath 10 SC.No.688/2013 situated opposite to K.G. Bus Stand, Majestic, Bengaluru in view of the Order passed in Writ Petition 15513-15514/2000. The list of shop numbers and license number has also been prepared by the BBMP. This resolution and the list prepared by BBMP is not disputed by the defence. Therefore, from Ex.P.5 to P.7 it can be safely held that there was a dispute between the merchants and BBMP in respect of allotment of hawking places opposite to K.G. Bus stand, Majestic and therefore, as per the decision in Writ Petitions referred above, BBMP has prepared the list through lottery and allotted 93 licenses.
12. The P.W.4 and P.W.8 in their cross-examination have admitted that certain shops have been allotted to accused Nos.1 to 3. These admissions given by P.W.4 ad P.W.8 indicate that accused were also running their business in the footpath as on the date of alleged incident.
13. Ex.P.8 is the representation given by Karnataka Footpath Merchants' Association to BBMP o 17.06.2010. In this 11 SC.No.688/2013 representation the Association has referred the Orders passed in Writ Petitions referred above including the resolution of the BBMP dated 30.11.2009 and requested to handover the hawking places to the beneficiaries show in the list at Ex.P.6 and P.7. Ex.P.10 is the request letter given by the Assistant Revenue Officer, Gandhinagar Sub-Division, BBMP addressed to Police Inspector, Upparpet P.S. dated 11.08.2010. In this letter the BBMP authorities requested the Police to give Police protection for eviction of unauthorized persons from the footpath. These circumstances are also not disputed by the accused. Therefore, Ex.P.8 and Ex.P.10 indicate that BBMP decided to implement its Resolution at Ex.P.5 to evict the unauthorized persons and to hand over the possession of hawking places to the licensees shown in the list produced at Ex.P.6 and P.7. These records are sufficient to hold that BBMP has initiated drive to evict the unauthorized persons from the footpath and handover the hawking places to licensed vendors.
12 SC.No.688/2013
14. Ex.P.2 is the first information dated 17.08.2010 given by B.N. Jagadish, who was Asst.Revenue Officer, BBMP to Upparpet P.S. In this first information it has been alleged that himself and his staff went to hawking place, opposite to K.G. Bus Stand on 17.08.2010 at about 10.30 A.M. and tried to evict the unauthorized occupants from the footpath. It has also been alleged that when himself and his staff were discharging their duties by taking the help of the Police, the accused Nos.1 to 3 came to the spot. It has been alleged that accused Nos.1 and 2 have obstructed the work of BBMP authorities and picked up quarrel. It has been alleged that the accused No.1 and 2 have given life threat to BBMP authorities who were present at the spot and the accused Nos.1 and 2 have set fire shop No.43 and thereby caused mischief. It has been alleged that Mohammed Khan was in shop No.14 and the accused No.3 has assaulted Mohammed Khan with wooden piece and thereby caused hurt. This information was given at about 11.00 .AM. on 17.08.2010 and accordingly FIR at Ex.P.3 has been registered 13 SC.No.688/2013 for the offence under Sections 435, 324, 353, 506 read with Section 34 of IPC against accused Nos.1 to 3. The incident took place at 10.30 A.M. and first information has been given at 11.00 A.M. on 17.08.2010 and therefore, there is no delay in registration of FIR.
15. Ex.P.1 is the Panchanama drawn by the Investigating Officer on 17.08.2010 on the spot. In this Panchanama it has been shown that shop No.43 set fire and there was wooden piece on the spot which has been used for assaulting Mohammed Khan and that wooden piece has been recovered along with half burnt clothes. This Panchanama has been drawn between 11.30 A.M. to 12.15 P.M. on 17.08.2010. This shows that Investigating Officer has reached the spot immediately after registration of the FIR.
16. The prosecution has produced the extract of muster role of BBMP at Ex.P.9 to show that certain Officers were deputed in the drive to evict the unauthorized occupants of footpath. This attendance is also not disputed by the accused. 14 SC.No.688/2013 According to this attendance extract, P.W.4 and P.W.6 were participated in the drive. Therefore, deputing P.W.4 and P.W.6 for the drive has been established through Ex.P.9.
17. Coming to the oral evidence of the witnesses regarding the assault on P.W.1, there is statement of P.W.1, 2 and 4 to 7. The P.W.2 and 4 to 7 in their evidence have stated that P.W.1 was present in one of the shops on the spot and at the time of drive taken up by BBMP authorities. The P.W.1, 2, 4 to 7 have stated that the accused No.3 picked up quarrel with P.W.1 and given blow with wooden piece produced at M.O.2 to the P.W.1 and therefore, P.W.1 has sustained injuries. The P.W.1 in his examination-in-chief has stated that when accused No.3 has assaulted him, he was in shop No.46. But when this witness was cross-examined by the prosecution, he has stated that he was in shop No.14. It appears that P.W.1 forgotten the shop number and therefore, there is some contradiction which is not material contradiction. The P.W.4 in his evidence has stated that he saw the assault on Manohar who was in shop No.14 by 15 SC.No.688/2013 the accused No.3. It appears that P.W.4 has stated the name of Manohar instead of Mohammed Khan. Manohar is not the witness or the victim of the crime. The incident took place on 17.08.2010 and P.W.1 has given evidence on 04.11.2015. Because of this gap it appears that he was not knowing the exact name of injured in the incident and therefore, he has stated the name of Manohar instead of Mohammed Khan. No much importance can be given to such minor contradiction.
18. The P.W.1 in his cross-examination has admitted that Musthafa who has been examined as P.W.5 was the President of the Association. He has also admitted that he was working with Mustafa. He has denied the existence of another society headed by the accused No.1 parallel to the society formed by P.W.5. P.W.2 in his cross-examination has admitted that he is also one of the members of the association for which P.W.5 is the President. He has also admitted that accused No.1 is the President of another society. P.W.4 who is the Revenue Officer of BBMP denied the existence of two associations headed by 16 SC.No.688/2013 P.W.4 and accused No.1. The P.W.5 has admitted that he is the President of Karnataka Footpath Merchants' Association. He has pleaded his ignorance about the existence of another association headed by the accused No.1. The P.W.7 who was the PSI of Upparpet P.S. at the time of alleged offence has also denied the existence of two associations. On perusal of the statements of the witnesses referred above, it is very clear that P.W.5 was the President of Karnataka Footpath Merchants' Association and in that association the hawkers of the footpath situated opposite to K.G. Bus stand were the members. The P.W.1 and 2 were also the members of such association. The admission given by P.W.1 and the answer given by P.W.5 also indicate that the accused No.1 and his associates formed another association parallel to the association of P.W.5. It also appears that there was rivalry between associations formed by accused No.1 and the P.W.5.
19. The P.W.4, 6 and 7 are the official witnesses. They are not interested in any of the associations referred above. 17 SC.No.688/2013 When their statement is supporting the statement of P.W.1, 2 and 5 regarding the assault made by the accused No.1, 3 on the P.W.1, even though there was previous enmity between P.W.1, 2 and 5 with the accused, their statement is to be accepted as it is corroborated by the official witnesses. Therefore, I hold that the evidence of P.W.1, 2, 4 to 7 is sufficient to hold that on 17.08.2010 at about 10.30 A.M. when the BBMP authorities initiated the drive, the accused Nos.1 to 3 were present on the spot and they were opposing the drive and in that incident the accused No.3 given blow to P.W.1/Mohammed Khan with wooden piece produced at M.O.2 with an intention to cause hurt.
20. P.W.9 is the Medical Officer of Victoria hospital who has stated that on 17.08.2010 at about 1.30 P.M. P.C.No.8009 of Upparpet P.S. brought P.W.1/Mohammed Khan to the hospital for treatment with history of assault. He has stated that he has given medical treatment to P.W.1 on OPD basis and he found abrasion over left frontal region of the scalp on the body of P.W.1. He has also stated that after treatment he has issued 18 SC.No.688/2013 wound certificate at Ex.P.11. This evidence of P.W.9 and wound certificate at Ex.P.11 have been denied by the accused in the cross-examination. But the Medical Officer stood for his statements. His statement is supported with medical certificate Ex.P.11. The eye witnesses and the victim have stated that P.W.1 has sustained injury. The evidence of victim and the eye witnesses show the injury sustained by the victim and even medical treatment taken by him from P.W.9. Therefore, I hold that the evidence of P.W.9 is sufficient to prove the injury on the body of P.W.1. The injury was caused by the accused No.3 with the help of wooden piece which is dangerous weapon. Thus, I hold that the prosecution has established the offence under Section 324 read with Section 34 of IPC.
21. The existence of shop No.43 in the footpath opposite to K.G. Bus stop is not disputed by the defence. The P.W.1 in his cross-examination conducted by the prosecution has admitted that accused Nos.1 and 2 poured petrol on shop No.43 and set fire on such shop. In the cross-examination the accused 19 SC.No.688/2013 denied such statement and then also P.W.1 has reiterated the statement by saying that the accused have set fire shop No.43. The P.W.2 has stated that the accused poured petrol on a shop and set fire. This witness not specifically stated which of the accused poured petrol and which of the accused set fire. The P.W.3 who is one of the panch witnesses to Panchanama at Ex.P.1 has stated that the Police came to the spot and obtained his signature. He has also stated that at the time of drawing Panchanama half burnt clothes were seized by the Police. He has also stated that one of the shops was set fire which has been noticed by him at the time of Panchanama and even he has stated that about 100 to 150 people assembled. The Panchanama has been drawn between 11.00 A.M. to 12.15 P.M. on 17.08.2010 itself. Therefore, the P.W.3 had occasion to see the burnt shop and therefore, his evidence also indicates that one of the shops in the hawkers' place was set fire.
22. P.W.4 has stated that the accused Nos.1 and 2 poured petrol on the shop No.43 and set fire. In the cross- 20 SC.No.688/2013 examination the P.W.4 was unable to identify the accused before the court. The answers given by P.W.4 in the cross-examination indicates that the incident took place in 2010 and his evidence was recorded in 2015 and there was long gap. Because of this gap the P.W.4 was not able to identify each of the accused during the evidence. Therefore, only because the P.W.4 has not properly identified the accused Nos.1 to 3, his statement that accused have set fire on shop No.43 cannot be discarded.
23. P.W.5 has stated that he was present with BBMP authorities at the time of evicting the unauthorized persons from the hawkers' place and he saw accused Nos.1 and 2 who were caught by the Police on the spot and he came to know that accused Nos.1 and 2 have set fire one shop. In the cross-examination also P.W.5 has reiterated those statements. The statement made by P.W.5 indicates that he has not personally seen the accused No.1 or accused No.2 while pouring petrol and setting fire on shop No.43, but he has seen both accused when they were caught hold by the Police immediately after setting the shop fire. 21 SC.No.688/2013
24. P.W.6 has stated that the accused have set fire shop No.43. In the cross-examination this witness has admitted that he has not seen the person who set fire on the shop. Even this witness not able to identify the accused. The evidence of P.W.6 indicates that he went to scene of offence along with P.W.4 on 17.08.2010 to evict the unauthorized persons from hawkers' place and at that time some body set fire on shop No.43.
25. P.W.7 is the Police Officer who was deputed to the spot to help the BBMP authorities on 17.08.2010. This witness has categorically stated that accused Nos.1 and 2 poured petrol on shop No.43 and then set fire. He has also stated that immediately himself and his staff arrested accused Nos.1 and 2 and then they were taken to Police Station. This statement of P.W.7 is not shaken in the cross-examination.
26. Therefore, considering the oral evidence of witnesses referred above and appreciating their evidence, I am of the opinion that there is clinching evidence against the accused Nos.1 and 2 to the effect that both of them poured petrol on shop 22 SC.No.688/2013 No.43 and then set fire in presence of BBMP authorities and also in presence of Police Personnel who were deputed for duty and such acts were witnessed by the general public including the P.W.1, 2 and 5. The evidence of P.W.4, 6 and 7 who are the official witnesses has been corroborated by the evidence of P.W.1, 2 and 5. In order to prove the mischief committed by the accused, the prosecution has produced half burnt clothes at M.O.1. The prosecution has produced photographs at Ex.P.12 to P.15 and out of those photographs Ex.P.12 to 14 show fire set to clothes. The witnesses have stated that in photographs at Ex.P.12 to 15 shop No.43 is not visible. The prosecution has not produced the photograph of shop No.43. However, the evidence of P.W.1 and 4 to 7 is sufficient to show that shop No.43 was set fire by accused Nos.1 and 2 by pouring petrol. The accused No.3 joined his hands with accused Nos.1 and 2 in the said alleged act and he assaulted P.W.1. Therefore, it is very clear that accused Nos.1 to 3 had common intention to commit mischief to the shop and accordingly they have committed 23 SC.No.688/2013 mischief by setting fire on shop No.43. For these reasons I hold that prosecution has proved the offence of mischief to the shop committed by accused Nos.1 to 3 by fire which is punishable under Section 436 of IPC.
27. The P.W.4, 6 and 7 are the official witnesses. The P.W.4 and 6 are the employees of BBMP and whereas the P.W.7 is the Police Officer. The P.W.4 and 7 have categorically stated that when they tried to evict the unauthorized persons from the hawkers' place on 17.08.2010 at about 10.30 .AM. the accused Nos.1 to 3 have obstructed such work by setting fire to one of the shops ad even by assaulting P.W.1. The P.W.7 has also stated that the accused Nos.1 and 2 by setting fire to the shop and accused No.3 by assaulting P.W.1 picked up quarrel with BBMP authorities. He has specifically stated that accused Nos.1 and 2 have obstructed the official duties of BBMP authorities. These statements and the evidence of P.W.1, 2 and 5 clearly show that when the BBMP authorities went to evict the unauthorized persons in hawkers' place, the accused Nos.1 to 3 only in order 24 SC.No.688/2013 to deter the BBMP employees from discharging their duties set fire shop No.43 and caused hurt to P.W.1 and thereby deterred the public officers from discharging their official duties. This evidence is sufficient to attract Section 353 of IPC. Accordingly I hold that prosecution has established the guilt of accused Nos.1 to 3 for the offence u/s353 read with Section 34 of IPC.
28. The P.W.8 is the Investigating Officer. He has deposed regarding receipt of first information and registration of FIR. He has also stated the production of accused Nos.1 and 2 by P.W.4 in the Police Station along with first information and their arrest. He has also deposed about conducting of Panchanama at Ex.P.1 and seizure of M.O.1 and 2 from the spot. He has seized the vehicle used by the accused at the time of commission of offence. According to him the materials collected during the investigation are sufficient to punish the accused. Now through oral and documentary evidence referred above, the P.W.7 able to prove his allegation made in the charge 25 SC.No.688/2013 sheet. The evidence of P.W.7 has not been shaken in the cross- examination.
29. On appreciating the oral and documentary evidence in nutshell it can be stated that the BBMP passed Resolution on 30.11.2009 for allotment of hawkers place in the footpath opposite to K.G. Bus stand, Majestic, Bengaluru and BBMP has initiated a drive to evict the unauthorized persons. P.W.4, 5 and their staff belonging to BBMP went to the spot on 17.08.2010 to evict the unauthorized persons with the help of Police and P.W.7 including his staff were present. The accused Nos.1 to 3 who were also having certain shops in the hawkers place protested the drive initiated by BBMP, set fire shop No.43 by pouring petrol, they have caused injury to pw1 and deterred the public servants from discharging their official duties. Thereby, the accused Nos.1 to 3 have committed the offence under Section 324, 353, 436 read with Section 34 of IPC. Accordingly I answer point Nos.1 to 3 in the Affirmative.
26 SC.No.688/2013
30. Point No.4 : - The P.W.1 in his cross-examination conducted by the prosecution has admitted that the accused Nos.1 and 2 have quarreled with BBMP authorities and given life threat. The P.W.2 has not spoken about the threat said to be given by the accused to the BBMP authorities. The P.W.4 has not stated that the accused have given threat to himself or his staff. P.W.5 and 6 have also not stated that accused have given life threat to BBMP authorities. The P.W.7 has stated that accused Nos.1 and 2 have given life threat to BBMP authorities who were present in the trial. The statement of P.W.1 and 7 about life threat said to be given by the accused, not been supported by BBMP authorities themselves including P.W.2 and
5. Therefore, there is no evidence from the Public Officers i.e. P.W.4 and 6 that the accused have given threat to their life when they were discharging their official duties. Thus, the accused cannot be held guilty for the offence under Section 506 read with Section 34 of IPC as the evidence is not sufficient. Hence, I answer this point in the Negative.
27 SC.No.688/2013
31. Considering the evidence on record it is found that the accused Nos.1 to 3 are guilty for the offences under Sections 324, 353, 436 read with Section 34 o IPC and not guilty for the offence under Section 506 read with Section 34 of IPC. The offence under Section 353 of IPC has been committed against the public servants and damage has been caused to public property. Therefore, the accused Nos.1 to 3 are not entitled for benefit under Section 3 or 4 of P.O. Act and even they are not entitled for benefit of Section 360 of Cr.P.C. The accused Nos.1 to 3 are to be sentenced for the above said offences after hearing on quantum of sentence. Accordingly, I proceed to pass the following:
ORDER Acting under Section 235 of Cr.P.C. the accused Nos.1 to 3 are convicted for the offence under Section 324, 353, 436 read with Section 34 of IPC. The accused Nos.1 to 3 are acquitted for the 28 SC.No.688/2013 offence under Section 506 read with Section 34 of IPC.
(Dictated to the Judgment-writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 17th day of October 2017).
(B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
ORDER REGARDING SENTENCE
32. The accused No.1 to 3 have been produced from JC through VC. The counsel for the accused No.1 to 3 is present, including learned PP.
33. The accused No.1 to 3 and their counsel submitted that there are no criminal antecedents and the accused No.1 to 3 were not previously convicted for any of the offences. They have submitted that accused No.1 is having three minor daughters and age old handicapped mother. The accused No.2 is having four minor children and accused No.3 is having two minor children. Accused have submitted that they are only earning members in their family and they were running footpath business. On these grounds the accused and their counsel submits to impose lesser sentence. 29 SC.No.688/2013
34. The learned PP has submitted that the accused have set fire to the shop by causing injury to PW-1 and by obstructing official duties of public servants and therefore, prayed to punish the accused severally.
35. Perused the records. It is found that the accused No.1 to 3 set fire footpath shop, caused simple injury to PW-1 and obstructed the official duties of public officers, while evicting unauthorized occupants of public property.
36. Looking to the submission made by accused No.1 to 3, it appears that accused are having minor children and they are only the earning members in their respective families. The accused No.1 is aged about 37 years, accused No.2 is aged about 33 years and accused No.3 is aged about 35 years.
37. Having regard to the aggravating factors and mitigating circumstances, I am the opinion that even though offence under section 436 read with 34 of IPC is punishable with imprisonment for life or imprisonment for a period which may extend to 10 years, lesser punishment has to be imposed on accused No.1 to 3. Even court feels that for the offence under section 324 and 353 read with 34 of IPC, lesser punishment has to be imposed on accused No.1 to
3. Accordingly, I proceed to pass the following; 30 SC.No.688/2013
ORDER The accused No.1 to 3 are hereby sentenced to under go simple imprisonment for one year and to pay fine of Rs.500/- (Five hundred) each, in default shall undergo further simple imprisonment for thirty days for the offence punishable under section 324 read with 34 of IPC.
The accused No.1 to 3 are hereby sentenced to under go simple imprisonment for six months and to pay fine of Rs.500/- (Five hundred) each, in default shall undergo further simple imprisonment for thirty days for the offence punishable under section 353 read with 34 of IPC.
The accused No.1 to 3 are hereby sentenced to under go simple imprisonment for four years and to pay fine of Rs.1,000/- (One thousand) each, in default shall undergo further simple imprisonment for forty five days for the offence punishable under section 436 read with 34 of IPC.
All the sentence of imprisonment shall run concurrently. The accused No.1 and 2 were in JC from 17.08.2010 to 19.08.2010 (3 days), 17.10.2017 and 18.10.2017. The accused No.3 is in JC on 17.10.2017 and 18.10.2017. Therefore, they are entitled for set-off under section 428 of Cr.P.C.
31 SC.No.688/2013
Furnish copy of the Judgment to the accused No.1 to 3 free of cost forthwith.
Issue warrant of commitment accordingly and send it to Central Jail, Parappana Agrahara, Bengaluru.
(Dictated to the Typist on Computer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 19th day of October 2017).
(B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
ANNEXURE List of witness examined for prosecution:
PW 1 Mohammed Khan P.W.2 Azar Pasha P.W.3 Afsar P.W.4 B.N. Jagadish P.W.5 V.P. Musthafa P.W.6 Nagaraj P.W.7 T.D. Satish Kumar P.W.8 Kallappa S. Karath P.W.9 Dr. N. Santhosh
List of documents marked for prosecution:
Ex.P.1 Spot Panchanama
Ex.P.1(a) to (d) Signatures
32 SC.No.688/2013
Ex.P.2 Complaint by P.W.1
Ex.P.2(a),(b) Signatures
Ex.P.3 FIR
Ex.P.4 Voluntary statement
Ex.P.5 Order copy
Ex.P.6 License and allotment list
Ex.P.7 List of license allotment
Ex.P.8 Letter
Ex.P.9 Attender extract of BBMP
Ex.P.10 Letter
Ex.P.11 Wound certificate
Ex.P.12-15 Photographs
Ex.P.16 Mahazar
MATERIAL OBJECTS MARKED:-
M.O.1 Half burnt clothes
M.O.2 & 3 Wooden piece
List of witnesses examined for defence: - NIL List of documents marked for defence:- NIL (B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
33 SC.No.688/201334 SC.No.688/2013 15.06.2017:
Judgment pronounced in open court (vide separate detailed judgment) with the following operative portion ORDER Acting under section 235 of Cr.P.C. the accused No.2/Srinivas, S/o Krishna Murthy is convicted for the offence punishable under sections 307 and 506 read with 34 of IPC.
Accused No.2 is sentenced to undergo simple imprisonment for five years and to pay fine of Rs.5,000/- in default shall undergo simple imprisonment for 30 days for the offence punishable under section 307 read with section 34 of IPC.
Further, the accused No.2 is sentenced to undergo simple imprisonment for six months for the offence punishable under section 506 read with section 34 of IPC.
The sentence of imprisonment shall run concurrently.35 SC.No.688/2013
The accused No.2 is entitled for set off under Section 428 of Cr.P.C. for 10 months 13 days (from 16.09.2012 to 29.07.2013). Issue conviction warrant accordingly.
Furnish copy of Judgment to the accused No.2 forthwith free of cost.
(B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.