Bangalore District Court
State By; vs Khayab S/O Shoukath Ali on 15 April, 2016
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 15th day of April, 2016
PRESENT
Sri.Shivaji Anant Nalawade, B.Com., LL.B.(Spl.)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
SESSION CASE No.196/2013
COMPLAINANT : State by;
Byatarayanapura Police Station, Bengaluru.
(By Learned Public Prosecutor)
- Vs -
ACCUSED : Khayab S/o Shoukath Ali,
Aged about 65 years,
Residing at No.5,
1st Main, 1st Cross,
Near Allad Medicals,
Shamanna Garden,
Mysore Road, Bengaluru-26.
(By Sri.P.N., Advocate)
1. Date of commission of offence 21-10-2012
2. Date of report of occurrence 21-10-2012
3. Date of arrest of accused 22-10-2012
Date of release of accused 15-11-2012
Period undergone in custody 25 Days
4. Date of commencement of evidence 27-05-2014
2 S.C.196/2013
5. Date of closing of evidence 23-02-2016
6. Name of the complainant Sri.B.S.Basavaraju
7. Offences complained of Sec.504, 307, 506 of
I.P.C.
8. Opinion of the Judge As per the final order
9. Order of sentence Offences proved
JUDGMENT
This case is committed by the V Addl.Chief Metropolitan Magistrate Court, Bangalore City, to the Hon'ble Prl. City Civil and Sessions Court, Bangalore on the ground that offences punishable under Sec.504, 307, 506 of I.P.C. are exclusively triable by the court of Sessions.
2. The Police Sub-Inspector of Byatarayanapura Police Station has filed charge-sheet against accused for the offences punishable under Sec.504, 307, 506 of I.P.C. arising out of Byatarayanapura Police Station in Crime No.415/2012.
3. The brief facts of the prosecution case is as under:
It is the case of the Prosecution that, accused in the year 2012 was running Dry Fruits shop within the limits of Byatarayanapura Police Station, Shamanna Garden, BWSSB 3 S.C.196/2013 Road, abetting to Sufiyana Chicken Shop at No.18, on 21-10- 2012 at 3.30 p.m., CW.1-Basavaraju B.S. came to the shop of accused and purchased one Jamoon powder pocket, accused has taken Rs.30/- for the said pocket thereafter CW.1 again came to the shop of accused for purchase of another Jamoon pocket, purchased the same and given Rs.50/- and asked the accused to return Rs.20/- by taking Rs.30/-, for that accused picked-up quarrel with CW.1 and abused him saying that 'theri maa ki chod, suvar ki bache' and insulted him and such insult may likely to cause him to break public peace or to commit any other offence. Accused with an intention to kill CW.1 assaulted him with Hammer which is deadly weapon on his head and at that time CW.1 has hold the Hammer, accused went in the Chicken Shop which is abetting to his shop and brought the Chopper used for cutting the chicken and assaulted CW.1 with the same on his left side chest and right side back and caused blood injuries and attempted to kill him, accused gave threat to the life of CW.1 stating that if he again comes to his shop he will bring rowdies and kill him and 4 S.C.196/2013 thereby accused has committed the offences under Sec.504, 307, 506 of I.P.C.
3(a) CW.17 who is the Police Sub-Inspector of Byatarayanapura Police Station on 21-10-2012 at 6.15 p.m. when in the Police Station, CW.1 came to the Police Station, lodged complaint and CW.17 has obtained the same and registered the same in Crime No.415/2012 and submitted FIR to the court. On the same day, CW.17 has recorded the statement of CW.2 thereafter CW.17 came to the spot along with CW.1, there CW.17 has called CW.5 and 6-Panchas, CW.17 has drawn the Spot Mahazar on the place shown by CW.1 in presence of Panchas. CW.1 has produced his blood stained Baniyan before CW.1 and CW.1 has seized the same in presence of Panchas thereafter CW.17 has prepared the Rough sketch of the spot, CW.17 has subjected the properties under P.F.185/2012 and on 21-10-2012 CW.17 has recorded the statement of CW.3. On 22-10-2012, CW.13 and 14- Officials who have been asked to catch-hold the accused have catch-hold the accused and produced before CW.17 and he has arrested the accused and recorded his voluntary 5 S.C.196/2013 statement. Accused in his voluntary statement stated that, if he is accompanied, he will show the Hammer and Chopper used for committing the offence and produce the same as per Ex.P11. CW.17 has called CW.7, 8 and 9-Panchas and given information to them, accused taken CW.17, 7, 8 and 9 to his shop and produced Hammer and Chopper used for committing the offence. CW.17 has drawn the Mahazar as per Ex.P3 and seized the said weapons and CW.17 has subjected the properties to P.F.No.186/2012.
3(b) On 15-11-2012, CW.17 has obtained the wound certificate of CW.1, on 22-10-2012 CW.17 has recorded the statement of CW.4, 7, 10, 12, 14, and 15. On 17-11-2012 CW.17 has sent the Hammer and Chopper seized in this case to the Medical Officer for examination and for submitting Report whether the injuries mentioned in the Wound Certificate are likely to be caused with the said weapons. CW.17 has obtained the Weapon Examination Report thereafter CW.17 has filed the charge-sheet against the accused.6 S.C.196/2013
4. After filing the charge-sheet by the Investigating Officer, III Addl.Chief Metropolitan Magistrate Court, Bengaluru has taken cognizance and registered case in C.C.No.288/2013. Thereafter, III Addl.Chief Metropolitan Magistrate Court, Bengaluru, has secured presence of accused and furnished charge sheet copy to accused as contemplated under Sec.207 of Cr.P.C. and committed the case against the accused before the Hon'ble Prl. City Civil and Sessions Court, Bangalore and that was registered as S.C.196/2013 and made over to this court for disposal according to law, as the offences alleged are triable by the Sessions Court.
5. After receipt of the papers, this court has secured presence of accused and enlarged him on bail. Thereafter, this court has heard the learned Public Prosecutor for State and counsel for accused on charge to be framed. Charge under Sec.228 of Cr.P.C. framed against the accused for the offences under Sec.307, 504, 506 of I.P.C. and read-over to the accused in the open court, accused pleaded not guilty and claim to be tried. Thereafter Prosecution is called upon to 7 S.C.196/2013 prove the guilt of the accused by examining the Prosecution witnesses.
6. Prosecution in order to prove the guilt of the accused beyond all reasonable doubt in all examined 14 witnesses as PW.1 to 14 and got marked 13 documents as per Ex.P1 to 13 and marked 3 material objects as MO.1 to 3 and closed its side. Thereafter accused is examined under Sec.313 Cr.P.C. to enable him to explain the incriminating circumstances appearing against him in the prosecution evidence. Accused denied the statement and stated that on 21-10-2012 he was in his Shop and 3 persons came in the shop and purchased one Jamoon pocket and when he asked money from them one of them has hold his beards and told him 'you want money' and they have broken 12 glass bottles containing pickles and thereafter they entered in his shop and came to assault him and he asked them 'who are you, what you are doing', at that time one person slipped on the pickle which is fallen on the ground, he fell and sustained injuries and remaining persons have threatened him and went away and on that day at 7.00 p.m., Police have taken him to the Police 8 S.C.196/2013 Station and obtained his signature, he has not committed any offences and he has been falsely implicated in this case. Further accused has stated that he has no defence evidence, thereafter case is posted for arguments.
7. Heard the arguments advanced by the learned counsel for the accused and learned Public Prosecutor for state in length.
8. The points that arise for my determination are:
1) Whether the prosecution proves beyond reasonable doubt that accused on 21-10-2012 at 3.30 p.m., within the limits of Byatarayanapura Police Station, Shamanna Garden, BWSSB Road, abetting to Sufiyana Chicken Shop at No.18, when complainant/CW.1 came to his shop for purchase of Jamoon powder pocket, has taken Rs.30/- and given the Jamoon pocket thereafter CW.1 again came to the shop of the accused for purchase of another Jamoon pocket and purchased the same and given Rs.50/- and asked the accused to return Rs.20/- by taking Rs.30/-, for that accused picked-up quarrel with CW.1 and abused him 9 S.C.196/2013 by saying "their maa ki chod, suvar ki bache"
and insulted him and such insult may likely to cause him to break public peace or to commit any other offence and thereby committed the offence under Sec.504 of I.P.C.?
2) Whether the prosecution proves beyond reasonable doubt that on the above said date, time and place, accused picked-up quarrel with the complainant, accused with an intention to kill CW.1 assaulted him with Hammer which is a deadly weapon on his head and CW.1 has hold the Hammer, at that time accused No.1 went in the chicken shop which is abetting to his shop and brought the Chopper used for cutting the Chicken and assaulted CW.1 with the same on his left side chest, right side back, caused blood injuries and thereby committed the offence punishable under Sec.307 of IPC?
3) Whether the prosecution proves beyond reasonable doubt that on the above said date, time and place, accused picked-up quarrel with CW.1 and gave threat to the life of CW.1 stating that if he again comes to his shop he will bring rowdies and kill him and thereby 10 S.C.196/2013 committed the offence punishable under Sec.506 of IPC?
4) What order?
9. My findings on the above points are as follows:
Point No.1 : In the AFFIRMATIVE;
Point No.2 : In the AFFIRMATIVE;
Point No.3 : In the AFFIRMATIVE;
Point No.4 : As per final order;
For the following;
REASONS
10. POINT No.1 TO 3: The above points are
connected, hence they are taken up together for discussion.
11. It is the case of the prosecution that the accused has committed the offences punishable under Sec.504, 307, 506 of I.P.C. and in order to prove the guilt of the accused the prosecution in all examined 14 witnesses and they are; PW.1- Basavaraju D.S. son of Siddegowda-complainant, PW.2- Ramamurthy son of Shilpayappa-eye witness, PW.3- Venkataramu son of Ramaiah-eye witness, PW.4-B.M.Suresh son of Manchegowda-Spot Mahazar Pancha, PW.5-Bhaskar son 11 S.C.196/2013 of Bhojaraja-Pancha on Ex.P3 Seizure Mahazar, PW.6- Lingaraju son of Kariyappa-Pancha on Ex.P3 Mahazar, PW.7- Mallikarjuna son of S.Revanna-Head Constable, PW.8-Parveez son of Muneer Ahmed-owner of Chicken shop, PW.9- Srinivasamurthy.V son of V.Venkatappa-Pancha on Spot Mahazar, PW.10-Kemparasaiah son of Late.Govindaiah-Head Constable, PW.11-Revanasiddappa son of Late.Shivanna-Head Constable, PW.12-S.Nagaraja son of Late.S.Subbarao-Head Constable, PW.13-B.Vishwanath son of M.Basappa-Medical Officer, PW.14-Y.Joseph son of Yadappa-Investigating Officer.
12. The prosecution in order to prove guilt of the accused in all got marked 13 documents and they are;
Ex.P1-Complaint, Ex.P2-Spot Mahazar, Ex.P3-Seizure Mahazar, Ex.P4-Portion of statement of PW.8, Ex.P5-Rough sketch of the spot, Ex.P6-Report given by PW.11 to Police Sub- Inspector, Ex.P7-Wound certificate of PW.8, Ex.P8-Weapon examination report, Ex.P9-FIR, Ex.P10-P.F.185/2012, Ex.P11- Portion of voluntary statement of accused, Ex.P12- P.F.186/2012, Ex.P13-Letter written by Investigating Officer to Medical Officer.
12 S.C.196/2013
13. Prosecution got marked three Material Objects i.e., MO.1-blood stained baniyan, MO.2-Hammer, MO.3-Chopper used for cutting the Chicken.
14. Prosecution in order to prove the guilt of the accused beyond reasonable doubt examined PW.1 and PW.1 is the complainant and he in his evidence stated that, since 10- 12 years earlier to his evidence he is residing at Shamanna Garden, the road abetting to which they are staying is called BWSSB Road, he know the accused, accused is running dry fruits shop on BWSSB Road, in front of the shop of accused one Vinod Kumar Steel and Cement Shop is there, abetting to the shop of the accused one chicken shop is there. On 21-10- 2012 at 3 to 3.30 p.m., he went to the shop of the accused and purchased one Gulab Jamoon pocket and accused has taken Rs.30/- for it and he brought the same in his house and his family members told that the said Gulab Jamoon pocket is nice, so after half an hour he went to the shop of the accused for purchase of another Gulab Jamoon powder pocket and asked the accused to give the same and given Rs.50/- to the accused and accused has not returned Rs.20/-, so he asked 13 S.C.196/2013 the accused to return Rs.20/- back and for that accused abused him saying that "ma ki chod, suvar ki bache", for that he told the accused why he is talking like this and told him to talk properly, accused told that he will talk like this only and taken the Hammer from his shop and assaulted on the left side of the head and he sustained blood injuries to his head and he hold the Hammer and for that accused went in the chicken shop which is abetting to his shop and brought the Chopper which is used for cutting the chicken and assaulted him with Chopper on his left side chest and on right side back and he sustained blood injuries and the blood came out of the injuries were fell on the baniyan which is worn by him thereafter he came to the Byatarayanapura Police Station, Police have sent him to the Victoria Hospital and he has taken treatment in the Victoria Hospital and returned to the Police Station at 6.30 p.m. and lodged a complaint and identified the complaint lodged by him as Ex.P1 and identified his signature as Ex.P1(a). Further this witness has stated that, when he was returning from the shop of the accused, accused told him that he will bring rowdies and kill him and gave threat to his life. 14 S.C.196/2013 Further this witness has stated that on the next day Police came to the spot and he has shown the spot to the Police, on the spot blood stains were there and Police have made writing there, he has also handed-over the blood stained baniyan to the Police, Police have seized the same and identified the Mahazar drawn by Police as Ex.P2 and identified his signature as Ex.P2(a). Further this witness has stated that, at the time of drawing Mahazar, Srinivasa and Suresh were present and they have also signed the Mahazar and identified the accused person before the court as the person who assaulted him on that day and identified the blood stained baniyan belongs to him as MO.1 and identified the Hammer used or assaulting as MO.2 and identified the Chopper used for cutting the Chicken as MO.3. Prosecution treated this witness hostile in part and suggested to this witness that Spot Mahazar drawn on 21-10- 2012 on 7.30 to 8.30 p.m., and this witness has denied the same. This witness has been cross-examined by the counsel for the accused and in the cross-examination PW.1 has admitted that he and CW.2, 3 went to the shop of accused and asked the Jamoon pocket. PW.1 has denied that he not paid 15 S.C.196/2013 the money for purchase of Jamoon pocket. The counsel for the accused has suggested to PW.1 that CW.1 to 3 went to the shop of accused and taken Jamoon pocket and CW.1 has not paid the amount and when accused has asked money, CW.1 to 3 have picked-up quarrel with accused and assaulted the accused and p.w1 has denied the same. Further counsel for the accused suggested to this witness that CW.1 has broken the bottles in the shop of accused and when the complainant was assaulted the accused, accused has pushed the complainant and at that time complainant fell on the bottle pieces and sustained injuries and PW.1 has denied the said suggestion. Further counsel for the accused has suggested to PW.1 that, after the incident the complainant has taken the good worth Rs.5,00,000/- from the shop of the accused and PW.1 has denied the same. Accused has admitted the presence of CW.1, 2, 3 on the spot at the time of incident. It is the specific case of the accused that, on that day the complainant has purchased the Gulab Jamoon pocket and not paid the amount and when he asked the money, CW.1 to 3 have assaulted him and when they were assaulting, he pushed 16 S.C.196/2013 the CW.1, CW.1 fell on the bottle pieces and sustained injuries. Further it is the case of the accused that, after the incident the complainant has taken goods worth Rs.5,00,000/- from his shop. In the present case, accused has not lodged any complaint against the complainant that CW.2, 3 for alleged assault and alleged taking of goods worth Rs.5,00,000/- from his shop. The counsel for the accused has suggested to PW.1 that the complainant has influenced the Police for not taking the complaint lodged by the accused and the same has been denied by PW.1. Accused has not produced any documents to show he has lodged the complaint against the complainant, CW.2 and 3. Further accused has not given explanation why he has not lodged private complaint if Police have not taken his complaint before the court and no ordinary prudent man will keep quite when Police have not obtained his complaint for assaulting him and taking the goods worth Rs.5 lakhs from his shop. So, the explanation offered by the accused for non- lodging the complaint is unacceptable one.
15. Prosecution has examined PW.2. PW.2 in his evidence stated that, he is doing flower business, he know 17 S.C.196/2013 complainant, he know accused. Accused is running a Provisional Store at Srikantappa building, Shamanna Garden, opposite to Cement and Hardware shop. On 21-10-2012 at 4.00 p.m., he was returning to his house from the Market and when he came near the Shamanna Garden circle near Srikantappa Building, public gathered there in front of the shop and he went there and there accused was abusing the complainant in abusive words and at that time complainant asked the accused why he is abusing and for that accused assaulted the complainant with Hammer on his head, complainant has hold the Hammer with hands thereafter accused went in the chicken shop which is abetting to his shop and taken the Chopper from there and assaulted CW.1 with Chopper on the left side chest and back, CW.1 has sustained blood injuries. Accused threatened CW.1 that he will bring rowdies and kill him. At the time of incident CW.3- Venkataramu was also there, he and CW.3 have taken CW.1 to the Hospital in the Auto, firstly they went to the Police Station and from the Police Station they went to the Victoria Hospital. Further this witness has stated that the accused has sold one 18 S.C.196/2013 Jamoon pocket to the complainant for Rs.30/- and thereafter again when complainant purchased another Jamoon pocket, accused asked Rs.50/- and for that quarrel took-place between the complainant and accused. Further this witness has stated that, at the time of incident the complainant was wearing baniyan and blood came out of the injury fell on the baniyan of the complainant and identified the blood stained baniyan of the complainant as MO.1. Further this witness has identified the Hammer used for assaulting the complainant as MO.2 and identified the Chopper used for assaulting the complainant as MO.3 and identified the accused present before the court. The counsel for the accused has cross-examined this witness in length and nothing has been made out in his cross- examination so as to disbelieve his evidence. This witness is no where related to the complainant. Further no grudge or ill- will is made out in the cross-examination of this witness against the accused. This witness has clearly stated that he is staying within the vicinity where the shop of the accused is there and complainant is staying and this witness has stated that when he was returning to his house, the galata was going 19 S.C.196/2013 on in front of the shop of the accused and people were assembled there and after seeing he went there, he witnessed the incident and clearly stated regarding the incident. The evidence of this witness clearly corroborates the evidence of PW.1.
16. Prosecution has examined PW.3. PW.3 in his evidence stated that he know the accused, accused is having Provisional Shop at Shamanna Garden in Srikantappa building which is opposite to Cement Shop, he know the complainant. On 21-10-2012 at 4 to 5 p.m. he came to the Hotel which is in front of the shop belongs to the accused for taking tea and at that time people were gathered in front of the shop of the accused and he went there, there exchange of words were going on between the complainant and accused. Accused abused the complainant by saying the words "ma ki Choud"
and in other abusive words. The accused has assaulted the complainant with Hammer on his head thereafter accused went in the Chicken shop which is abetting to his shop and taken the Chopper and assaulted the complainant with Chopper on his left side chest and back. Accused has also threatened the 20 S.C.196/2013 complainant that he will bring rowdies and assault him. Further this witness has stated that, at the time of incident CW.2 and other publics were there, on that day complainant has sustained blood injury. On that day complainant has purchased one Jamoon pocket from the shop of the accused for Rs.30/- and after the complainant went for purchasing another Jamoon pocket and at that time accused asked Rs.50/- for the same pocket, so the incident happened. Further this witness has stated that on that day complainant worn the baniyan and blood came out of the injury fell on the baniyan and identified the baniyan of the complainant as MO.1, identified the Hammer used for assaulting as MO.2 and identified the Chopper used for assaulting as MO.3. This witness has been cross-examined by the counsel for the accused and nothing has been made out in his cross- examination so as to disbelieve his evidence. This witness is no way related to the complainant. Further no grudge or ill- will is made out in the cross-examination of this witness against the accused. This witness has narrated the incident 21 S.C.196/2013 and evidence of this witness clearly corroborates with the evidence of PW.1 and 2.
17. Prosecution has examined PW.4 and PW.4 is the Spot Mahazar Pancha and he in his evidence stated that two years earlier to his evidence at 7.30 p.m., the Byatarayanapura Police came to Shamanna Garden at BWSSB Road infront of the Dry Fruits shop and there quarrel took- place between CW.1 and accused, at that time CW.1 was present on the spot and produced his blood stained baniyan before the Police, on the spot blood was fell, Police have taken the said baniyan and observed the spot and drawn Mahazar as per Ex.P2 and obtained his signature, identified the Mahazar as Ex.P2 and identified his signature as Ex.P2(b) and identified the baniyan seized by the Police as MO.1. The counsel for the accused has cross-examined this witness in length and nothing has been made out in his cross-examination so as to disbelieve his evidence. The evidence of this witness clearly proves regarding drawing of Ex.P2-Spot Mahazar and seizure of MO.1.
18. Prosecution has examined PW.5. PW.5 in his evidence stated that, in the year 2012 on 22nd day, he is not 22 S.C.196/2013 remembering the month, Byatarayanapura Police called him to the Police Station, at that time CW.8 was also in the Police Station and accused was also present in the Police Station and on that day at 10.00 a.m. near the shop of the accused Police have shown the Hammer and Chopper used for cutting the chicken, he is not knowing how the said weapons came to the Police and Police have obtained his signature there and identified his signature as Ex.P3(a) and identified the Hammer and Chopper as MO.2 and 3. Further stated that he has put Ex.P3(a)-signature in front of the shop of accused. Prosecution treated this witness hostile and cross-examined him and this witness has admitted that on 22-10-2012 Police called him and CW.7, 8 to the Police Station and in the Police Station accused was present. Further this witness has admitted that the accused has taken them and Police to his shop. Further this witness has admitted that accused went in his shop and brought one Hammer and one Chopper and produced before the Police and further admitted that Police have drawn Mahazar as per Ex.P3 and seized MO.2 and 3- articles. Again this witness has been cross-examined by the 23 S.C.196/2013 counsel for the accused and this witness has admitted that he has signed Ex.P3(b) in the Police Station.
19. Prosecution has examined PW.6 and PW.6 in his evidence stated that, one year 9 months earlier to his evidence in between 11 a.m. to 12 p.m., he and CW.9 were proceeding to watch the Cinema and when they came near Shamanna Nagar Poultry Farm, there Police were holding one Chopper and Hammer, Police have taken the same and he has put his signature and identified his signature on the chits affixed to MO.1 and 2. Further this witness has stated that he has put signatures in front of the Poultry Farm and identified his signature on Ex.P3 as Ex.P3(b) and identified the Hammer and Chopper as MO.2 and 3. Prosecution treated this witness hostile, cross-examined him and this witness has admitted that on 22-10-2012 Police have called him, CW.7 and 9 to the Police Station, this witness has denied that in the Police Station accused was present and accused has taken them and Police to his shop. Further this witness has denied that accused have produced MO.2 and 3-weapons before the Police. So, the evidence of this witness will not help the prosecution to prove 24 S.C.196/2013 the seizure of MO.2 and 3 as per the information given by the accused by the Investigating Officer.
20. Prosecution has examined PW.8. PW.8 in his evidence stated that, he is working in Sufiyana Chicken Centre situated at Shamanna Garden and the said chicken shop belongs to one Vinoos. Further this witness has stated that, abetting to the chicken shop, dry fruits shop belongs to the accused is there. Further this witness has stated that he use to go for meals from 3 p.m. to 4 p.m. Two years earlier to his evidence at about 3.45 p.m. he went for meals by closing half door of his shop and he told the boy who was in the abetting shop to look-after his shop, on that day at 4-5 p.m. he returned to his shop, he came to know that quarrel took-place between the dry fruits shop owner and another person. Further this witness has stated that Chopper used for cutting the chicken was in his shop, he is not knowing whether the Police brought the accused person to his shop. Further this witness has stated that MO.3-Chopper is not from his shop, Police have not seized MO.2 and 3 in his presence by drawing Ex.P3-Mahazar, he has put Ex.P3(c)-signature in the Police 25 S.C.196/2013 Station. Prosecution treated this witness hostile, cross- examined him and in the cross-examination this witness has admitted that on 21-10-2012 at 3.30 p.m. he went for meals telling the accused person to look-after his shop and he came to his shop at 4.30 p.m. This witness has denied the other suggestion made by the learned Public Prosecutor, so the evidence of this witness also will not help the prosecution to prove the drawing the Ex.P3-Mahazar and seizure of MO.2 and 3-weapons.
21. Prosecution has examined PW.9 and PW.9 in his evidence stated that two years earlier to his evidence at about 7.30 p.m. the Police came near the shop belongs to the accused and there complainant was present, there Police have seized the blood stained baniyan belongs to the complainant. On the spot blood was fell, Police have observed the same and made writings and obtained his signature on the Mahazar and identified the Mahazar as Ex.P2 and identified his signature as Ex.P2(c) and identified the blood stained baniyan belongs to the complainant as MO.1. The counsel for the accused cross- examined this witness and nothing has been made out in his 26 S.C.196/2013 cross-examination so as to disbelieve his evidence regarding drawing of Spot Mahazar and seizure of MO.1-baniyan.
22. Prosecution has examined PW.7. PW.7 in his evidence stated that in the year 2012 he was working as Head Constable at Byatarayanapura Police Station. On 21-10-2012 at 4.30 p.m., Police Sub-Inspector of his Police Station called him and told him to take the complainant who has sustained injuries to Victoria Hospital and he has taken the CW.1 to Victoria Hospital and given treatment there and thereafter brought him to the Police Station.
23. Prosecution has examined PW.10. PW.10 in his evidence stated that in the year 2012 he was working as Head Constable at Byatarayanapura Police Station. On 21-10-2012 he was doing work as Assistant to Investigating Officer and he along with the Police Sub-Inspector of his Police Station at about 7.30 p.m. came near the spot of incident, spot is in front of dry fruits shop belongs to the accused and there he as per the instructions given by the Police Sub-Inspector written the Spot Mahazar, there complainant and produced his blood stained baniyan and Police Sub-Inspector has seized the same 27 S.C.196/2013 by drawing Mahazar and identified the Mahazar as Ex.P2 and identified his signature as Ex.P2(d). Further he has stated that, as per the instructions given by the Police Sub-Inspector, he has prepared rough sketch of the spot and identified the rough sketch as Ex.P5 and identified his signature on it as Ex.P5(d). Further this witness has stated that on 22-10-2012 as per the voluntary statement given by the accused before the Police Sub-Inspector, the accused has taken him, Police Sub-Inspector and Panchas to his shop and accused produced one Hammer and Chicken cutting Chopper before the Police Sub-Inspector and the Police Sub-Inspector has seized the same by drawing Ex.P3-Seizure Mahazar and he has written Ex.P3-Mahazar as per the instructions given by the Police Sub- Inspector and identified the Mahazar as Ex.P3 and identified his signature as Ex.P3(d). Further this witness has identified the Hammer and Chopper seized on that day as MO.2 and 3. The counsel for the accused cross-examined this witness in length and nothing has been made out in his cross- examination so as to disbelieve his evidence. 28 S.C.196/2013
24. Prosecution has examined PW.11. PW.11 in his evidence stated that in the year 2012 he was working as Head Constable at Byatarayanapura Police Station. On 22-10-2012 Police Sub-Inspector of his Police Station asked him and CW.14 to catch-hold the accused, he and CW.14 came to Shamanna Garden and there complainant has shown the accused and they catch-hold the accused and brought to the Police Station and produced before Police Sub-Inspector and submitted Report as per Ex.P6. The counsel for the accused has cross- examined this witness and nothing has been made out in his cross-examination to disbelieve his evidence.
25. Prosecution has examined PW.12. PW.12 has stated that, in the year 2012 he was working as Head Constable at Byatarayanapura Police Station. On 27-11-2012, the Police Sub-Inspector of his Police Station handed-over the two sealed articles to him and told him to produce before Medical Officer for examination and submitting Report and he has taken the said articles and produced before the Medical Officer and on the same day the Medical Officer after examination of the articles has returned the said articles along 29 S.C.196/2013 with the Report and he has obtained the same and brought the same to the Police Station and produced before the Investigating Officer and identified the articles as MO.2 and 3. The counsel for the accused has cross-examined this witness and nothing has been made out in his cross-examination so as to disbelieve his evidence.
26. Prosecution has examined PW.13 and he is the Medical Officer and he in his evidence stated that, since December-2004 he is working as Medical Officer at Victoria Hospital, Bengaluru. On 21-10-2012 at about 5.00 p.m. patient by name Basavaraju S/o Siddegowda, aged about 40 years, brought by one Mallikarjunaiah, Head Constable of Byatarayanapura Police Station with the history of assault with hammer/sickle by unknown person at about 4.30 p.m. on 21- 10-2012 at Shamanna Garden. He examined the injured, the injured has sustained;
1) Vertically placed 10 X 2 X 1 cm incised wound over the medial end of left clavicle. Active bleeding was present.
30 S.C.196/2013
2) 5 X 2 X ½ cm horizontally placed incised wound over the right scapular region. Active bleeding was present
3) Cut laceration wound 2 X 1 X ½ cm over left scalp frontal region.
Further this witness has stated that all the said injuries are simple in nature and X-Ray was taken in respect of the patient and the X-Ray has not shown any fracture. For examining the injured, he has issued Wound Certificate and identified the same as Ex.P7. Further this witness has stated that, the injuries mentioned in Ex.P7 are simple in nature. Further this witness has stated that on 27-11-2012 he has received requisition from Byatarayanapura Police Station with two sealed articles. The seals of the said articles were intact and on opening the said articles one article was Hammer with wooden handle and steel head and another article is Chopper. He examined the said weapons and compared the Wound Certificate-Ex.P7 and he is of the opinion that the injuries No.1 and 2 mentioned in Ex.P7 are likely to be caused with Chopper examined by him. Further this witness has stated that injury 31 S.C.196/2013 No.3 mentioned in Ex.P7 are likely to be caused with Hammer examined by him. Further this witness has stated that, for examining the weapons he has submitted the Report and identified the same as Ex.P8. This witness has been cross- examined by the counsel for the accused and the counsel for the accused has suggested to this witness that, in a galata if a person is pushed and if he falls on the glass pieces injuries mentioned in Ex.P7 are likely to be caused and this witness has denied the said suggestion. Again the counsel for the accused has suggested to this witness that if a person is pushed and if he comes in contact with the wall, injury No.3 mentioned in Ex.P7 is likely to be caused and this witness has admitted the same. It is the specific case of the accused during the cross-examination of complainant and Medical Officer who has been examined in this case as PW.13 that on the date of incident the accused has pushed the complainant and complainant fell on the glass pieces and sustained injuries and CW.1 has denied the same. Further the Medical Officer- PW.13 has also denied the suggestion made by the counsel for the accused to him that if a person is pushed and he falls on 32 S.C.196/2013 the glass pieces, injuries mentioned in Ex.P7 are likely to be caused.
27. Prosecution has examined the Investigating Officer who has conducted the investigation as PW.14 and PW.14 has clearly stated regarding registration of the case, drawing of Spot Mahazar in his evidence. Further PW.14 in his evidence stated that he has arrested the accused and enquired him and accused has given voluntary statement before him and wherein the accused has stated that if he is accompanied, he will show the Hammer and Chopper used for committing the offence and produced the same as per Ex.P11. Further PW.14 has stated that he called CW.7, 8 and 9 to the Police Station, given information to them thereafter accused taken him, CW.7, 8, 9 and his officials to his shop and accused has produced the Hammer and Chopper used for committing the offence and he has drawn the Mahazar as per Ex.P3 and seized the Hammer, Chopper and identified the Mahazar as Ex.P3 and identified the Hammer and Chopper seized by him as MO.2 and 3. Further PW.10 who is the Head Constable of Byatarayanapura Police Station has also clearly stated 33 S.C.196/2013 regarding drawing of Ex.P3-Mahazar and seizure of MO.2 and
3. One of the Panchas and the owner of the chicken shop examined in this case to prove Ex.P3-Mahazar turned hostile. In the present case, the evidence of Investigating Officer and evidence of PW.10 clearly proves drawing of Ex.P3-Mahazar and seizure of MO.2 and 3-weapons as per the information given by the accused. Nothing has been made out in the cross-examination of PW.10 and 14 so as to disbelieve their evidence. PW.10 and 14 are the officials and they have clearly stated regarding seizure of MO.2 and 3 as per the information given by the accused by drawing Ex.P3-Mahazar and nothing has been made out in their cross-examination so as to disbelieve their evidence. The evidence of PW.10 and 14 cannot be discarded only on the ground that they are Police officials.
28. It is the specific case of the accused during the cross-examination of the prosecution witnesses and in the Sec.313 Cr.P.C. statement that on the date of incident at 2.00 p.m., he was in his dry fruits shop, at that time 3 persons came to his shop and asked Jamoon pockets and he has given 34 S.C.196/2013 the Jamoon pocket and when he asked money from the said person, out of that one person hold his beards and told him "Duddu beka?" and the said person fell 12 pickle glass bottles which were in tray and broken them. The said person came inside the shop to hold him and at that time he asked the said person "who are you and what are you doing?", at that time one person fell on the ground and he has sustained injuries as glass bottles were fell on the ground and thereafter two persons gave threat to him and went away. The said incident happened on 21-10-2012, on that day 7.00 p.m. Police came and taken him to the Police Station and obtained his signature. Thereafter he came to know that the person assaulted him is Basavaraju and the said person is a rowdy and he is collecting hafta in that area. The said 3 persons have looted all the materials from his shop. In his shop Hammer and Chopper were not there, he has not caused any injury to CW.1 and they are giving false evidence against him. In the present case, complainant has supported the case of prosecution and clearly stated regarding the incident in his evidence. The counsel for the accused has cross-examined 35 S.C.196/2013 CW.1 and nothing has been made out in his cross-examination so as to disbelieve his evidence. It is no where case of the accused that, CW.1 is having ill-will with him. It is the case of accused that CW.1 and other two persons are rowdies and the same has been denied and disputed by CW.1 and other two witnesses. The accused has not produced any iota of evidence to show that complainant and other two persons are rowdies and they were collecting hafta. Except the interested say of accused given at the time of Sec.313 Cr.P.C. statement and suggestions made by the counsel for the accused during the cross-examination of prosecution witnesses which has been denied and disputed by the complainant, there is no iota of evidence on record to show that CW.1 and other two persons are rowdies and they were collecting hafta. The burden is on the accused to show that CW.1 and other two persons are rowdies and they were collecting hafta and on that day they came to his shop for collecting hafta. In order to prove the same accused has not lead any defence evidence. Except the suggestion made by the counsel for the accused to prosecution witnesses, which has been denied that disputed 36 S.C.196/2013 by the prosecution witnesses and interested say of accused given in Sec.313 Cr.P.C. statement, which has been denied by CW.1, will not prove the defence set up by the accused. Further accused has not lodged any complaint against CW.1 to 3 for alleged assault. Accused has not lodged complaint for alleged looting of Rs.5 lakhs worth goods by CW.1 to 3. Further accused has not lodged any private complaint against CW.1 to 3 for alleged assault and alleged looting the goods worth Rs.5 lakhs from his shop. If really a person has been assaulted and the goods worth Rs.5 lakhs have been looted from his shop, no ordinary prudent man will keep quite without taking any action. So, the conduct of the accused goes to show that defence taken by the accused is unnatural and unbelievable. Further there is no iota of oral and documentary evidence on record to prove the defence taken by the accused in this case. In the present case, PW.2 is also an eye-witness and he is no way interested to complainant and no grudge or ill-will is made out in his evidence against the accused. PW.2 has clearly stated regarding the incident and evidence of PW.2 is clearly corroborated with the evidence 37 S.C.196/2013 of PW.1. Further PW.3 is also another eye-witness, he is also no way interested to complainant, no grudge or ill-will is made out in his evidence against the accused and evidence of PW.3 also corroborated with the evidence of PW.1 and 2. Further PW.4 and PW.9 are the Panchas of Spot Mahazar Panchanama and they have clearly stated regarding the drawing of Spot Mahazar and seizure of MO.1 by the Investigating Officer. Complainant has stated the date of drawing of Spot Mahazar on the next day of incident, whereas Mahazar is drawn on the date of incident itself at 7.00 p.m. and Panchas have clearly stated regarding the drawing of Spot Mahazar and seizure of MO.1-article. So the evidence of PW.4 and PW.9 clearly proves the drawing of Spot Mahazar and seizure of MO.1. In the present case, Investigating Officer in his evidence clearly stated that after arrest of the accused, he enquired the accused, accused has given voluntary statement before him as per Ex.P11 and wherein he has stated that if he is accompanied he will show the Hammer and Chopper used for committing the offence. Thereafter, he has called two Panchas and worker of the chicken shop and accused has 38 S.C.196/2013 taken him and Panchas to his shop and produced Hammer and chopper used for committing the offence and he has drawn the Ex.P3-Mahazar and seized the Hammer and Chopper and nothing has been made out in the cross-examination of Investigating Officer so as to disbelieve his evidence.
29. Further PW10 who is the Head Constable of Byatarayanapura Police Station has clearly stated in his evidence regarding drawing of Ex.P3-Mahazar and seizure of MO.2 and 3 as per the information given by the accused and nothing has been made out in the cross-examination of Investigating Officer and PW.10, so as to disbelieve their evidence regarding drawing of Ex.P3-Mahazar and seizure of MO.2 and 3 as per the information of the accused. So the evidence of Investigating Officer and PW.10 will prove beyond reasonable doubt the drawing of Ex.P3-Mahazar and seizure of MO.2 and 3-weapons as per the information of the accused.
30. Further in the present case Medical Officer in his evidence clearly stated regarding the examination of complainant and injuries sustained on his body and evidence of PW.13 also corroborated the case of prosecution. So, the 39 S.C.196/2013 evidence of PW.1 to 14, Ex.P1 to 13 and MO.1 to 3 clearly proves beyond reasonable doubt that accused has committed the offences under Sec.504, 307, 506 of I.P.C.
31. The counsel for the accused has relied upon citation reported in 2015 Cr.R. 520 (Kant.) Karnataka High Court in (Case: State by PSI Madikeri Rural P.S. Kodagu and others Vs. Billavara Somappa and others), wherein lordship of our Hon'ble High Court have held as under;
Penal Code, 1860 - Section 307/34 -
Attempt to murder - Common intention -
Appeal against acquittal - Circumstances clearly reveal that accused had not intended to commit murder but had intended only to threaten and prohibit victim from proceeding with road laying work - Wound Certificate discloses only one incised wound on left shoulder apart from one abrasion - Trial court justified in concluding that there is no intention on part of the accused to commit any offence than offence under Sec.323 of I.P.C."
32. In the present case in hand, CW.1 has clearly stated that on that day when he went to the shop of accused for purchasing Gulab Jamoon pocket, he has given Rs.50/- and accused refused to repay Rs.20/- and for that accused picked- up quarrel with him, accused abused him in filthy language, 40 S.C.196/2013 accused has assaulted with Hammer on his head and thereafter he hold the Hammer with hands thereafter accused went in the chicken shop which is abetting to the shop and brought the meat cutting Chopper and assaulted him on his chest and back. MO.2 is the Hammer and MO.3 is the meat cutting Chopper and if the said weapons are perused, the said weapons are deadly weapons. Further the part chosen by the accused for assaulting is the head, chest and back and the said parts are vital parts and if the weapon used for assaulting and the part chosen assaulting with those weapons and overall intention of the accused is looked-into, it reveals that the accused with an intention to cause death assaulted the complainant with deadly weapons on his vital part. So, the facts and circumstances in the present case in hand are different to that of the above referred citation of our Hon'ble High Court. So giving full respect to the lordship in the above referred ruling, I am of the opinion that in the present facts and circumstances of the case, the principles laid down in the above cited ruling is not applicable in the present case in hand. 41 S.C.196/2013
33. In the present case, accused has failed to prove his defence. The suggestions made by the counsel for the accused to the Medical Officer that if a person falls on the glass piece, the injuries mentioned in the Wound Certificate is likely to cause is denied by the Medical Officer. So the accused has failed to prove the defence. Prosecution has proved the guilt of the accused beyond reasonable doubt. Complainant and PW.2, 3 are the eye-witnesses have clearly stated the abusive words uttered by the accused to CW.1. Further PW.1 to 3 have stated that there was threat by the accused to complainant for causing his death. Further the evidence of PW.1 to 3 proves beyond reasonable doubt that accused has committed the offence under Sec.504, 307, 506 of I.P.C. Hence, I answered point No.1 to 3 in the AFFIRMATIVE.
34. POINT No.4: In view of my findings point No.1 to 3 and reasons stated there, I proceed to pass the following: 42 S.C.196/2013
ORDER Acting under Sec.235(2) Cr.P.C. accused by name Khayab is convicted for the offences punishable under Sec.504, 307, 506 of I.P.C.
Order regarding sentence is deferred for hearing the accused on the question of sentence as contemplated under Sec.235(2) of Cr.P.C. (Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 15th day of April, 2016) (SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
ORDER REGARDING SENTENCE Heard the accused and his counsel regarding imposition of sentence. Heard the arguments advanced by the learned Public Prosecutor on imposition of sentence.
2. Accused has submitted that he is aged about 67 years, he is having wife, he is suffering from old age diseases, his wife is depending on him, he is the only earning member in his family. Accused has also produced Xerox copies of OPD treatment sheet, to show that he has taken 43 S.C.196/2013 treatment. The offence committed by him is the first offence and looking to the facts and circumstances of this case, lenient view may be taken while imposing sentence.
3. The learned Public Prosecutor has submitted that accused has committed the offences under Sec.307, 506, 504 of I.P.C. Looking to the facts and circumstances of the present case, accused may be punished severely so as to have a lesson in the society not to commit such offences.
4. Prosecution has proved beyond reasonable doubt that accused has committed the offences under Sec.307, 504, 506 of I.P.C. The offence under Sec.307 of I.P.C. is punishable for imprisonment of 10 years and fine and if such act caused hurt to the person, imprisonment for life or imprisonment for 10 years and fine. The offence under Sec.504 of I.P.C. is punishable with imprisonment for 2 years or fine. The offence under Sec.506 of I.P.C. is punishable with imprisonment which may extend up to 7 years and fine.
In the present case, Wound Certificate of CW.1 discloses that injuries sustained are simple in nature. The offence alleged under Sec.307 of I.P.C. is punishable with imprisonment for 44 S.C.196/2013 life or imprisonment of 10 years and fine. So the accused is not entitled for benefit under Sec.3 and 4 of Prohibition of Offenders Act and Sec.360 of Cr.P.C. In the present case, offences committed by the accused is the first offence and the injuries sustained by CW.1 are simple in nature, so looking to the facts and circumstances of the case, the first offence committed by the accused, age and family background of the accused, sentence of imprisonment for 4 years and fine of Rs.4,000/- is sufficient for the offence under Sec.307 of I.P.C., in default of fine simple imprisonment for 3 months is sufficient. Further looking to the facts and circumstances, sentence of imprisonment for 1 year is sufficient for the offence under Sec.506 of I.P.C. Further looking to the facts and circumstances of the case, sentence of fine of Rs.2,000/- is sufficient for the offence under Sec.504 of I.P.C., in default of fine simple imprisonment for 1 month is sufficient. Accused has undergone judicial custody from 22-10-2010 till 15-11-2012. Accused is entitled for set- off of judicial custody contemplated under Sec.428 of Cr.P.C. Hence, I proceed to pass the following;
45 S.C.196/2013
ORDER Acting under Sec.235(2) of Cr.P.C. accused by name Khayab is convicted for the offence under Sec.307 of I.P.C. and sentenced to undergo simple imprisonment for 4 years and to pay fine of Rs.4,000/-, in default of payment of fine accused shall undergo simple imprisonment for 3 months.
Accused is convicted for the offence under Sec.506 of I.P.C. and sentenced to under go simple imprisonment for 1 year.
Accused is convicted for the offence under Sec.504 of I.P.C. and sentenced to pay fine of Rs.2,000/- and in default of payment of fine to undergo simple imprisonment for 1 month.
Sentence of imprisonment run concurrently. Accused is entitled to set off under Sec.428 of Cr.P.C. for the period which he has already undergone being in judicial custody.
Accused has undergone judicial custody from 22-10-2012 to 15-11-2012.
MO.1 is a Baniyan which is worthless, ordered to be destroyed after the appeal period is over.
MO.2 and 3 are confiscated to the state after the appeal period is over.
46 S.C.196/2013
Office to supply copy of judgment to the accused free of cost.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 15th day of April, 2016) (SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution:
PW.1 B.S.Basavaraju CW.1 27-05-2014 PW.2 Ramamurthy CW.2 18-08-2014 PW.3 Venkataramu CW.3 18-08-2014 PW.4 B.M.Suresh CW.6 08-09-2014 PW.5 Bhaskar CW.9 08-09-2014 PW.6 Lingaraju CW.18 08-09-2014 PW.7 Mallikarjunaiah CW.12 25-09-2014 PW.8 Parveez CW.7 25-09-2014 PW.9 Srinivasamurthy V CW.5 25-11-2014 PW.10 Kemparasaiah CW.16 23-06-2015 PW.11 Revanasiddaiah CW.13 07-07-2015 PW.12 S.Nagaraja CW.15 05-08-2015 PW.13 Dr.B.Vishwanath CW.11 19-01-2016 PW.14 Y.Joseph CW.17 23-02-2016 47 S.C.196/2013 Documents marked for the prosecution: Ex.P1 Complaint PW.1 27-05-2014 Ex.P1(a) Signature of PW.1 PW.1 27-05-2014 Ex.P2 Spot Mahazar PW.1 27-05-2014 Ex.P2(a) Statement of PW.1 PW.1 27-05-2014 Ex.P2(b) Signature of PW.4 PW.4 08-09-2014 Ex.P2(c) Signature of PW.9 PW.9 25-11-2014 Ex.P2(d) Statement PW.14 PW.14 23-02-2016 Ex.P3 Seizure Mahazar PW.5 08-09-2014 Ex.P3(a) Signature of PW.5 PW.5 08-09-2014 Ex.P3(b) Signature of PW.6 PW.6 08-09-2014 Ex.P3(c) Signature of PW.8 PW.8 25-09-2014 Ex.P3(d) Signature of PW.10 PW.10 25-09-2014 Ex.P4 Portion of statement of PW.8 25-09-2014 PW.8 Ex.P5 Rough sketch PW.10 23-06-2015 Ex.P6 Report of PW.11 PW.11 07-07-2015 Ex.P7 Wound Certificate PW.13 19-01-2016 Ex.P7(a) Signature of PW.13 PW.13 19-01-2016 Ex.P8 Weapon Examination PW.13 19-01-2016 Report Ex.P8(a) Signature of PW.13 PW.13 19-01-2016 Ex.P9 FIR PW.14 23-02-2016 Ex.P9(a) Signature of PW.14 PW.14 23-02-2016 Ex.P10 P.F.185/2012 PW.14 23-02-2016 Ex.P10(a) Signature of PW.14 PW.14 23-02-2016 48 S.C.196/2013 Ex.P11 Voluntary statement PW.14 23-02-2016 Ex.P12 P.F.186/2012 PW.14 23-02-2016 Ex.P12(a) Signature of PW.14 PW.14 23-02-2016 Ex.P13 Letter to Doctor PW.14 23-02-2016
Material objects marked for the prosecution:
MO.1 Blood stained baniyan PW.1 27-05-2014 MO.2 One Hammer PW.1 27-05-2014 MO.3 One Chopper PW.1 27-05-2014 Witness examined, documents and material objects marked for the accused:
- Nil -
LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.