Bangalore District Court
By Banaswadi Police Station vs T.Praveen (Split Up) on 31 December, 2015
IN THE COURT OF THE LXI ADDL.CITY CITY AND
SESSIONS JUDGE: BANGALORE CITY
(cch-62)
Dated This the 31st day of December, 2015
PRESENT :- SRI. N.P.KOPARDE B.A., LL. B.(Spl.)
LXI ADDL.CITY CIVIL & SESSIONS JUDGE
SESSIONS CASE No.1411/2011.
The State of Karnataka
Complainant:
By Banaswadi Police Station,
Bangalore.
Reptd. by Public Prosecutor,
City Civil Court Complex,
Bangalore.
V/s.
ACCUSED 1. T.Praveen (Split up)
2. Ajay Cristopher @ Ajay
S/o Simon Raj,
20 Yrs, C/o. Sumi's House Near
Karnataka Flag Square, State Palya
Lingarajapuram, Bangalore.
3. K.Karthik S/o. Late Krishnappa,
20 Yrs, R/o. 2/83, Beside
Government School,
Lingarajapuram, Bangalore.
2 S.C.No.1411/2011
1. Date of occurrence of 07-05-2011
offence
2. Date of report of offence 07-05-2011
3. Date of Arrest of accused A-2 and 3 :
4. Commencement of trial 22-9-2012
5. Closing of trial 04-11-2015
6. Name of the complainant Nagaraju
7. First information report 07-05-2011
reached to the
Magistrate
8. Offences complained of U/S. 307, 302 r/w 34 of
IPC.
9. Opinion of the Judge Accused Nos. 2 and 3
are not found guilty
10. Sentence or order Accused No.2 and 3
are acquitted as per
the Judgment
J U D G M E N T
The Inspector of Police Banaswadi Police Station submitted charge sheet against the accused for the 3 S.C.No.1411/2011 offences punishable under sections 307, 302 r/w.34 of IPC.
2. The brief facts of the case of the prosecution are as under :
On 07-05-2011 at about 2-20 p.m. infront of Balaji Bar situated on Main Road of Kammanahalli within the jurisdiction of Banswadi police station while C.Ws.1 and 2 were going by that time, accused No.1 dashed them, in that regard C.Ws.1 and 2 objected for that, with that enmity the accused Nos.1 to 3 alongwith Juvenile in conflict with law picked up quarrel with them and with an intention of committing murder of C.Ws.1 and 2, the accused No.2 assaulted C.W.2 by empty beer bottle all over the body caused injuries. The Juvenile in conflict with law also assaulted C.w.2 by Beer bottle on head caused grievous injuries by that time the brothr of C.W.2 Kumara tried to pacify the quarrel and advised the accused persons for that, accused told him that he came in support of his brother and they would not spare him alive and accused Nos.1 and 3 assaulted him by empty beer bottles on his head and accused No.2 assaulted by 4 S.C.No.1411/2011 beer bottle on the mouth of Kumara, on account of that, he collapsed. The another accused kicked on his stomach and chest when C.w.2 screamed the public started to gather on seeing them the a fled away from the spot in an autorickshaw. The deceased was taken to Sathya Hospital and thereafter to NIMHANS Hospital, on the next day he was discharged from NIMHANS Hospital, since he was unconscious he was taken to Bowring Hospital and thereafter to Koshiya Hospital, then again he was shifted to Bowring Hospital, but inspite of medical intervention he lost his breath on 13.5.2011 at about 5.15 a.m. On 7.5.2011 at about 3.15 p.m. the brother of the deceased C.W.1 lodged complaint before the Police, on the basis of which the Police registered case in Cr.No.226/2011 for the offences punishable U/s. 324, 506 r/w.34 of IPC. After completion of investigation, C.W.39 submitted charge sheet against the accused for the offences punishable U/s. 307, 302 r/w.34 of IPC.
3. On receipt of the charge sheet, the cognizance of the offences cited therein was taken by learned 11th ACMM, Bangalore. The prosecution papers were furnished 5 S.C.No.1411/2011 to accused Nos.1 to 3 as per Sec.207 of Cr.P.C. Since, the offences U/s.307, 302 r/w.34 of I.P.C., are exclusively triable by the Court of Sessions, the Committal Court committed the case U/s.209 of Cr.P.C . to Hon'ble Prl. City Civil & Sessions Judge, Bangalore, who in-turn registered the case in SC.No.1411/2011 and pleased to make over the case to this court for disposal in accordance with Law.
4. After receiving the records the accused Nos.1 to 3 were secured by this Court and they were enlarged on bail. After hearing the learned Public Prosecutor and defence Counsel for the accused U/s.227 of Cr.P.C. the charge for the offences punishable under section 307, 302 r/w.34 of IPC against accused Nos.1 to 3, was framed, read over and explained to them, they pleaded not guilty and claimed to be tried.
5. Thereafter, the accused No.1 remained absent and could not be secured by the Police inspite of issue of NBW against accused No.1 for several times. So my learned predecessor in Office, split up the case against the accused No.1 6 S.C.No.1411/2011
6. The prosecution in order to prove the guilt of the accused, examined in all seven witnesses as P.Ws.1 to 7 out of 39 witnesses cited in charge sheet and through them got marked in all 23 documents as Exs.P.1 to P.23 and M.Os.1 to 5. Inspite of sufficient opportunity given to the prosecution, the concerned Police failed to secure the remaining witnesses. Hence, the prayer of the prosecution to re-issue NBW to those witnesses was rejected and the evidence of the prosecution was taken as closed.
7. After closure of prosecution evidence, I examined accused Nos.2 and 3 U/s.313 of Cr.P.C. so as to enable them to explain the circumstances appearing against them, wherein the accused denied the incriminating evidence against them and did not choose to lead defence evidence on their behalf.
8. Heard learned Public Prosecutor for the State and defence Counsel for the accused and perused the materials placed on record.
9. The following points arise for my consideration:- 7 S.C.No.1411/2011
1. Whether the prosecution proves beyond all reasonable doubts that, on 7.5.2011 at about 2.20 p.m. infront of Balaji Bar situated in Kammanahalli main road within the jurisdiction of Banaswadi police station, the accused Nos.2 and 3 alongwith split up accused No.1 and Juvenile in conflict with law in furtherance of their common intention, with an intention to commit murder of C.W.2, accused No.2 assaulted C.Ws.1 and 2 by empty beer bottle to C.W.2 on his head knowingly that if death is caused they would be guilty of offence of murder and thereby the accused committed offence of attempt to murder punishable U/s.307 r/w.34 of IPC?
2. Whether the prosecution further proves beyond reasonable doubt that on the above said date, time and place in furtherance of their common intention, accused Nos.1 and 3 assaulted deceased Kumar by beer bottle on his head and accused No.3 assaulted by beer bottle on his mouth and the Juvenile in conflict with law kicked on his stomach and chest caused grievous injuries knowingly that such injuries inflicted likely to cause death and in all probabilities sufficient to cause death and on account of injuries 8 S.C.No.1411/2011 the said injured Kumar lost his breathe in Hospital on 13.5.2011 and thereby the accused committed an offence of murder punishable U/s.302 r/w.34 of IPC?
3) What order?
10. My findings on the above said points are as under:
Point No.1 : In the negative.
Point No.2 : In the negative.
Point No.3 : As per final order, for the following :
R E A S O N S
11. Point Nos.1 and 2: Since these two points are inter-linked with each other and in order to avoid repetition of facts, I would like to discuss both points together.
Out of seven witnesses examined by the prosecution, P.W.1 Palani is an alleged eye witness to the incident. P.W.2 Devegowda who was Assistant cashier in Balaji Bar is also alleged eye witness to the incident. P.w.3 Siddesh another eye witness to the incident who was 9 S.C.No.1411/2011 working as Cashier in Balaji Bar. P.W.4 Chowlaraj is father of the deceased. P.W.5 Nagaraju is the complainant, injured and eye witness to the incident. P.W.6 Kumarswamy the then P.C. at Banaswadi police station who took FIR and complaint to the Hon'ble Court and requisition of the I.O. to the Court. P.W.7 Kum.Savitha W.P.C. of Banaswadi police station who produced P.M. report, two sealed bottles from Bowring Hospital before the I.O.
12. P.W.1 deposed in his evidence that he has not seen the accused earlier. About one year back he was in office at 3.00 p.m. some persons came to him and to that his worker by name Kumar was murdered by someone. He stated that he has not witnessed the incident nor gave further statement to the Police. Even though this witness was subjected to detailed cross-examination by learned Public Prosecutor. He denied the suggestion that he actually seen the incident i.e. accused assaulting the Kumar and accordingly, he gave statement before the Police as per Ex.P.1 and he further denied the suggestion that on 13.6.2011, the Police called him to the police 10 S.C.No.1411/2011 station where he identified the accused and autorickshaw used by the accused persons and gave further statement before the Police as to the accused attempted to commit murder of C.Ws.1 and 2 and caused death of Kumar.
13. P.W.2 Devegowda deposed in his evidence that since last two years he was working as an Assistant Cashier in Balaji Bar. About 5 years back at about 1.30 p.m. when he was at Counter, galata was taking place near Bar, but he has not seen the galata, since he was unable to go there. He has not seen the accused persons earlier nor he saw C.Ws.1 and 2 and deceased Kumar. He has not witnessed the incident nor gave statement before the Police. In cross-examination by learned Public Prosecutor he denied the suggestion that he saw the accused assaulting C.Ws.1 and 2 and deceased Kumar by beer bottles and caused injuries to them and accordingly, he gave statement before the Police as per Ex.P.3. He further denied the suggestion that on 13.6.2011 the Police called him to the police station where he identified the accused and autorickshaw, gave further statement as per Ex.P.4.
11 S.C.No.1411/2011
14. P.W.3 Siddesh the Cashier in Balaji Bar deposed in his evidence that he does not know anything about the facts of the case, nor he has not seen the accused earlier. He denied the suggestion of learned Public Prosecutor that he actually saw the accused assaulting C.Ws.1 and 2 and deceased by beer bottles and caused injuries to them and accordingly, he gave statement before the Police as per Ex.P.5. He further denied that on 13.6.2011 he identified the accused persons and Autorickshaw in the police station gave further statement to the Police as per Ex.P.6.
15. P.W.4 Chowlaraj the father of the deceased deposed in his evidence that, about one year back he and his deceased son Kumar were doing painting work. On the day of incident he was in his house and C.ws.1 and 2 had gone to drink liquor to Balaji Bar in the afternoon. During that time, accused Nos.2 and 3 and other two persons assaulted C.ws.1 and 2 and his deceased son Kumar, C.W.2 narrated the incident before him. Then he went to the spot of offence, took his son Kumar to Sathya Hospital and after NIMHANS Hospital, after they took to 12 S.C.No.1411/2011 Victoria Hospital, since there was no ICU facility, took his son to Bowring hospital, soon after that Kumar got some conscious, again they shifted him to NIMHANS Hospital, but NIMHANS Doctors giving treatment to him again sent him to Bowring Hospital, but due to injuries his son Kumar died at about 5.00 a.m. After the incident, his another son Nagaraj lodged complaint before the Police, thereafter, the Police called him to the police station showing the accused, recorded his further statement. In cross-examination by learned Public Prosecutor he admitted that he saw the photograph of Autorickshaw i.e. Ex.P.15 in the police station, at that time, the accused No.1 Praven and Juvenile in conflict with law by name Sudhir were in the custody of the police. However, in cross-examination by learned defence Counsel admitted that the Police themselves told him as to those accused persons in the custody of the Police committed the overt- acts. He further admitted that he had not given any statement to the Police and he saw the accused i.e. accused Nos.2 and 3 for first time in the Court. 13 S.C.No.1411/2011
16. P.W.5 Nagaraju deposed that deceased Kumar is his mother, C.W.3 Chowlaraj is his father, C.W.2 is his friend. He further stated that his deceased brother Kumar, he and his father are residing in Kammanahalli, since last 15 years. He and his brother Kumar were doing painting work. About three years back, he, his friend Manjunath at about 10 a.m. had gone to Balaji Bar to drink liquor, after taking drinks they came ear cashier, by that time Manjuanth was going to toilet, someone dashed him, for that those persons picked up quarrel with him. After some time they came out of Bar and his brother Kumar was drinking tea in a Bakery by the side of the Bar, by that time, the persons who quarreled with him assaulted by beer bottles on the back of head. Manju told this thing to his brother Kumar, so his brother Kumar came there and asked them as to why they assaulted for that, those persons assaulted him by beer bottle on mouth, head and then went away in autorickshaw. Since his brother collapsed due to injuries, took him to Hanumanthanagar Hospital, thereafter to Bowring hospital and after that Victoria Hospital, 3-4 days after 14 S.C.No.1411/2011 the incident his brother died due to injuries in Victoria Hospital. He further stated that he has not seen accused Nos.2 and 3 earlier. That on the date of incident he gave complaint to the Police as per Ex.P.13, but he has not given any further statement to the Police nor the Police conducted any panchanama nor seized any articles in presence of him. In cross-examination by learned Public Prosecutor he denied the suggestion that on 7.5.2011 he and Manju-C.W.2 went to Rozy Bar at IOC Circle and then at 1-30 p.m. they went to Balaji Bar at about 2.20 p.m. the three persons came from Bar among them someone dashed C.w.2 Manju for that they picked up quarrel with him and accused brought empty bottles from the Bar, the Juvenile in conflict with law by name Sudhir assaulted on the head and all over the body when he tried to rescue the accused No2. Ajay assaulted him by beer bottle on his head mouth all over the body. When deceased Kumara tried to pacify the quarrel, accused No.2 Praveen assaulted him by empty beer bottles on head, face and accused No.2 assaulted by beer bottle on head and caused grievous injuries, he further denied the suggestion that 15 S.C.No.1411/2011 accused No.3 Karthik assaulted by beer bottle on head then he collapsed, the Juvenile in conflict with law kicked on his stomach and chest. He further denied the suggestion that accordingly he gave complaint before the Police as per Ex.P.13 and further statement as per Ex.P.16, 17, 18. He denied that on 7.5.2011 in between 3.45 p.m. to 4.45 p.m. the police in presence of him, C.Ws.14 and 15 conducted the mahazar as per Ex.P.14 and seized M.Os.1 to 5.. He further denied the suggestion that he identified accused Nos.2, 3 and Juvenile in conflict with law and the autorickshaw used for commission of offence in the police station and gave further statement before the Police as per Ex.P.18. He denied the suggestion that he has been deposing falsely to help the accused persons.
17. P.W.6 Kumaraswamy the P.C. deposed that on 7.5.2011 as per the direction of C.W.35 he took FIR and complaint to the Hon'ble Court at about 11 a.m. and submitted to the Court. He states that on 12.5.2011 as per the direction of C.W.37 he took further statement of complainant and requisition of C.W.37 to add Section 307 16 S.C.No.1411/2011 of IPC and submitted before the Court. He states that on 13.5.2011 at about 6 p.m. C.W.37 directed him to took the requisition to add section 302 of IPC and death memo received from the Hospital to the Hon'ble Court, he submitted before the Magistrate at 6.30 p.m. and accordingly, he gave statement before C.w.38.
18. P.W.7 Kum.Savitha W.P.C. 5990 of Banaswadi police station stated in her evidence that on 23.6.2011 she went to Bowring hospital as per the direction of her Superior Officer, where the doctors gave her P.M. report and two sealed bottles which she brought to the police station and produced before the I.O. and gave statement accordingly.
19. From the evidence of the above witnesses, it becomes very clear that P.W.5 Nagaraj complainant and injured in this case has totally turned hostile to the prosecution, and in no way he supported the case of the prosecution. He denied the suggestion that the accused N.1 to 3 and Juvenile in conflict with law assaulted him, C.w.2 Manju and his brother Kumar and inflicted grievous injuries. He denied the suggestion that he gave complaint 17 S.C.No.1411/2011 before the Police as per Ex.P.13 and further statement of Ex.P.16, 17 and 18 respectively. The father of the deceased i.e. P.W.4, the alleged eye witness i.e. P.Ws.1, 2 and 3 have also turned hostile to the prosecution and they have not supported the case of the prosecution in any manner. So, there is absolutely no evidence to connect the accused with alleged offences. So far as evidence of P.W.6 Kumarswamy P.C. and P.W.7 Kum. Savitha W.P.C., their evidence is formal in nature, since, they are not witnesses to the incident. Their evidence does not attain much importance. Inspite of sufficient opportunity given, the concerned police failed to secure the presence of material witnesses like C.W.2-Manjuntha, the injured, C.W.6, 9 and 10 the eye witnesses and I.O. i.e. C.Ws.38 and 39, non-examination of these witnesses is fatal to the prosecution. So, under such circumstances I am constrained to hold that the prosecution has utterly failed to prove the guilt of the accused beyond all reasonable doubts. Accordingly, I answer point Nos.1 and 2 in negative.
18 S.C.No.1411/2011
20. Point No.3 : Having regard to my above discussion and findings on point Nos.1 and 2 in the negative, extending the benefit of doubt to Accused Nos.2 and 3, proceed to pass the following :
O R D E R Accused Nos.2 and 3 are hereby acquitted under section 235(1) Cr.P.C., for the offences punishable u/s 307, 302 r/w.34 of IPC.
The Bail bonds and surety bonds of accused Nos.2 and 3 stand cancelled.
The accused Nos.2 and 3 are set at liberty.
M.Os.1 and 5 are ordered to be preserved for the trial of split up accused No.1.
(Dictated to the judgment-writer, transcript corrected and then pronounced by me in the open Court on this the 31st day of December, 2015).
19 S.C.No.1411/2011
(N.P.KOPARDE) LXI ADdl.City Civil & Sessions Judge, Bangalore.
ANNEXURES LIST OF WITNESSES EXAMINED FOR THE PROSECUTION :-
PW.1 - Palani P.W.2 - Devegowda P.W.3 - Siddesh P.W.4 - Choulraj P.W.5 - Nagaraju P.W.6 - Kumaraswamy PC 6128 P.W.7 - Kum.Savitha WPC 5990
LIST OF WITNESSES EXAMINED FOR THE DEFENCE :-
- NIL -
LIST OF DOCUMENTS MARKED FOR THE PROSECUTION :-
Ex.P1 : Statement of P.W.1
Ex.P2 : Further Statement of P.W.1
Ex.P3 : Statement of P.W.1
Ex.P4 : Further Statement of P.W.1
Ex.P5 : Statement of P.W.1
Ex.P6 : Further Statement of P.W.1
Ex.P7 to 12: Six Photos of deceased
20 S.C.No.1411/2011
Ex.P.13 - Complaint
Ex.P.14 - Seizure mahazar
Ex.P.15 - Photo of Autorickshaw
Ex.P.16 to 18- Further statements of P.w.5 Ex.P.19 - F.I.R.
Ex.P.20 - Requisition Ex.P.21 - Another Requisition Ex.P.22 - Death Memo. Ex.P.23 - Report of P.W.7 Ex.P.23(a) - Signature of P.W.7
LIST OF DOCUMENTS MARKED FOR THE DEFENCE:-
- NIL -
LIST OF MATERIAL OBJECTS MARKED FOR THE PROSECUTION :-
M.O.1 : Broken Beer Bottle M.O.2 : Broken Beer Bottle M.O.3 : Broken Beer Bottle M.O.4 : Bloodstained T.Shirt M.O.5 - Blue Color Jeans Pant.
LIST OF MATERIAL OBJECTS MARKED FOR THE DEFENCE :-
NIL (N.P.KOPARDE), LXI ADdl.City Civil & Sessions Judge, Bangalore.21 S.C.No.1411/2011
Order pronounced in open Court vide detailed order passed separately.
O R D E R Accused Nos.2 and 3 are hereby acquitted under section 235(1) Cr.P.C., for the offences punishable u/s 307, 302 r/w.34 of IPC.22 S.C.No.1411/2011
The Bail bonds and surety bonds of accused Nos.2 and 3 stands cancelled.
The accused Nos.2 and 3 are set at liberty.
M.Os.1 and 5 are ordered to be preserved for the trial of split up accused No.1.
(N.P.Koparde) LXI ACC & SJ, Bangalore.