Bangalore District Court
State By Sanjaynagara Police Station vs Santhosh @ Santu on 3 January, 2017
IN THE COURT OF THE LXIV ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH-65) AT BENGALURU.
Dated this 3rd day of January, 2017
-: P R E S E N T :-
Sri. MADHUSUDHAN B.,
B.Com, LL.B (Spl.).,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY.
SESSIONS CASE NO.858/2013
COMPLAINANT:- State by Sanjaynagara Police Station,
Bengaluru.
-Vs-
ACCUSED: 1. Santhosh @ Santu,
S/o. Kariyanna,
Aged about 24 years,
R/at.No.3, 1st Main Road,
Bengaluru.
2. Avinash,
S/o. Nagaraj,
Aged about 23 years,
R./at.No.102, 2nd Cross,
2nd Main Road, Lakshmidevinagar,
Laggere, Bengaluru.
3. Chandan,
S/o. Prab Huswami,
Aged about 24 years,
R/at.No.355, 6th Cross,
2 S.C.No.858/2013
6th Main, Bahubalinagar,
Bengaluru.
4. Kiran,
S/o. Jagannath,
Aged about 24 years,
R/at. No.602, 1st Main Road,
4th Cross, Muthyalanagar,
Bengaluru.
1. Date of commission of offence : 11.1.2013
2. Date of report of offence : 11.1.2013
3. Date of arrest of the Accused : A.1 on 14.1.2013
A.2 to A.4 on 12.1.2013
4. Name of the complainant : Sharon Sam
5. Date of recording evidence : 14.10.2014
6. Date of closing evidence : 18.10.2016
7. Offences complained of : U/Sec.341, 354, 506, 366 of
I.P.C. R/w.Section 511 of I.P.C.
R/w.Section 34 of I.P.C.
[
8. Opinion of the Judge : The accused No.1 to 4 are
Acquitted U/s. 235(1)
of Cr.P.C.
9. State represented by : Public Prosecutor
10. Accused defended by : Sri. N.S.Raja, Adv. for A.1
Sri. K.Srinivas & Associates
Adv. for A.2
Sri. Basavaraj K.M., Adv. for A.3
Sri. M.T.Harish Kumar, Adv. for A.4
3 S.C.No.858/2013
JUDGEMENT
Police Inspector of Sanjaynagara police station, Bengaluru submitted charge sheet against accused No.1 to 4, for trial of offences punishable U/Ss.341, 354, 366 R/w.511 and 506(B) of I.P.C. R/w.Section 34 of I.P.C., in Cr.No.12/2013.
2. Brief facts of prosecution case may be stated as under; Informant Sharon Sam is student of M.S.Ramaiah College and She is pursuing M.B.A. course. During the year 2012-2013, she was staying in M.S.Ramaiah North Point Girls Living Hostel. On 10.1.2013, she had been to meet her friends, who were staying at Mathikere. On that night she stayed with her friends and in the wee hours of 11.1.2013 she was returning to hostel. At about 6.15 a.m., when she was just in front of main gate of hostel, at that time, about 4 boys came out from a Car and tried to abduct and molestate her. Some how, she manage to escape. She could not remember registration number of the car, but said car is of Indigo make. After the incident, she did not report at earliest time, since she though twice for lodging the report. Thus, on the same day, at about 7.00 p.m. she went to 4 S.C.No.858/2013 police station where she lodged a written report on the basis of which police have registered a case in Cr.No.12/2013 against four unknown persons alleging commission offences punishable U/s.363, 354, 511 of I.P.C. R/w.Section 34 of I.P.C.
3. Investigating Officer started investigation. On 12.1.2013 he apprehended accused No.2 to 4 and on interrogations, they confessed their guilt. Investigating Officer conducted spot mahazar and recorded voluntary statements of accused No.2 to 4. Thereafter, he has also conducted seizure mahazar under which Maruthi Car bearing Reg.No.KA-01-Z-9883, two mobiles and longs were seized. On 13.1.2013 Investigating Officer produced accused No.2 to 4 before Learned Magistrate and sought police custody. On 14.1.2013 accused No.1 was apprehended and he was also committed to police custody, during which, voluntary statement of accused No.1 is also recorded. Meanwhile on 12.1.2013 Investigating Officer has recorded further statement of informant/Cw.1, during which she stated that on that day, accused made attempt to abduct her with an intention to commit rape. Therefore, Investigating Officer submitted requisition before 5 S.C.No.858/2013 Learned Magistrate for inclusion of penal provision of Sections 341, 366 R/w.Section 511 of I.P.C. R/w.Section 34 of I.P.C. All accused No.1 to 4 were in J.C. During investigation, Investigating Officer conducted Test Identification Parade with the assistance of Taluka Executive Magistrate. Alleged victim /Cw.1 and Cw.2 have identified these accused No.1 to 4 as the persons who attacked Cw.1/informant on that day. Thereafter, all accused No.1 to 4 were released on bail as per the bail orders passed in their favour.
4. Learned Magistrate took cognizance of the offences and thereafter, passed orders for registration of one criminal case against accused No.1 to 4 in C.C.No.4535/2013. On 13.6.2013 Learned Magistrate passed orders for committal of this case to the court of Sessions, since offences alleged against accused are triable exclusively by the court of Sessions. After committal, this case is re-registered as S.C.No.858/2013. After hearing, charges against accused No.1 to 4 framed, which they denied, hence, they claims to be tried.
5. In order to bring home the guilt of accused, prosecution in altogether cited 23 witnesses, among them 11 witnesses are 6 S.C.No.858/2013 examined as Pw.1 to Pw.11. Prosecution given up evidence of Cw.19 and Cw.20. Despite granting sufficient opportunities, prosecution has not examined other witnesses. During course of trial, prosecution got exhibited 19 documents marked at Ex.P.1 to P.19 and got identified 5 material objects at Mo.1 to 5.
6. On completion of the evidence of prosecution side, this court examined accused No.1 to 6 as required U/s. 313 of Cr.P.C., and recorded their statements by giving an opportunity for explaining incriminating circumstances appearing in the evidence of the prosecution. Defence of accused is one of total denial of prosecution case. However no any defence evidence led in by accused.
7. I have heard arguments.
8. Following points have arisen for my consideration:
1. Whether prosecution proves beyond reasonable doubt that, accused No.1 to 4 committed offence punishable U/s. 341 of I.P.C. R/w.Section 34 of I.P.C., as alleged in charge sheet?
2. Whether prosecution proves beyond reasonable doubt that, accused No.1 to 4 committed offence punishable U/s. 354 of 7 S.C.No.858/2013 I.P.C. R/w.Section 34 of I.P.C., as alleged in charge sheet?
3. Whether prosecution proves beyond reasonable doubt that, accused No.1 to 4 committed offence punishable U/s. 506 of I.P.C. R/w.Section 34 of I.P.C., as alleged in charge sheet?
4. Whether prosecution proves beyond reasonable doubt that, accused No.1 to 4 committed offence punishable U/s. 366 of I.P.C. R/w.Section 511 of I.P.C., R/w.Section 34 of I.P.C., as alleged in charge sheet?
5. To what Order ?
9. My findings on the above points are as under:
Point No.1 : In Negative
Point No.2 : In Negative
Point No.3 : In Negative
Point No.4 : In Negative
Point No.5 : As per final order
for the following:
REASONS
10. POINTS NO.1 to 4:- I have taken these points together to avoid repeated discussions.
8 S.C.No.858/2013
11. During course of arguments, Learned Public Prosecutor vehemently argued contending that, in view of evidence of Pw.1, Pw.8, Pw.10 and Pw.11, it is very much clear that, it is accused, who attacked Pw.1 on that day and made attempt to commit rape on her by abducting her by using criminal force and against her will. He further argued contending that, though panch witnesses and Pw.6 have not supported the prosecution case, but in view of voluntary statements or confession statements recorded by Investigating Officer, during investigation, it is clear that, accused No.1 to 4 have committed offences as alleged against them. He also argued contending that, because of lack of human memory, Pw.11 might not have properly identified these accused as assailants, thus he submitted that, considering the evidence of Pw.10, it is just and necessary to record conviction. Hence, inter-alia, it is argued contending that, prosecution has proved the guilt of accused beyond reasonable doubt.
12. Per contra, learned advocate appearing for accused also vehemently argued contending that, in order to sustain charges leveled against accused, identity of these accused as real assailants is 9 S.C.No.858/2013 to be proved through the material witnesses. He further submitted that, alleged victim/Pw.11 failed to identify these accused as real culprits and both material witnesses, Pw.5 and Pw.11 never stated that these are the accused, who attacked them on that day. They also argued contending that, in a trial of this nature, prosecution has to prove the identity of accused by the prosecution witnesses as well as by alleged victim is most material aspect. They further argued contending that, neither Pw.1 nor Pw.11 states that, these are the accused, who have attacked Pw.11 on that day. Therefore, recording of so called voluntary statements and recovery of few articles or material objects is not suffice to record conviction against accused No.1 to 4. Hence, he insisted this court to acquit the accused.
13. Keeping these rival contentions in my mind, I have gone through the material on record. As already stated in all together 11 witnesses are examined and all witnesses are material witnesses. Among the witnesses examined by prosecution, Pw.1/Vedha is warden who was present in Hostel when alleged incident took place and even 10 S.C.No.858/2013 as per the case of prosecution, accused gave life threat to this witness as well.
14. Pw.2/Manikanta is Security Guard, who according to case of prosecution was performing his security duty, when alleged incident took place.
15. Pw.3/Manjegowda, The Then P.S.I., of Sanjayanagara police station, who registered a case on the basis of report submitted by informant-Pw.11.
16. Pw.4/Nagaraju is Police Constable, who was deputed in search of accused. Pw.5/Naveen Kumar is panch witness for seizure of car and other material objects. Pw.6/Margrati Mary is another Warden of the said North Point Girls Hostel. But she was not present in the Hostel, when alleged incident took place. Pw.7/T.Huchhegowda is P.S.I., who apprehended accused No.1 on 14.1.2013 and produced him before Investigating Officer. Pw.8/M.Prabhushankara is Police Inspector, who conducted entire investigation and laid charge sheet. Pw.9/Khamarulla is Security Guard and acted as panch witness for 11 S.C.No.858/2013 spot mahazar. Pw.10/N.R.Umeshchandra is Taluka Executive Magistrate, who conducted Test Identification Parade. Pw.11/Sharon Sam is informant and, as per the case of prosecution, she is alleged victim.
17. Thus, among the witnesses examined by prosecution, Pw.1 and Pw.2 are the eye witnesses to the scene of incident. Therefore, these two witnesses are most material witnesses for prosecution. I have gone through the evidence of these two witnesses. Though they have stated that, on that day, during morning hours, Pw.11 made hue and cry and on hearing the same, they went out side the Hostel, but they have not stated that they have seen these accused, who wrongfully restrained Pw.11 near Main Gate of the Hostel. Therefore, these two witnesses are declared as hostile witnesses and Learned Public Prosecutor has cross-examined them. But even during course of cross-examination, they have flatly denied the suggestions of Learned Public Prosecutor. Thus, they have denied the fact of giving their statements before Investigating Officer as per Ex.P.1 and Ex.P.2. Therefore, even if entire version of Pw.1 and Pw.2 12 S.C.No.858/2013 is accepted but their version does not connect to these accused, in order to substantiate the charges leveled against them.
18. Pw.6 is another Warden of the Hostel, but as per the case of prosecution, this witness was not present, when alleged incident took place. Therefore, her evidence is of little significant, since she is hear say witness.
19. Pw.5 and Pw.9 are panch witnesses for spot mahazar marked at Ex.p.7. But these two witnesses have also not supported the prosecution version. Therefore, they were declared as hostile witnesses and Learned Public Prosecutor permitted to cross-examine them. Even during course of cross-examination, these two witnesses have flatly denied the main contents of Ex.P.7. Therefore, recovery of one car and 5 other material objects from the possession of accused No.2 to 4 have not been proved by prosecution through panch witnesses. Therefore, even their evidence is not helpful for prosecution.
13 S.C.No.858/2013
20. Pw.3 is P.S.I., who registered a case on the basis of report submitted by Pw.11. Further on perusal of his evidence, it appears that, he has arrested accused No.2 to 4, but major portion of the investigation is conducted by Pw.8. Therefore, version of Pw.3 is also insufficient to connect accused for alleged incident. Pw.4 is Police Constable, who was deputed in search of accused along with Pw.3. Therefore, his version is also not much significant in fixing the criminal liability against accused.
21. Pw.7 is Sub-Inspector of Jalahalli Police station, Bengaluru. As per the case of prosecution, this witness was deputed in search of accused No.1/Santhosh. I have gone through version of Pw.7. Even for moment, it is held that, on 14.1.2013 this witness produced accused No.1 before Pw.8, but there is no conclusive proof that, he has arrested accused No.1 near Nandhini Deluxe Hotel. At the most it can be held that, he produced accused No.1 before Pw.8, who is main Investigating Officer. Thus, even version of Pw.7 is insufficient to connect accused No.1 to 4 for alleged incident. 14 S.C.No.858/2013
22. Remaining witnesses are Pw.8, Pw.10 and Pw.11. Pw.10 is Taluka Executive Magistrate and as per the case of prosecution, Investigating Officer requested the Taluka Executive Magistrate to conduct test identification parade. Thus, at the request of Pw.8, Pw.10 conducted test identification parade on 8.2.2013 when accused were in J.C. I have gone through the contents of Ex.P.15 to Ex.P.17. It appears that, on 8.2.2013 Pw.10 conducted test identification parade and these accused were identified by Pw.1 and Pw.11. But mere identification of accused, during test identification parade is not by itself is sufficient. Prosecution is expected to prove the identity of these four accused by Pw.1 and Pw.11, during trial. As already stated Pw.1 never identified these accused as real culprits. I have gone through the version of Pw.11, who as per the case of prosecution is alleged victim. Though Pw.11 in her evidence stated that, on that day, while she was returning to hostel, about four persons attacked her and tried to took her in car, forcibly without her consent, but she never stated that it is these accused, who attacked her on that day. Even during course of her cross-examination, she never stated that, 15 S.C.No.858/2013 accused, who are facing trial in this case, have attacked her on that day. Therefore, cumulative effect of the entire material on record does not discloses that, accused No.1 to 4 have used criminal force on Pw.11 and they tried to abduct her from her hostel in a car in order to commit rape on her. Thus it is very much clear that, ingredients of the offences alleged against accused are not made out by prosecution. There is no any conclusive proof that, accused No.1 to 4 have committed offences as alleged in the charge sheet. Thus, prosecution failed to prove the guilt of accused, in which case they are entitled for acquittal. Accordingly, I answer points No.1 to 4 in negative.
23. POINT NO.5: In view of my findings on the above points No.1 to 4, case of prosecution must fail and at the same time, accused No.1 to 4 are entitled for acquittal. Being of that opinion, I proceed to pass the following:
ORDER Accused No.1 to 4 are acquitted U/s. 235(1) of Cr.P.C of the offences punishable U/ss.341, 354, 506, 366 of I.P.C. R/w.Section 511 of I.P.C. R/w. 34 of I.P.C.16 S.C.No.858/2013
Their bail bonds and surety bonds shall stands cancelled.
However, bail bonds executed by accused No.1 to 4, as required U/s.437-A of Cr.P.C., shall be in force for a period of six months from this day.
Mo.1 and Mo.2/ two Mobiles are ordered to be confiscated to the State, after expiry of appeal period.
Mo.3 to Mo.5 are worthless articles. Therefore, same are ordered to be destroyed, after expiry of appeal period.
Further, office is directed to send the certified copy of this judgment to the District Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C.
(Dictated to the Judgment writer, script typed by her and corrected, signed and then pronounced by me in the open court on this 3rd day of January, 2017.) (MADHUSUDHAN B.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
17 S.C.No.858/2013ANNEXURE I. List of witnesses examined on behalf of the Prosecution:-
Pw.1 Veda Pw.2 Mallikarjuna Pw.3 Manjegowda Pw.4 Nagaraj Pw.5 Naveen Kumar Pw.6 Margret Mary Pw.7 T. Huchegowda Pw.8 M.Prabhashankar Pw.9 Khamarulla Pw.10 Umesh Chandra Pw.11 Sharon Sam II. For Defence:- - Nil-
III. List of exhibits marked on behalf of the Prosecution side:-
Ex.P.1 Statement of Pw.1
Ex.P.2 Statement of Pw.2
Ex.P.3 Complaint
Ex.P.3(a) Signature of Pw.3
Ex.P.4 F.I.R.
Ex.P.4(a) Signature of Pw.3
Ex.P.5 Complaint
Ex.P.5(a) Signature of Pw.3
Ex.P.6 Report
Ex.P.6(a) Signature of Pw.7
18 S.C.No.858/2013
Ex.P.7 Panchanama
Ex.P.7(a) Signature of Pw.18
Ex.P.7(b) Signature of Pw.9
Ex.P.8 to Ex.P.10 Statements of accused No.2 to 4
Ex.P.11 Panchanama
Ex.P.11(a) Signature of Pw.8
Ex.P.12 Sworn statement of accused No.1
Ex.P.13 Seizure mahazar
Ex.P.13(a) Signature of Pw.8
Ex.P.14 R.C.Extract
Ex.P.15 Letter to VIII-ACMM.
Ex.P.16 Kawait Thalim
Ex.P.17 Kawait Thalim
Ex.P.18 Complaint
Ex.P.18(a) Signature of Pw.11
Ex.P.19 Written Complaint of Pw.11
For Defence side:-
-Nil-
IV. List of material objects marked:-
Mo.1 Nokia Company Mobile
Mo.2 Samsung company mobile
Mo.3 & Mo.4 Two Longs
Mo.5 One knife
(MADHUSUDHAN B.)
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY