Bangalore District Court
State By J.P. Nagar Police Station vs No. : 7. Nagesh on 16 October, 2018
IN THE COURT OF THE 44TH ADDL.CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
Dated: This the 16th day of OCTOBER 2018
:Present:
Smt. Mala N.D., B.A.L., LL.B.,
44th ACMM, Bengaluru
C.C.No.9829/2017
Complainant : State by J.P. Nagar Police station
(By Sr. Asst. Public Prosecutor)
-V/s-
Accused No. : 7. Nagesh,
S/o Thagade Gowda,
Aged about 45 years,
C/o Somanna Building,
Near Lakshman's house,
Jaraganahalli Park Road,
Jaraganahalli, J.P. Nagar 6th phase,
Bengaluru.
8. Kiran Kumar,
S/o Manjunath,
Aged about 18 years,
R/at No.49, Post Office Road,
Yalachenahalli, Bengaluru.
9. Anil Kumar,
S/o Venkataramanappa,
Aged about 22 years,
R/at No.1, BCM Hostel,
Yalachenahalli, Bengaluru.
10. Venkatappa,
S/o Munivenkatappa,
Aged about 58 years,
2 C.C. No.9829/2017
R/at No.36/1, 2nd Cross,
Rajeev Gandhi Road,
Jaraganahalli, J.P. Nagar 6th phase,
Bengaluru.
13. Somashekar @ Soma,
S/o Hanumaiah,
Aged about 18 years,
Behind Woody's hotel,
17th Main Road,
J.P. Nagar 2nd Phase,
Bengaluru.
14. Rajesh.S.C.
S/o Chikkanna,
Aged about 26 years,
R/at No.226A, Govt. Hospital,
Jaraganahalli, J.P. Nagar 6th phase,
Bengaluru.
17. Sanjay.P. @ Sanju,
S/o Puttegowda,
Aged about 21 years,
R/at No.33, 3rd Cross Road,
3rd Main Road, Ramakrishna Nagar,
K.S. Layout, Bengaluru.
(Case against other accused persons is split up)
(By Sri. B.N. Nanjappa and other Advocates )
3 C.C. No.9829/2017
JUDGMENT
The PSI of J.P. Nagar Police Station has filed charge sheet against accused No.1 to 21 for the offences punishable U/s. 188, 143, 145, 146, 147, 448, 427, 435, 452 and Section 2(A) and 2(B) of KPDLP Act r/w 149 of IPC.
2. The brief facts of the prosecution case are as follows:
It is alleged that, on 12/09/2016, Hon'ble Supreme Court announced its judgment in connection with Cauvery River Water Distribution, as such, Police Commissioner, imposed curfew order through out the state, despite the same, accused persons being aggrieved by the aforesaid Judgment, in furtherance of their common object indulged in protesting the said judgment, formed themselves into an unlawful assembly on 12/09/2016 from 11.30 a.m. till 9 p.m. in the night, tried to disturb communal peace and harmony, went near Ambur Biryani Hotel, situated at Shivashakthi Nagar, Kanakapuara Main Road, J.P. Nagar 6th phase, within the limits of J.P. Nagar police station, removed and threw the name board of aforesaid hotel on the road, illegally trespassed into the aforesaid hotel, destructed the table and chairs, threw the utensils on the road, brought the Bolero car to the front road, which was parked back side of the aforesaid hotel, set 4 C.C. No.9829/2017 ablaze to the hotel belongings and car, caused loss to the tune of Rs.13,68,000/-, disturbed the communal peace and harmony, damaged public property, caused great loss to the Government and thereby committed aforesaid offences. Therefore, C.W. 1 Sri. Kumar has lodged complaint before the jurisdictional police. As such, this case came to be registered against the accused persons.
During the course of investigation I.O. visited the place of incident, drawn spot mahazar in the presence of the witnesses, seized Item No.1 and 2 i.e. mobiles and subjected under P.F. No. 325/2016 and one burnt vehicle bearing No.TN-29-BZ-7776, subjected under P.F. No. 314/2016, recorded the statement of witnesses and after completion of investigation filed charge sheet against the accused persons for the aforesaid offences.
3. The accused No.7 to 10, 13, 14 and 17 are on bail and they are represented through their counsel. Inspite of sufficient efforts other accused persons have not been secured before this court. Hence, case against them is split up.
4. The copies of the prosecution papers have been furnished to the accused persons as required under Sec.207 of Cr.P.C. The cognizance of the offences punishable U/sec. 188, 143, 145, 146, 147, 5 C.C. No.9829/2017 448, 427, 435, 452 and Section 2(A) and 2(B) of KPDLP Act r/w 149 of IPC has been taken as per Sec.190 of Cr.P.C.
5. The charge is framed, contents of charge have been read over and explained to the accused persons in the language known to them, they pleaded not guilty and claimed to be tried. Hence, the prosecution is called upon to prove its case.
6. The prosecution, in order to prove its case has examined three witnesses C.W. 18, C.W. 5 and C.W. 21 as P.W. 1 to 3 and got marked four documents at Ex.P1 to P.4. Though, the prosecution in order to prove its case has cited as many as 22 witnesses, except C.W. 18, C.W. 5 and C.W. 21 none of the witnesses i.e. C.W. 1 to 4, 10 to 17, 19 and 22 have turned up before the court inspite of taking coercive steps like issuance of summons, warrants and even proclamation. It is to be observed that, the charge is framed in the year 2018 and till now C.W. 1 to 4, 10 to 17, 19 and 22 have been secured and no satisfactory explanation has been offered. Therefore, they have been discharged from deposing evidence.
7. Thereafter, the statement of accused persons as required under Section 313 of Cr.P.C. has been recorded, wherein they have denied the incriminating evidence adduced against them and have 6 C.C. No.9829/2017 not chosen to lead their side defense evidence. Hence, posted for arguments.
8. Heard both the side and perused the material evidence on record.
9. The following points would arise for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that, on 12/09/2016, Hon'ble Supreme Court announced its judgment in connection with Cauvery River Water Distribution, as such, Police Commissioner, imposed curfew order through out the state, despite the same, accused persons being aggrieved by the aforesaid Judgment, in furtherance of their common object indulged in protesting the said judgment, formed themselves into an unlawful assembly on 12/09/2016 from 11.30 a.m. till 9 p.m. in the night, tried to disturb communal peace and harmony, disobeyed the curfew order and tend to cause obstruction and thereby committed an offence punishable U/s.188 r/w 149 of IPC?
2. Whether the prosecution proves beyond reasonable doubt that, on the aforesaid date, time, place and under aforesaid circumstances, accused persons indulged in protesting the said judgment, formed themselves into an unlawful assembly on 12/09/2016 from 11.30 a.m. till 9 p.m. in the night, tried to disturb communal peace and harmony and thereby committed an offence punishable U/s.143 r/w 149 of IPC?
3. Whether the prosecution proves beyond reasonable doubt that, on the aforesaid date, time, place and under aforesaid circumstances, 7 C.C. No.9829/2017 accused persons indulged in protesting the said judgment, formed themselves into an unlawful assembly on 12/09/2016 from 11.30 a.m. till 9 p.m. in the night and thereby committed an offence punishable U/s.145 r/w 149 of IPC?
4. Whether the prosecution proves beyond reasonable doubt that, on the aforesaid date, time, place and under aforesaid circumstances, accused persons in furtherance of common object, accused persons indulged in protesting the said judgment, formed themselves into an unlawful assembly on 12/09/2016 from 11.30 a.m. till 9 p.m. in the night causing riot and thereby committed an offence punishable under Section 146, 147 r/w 149 of IPC?
5. Whether the prosecution proves beyond reasonable doubt that, on the aforesaid date, time, place and under aforesaid circumstances, accused persons in furtherance of common object, accused persons went near Ambur Biryani Hotel, situated at Shivashakthi Nagar, th Kanakapuara Main Road, J.P. Nagar 6 phase, within the limits of J.P. Nagar police station, removed and threw the name board of aforesaid hotel on the road, illegally trespassed into the aforesaid hotel and thereby committed an offences punishable under Section 448 r/w 149 of IPC?
6. Whether the prosecution proves beyond reasonable doubt that, on the aforesaid date, time, place and under aforesaid circumstances, accused persons in furtherance of common object, accused persons went near Ambur Biryani Hotel, situated at Shivashakthi Nagar, th Kanakapuara Main Road, J.P. Nagar 6 phase, within the limits of J.P. Nagar police station, plucked and threw the name board of aforesaid 8 C.C. No.9829/2017 hotel on the road, illegally trespassed into the aforesaid hotel, destructed the table and chairs, threw the utensils on the road, brought the Bolero car to the front road, which was parked back side of the aforesaid hotel, set ablaze to the hotel belongings and car, caused loss to the tune of Rs.13,68,000/-, and thereby committed mischief an offences punishable under Section 427 r/w 149 of IPC?
7. Whether the prosecution proves beyond reasonable doubt that, on the aforesaid date, time, place and under aforesaid circumstances, accused persons in furtherance of common object, accused persons illegally trespassed into the aforesaid hotel, destructed the table and chairs, threw the utensils on the road, brought the Bolero car to the front road, which was parked back side of the aforesaid hotel, set ablaze to the hotel belongings and car and thereby committed mischief by fire or any explosive substance an offence punishable under Section 435 r/w 149 of IPC?
8. Whether the prosecution proves beyond reasonable doubt that, on the aforesaid date, time, place and under aforesaid circumstances, accused persons in furtherance of common object, accused persons illegally trespassed into the aforesaid hotel, destructed the table and chairs, threw the utensils on the road, brought the Bolero car to the front road, which was parked back side of the aforesaid hotel, set ablaze to the hotel belongings and car and thereby committed house trespass causing damages to the hotel properties an offence punishable under Section 452 r/w 149 of IPC?
9. Whether the prosecution proves beyond reasonable doubt that, on the aforesaid date, 9 C.C. No.9829/2017 time, place and under aforesaid circumstances, accused persons in furtherance of common object, disturbed the communal peace and harmony, damaged public property, caused great loss to the Government and thereby committed an offence punishable U/s.2(A) and 2(B) of KPDLP Act ?
10. What Order?
10. My findings on the above points are as follows:
Point No.1 : IN THE NEGATIVE
Point No.2 : IN THE NEGATIVE
Point No.3 : IN THE NEGATIVE
Point No.4 : IN THE NEGATIVE
Point No.5 : IN THE NEGATIVE
Point No.6 : IN THE NEGATIVE
Point No.7 : IN THE NEGATIVE
Point No.8 : IN THE NEGATIVE
Point No.9 : IN THE NEGATIVE
Point No.10: As per final order for the following REASONS
11.Points No.1 to 9: All these points involve similar set of facts and circumstances, hence, taken up together for common discussion.
10 C.C. No.9829/2017
12. The prosecution in order to establish its case has cited as many as 22 witnesses and successful in examining only three witnesses i.e. C.W. 18, C.W. 5 and C.W. 21 as P.W. 1 to 3. This case has been registered on the back ground of accused persons indulging themselves in the protest against the judgment of Hon'ble Supreme Court, in connection with Cauvery River Water Distribution, formed into an unlawful assembly, tried to disturb communal peace and harmony by damaging the Ambur Biryani Hotel properties and car, causing loss to the tune of Rs.13,68,000/-, also damaged the public property, thereby caused great loss to the Government as well as aforesaid hotel.
13. In this connection, the prosecution has examined Motor vehicle inspector as P.W. 1, wherein he has deposed about the inspection conducted by him on Mahendra Bolero vehicle bearing No.TN-29-BZ-7776 and report given in that regard.
14. One official witness is examined as P.W. 2,wherein he has deposed about apprehending of accused persons and producing them before their SHO along with a report.
15. Another official witness is examined as P.W. 3, wherein he has deposed about conducting further investigation of the case, 11 C.C. No.9829/2017 conducting spot mahazar and handing over the case file to C.W. 22 for additional investigation. As such, nothing substantial has been elicited in the cross-examination of these witnesses.
16. Further, it is pertinent to note that, complainant C.W. 1 Sri. Kumar, who has set the law into motion, has not appeared before this court, in order to put forth his case against accused persons, which is a fatal blow to the case of prosecution. Under such circumstances, the evidences of aforesaid witnesses will not come to the aid of prosecution in proving its case. Therefore, in the absence of material evidence of complainant, other independent mahazar witnesses as well as eye witnesses, this court cannot hold accused persons as guilty minded, as the alleged incident occurred in public place that too with a huge mob. Under the circumstances, evidence of an eye witness plays a vital role to bring home the guilt of accused persons, which is not forth coming in this case.
17. That apart, though, the prosecution in order to prove its case has cited as many as 22 witnesses, except C.W. 18, C.W. 5 and C.W. 21 none of the witnesses i.e. C.W. 1 to 4, 10 to 17, 19 and 22 have turned up before the court inspite of taking coercive steps like issuance of summons, warrants and even proclamation. It is to be 12 C.C. No.9829/2017 observed that, on 24/02/2018 this court has framed charge and this court has extended fullest assistance to secure the witnesses by issuing summons, warrants and even proclamation which can be seen from the order sheet. As such, they have been discharged from deposing the evidence. As a result, the prosecution has failed to prove the charge leveled against accused persons with cogent, convincing and corroborative evidence. Therefore, above points No.1 to 9 are answered in the Negative.
18.Point No.10: In view of the negative findings on the above points No.1 to 9, I proceed to pass the following:-
ORDER Acting U/s.248(1) of Cr.P.C., accused No. 7 to 10, 13, 14 and 17 are found not guilty and acquitted of the offences punishable U/s. 188, 143, 145, 146, 147, 448, 427, 435, 452 and Section 2(A) and 2(B) of KPDLP Act r/w 149 of IPC.
The bail & bail bond of the accused persons and sureties shall stands cancelled.
Item No.1 and 2 i.e. mobiles seized and subjected under P.F. No. 325/2016, and one burnt vehicle bearing No.TN-29-BZ-7776, seized 13 C.C. No.9829/2017 and subjected under P.F. No. 314/2016, are ordered to be retained till disposal of the split up case against other accused persons.
(Dictated to the Stenographer through computer and after corrections made by me and then pronounced by me in the Open Court on this the 16th day of October 2018).
(Mala N.D) XLIV Addl.C.M.M., B'lore.
ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE PROSECUTION P.W. 1: Gopi Krishna P.W. 2: Siddaiah P.W. 3: Raghu Nayak.A.R.
2. LIST OF THE DOCUMENTS MARKED FOR THE PROSECUTION Ex.P. 1 : Report Ex.P.1(a) : Signature of PW-1 Ex.P. 2 : Photo of vehicle Ex.P.3 : Report of P.W. 2 Ex.P.3(a) : Signature of P.W. 2 Ex.P.4 : Spot Mahazar Ex.P.4(a) : Signature of P.W. 3
3. LIST OF THE WITNESS EXAMINED AND DOCUMENTS MARKED FOR THE DEFENCE NIL
4. LIST OF THE METERIAL OBJECTS MARKED FOR THE PROSECUTION NIL (Mala N.D) XLIV Addl.C.M.M., B'lore.14 C.C. No.9829/2017
Judgment pronounced in Open Court vide separate:-
ORDER Acting U/s.248(1) of Cr.P.C., accused No. 7 to 10, 13, 14 and 17 are found not guilty and acquitted of the offences punishable U/s.
188, 143, 145, 146, 147, 448, 427, 435, 452 and Section 2(A) and 2(B) of KPDLP Act r/w 149 of IPC.
The bail & bail bond of the accused persons and sureties shall stands cancelled.
Item No.1 and 2 i.e. mobiles seized and subjected under P.F. No. 325/2016, and one 15 C.C. No.9829/2017 burnt vehicle bearing No.TN-29-BZ-7776, seized and subjected under P.F. No. 314/2016, are ordered to be retained till disposal of the split up case against other accused persons.
(Mala N.D) XLIV Addl.C.M.M., B'lore.