Bangalore District Court
Raju Ram Husendi vs Periyaswami on 11 August, 2025
KABC030157932021
Presented on : 04-03-2021
Registered on : 04-03-2021
Decided on : 11-08-2025
Duration : 4 years, 5 months, 7 days
IN THE COURT OF THE 30TH ADDL.CHIEF
JUDICIAL MAGISTRATE, BENGALURU
Dated: This the 11th day of August-2025
:Present: Sri. Thimmaiah.G B.A., LL.B.
30th ACJM, Bengaluru
C.C.No.4886/2021
(Judgment U/s.355 of Cr.P.C.)
Date of Offence 03.02.2018
Complainant State by Konanakunte Police Station.
R/by. Learned Senior APP
V/s.
Accused A1.Periyasamy,
S/o. Appajigowndar,
Aged about 35 years,
R/at. No.4/114, Kowdam Palayam,
Judgment 2 C.C.No.4886/2021
Tiruchanagudu Taluk,
Namakkal District,
Tamil Nadu.
A2. Ningappa @ Lingan,
S/o. Ningappa,
Aged about 29 years,
R/at. No.409, Gule Grama,
Yelaburga Taluk,
Koppala District.
Offences U/sec,. 304-A of IPC
Plea/Charge Recorded on 07.03.2022 and the
accused persons are Pleaded not
guilty.
Examination U/sec., 313 of 11.08.2025
Cr.P.C recorded on:
Final Oder Accused No.1 & 2 are Acquitted
Date of Order 11.08.2025
(Thimmaiah.G)
30th Addl.C.J.M., B'lore.
Judgment 3 C.C.No.4886/2021
JUDGMENT
The PSI of Konanakunte Police Station has filed charge
sheet against accused persons for the offence punishable U/s.
304-A of IPC.
2. The brief facts of the prosecution case are as
follows:
The case of the prosecution is that, the accused No.1 is
the owner of the Bore well lorry bearing Reg.No.KA-05-MN-
5114 and accused No.2 is the Drilling Machine Operator and
the deceased Amar Chand Uki was the assistant to accused
No.2. Further On 03.02.2018, accused No.1 and 2 were
digging the bore well within the jurisdiction of Konanakunte
police station, vacant site of Cw.8 situated in front of Sri Rama
Temple, 1st Cross Road, Harinagara, at about 06.30 PM, the
accused No.2 without giving any training to the deceased
Amar Chand Uki, asked him to clear the air block in the diesel
Judgment 4 C.C.No.4886/2021pipe of drilling machine, when the deceased Amar Chand Uki,
had kept the diesel pipe near to his mouth and was clearing
the air, at that time, the diesel pipe went inside mouth of
deceased Amar Chand Uki and immediately the deceased was
taken to the Apollo Hospital and on 04.02.2018 at about 01.30
PM, the deceased Amar Chand Uki was died due to ineffective
treatment and due to negligent act of the accused persons as
they have not provided any safety measures to the workers the
said incident has been occurred and thereby the accused
persons have committed the above said alleged offence which
are punishable U/s. 304-A of IPC.
3. After filing the charge sheet, cognizance taken for
the offences punishable U/s. 304-A of IPC against the accused
persons. The accused persons were released on bail. Copy of
the prosecution papers furnished to the accused persons as
required U/Sec.207 of Cr.P.C. Heard before charge. Charge has
been framed and read over to the accused persons language
Judgment 5 C.C.No.4886/2021
known to them, wherein they have denied the same and claim
to be tried. Hence, the prosecution is called upon to prove its
case.
4. In order to secure the Cw.1 to 18 witnesses this
court repeatedly issued Summons and Proclamation, even
though the sufficient time given to the concerned police, they
have failed to secure these witnesses. Moreover, this case is 05
years old one. Hence, the said witnesses are dropped after
given sufficient opportunities to prosecution. In this regard
this court relied on the following Hon’ble High Court, full
bench Judgment of the Madras High Court, passed in The
State ( Tamil Nadu) V/s Veerappan and Others, on 24
March 1980, AIR 1980 MAD260-ILR 3 MAD 245 where in it
held as below:
2. Of the two questions which have been
referred to this Full Bench, the first one, namely,
whether under Section 255(1) Cr. P. C., a
Magistrate can acquit the accused if the
prosecution fails to apply for the issue of
Judgment 6 C.C.No.4886/2021summons to any witness and does not produce
the witness for several hearings and does not
serve summons on the witnesses despite
having been granted sufficient opportunity to
serve the summons or to produce the witnesses,
is the one that directly arises for determination
in these appeals. The second question which
arises for determination by us incidentally is
whether a Magistrate can acquit the accused
under Section 248(1) Cr. P. C., if the prosecution
does not apply for the issue of summons to any
of the witnesses and does not produce the
witness for several hearings and does not serve
the summons on the witnesses despite having
been granted sufficient opportunities to serve
the summons on the witnesses or to produce
the witnesses.
3. In all these appeals, the learned
Magistrate acquitted the accused under Section
255(1) Cr. P. C., on the ground that even though
the cases had been posted for hearing on
various dates and summons had been issued
to the witnesses for all the hearings, the
witnesses were not produced on any of the
hearing dates and in spite of a notice issued
that the case would be disposed of without
examining the witnesses if they are not
produced the prosecution did not choose to let
in any evidence and as such the Magistrate
Judgment 7 C.C.No.4886/2021found that the prosecution had no evidence to
let in.
15. In State of Madh. Pra. v. Kaluthawar,
1972 Cri LJ 1639, a Division Bench of the
Madhya Pradesh High Court observed as
follows: “It was the duty of the prosecution to
make necessary arrangements for the
production of its witnesses…. The Police must
always remember that it has got a duty to the
court and they cannot just send a challan and
think that the rest will be done by the court.
When nobody appeared in t he court to inform
what the reason was for non-appearance of the
witnesses, the court could legitimately come to
the conclusion that the police was not very
serious in prosecuting the offence which was a
minor one. Under Section 245, the Magistrate
can record an order of acquittal if there is no
evidence to hold the accused guilty. If the
prosecution did not take proper steps to
produce the witnesses, or ask the court to give
them time to do the same, or to issue fresh
summons, the court was not bound to fix
another date. The police has a duty towards
the citizen. When the accused is brought before
the court and the prosecuting department does
not take any steps it will be an abuse of the
process of the court to continue the trial.
Bringing a person before the court accusing him
of some offence is a serious matter and
Judgment 8 C.C.No.4886/2021
however petty the offence may be, the
prosecuting department, must do its duty
towards the accused as well as the court. When
once the accused is challaned there is no
privilege given to the police to remain absent”.
16. There are quite a number of decisions in
which it had been held that an acquittal of the
accused on the failure of the prosecution to
produce the witnesses is not legal. (Vide State
v. Kaliram Nandlal, ), the State of Mysore v.
Ramu, 1973 Mad LJ (Crl.) 116: (1973 Cri LJ
1257) (Mys); State of Mysore v. Kalilulla Ahmed
Sheriff. AIR 1971 Mys 60; Kanduri Misra v.
Sabadev Kunda, (1962) 2 Cri LJ 295; State of
Orissa v. Sibcharan Singh, ; State of Mysore v.
Somala, 1972 Mad LJ (Cri) 476: (1972 Cri LJ
1478) (Mys); State of Mysore v. Shanta, 1972
Mad LJ (Cri) 589 (Mys); State v. Nagappa, 1973
Cri LJ 548 (Mad); Public Prosecutor v.
Sambangi Mudaliar, ; State of Kerala v.
Kunhiaraman, 1964 Mad LJ (Cri) 330 (Ker);
State of Mysore v. Narasimha Gowda, AIR 1965
Mys 167; State of Gujarat v. Thakorbhai
Sukhabhai, , State of U.P. v. Ramjani, All LJ
1126; Lakshmiamma Kochukuttiamma v.
Raman Pillai, AIR 1952 Trav-Co 268; State v.
Madhavan Nair, 1959 Mad LJ (Cri) 633 (Ker);
Emperor v. Varadarajulu Naidu, AIR 1932 Mad
25 (2); State of Kerala v. Desan Mary, 1960
Judgment 9 C.C.No.4886/2021
Mad LJ (Cri) 378 (Ker); Kesar Singh v. State of
Jammu and Kashmir, 1963-1 Cri LJ 765: (AIR
1963 J & K 23); R. K. V. Motors and Timbers
Ltd. v. Regional Transport Authority,
Trivandrum, ; K. K. Subbier v. K. M. S.
Lakshmana Iyer, 1942 Mad WN (Cri) 64: (AIR
1942 Mad 452 (1)); State of Tripura v. Niranjan
Deb Barma, 1973 Cri LJ 108 (Tripura); Apren
Joseph v. State of Kerala, 1972 Mad LJ (Cri)
10: (1972 Cri LJ 1162) (Ker). As against these
decisions, there are the following decisions in
which it has been held that acquittal on the
ground of non-production of witnesses by the
prosecution was proper.
23. On the question as to whether the
Magistrate can acquit an accused at all under
Section 251A (11), Cr. P. C., if the prosecution
failed to produce their witnesses, a Division
Bench of the Gujarat High Court observed in
State of Gujarat v. Bava Bhadya (1962)’2 Cri
LJ 537 (2), as follows: “Where a charge Is
framed In a warrant case on police report, if
owing to the failure of the prosecution to
produce their witnesses and owing also to the
failure of the prosecution to make full
endeavour to serve the summonses according
to the provisions contained in Sections 69, 70
and 71, Cr. P. C., 1890, there is no evidence
Judgment 10 C.C.No.4886/2021
before the Magistrate, the Magistrate can acquit
the accused under Section 251A (11).”
” In State of Karnataka v. Subramania Setti
1980 Mad LJ 138: (1980 CA LJ NOC 129), a
Division Bench of the Karnataka High Court
referring to the decisions in State of Mysore v.
Narasimha Gowda (1964) 2 Mys LJ 241: (AIR
1965 Mys 167) and the State of Mysore v.
Abdul Hameed Khan (1969) 1 Mys LJ 4: (1970
Cri LJ 112 (Mys)), observed that the real
distinction between the two decisions is as to
whether there was remissness and want of
diligence on the part of the prosecuting agency
in producing the witnesses before the Court
and therefore the principle laid down in Abdul
Hameed Khan’s case applied to the facts of the
case with which the Division Bench was
concerned. We may riots here that in Abdul
Hameed Khan’s case, it was found on the facts
that the prosecution was not at all diligent as
the non-bailable warrants issued to the
witnesses had neither been served nor
returned to the court by the concerned police
and it was therefore held that where the
prosecution was not diligent in producing its
witnesses and had failed to serve the bailable
warrants on the witnesses and return the
same the Magistrate would be justified in
refusing to grant an adjournment and to
Judgment 11 C.C.No.4886/2021proceed to acquit the accused on the material
on record. We may note here that in State of
Karnataka v. Subramania Setti 1980 MLJ 138
the Division Bench was dealing with a24. After
carefully considering all the aforesaid
decisions and the views expressed therein, we
are of the view that if the prosecution had
made an application for the issue of summons
to its witnesses either under Section 242(2) or
254(2) of the Criminal Procedural Code it is the
duty of the court to issue summons to the
prosecution witnesses and to secure the
witnesses by exercising all the powers given to
it under the Criminal Procedure Code, as
already indicated by us and if still the
presence of the witnesses could not be secured
and the prosecution also either on account of
pronounced negligence or recalcitrance does
not produce the witnesses after the Court had
given it sufficient time and opportunities to do
so, then the Court, being left with no other
alternative would be justified in acquitting the
accused for want of evidence to prove the
prosecution case, under Section 248, Cr. P. C.,
in the case of warrant cases instituted on a
police report and under Section 255(1), Cr. P. C.
in summons cases, and we answer the two
questions referred to us in the above terms.
Judgment 12 C.C.No.4886/2021
Hence, considering the present case on hand, the Cw.1 to
18 are dropped. Further, the Cw.19 is given up as prayed by
the Ld. Sr.APP. In order to prove the guilt of the accused
persons, the prosecution has examined 03 witnesses as PW.1
to PW.3 and got marked 18 documents as Ex.P.1 to P.18.
5. Thereafter examination of the accused persons
U/S.313 of Cr.P.C. is recorded, the accused persons have
denied the incriminating evidence in the prosecution case and
not chosen to lead their side evidence. No documents are got
marked on their behalf..
6. Heard both the side and perused the material
evidence on record.
7. The following points would arise for my
consideration:
POINTS
1. Whether the prosecution proves
beyond all reasonable doubt that, the
Judgment 13 C.C.No.4886/2021accused No.1 is the owner of the Bore well
lorry bearing Reg.No.KA-05-MN-5114 and
accused No.2 is the Drilling Machine
Operator and the deceased Amar Chand
Uki was the assistant to accused No.2.
Further On 03.02.2018, accused No.1
and 2 were digging the bore well within
the jurisdiction of Konanakunte police
station, vacant site of Cw.8 situated in
front of Sri Rama Temple, 1 st Cross Road,
Harinagara, at about 06.30 PM, the
accused No.2 without giving any training
to the deceased Amar Chand Uki, asked
him to clear the air block in the diesel
pipe of drilling machine, when the
deceased Amar Chand Uki, had kept the
diesel pipe near to his mouth and was
clearing the air, at that time, the diesel
pipe went inside mouth of deceased
Amar Chand Uki and immediately the
deceased was taken to the Apollo Hospital
and on 04.02.2018 at about 01.30 PM,
the deceased Amar Chand Uki was died
Judgment 14 C.C.No.4886/2021
due to ineffective treatment and due to
negligent act of the accused persons as
they have not provided any safety
measures to the workers the said incident
has been occurred and thereby
committed an offence punishable under
304-A of IPC?
2. What order?
8. My findings on the above points are as
follows:
Point No.1 : In The Negative
Point No.2 : As per final order
REASONS
9. Points No.1: I am of the opinion that, I need not
repeat the entire case of the complaint here also, since I have
already narrated the same at the inception of this judgment.
10. The Cw.21 Venkateshaiah, who is examined as Pw.1
and IO in this case, he deposed in his evidence before the
Judgment 15 C.C.No.4886/2021
court stating that, On 07-02-2018, when he was in charge of
the police station, he received the complaint of the statement
given by Cw-1 at the police station and registered a case in
Police Station Crime No. 49/2018 and submitted the report to
the Honorable Court and the superiors. Later on the same day,
in the presence of Cw.10 and 11 from 03-30 to 04-30 in the
afternoon, he seized the lorry bearing Reg.No. KA-01-MN-
5114. Then on 08-02-2018, he issued a notice to Cw-3 to 5
and took them to KIMS Hospital along with Cw-1, conducted
an autopsy there and handed over the body of the deceased to
Cw-12 for postmortem examination and later he received the
postmortem report on the same day. He recorded the
statements of Cw-3 to 6 on the same day, Later on 09.02.2018,
Cw-14 handed over the dead body to his family, after which
Cw-14 recorded the statements of Cw-1 and 2 and attached
the said statements to the file. Later on the same day, He had
obtained the indemnity bond and released the seized vehicle to
Judgment 16 C.C.No.4886/2021
the accused No.1 as per the court order. Later on 17-02-2018,
the accused approached our police station staff, Cw-15 and
16, who accordingly found the accused and produced him
before him at the police station at 11:05 pm on the same day
and gave a report. He had recorded the statement of Cw-16 on
the same day. Later, he had interrogated the accused, taken
appropriate action for his arrest and released him on bail.
Further, he had recorded the voluntary statement of the
accused No.2 on the same day, On 20-02-2018, Cw-15 and 17
were appointed to find the accused No.1 and accordingly they
were presented before himat 01:00 PM on the same day. Cw-17
gave a report regarding the same, further he had recorded the
statement of Cw-15. Then he had interrogated the 1st accused,
taken appropriate action for his arrest and released him on
bail, then on 26-09-2019, he had recorded the statement of
Cw-7 and 9. On 14-10-2019, he had recorded the statement of
Judgment 17 C.C.No.4886/2021
Cw-8. Then he had given the case file to Cw-20 for further
investigation.
Further, the learned counsel for the accused had cross
examined the said witness in length but, nothing worthwhile
elicited from his mouth and further denied the suggestions put
by the learned counsel for the accused.
11. The Cw.20 C.V.Krishnegowda, who is examined as
Pw.2 and further IO in this case, he deposed in his evidence
before the court stating that, on 09.03.2018, he received the
case file from Cw-21 and continued the investigation. Then on
the same day, he assigned Cw-18 to get the items from
hospital which was collected in the bottle of deceased Amar
Chand, Cw-18 brought it and presented it before him and gave
his report regarding the same. Then on 31.03.2018, he sent
the items for FSL report through Cw-19 and gave it to him for
a report, then on 17.04.2018, he received the report from FSL
Judgment 18 C.C.No.4886/2021
and included it in the file. Then he handed over the case file to
Cw-22 for further investigation,
Further, the learned counsel for the accused had cross
examined the said witness in length but, nothing worthwhile
elicited from his mouth and further denied the suggestions put
by the learned counsel for the accused.
12. The Cw.22 T.M.Darmendra, who is examined as
Pw.3 and further IO in this case, he deposed in his evidence
before the court stating that, On 27-09-2019, he received the
case file from Cw-20 and proceeded with the investigation. On
the same day, he received a letter from the medical officers of
KIMS Hospital to give a clear report on the death of Amar
Chand Uki. On 15-10-2019, he received the final report from
the said hospital. Later, since the investigation was completed,
and the charges against the accused were prima facie proven,
he had submitted the final report to the honorable court.
Judgment 19 C.C.No.4886/2021
Further, the learned counsel for the accused had cross
examined the said witness in length but, nothing worthwhile
elicited from his mouth and further denied the suggestions put
by the learned counsel for the accused.
13. It is the paramount duty of the prosecution to
establish the guilt of the accused beyond all reasonable doubt.
Unless the guilt is established beyond all reasonable doubt,
the accused can not be held guilty of the alleged offenses.
14. In this case, in order to secure the Cw.1 to 18
respectively this court issued summons and proclamation. In
spite of the sufficient time given to the police, they have failed
to secure these witnesses and Cw.1 to 9 are dropped since,
they are not secured since long time. Moreover, the non
examination of the material witness is fatal to the prosecution
case. As such the case against the accused is certainly would
be entitled to benefit of the doubt. Regarding this I relied on
the following Judgment.
Judgment 20 C.C.No.4886/2021
On this point held in, (2016) 10 SCC 519 – AIR 2016 SC
4581 in para 56, Hon’ble Apex held thus hereunder:
”56. It is a trite proposition of law, that suspicion
however grave, it cannot take the place of proof and that
the prosecution in order to succeed on a criminal charge
cannot afford to lodge its case in the realm of ”may be
true”’ but has to essentially elevate it to the grade of
”must be true”. In a criminal prosecution, the court has
a duty to ensure that mere conjectures or suspicion do
not take the place of legal proof and in a situation
where a reasonable doubt is entertained in the
backdrop of the evidence available, to prevent
miscarriage of justice, benefit of doubt is to be extended
to the accused. Such a doubt essentially has to be
reasonable and not imaginary, fanciful, intangible or
non-existent but as entertainable by an impartial,
prudent and analytical mind, judged on the touchstone
of reason and common sense. It is also a primary
postulation in criminal jurisprudence that if two views
are possible on the evidence available one pointing to
the guilt of the accused and the other to his innocence,
the one favourable to the accused ought to be adopted.”
Judgment 21 C.C.No.4886/2021
15. Thus, the above Hon’ble Apex Court decision has
opt to the present case on hand and the accused is entitled to
the benefit of the reasonable doubt. Moreover, non
examination of material witness is fatal to the prosecution
case. The prosecution has not able to prove the alleged
offences against the accused beyond reasonable doubt.
Therefore, I Answer to the Points No.1 in the Negative.
16. Point No.2: In view of the Negative findings on the
above points No.1, I proceed to pass the following:-
ORDER
In the exercise of powers conferred
U/Sec. 248(1) of Cr.P.C., the Accused No.1 and
2 are hereby Acquitted of the alleged offence
punishable U/sec., 304(A) of IPC.
The bail bond of Accused No.1 and 2
and surety extended for further 6 months in
order to comply Sec.437A of Cr.P.C.
Thereafter, this bail bond automatically
stands cancelled.
Judgment 22 C.C.No.4886/2021
The Property/Bore well Lorry seized
by the IO in P.F.No.23/2018, interim release
is made absolute.
(Dictated to the Stenographer directly on computer and after corrections made by
me and then pronounced by me in the Open Court on this the 11th day of August-2025.
(Thimmaiah.G)
30 A.C.J.M., B’lore.
th
ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE PROSECUTION:
P.W.1 : Sri. Venkateshaiah
P.W.2 : Sri. C.V.Krishnegowda
P.W.3 : Sri. T.D.Darmendra
2. LIST OF THE DOCUMENTS MARKED FOR THE
PROSECUTION:
Ex.P1 : Statement of Deceased Father
Ex.P2 : FIR
Ex.P3 : Seizure Mahazar
Ex.P4 : Autopsy report
Judgment 23 C.C.No.4886/2021Ex.P5 : Post Mortem Report
Ex.P6 : Further statement of Cw.1
Ex.P7 : Indemnity Bond
Ex.P8 to 11 : Photos
Ex.P12 to 15 : Re question’s
Ex.P16 : FSL Report
Ex.P17 : Letter to Doctor From Police
Ex.P18 : Forensic Report
3. LIST OF THE WITNESS EXAMINED AND DOCUMENTS
MARKED FOR THE DEFENCE:
NIL
4. LIST OF THE MATERIAL OBJECTS MARKED FOR THE
PROSECUTION: Digitally
signed by
THIMMAIAH
NIL THIMMAIAH G
G Date:
2025.08.12
14:51:06
+0530(Thimmaiah.G)
30th Addl.C.J.M., B’lore.
Judgment 24 C.C.No.4886/2021
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