Bangalore District Court
Chetan S vs Shivakumar @ Shivu on 16 January, 2025
KABC030167182017
IN THE COURT OF THE VI A.C.J.M. BENGALURU CITY
C.C.No.7510/2017
Dated this the 16th Day of January, 2025
Before : Sri. MANJUNATH D.R.,
B.sc, LL.B.,
VI Addl. C.J.M BENGALURU CITY.
Complainant : The State by Kengeri
Police Station.
(By Learned A.P.P)
-Versus-
1. Shivakumar @ Shivu, (Split Up)
2. Mahesh @ Dongare (Split Up)
3. Srinivas K.T,
S/o Thirumalaswamy,
Aged about 21 years,
R/at Building No.22,
No.32, Shirke Apartment,
K.H.B. Colony, Kengeri Upanagara,
Bengaluru.
4. Dinesh @ Likithesh
@ Likithesh R. Nayak,
S/o Ravindra Nayak,
Aged about 24 years,
R/at Building No.36, No.314,
Shirke Apartment, KHB Colony,
Kengeri Upanagara, Bengaluru.
5. Darshan S/o Anneyappa, (Split Up)
(Sri.R.S. Adv. for Accused)
2 C.C.No.7510/2017
Date of taking cognizance : 28.02.2017
Offences Registered
against accused : U/s.143, 341, 323, 324,
326, 504, 506 r/w sec.149
of IPC.
Date of commencing
evidence : 15.07.2024
Date of Judgment
pronounced : 16.01.2025
Duration of 07 10 19
Judgment : Year/s Month/s Day's
(MANJUNATH D.R.)
VI Addl. CJM., Bengaluru City.
**** *
JUDGMENT
1. The Kengeri Police have charge sheeted the accused
no.1 to 5 for the offences punishable under Sections
U/s.143, 341, 323, 504, 324, 326, 506 r/w sec.149 of
IPC. The case against accused no.1, 2, 5 is split up in
C.C.No.13842/2022 and this case is only against
accused no.3 and 4.
3 C.C.No.7510/2017
2. The brief facts of the prosecution case is as
follows:-
On 16.03.2016 at about 8.30 p.m. while CW1
driving the car at Kengeri Upnagar, near Shirke
Apartment Ganesha Temple, the accused no.3 and 4
along with other accused persons formed an unlawful
assembly and picked up quarrel with the complainant
with an intention to commit offences on account of old
rivalry and further on the said date, time and place the
accused no.3 and 4 along with other accused persons
in furtherance of their common object wrongfully
restrained the CW1 while he was going in his car and
further on the said date, time and place the accused
no.3 and 4 along with other accused persons in
furtherance of their common object assaulted the
complainant by their hands and kicked him by
causing hurt and further on the said date, time and
place the accused no.3 and 4 along with other accused
persons in furtherance of their common object
intentionally insulted the complainant in filthy
language with an intention to provoke him to commit
the breach of public peace and further on the said
date, time and place the accused no.3 and 4 along
with other accused persons in furtherance of their
4 C.C.No.7510/2017common object the accused no.3 assaulted the CW2
with Helmet and caused simple injuries and further on
the said date, time and place the accused no.3 and 4
along with other accused persons in furtherance of
their common object the accused no.4 assaulted the
CW2 with helmet and caused grevious bleeding
injuries and further on the said date, time and place
the accused no.3 and 4 along with other accused
persons in furtherance of their common object
threatened the complainant and CW2 with dire
consequences. On the first information given by the
CW1, FIR came to be registered and after completion of
investigation, charge sheet came to be filed against the
accused for the above said offences.
3. After taking cognizance, this court has complied
Section 207 of Cr.P.C. by supplying charge sheet
materials to the accused. The Charges read over and
explained to the accused no.3 and 4 and they have not
pleaded guilty of alleged offences and claimed to be
tried.
5 C.C.No.7510/2017
4. The Prosecution in order to prove the case,
examined P.W.1 to 4 and got marked Ex.P1 to 8 and
MO.1 and 2.
5. The Statement of accused no.3 and 4 under
Section 313 of Cr.P.C. was recorded. The accused have
denied all the incriminating materials found against
them and they have not led any defence evidence.
6. I heard learned APP and learned counsel appearing
for the accused.
7. The points that arose for my consideration are:
:: P O I N T S ::
Point No.1 : Whether the prosecution
proves beyond reasonable doubt that on
16.03.2016 at about 8.30 p.m. while CW1
driving the car at Kengeri Upnagar, near
Shirke Apartment Ganesha Temple, the
accused no.3 and 4 along with other
accused persons formed an unlawful
assembly and picked up quarrel with the
complainant with an intention to commit
offences on account of old rivalry and
thereby committed offence punishable
under section 143 r/w sec.149 of IPC?
6 C.C.No.7510/2017
Point No.2. Whether the prosecution
proves beyond reasonable doubt that, on
the said date, time and place, the accused
no.3 and 4 along with other accused
persons in furtherance of their common
object wrongfully restrained the CW1
while he was going in his car and thereby
the accused has committed offence
punishable under section 341 r/w
sec.149 of IPC?
Point No.3. Whether the prosecution
proves beyond reasonable doubt that, on
the said date, time and place, the accused
no.3 and 4 along with other accused
persons in furtherance of their common
object assaulted the complainant by their
hands and kicked him by causing hurt
and thereby the accused has committed
offence punishable under section 323 r/w
sec.149 of IPC?
Point No.4. Whether the prosecution
proves beyond reasonable doubt that, on
the said date, time and place, the accused
no.3 and 4 along with other accused
persons in furtherance of their common
object intentionally insulted the
complainant in filthy language with an
intention to provoke him to commit the
breach of public peace and thereby the
accused has committed offence
punishable under section 504 r/w
sec.149 of IPC?
7 C.C.No.7510/2017
Point No.5. Whether the prosecution
proves beyond reasonable doubt that, on
the said date, time and place, the accused
no.3 and 4 along with other accused
persons in furtherance of their common
object the accused no.3 assaulted the
CW2 with Helmet and caused simple
injuries and thereby the accused has
committed offence punishable under
section 324 r/w sec.149 of IPC?
Point No.6. Whether the prosecution
proves beyond reasonable doubt that, on
the said date, time and place, the accused
no.3 and 4 along with other accused
persons in furtherance of their common
object the accused no.4 assaulted the
CW2 with helmet and caused grevious
bleeding injuries and thereby the accused
has committed offence punishable under
section 326 r/w sec.149 of IPC?
Point No.7. Whether the prosecution
proves beyond reasonable doubt that, on
the said date, time and place, the accused
no.3 and 4 along with other accused
persons in furtherance of their common
object threatened the complainant and
CW2 with dire consequences and thereby
the accused has committed offence
punishable under section 506 r/w
sec.149 of IPC?
Point No.8. What order?
8 C.C.No.7510/2017
8. After going through the records and hearing the
learned APP and learned counsel for the accused. I
answer the above points as under :
Point No.1 to 7 : In the Negative
Point No.8 : As per final order, for
the following:
REASONS
9. Point No.1 to 7 : As the facts involved in these
points are common, in order to avoid repetition of
facts, they are taken together for consideration.
10. The prosecution in order to prove its case
has examined the investigating officers as PW1 and
4, ASI as PW2 and police constable as PW3 and got
marked Seizure panchanama at Ex.P1, Report at
Ex.P2, seizure panchanama at Ex.P3, vehicle photos
at Ex.P4 and 5, wound certificate at Ex.P6,
complaint at Ex.P7, FIR at Ex.P8, two stones are
marked at MO.1 and 2.
11. The prosecution has examined the
investigating officer as PW4 and in his evidence he
has deposed that, he received an MLC report from
Shreya Hospital on 17.03.2016 and he sent CW11 to
9 C.C.No.7510/2017
the hospital for recording the statement of the
complainant and accordingly the CW11 recorded the
statement and submitted the same before him and
thereafter he has registered an FIR as per Ex.P8 on
the basis of the statement of the complainant as per
Ex.P7 and submitted the further investigation to the
CW16.
12. The CW11 who is examined as PW2 in his
evidence deposed that, on the direction of the CW15
he went to Shreya Hospital and recorded the
statement of CW1 and submitted the same before the
CW15 and he has identified the complaint at Ex.P7.
13. The prosecution has examined the
investigating officer as PW1 and in his evidence he
has deposed that, he visited the spot and conducted
the spot panchanama as per Ex.P1 in presence of
panchas CW3 and 4. The prosecution has failed to
examine the CW3 and 4 panchas before the court
inspite of coersive steps taken against them. The
PW1 further deposed that, he seized the two stones
under the panchanama in presence of panchas and
identified the stones at MO1 and 2. The prosecution
10 C.C.No.7510/2017
has failed to prove the alleged recovery of MO1 and 2
under the Ex.P1 panchanama. The PW1 further
deposed that, he recorded the statements of CW11
and appointed the staff for tracing the accused and
further deposed that CW12 and 13 arrested the
accused no.4 and produced the accused no.4 along
with his bike and a report and he recorded the
voluntary statement of the accused no.4 and seized
the bike bearing registration No.KA-41-Y-9738 and
got released the accused no.4 on bail and recorded
the further statements of complainant and statement
of CW13 and further the accused no.4 as per his
voluntary statement took them to house of the
accused no.3 and he seized the two wheeler belong
to the accused no.3 bearing registration No.KA-02-Y-
457 under the Ex.P3 panchanama. But the
prosecution has failed to examine the panchas to the
Ex.P3 panchanama CW5 and 6 to prove the alleged
recovery on the basis of the voluntary statement of
the accused no.4.
14. The prosecution has examined the constable
as PW3 and he deposed that, he arrested the
accused no.4 on 21.03.2016 at about 10.30 p.m.
11 C.C.No.7510/2017
and produced him before the PW1 along with his
bike. It is relevant to mention that, any voluntary
statement given by the accused before the police is
not admissible in evidence unless recovery is proved
under section 27 of the Indian Evidence Act. In this
instant case, the prosecution has failed to prove the
alleged recovery of bike under the Ex.P3
panchanama beyond all reasonable doubt. The
prosecution has failed to examine the panchas to the
said recovery panchanama inspite of coersive steps
taken against them. PW1 has further deposed that,
the accused no.3 voluntary appeared before him and
he recorded his voluntary statement and recorded
the statements of CW2 and after receiving the wound
certificate from the doctor and after recording the
statements of CW12 and 14 filed the charge sheet
against the accused.
15. The prosecution case is that, the accused
no.3 and 4 along with other accused assaulted the
CW1 and 2 by wrongfully restrained him and
threatened him with dire consequences. But the
prosecution has failed to examine the material
12 C.C.No.7510/2017
witness the complainant and CW2 insptie of coercive
steps taken against them.
In the decision reported in ILR 2000 Karnataka
900 (State of Karnataka v/s Lakshmappa &
Others) Hon’ble High Court of Karnataka held as
under:-
“Prosecution not producing injured witnesses even
though non-bailable warrants had been issued- case
ended in acquittal. In appeal by the State the High
Court refused to reopen the case observing that
opportunity to lead evidence will be given to the
prosecution only once”.
I perused the said decision.
16. The prosecution has failed to examine the
complainant and victim CW2 and panchas to the
Ex.P3 and Ex.P1 panchanama inspite of coersive
steps taken against them. The evidence available on
record is only of the official witnesses and their
evidence do not prove the guilt of the accused
beyond all reasonable doubt in the absence of
material evidence and therefore the prosecution has
failed to prove the guilt of the accused no.3 and 4
13 C.C.No.7510/2017
beyond reasonable doubt. Hence accused no.3 and
4 are entitled for the benefit of doubt.
17. It is relevant to mention that, the Hon’ble
Supreme Court of India in Bhagwan Jaganath
Markand v/s State of Maharashtra reported in 2016
(1) SCC 537 has clearly held that;
“the burden of proof is always on the
prosecution and accused is presumed
to be innocent unless proved guilty
and prosecution has to prove its case
beyond reasonable doubt and the
accused is entitled to benefit of doubt
and further held that, the degree of
proof need not reach certainty but
must carry a high degree of
probability.”
I have carefully perused the decision of Hon’ble
Supreme Court of India and also the materials on
record, the evidence produced by prosecution has
failed to carry a high degree of probability with
regard to the alleged offences committed by the
accused. Therefore, the accused no.3 and 4 are
14 C.C.No.7510/2017
entitled for benefit of doubt and accused no.3 and 4
are entitled to be Acquitted. Hence, with the above
observations, I hold point No.1 to 7 in the
NEGATIVE.
18. Point No.8: For the reasons stated and
discussion made above, I proceed to pass the
following ;
ORDER
The accused no.3 and 4 are
ACQUITTED U/s 248 (1) of Cr.P.C.
for the offences punishable U/s
143, 341, 323, 504, 324, 326,
506 r/w sec.149 of I.P.C.
The bail bonds executed by
accused no.3 and 4 shall be
continued for a period of six
months.
Office to keep the entire
case record in Split Up
C.C.No.13842/2022.
(Dictated to the stenographer, transcribed and computerized by her,
corrected and then pronounced by me in the open court on this the 16 th
day of January, 2025).
(MANJUNATH D.R.)
VI Addl. CJM., Bengaluru City.
15 C.C.No.7510/2017
ANNEXURE
1. The witnesses examined on behalf of
prosecution:-
1. P.W.1. : Venkatesh K.
2. P.W.2. : Kumaraswamy
3. P.W.3. : Pradeep Kumar
4. P.W.4. : B. Latha
2. The List of documents marked on behalf of
prosecution:-
1. Ex.P1. : Seizure panchanama
2. Ex.P2. : Report
3. Ex.P3. : Seizure panchanama
5. Ex.P4 & 5: Vehicle photos
6. Ex.P6. : Wound certificate
7. Ex.P7. : Complaint
8. Ex.P8. : FIR
3. The witnesses examined on behalf of
accused :-
-NIL-
4. The List of documents marked on behalf of
accused:-
-NIL-
16 C.C.No.7510/2017
5. The list of material objects marked on behalf
of prosecution.
1. M.O.1 & 2. : Stones
Digitally signed
by MANJUNATH
MANJUNATH DR
DR Date: 2025.01.22
17:34:28 +0530
(MANJUNATH D.R.)
VI Addl. CJM., Bengaluru City.
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