Irfan Pasha vs Harisha on 22 May, 2026

    0
    24
    ADVERTISEMENT

    Bangalore District Court

    Irfan Pasha vs Harisha on 22 May, 2026

    KABC030653682019
    
    
    
    
                           Presented on : 07-09-2019
                           Registered on : 09-09-2019
                           Decided on : 22-05-2026
                           Duration      : 6 years, 8 months, 15 days
              IN THE COURT OF THE 30TH ADDL.CHIEF
                JUDICIAL MAGISTRATE, BENGALURU
    
              Dated: This the 22nd day of May- 2026
                Present: Sri. Thimmaiah.G. B.A., LL.B.
    
                          XXX ACJM, Bengaluru.
    
                          C.C.No.21015/2019
    
                         (Judgment U/sec,.355 of Cr.P.C.)
    
    Date of Offence                        21.03.2018
    
    Complainant                    State by Konanakunte Police Station.
    
                                      R/by. Learned Senior APP
    
                                    V/s.
    Accused Persons                A1. Harish ( Split up)
    
                                  A2. Gurumurthy @ Mudde
                                      S/o. Rajachari,
                                      Aged about 29 years,
          Judgment                  2               C.C.No.21015/2019
    
    
    
                                  R/at.Behind Om Shakthi Temple,
                                  Jarinagara, TCH College Road,
                                  Bengaluru City.
    Offences                      U/sec., 323, 324, 504 of IPC
    
    Plea/Charge                     Recorded on 29.09.2023 and
                                 accused No.2 is Pleaded not guilty.
    
    Examination U/sec., 313 of             On 28.04.2026
    Cr.P.C recorded on:
    Final Oder                         Accused No.2 is Acquitted
    
    Date of Order                          22.05.2026
    
    
    
    
                                             (Thimmaiah.G)
                                           30th A.C.J.M., B'lore.
    
                             JUDGMENT
    

    The Police Sub-Inspector of Konanakunte Police Station
    has filed charge sheet against accused for the offences
    punishable U/sec., 323, 324, 504 of IPC.

    Judgment 3 C.C.No.21015/2019

    SPONSORED

    02. The brief facts of the prosecution case is as

    follows:-

    It is alleged that, on 21.03.2018 at about 11.46 AM, when
    the Cw.1 was going within the jurisdiction of Konanakunte
    police station, Near Harinagar Maramma Tempe, at that time,
    the accused No.1 assaulted the Cw.1 with a water bottle and
    the same was questioned by the Cw.1 at that time, the accused
    No.1 abused the Cw.1 in filthy language and assaulted him
    with a stone on his left forehead and caused injuries to Cw.1
    further the accused No.2 assaulted the Cw.1 with his legs and
    caused simple injuries to Cw.1. Further the accused persons
    when the Cw.1 was going to hospital with Cw.2 and 3 for
    treatment again the accused No.1 assaulted the Cw.1 with a
    screw driver and thereby the accused has committed the above
    offences punishable U/sec,. 323, 324, 504 of IPC.

    03. During the pendency of the trial, the case against
    the accused No.1 is split up in CC.No.4428/2023 vide order
    dated: 10.02.2023. After filing the charge sheet, cognizance
    Judgment 4 C.C.No.21015/2019

    taken for the offences punishable U/sec,. 323, 324, 504 of
    IPC against the accused No.1. The accused No.1 was released
    on bail. Copy of the prosecution papers furnished to the
    accused No.1 as required U/Sec.207 of Cr.P.C. Heard before
    charge. Charge has been framed and read over to the accused
    No.1, wherein he has denied the same and claim to be tried.

    04. During, the pendency of the trial, the Cw.1 is
    reported to dead and case against the Cw.1 is Abated. In order
    to secure the Cw.2 to 7 & 9 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 08 years old. Hence,
    dropped the said witness respectively. In this regard 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 5 C.C.No.21015/2019

    summons 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
    Judgment 6 C.C.No.21015/2019

    in any evidence and as such the Magistrate
    found 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
    Judgment 7 C.C.No.21015/2019

    process of the court to continue the trial.
    Bringing a person before the court accusing him
    of some offence is a serious matter and
    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.

    Judgment 8 C.C.No.21015/2019

    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
    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
    Judgment 9 C.C.No.21015/2019

    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
    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
    Judgment 10 C.C.No.21015/2019

    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
    proceed 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
    Judgment 11 C.C.No.21015/2019

    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.

    Hence, considering the present case on hand, this court
    also dropped the Cw.2 to 7 & 9 witnesses, who are not secured
    since long time. Further the Cw.10 is reported as dead. In
    order to prove the guilt of the accused No.1 prosecution has
    examined 03 witnesses as PW.1 to 3 and 07 document are
    marked as Ex.P1 to P7.

    05. Thereafter examination of the accused No.1 under
    Sec.313 of Cr.P.C. is recorded, the accused No.1 has denied
    the incriminating evidence in the prosecution case and not
    chosen to lead his side evidence. No documents are got marked
    on his behalf.

    06. Heard both the side and perused the material
    evidence on record.

          Judgment                   12            C.C.No.21015/2019
    
    
    
         07.   The   following   points   would   arise    for   my
    consideration:
                             POINTS
    
               1.   Whether the prosecution has been
               proved beyond reasonable doubt, on
    

    21.03.2018 at about 11.46 AM, when the
    Cw.1 was going within the jurisdiction of
    Konanakunte police station, Near
    Harinagar Maramma Tempe, at that time,
    the accused No.1 assaulted the Cw.1 with
    a water bottle and the same was
    questioned by the Cw.1 at that time, the
    accused No.1 abused the Cw.1 in filthy
    language and thereby committed a offence
    punishable U/sec.504 of IPC?

    2. Whether the prosecution has been
    proved beyond reasonable doubt that,
    assaulted him with a stone on his left
    forehead and caused injuries to Cw.1
    further the accused No.2 assaulted the
    Cw.1 with his legs and caused simple
    injuries to Cw.1 and thereby committed
    an offence punishable U/sec.323 of IPC?

    Judgment 13 C.C.No.21015/2019

    3. Whether the prosecution has been
    proved beyond reasonable doubt that,
    Further the accused persons when the
    Cw.1 was going to hospital with Cw.2 and
    3 for treatment again the accused No.1
    assaulted the Cw.1 with a screw driver
    and thereby committed an offence
    punishable U/sec.324 of IPC?

    4. What order.?

    08. 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 : As per final order

    REASONS

    09. Point No.1 to 3 : These points are inter connected to
    each other and have taken for discussion in common to avoid
    repetition of the facts and evidence. The case of the
    prosecution is already narrated at the inception of this
    judgment hence, without repeating the same, I proceed to
    Judgment 14 C.C.No.21015/2019

    appreciate the evidence on records. Further, I have carefully
    perused the oral and documentary evidence on records, in my
    humble opinion, some portion of the evidence is irrelevant,
    hence without wasting much time on explaining its irrelevancy
    this court proceeds to appreciate the material evidence.

    10. The Cw.8 Aswathnarayana, who is examined as Pw.1
    and doctor witness in this case, he has deposed in his
    evidence before the court that, on 21.03.2018 at 03:25 in the
    afternoon, Cw-1 came to our hospital for treatment following
    an assault. When he was subjected to a medical examination,
    the said injuries were found. A laceration on the left side of the
    forehead measuring 3*1 cm and the said injury is simple in
    nature and regarding the same he had, given a wound
    certificate.

    Further, the learned counsel for the accused No.2 had
    cross examined the said witness, where in he stated that, the
    Cw.1 had taken treatment as out patient and the injury
    mentioned in the Ex.P1 usually happens when someone
    suddenly fell down the floor and he did not produced any
    documents pertaining to his on the date of treatment given to
    Judgment 15 C.C.No.21015/2019

    the Cw.1 and further denied the rest of the suggestions put by
    the learned counsel for the accused No.2.

    11. The Cw.12 Krishnegowda, who is examined as Pw.2
    and 1st IO in this case, he has deposed in his evidence before
    the court that, On 21.03.2018, when he was in charge of the
    police station, he received the computerized complaint filed by
    Cw-1 at the police station and registered a case and submitted
    the report to the Honorable Court and the superiors. Later on
    the same day, he had conducted the spot mahazar in the
    presence of the pancha’s from 04-00 to 05-00 in the evening at
    the place shown by Cw-1. Later, on the same day, our police
    station staff, Cw-9 and 10, were called to find the accused.
    Accordingly, they found the accused and produced him before
    him at the police station at 09:30 pm on the same day. Cw-9
    and Cw-10 given their statements. Later, the accused was
    interrogated and a voluntary statement was obtained from
    him. Based on the statement of the accused, a handful of
    stone used by the accused in the crime was produced and I
    have taken it into my custody. Later, he had taken the accused
    into custody and released him on police remand. He had
    recorded the statements of Cw-2 and 3, he had obtained the
    Judgment 16 C.C.No.21015/2019

    wound certificate of Cw-1 from Cw-8 on 12.06.2018, after
    which Cwa-12 has taken over the further investigation.

    Further, the learned counsel for the accused No.2 had
    cross examined the said witness, where in he stated that, he
    had not given any notice to pancha’s he had verbally told them
    to find the accused persons and further denied the rest of the
    suggestions put by the learned counsel for the accused No.1.

    12. The Cw.11 Srinivas Prasad, who is examined as Pw.3
    and further IO in this case, he has deposed in his evidence
    before the court that, On 14.03.2019, he had received the file
    of the said case from Cw-11 and have continued the
    investigation. Cw10 has already been appointed to find the
    accused, the 2nd accused was produced before him at 04-45
    pm and a report has been submitted. Later, he had
    interrogated the accused and obtained his voluntary
    statement, taken appropriate arrest measures and released
    him on bail. Later, since the investigation has been completed,
    since there is prima facie evidence against the accused
    persons, he had submitted a final report to the honorable
    court and the superiors.

    Judgment 17 C.C.No.21015/2019

    Further, the learned counsel for the accused No.2 had
    cross examined the said witness, where in nothing worthwhile
    elicited from his mouth.

    13. It is the paramount duty of the prosecution to
    establish the guilt of the accused No.2 beyond all reasonable
    doubt. Unless the guilt is established beyond all reasonable
    doubt, the accused No.2 cannot be held guilty of the alleged
    offences.

    14. During, the pendency of the trial, the Cw.1 is
    reported to dead and case against the Cw.1 is Abated. In order
    to secure the Cw.2 to 7 & 9 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. Further the doctor ie., Pw.1, he has only
    deposed about treatment given to Cw.1 and regarding the
    same he had given the wound certificate as Ex.P1. Further, the
    IO’s ie., Pw.2 & 3, they deposed as per their investigation and
    submitted the charge sheet before the court and their evidence
    is not helpful to the prosecution to prove the guilt of the
    accused No.1. Moreover, the non examination of the material
    witness is fatal to the prosecution case, since the material
    Judgment 18 C.C.No.21015/2019

    witness is dead during the trail of the case. As such the case
    against the accused No.2 is certainly would be entitled to
    benefit of the doubt. Regarding this relied on the following
    Judgment.

    15. 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
    Judgment 19 C.C.No.21015/2019

    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.”

    16. Thus, the above Hon’ble Apex Court decision has
    opt to the present case on hand and in the present case only
    the Investigating officer’s and doctor have been examined and
    the material witness has not been examined since, the Cw.1 is
    dead during the pendency of the trail. It is a settled principal
    of law that, the sole testimony of the Investigating officer’s and
    doctor in the absence of independent, eye and material
    witness, is insufficient to prove the prosecution case and the
    accused No.2 is entitled to the benefit of the reasonable doubt.
    Moreover, non examination of material witness is fatal to the
    prosecution case, since the Cw.1 is dead during the pendency
    of the trail. Further the prosecution has not able to prove the
    alleged offences against the accused beyond all reasonable
    doubt. Therefore, I answer to the Point No.1 to 3 in the
    Negative.

    Judgment 20 C.C.No.21015/2019

    17. Point No.4: In view of the Negative findings on the
    above Point No.1 to 3, I proceed to pass the following.

    ORDER

    In the exercise of powers confirmed
    U/sec,.248(1) of Cr.P.C., the Accused
    No.2 is hereby Acquitted for the alleged
    offences punishable U/sec,.323, 324,
    504 of IPC.

    The bail bond of Accused No.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.

    The property seized by the IO in
    P.F.No.81/2018, Item No.1 being
    worthless, is hereby directed to destroy
    the same, after the appeal period is over,
    in accordance with law.

    (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 22nd day of May-2026)
    Judgment 21 C.C.No.21015/2019

    (Thimmaiah.G)
    30 A.C.J.M., B’lore.

    th

    ANNEXURE

    1. LIST OF THE WITNESS EXAMINED FOR THE PROSECUTION:

        P.W.1        :     Sri.Dr. Ashwathnarayana
        P.W.2        :     Sri. Krishnegowda
        P.W.3        :     Sri. Srinivas Prasad
    
    

    2. LIST OF THE DOCUMENTS MARKED FOR THE
    PROSECUTION:

        Ex.P.1       :     Wound Certificate
        Ex.P.1(a)    :     Signature of Pw.1
        Ex.P.2       :     Spot Mahazar
        Ex.P.2(a)    :     Complaint
        Ex.P.3       :     FIR
        Ex.P.4       :     Spot Mahazar
        Ex.P.4(a)    :     Signature of Pw.2
        Ex.P.5 & 6   :     Statements of Cw.5 & 6
        Ex.P.5(a)    :     Signature of Pw.2
        Ex.P.7       :     Seizure Mahazar
        Ex.P.7(a)    :     Signature of Pw.2
    
    

    3. LIST OF THE WITNESS EXAMINED AND DOCUMENTS
    MARKED FOR THE DEFENCE:

    NIL

    4. LIST OF THE METERIAL OBJECTS MARKED FOR THE
    PROSECUTION:

    NIL
    Judgment 22 C.C.No.21015/2019

    (Thimmaiah.G)
    30th A.C.J.M., B’lore.

    Judgment 23 C.C.No.21015/2019



    Source link

    LEAVE A REPLY

    Please enter your comment!
    Please enter your name here