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
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.21015/2019summons 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.21015/2019in 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.21015/2019prosecution 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.21015/2019prosecution 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 orderREASONS
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.21015/2019appreciate 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.21015/2019of 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
