02. The brief facts of the prosecution case are as
follows:
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That on 15.4.2006 at about 11.30 p.m., accused Nos.1
to 7 constituted an unlawful assembly, the common
object of such assembly was to commit cognizable
offence, and in prosecution of the common object of
such assembly, committed rioting and at that time they
were armed with deadly weapons such as iron rods and
wrongfully restrained C.W.1 Alwin D'Souza and C.W.2
Danny Prasanna, and the accused persons in
furtherance of prosecution of the common object of
such assembly intentionally insulted the said C.W.1 by
abusing him in filthy language and thereby gave
provocation intending that such provocation would
cause the said C.W.I to break the public pence, and
accused Nos. 1,3to7 in furtherance of prosecuting
common object of such assembly voluntarily caused
hurt to the said C.W.1 and 2 by assaulting by means of
iron rods and accused No.1 voluntarily caused grievous
hurt to the C.W.1 by assaulting by means of iron rod
and further the accused Nos.1,3 to 7 in furtherance of
prosecution of the common object of such an
unlawfully assembly, committed criminal intimidation
by threatening the said C.Ws.1 and 2 with injury to
their person with intent to cause alarm to the said
C.Ws.1 and 2. In the alleged incident, the said C.Ws.1
and 2 have sustained injuries, and have taken
treatment at SCS Hospital, Bendore, Mangalore.
Thereafter, the said C.W.1 has lodged a complaint with
the Urva Police. On the basis of the complaint of the
complainant C.W.15 M.S. Pavan Kumar, the then P.S.I.
of Barke P.S. and I.O. of this case, has registered case
against the said accused persons, and also collected
wound certificates pertaining to the injured C.W.1 and
2 during the course of investigation. Thereafter, he has
handed over the further investigation of this case
toC.W.16 Manjunath S.K., the then P..S.I. of Barke
P.S. and L.O. of this case, and the said C.W.16 after
completion of the rest of the investigation of this case,
has submitted the present charge-sheet against the
accused persons for the aforesaid offences.
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03. In pursuance of service of summons,
accused Nos. 1,3 to 7 appeared before the court by
engaging their counsel and they were enlarged on bail
on their furnishing surety. Copies of prosecution papers
furnished to the accused persons as required under
section 207 of Cr.P.C. Charge framed for the offences
punishable u/s. 143, 147, 148, 341, 504, 323, 324,
326, 506(2) of IPC r/w 149 of IPC, read over and
explained to the accused persons in the language
known to them, for which they pleaded not guilty and
claims to be tried. Hence, the prosecution in order to
prove its case, has chosen to examine as many as 8
witnesses out of 16 witnesses so cited in the charge
sheet, and got marked 8 documents as exhibits. In
view of hostility of P.Ws.1 to 8 there is no incriminating
evidence available against the accused persons. Hence,
recording statement of accused an required under
Sec.318 Cr.P.C. is dispensed with.
04. Heard the arguments.
05.The following Points that would arise for
consideration of this court are:-
1) Whether the prosecution proves beyond all
reasonable doubt that on 15.4.2006 at about
11.30 p.m. at Boloor Cross in a public place, the
accused Nos. 1,3 to7 constituted an unlawful
assembly, the common object of which was to
commit a cognizable offence and that thereby
committed an offence punishable under Section
143 of I.PC. r/w. 149 of IPC?
2) Whether prosecution further proves beyond
all reasonable doubt that on the above said date,
time and place, the accused Nos.1,3 to 7 were
the members of an unlawful assembly and in
prosecution of the common object of such
assembly, armed with deadly weapons and
committed the offence of rioting, and thereby
committed an offence punishable under Section
147 of IPC r/w 149 of IPC?
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3) Whether prosecution further proves beyond
all reasonable doubt that on the above sald date,
time and place. accused Nos:1.3 to 7 were
members of an unlawful assembly and in
prosecution of the common object of such
assembly, committed the offence of rioting and
at that time they were armed with iron rod as a
deadly weapon, which as used a weapon of
offence or likely to cause death and that thereby
committed an offence punishable under Section
148 of IPC r/w 149 of IPC?
4) Whether prosecution further proves beyond
all reasonable doubt that on the above said date,
time and place, accused Nos. 1,3 to 7 were
members of unlawful assembly and in
prosecution of the common object of such
assembly, wrongfully restrained C.W.1 Alwin
D'Souza, and C.W.2 Danny Prasanna, and that
thereby committed an offence punishable under
Section 341 of IPC r/w 149 of IPC?
5) Whether prosecution further proves beyond
all reasonable doubt that on the above said date,
time and place, the accused Nos.1,3 to 7 being
members of unlawful assembly and in
prosecution of the common object of suc
assembly, intentionally insulted C.W.1 Alwin
Pinto by abusing him in filthy language such as
" ----- "and thereby gave provocation Intending
that such provocation would cause the said
C.W.1 Aliwin pinto to break the public peace,
and that thereby committed an offence
punishable under Section 504 of IPC r/w 149 of
IPC?
6) Whether prosecution further proves beyond
all reasonable doubt that on the above said date,
time and place, the accused Nos. 1,3 to 7 were
members of unlawful assembly and in
prosecution of the common object of such
assembly, accused Nos.1 to 7 voluntarily caused
hurt to the said C.Ws.1 and 2 and that thereby
committed an offence punishable under Section
323 of IPC r/w 149 of IPC?
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7) Whether prosecution further proves beyond
all reasonable doubt that on the above said date,
time and place, the accused Nos.1,3 to 7 being
the members of unlawful assembly and in
prosecution of the common object of such
assembly, split up accused No.2 voluntarily
caused hurt to C.W.2 Danny Prasanna by means
of iron rod, which is an instrument for hitting,
and that thereby committed an offence
punishable under Section 324 of IPC / 149 of
IPC?
8) Whether prosecution further proves beyond
all reasonable doubt that on the above said date,
time and place, the accused Nos.1.3 to 7 being
the members of unlawful assembly and in
prosecution of the common object of such
assembly, accused No.1 voluntarily caused
grievous hurt to the said C.W.1 Alwin D'Souza by
means of iron rod, which is an instrument for
hitting and that thereby committed an offence
punishable under Section 326 of IPC r/w 149 of
IPC?
9) Whether prosecution further proves beyond
all reasonable doubt that on the above said date,
time and place, the accused Nos. 1,3 to 7 were
members of unlawful assembly and in
prosecution of the common object of such
assembly, committed criminal intimidation by
threatening C.W.1 Alwin D'Souza and C.W.2
Danny Prasanna, with injury to their person,
with intent to cause alarm to the said C.Ws.1
and 2, by uttering words " , ಇವರುಗಳನು
ೕವವ ತ ಾ ಡುವ ದು ೇಡ.." and that thereby
committed an offence punishable under Section
506 of IPC r/w 149 of IPC ? లయ
10) What Order?
06. My findings on the above said points are as
under
POINT NO:1: In the NEGATIVE
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POINT NO,2: In the NEGATIVE
POINT NO:3: In the NEGATIVE
POINT NO:4: In the NEGATIVE
POINT NO:: 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
08. Now coming to the appreciation of the evidence of
the prosecution witnesses who have been examined
before this court. Let me first consider the evidence of
P.W.-1 Alwin D'Souza, who is none other than the
complainant and injured in the alleged incident as per
the version of the prosecution. P.W.1 Alwin D'Souza,
has spoken to before the court for having lodged the
complaint as per Ex.P1. But he states that he do not
know the contents of Ex.pl complaint and totally turned
hostile. Hence, the evidence given by P.W.1 is in no
way helpful to the prosecution to bring home the guilt
of the accused.
09.Prosecution has examined P.W.2 Danny Prasanna,
who is stated to be an injured in the alleged incident as
per the version of the prosecution. The said P.W.2
Danny Prasanna has also not supported the version of
the prosecution and totally turned hostile. Hence, the
prosecution has miserably failed to prove the alleged
offences alleged to have been committed by the
accused
persons.
10. Prosecution has examined P.W.3 Anna Elizabeth.
who is stated to be an independent eye witness to the
alleged incident as per the version of the prosecution.
The said P.W.3 has also not supported the version of
the prosecution and totally turned hostile.
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11. Prosecution has examined P.W.4 Donald Arthur and
P.W.5 Praveen Ammanna, who are stated to be the
independent eye witnesses to the alleged incident as
per the version of the prosecution and independent
panch witness to the spot mahazar as per Ex.P4. The
said P.Ws.4 and 5 have also not supported the version
of the prosecution and totally turned hostile.
12. Prosecution has examined P.W.6 Samuel who is
stated to be an independent attesting panch witness to
the mahazar as per Ex.P2 and he has not supported
the version of the prosecution and turned hostile.
Hence, the prosecution has utterly failed to prove the
seizure of blood-stained cloths the presence and at the
instance of P.W.6 Samuel as per P2 Mahazar.
13. Prosecution has examined P.WA Nerel who in dated
to be an independent attesting panch witness to the
seizure mahazar as per ExP7 and he has also not
supported the version of the prosecution and turned
hostile. Hence, the prosecution cannot derive any
assistance from the evidence of P.W.7.
14. Prosecution has examined P.W.8 Jefry who is
stated to be another independent eye witness to the
seizure mahazar as per Ex. P8. He has also not
supported the version of the prosecution and turned
hostile hence, the prosecution has utterly failed to
prove the seizure of iron rod in the presence of P.W.8
Jefry from the possession of accused No.1 as per Ex.
P8 seizure mahazar.
15. In view of hostility of P.Ws.1 to 8, even though the
prosecution has examined rest of the prosecution
witnesses in this case, no purpose would have been
served in this case. The prosecution has miserably
failed to place any incriminating evidence against
accused persons on record. Hence, a doubt is lingering
in the mind of the court whether the alleged incident
had taken place as alleged by the prosecution against
the accused persons. Hence, I am of the view that in
the absence of any incriminating evidence on record,
by no stretch of imagination it can be said that the
accused have committed the alleged offences as
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alleged against them by the prosecution. Hence for all
these reasons I answer the Point NOs. 1 to 9 for
consideration int eh NEGATIVE.
16 Point No,.10:- In view of my findings on points No.1
to 9 and the reasons assigned thereundr, I proceed to
pass the following:-
ORDER
Accused Nos.1, 3 to 7 are hereby acquitted under
Section 248(1) of cr.P.C. for the offences punishable
under sections 143, 147, 148, 341, 504, 323, 324,
325, 506(2) of IPC r/w 149 of IPc. The bail bonds
exe3cuted by the accused Nos. 1, 3 to 7 stands
cancelled and they are set at liberty forthwith.
5. In view of the acquittal of all accused in CC
No.179/2006 vide order dated 20.08.2009 by
invoking/applying doctrine of parity and in the light of
decision of this Court in Mohan Mohan Vs. State of
Karnataka and Another - Crl.P.No.5376/2024 dated
19.09.2024, I pass the following:
ORDER
i) Petition is hereby allowed.
ii) The impugned proceedings in C.C.NO.117/2008 now
registered AS LPC NO.02/2012 (splitup from the main case in
C.C No. 179/2006 arising from Crime No.35/2006) PENDING on
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the file of Principal Senior Civil Judge and Mangalore, D.K
qua the Petitioner are hereby quashed.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
BSV
