Bangalore District Court
State By vs Muninarayana on 8 September, 2016
IN THE COURT OF II ADDL. CITY CIVIL AND SESSIONS
JUDGE AND SPECIAL JUDGE AT BENGALURU, (CCH-17)
Dated this the 8th day of August, 2016.
:PRESENT:
Sri. Suresh S. Kogilgeri , B.Com, LL.B.,
II Addl. City Civil and Sessions Judge,
and Special Judge.
Spl. Crl. Case NO. 230/2010
COMPLAINANT : State by:
Ulsoorgate police,
Bengaluru.
(By learned Spl. Public Prosecutor)
-VERSUS-
ACCUSED : Muninarayana,
S/o Late. Chennappa,
Aged 57 years,
R/at Devasandra,
Bengaluru.
(By Sri S.G.Bhagavan, Advocate)
1 Date of commission of 01.08.2008
offence
2 Date of report of occurrence 01.10.2008
3 Date of commencement of 14.02.2013
recording of evidence
4 Date of closing of evidence 18.09.2014
5 Name of the Complainant T.R. Krishna
Murthy
(PW.1)
2 Spl. C. No.230/2010
6 Offences Complained of Sections 196,
198, 465, 468
of the I.P.C. and
Sec. 3(1)(ix) of
SC/ST
(Prevention of
Atrocities) Act,
1989.
7 Opinion of the Judge Accused is
acquitted of all
offences.
JUDGMENT
This is a charge sheet presented by the Sub Inspector of police, Ulsoor police station, Bangalore against the accused alleging that Accused has committed the offences punishable under Section 3(1)(ix) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities Act, 1989 and u/ss.196, 198, 465, 468 and 420 of the I.P.C.
.2. The brief facts of the prosecution case are as under:
Accused is appointed as Anuyayi in KSRP as he belongs to Bhajanthri community. It comes under category 2A. He got concocted and inserted the name of his caste as Nayinda in his service register. It comes under scheduled Tribes. He has done so with an intention to deprive the rights of the 3 Spl. C. No.230/2010 Scheduled Tribes people. Thereafter, on 17.03.1999 Accused got promoted to the post of Jamedar from the post of Anuyayi and deprived the rights of the eligible members of the Scheduled Tribe. So it is alleged by the prosecution that Accused has committed the offences punishable u/ss.196, 198, 465, 468, 420 of the I.P.C. and u/s.3(1)(ix) of the SC/ST (PA) Act 1989.
.3. After investigation, I.O. has submitted the charge sheet to this court for the aforesaid offences against Accused. After receipt of the charge sheet, this court has taken cognizance of the alleged offences against Accused and registered a case in Spl.C. No. 230/2010 and issued summons to Accused. Accused appeared before the court and he is enlarged on bail. All the prosecution papers were made available to Accused as required u/s.207 of the Cr.P.C. After hearing the charge has been framed against the Accused for the offences punishable u/s.3(1)(ix) of SC/ST (PA) Act 1989 and u/ss. 465, 468 and 420 of the I.P.C. and explained to the accused. He pleaded not guilty and claimed to be 4 Spl. C. No.230/2010 tried. Hence, the case of the prosecution has been posted for evidence.
.4. The prosecution in support of its case has examined 17 witnesses as PWs. 1 to PW. 17 and got marked the documents at Ex.Ps. 1 to 26 and closed its side. After closure of the evidence of the prosecution, the statement of Accused as required u/s.313 of Cr.P.C. has been recorded by giving an opportunity to the Accused to explain the incriminating circumstances appearing in the evidence of prosecution against him. Accused has denied the evidence of the prosecution and he has not chosen to adduce any evidence in support of his defence.
.5. Heard arguments of the learned P.P. for the State and of the learned counsel for Accused for the defence.
.6. At this stage, the following points have arisen for my determination:
1. Whether the prosecution proves that Accused not being the members of SC/ST gave false information to the 5 Spl. C. No.230/2010 jurisdictional Taluk Executive Magistrate a public servant and caused him to use his lawful power and to cause injury or annoyance of the member of SC or ST and Accused obtained a false caste certificate and thereby, Accused has committed the offence punishable u/s.3(1)(ix) of the SC/ST (PA) Act?
2. Whether the prosecution proves that Accused dishonestly or fraudulently made use of such a document touching his caste particulars with an intention support to his claim for his appointment as "Follower Barber" in KSRP and promotion as "Follower Jamedar and thereby, Accused has committed the offence punishable u/s. 465 of the I.P.C.?
3. Whether the prosecution proves that Accused for having so created such fraudulent document, touching his caste particulars and having obtained his appointment and promotion as referred above, Accused did so intending that such document be used for the purpose of cheating and thereby Accused has committed the 6 Spl. C. No.230/2010 offence punishable u/s. 468 of the I.P.C.?
4. Whether the prosecution proves that the Accused for the purpose of his appointment dated 01.12.1983 and promotion dated 17.03.1999 dishonestly induced the appointing authority and promotion committee to appoint him as "follower Barber" and promote as "Follower Jamedar"
though he is not eligible and thereby cheated the appointing authority and promotion committee and thereby Accused has committed an offence punishable under Section 420 of the I.P.C.?
5. What order?
.7. My findings on the above said points are held as under:
Point No.1:- In the Negative, Point No.2:- In the Negative, Point No.3:- In the Negative, Point No.4:- In the Negative, Point No.5:- As per final order for the below: 7 Spl. C. No.230/2010
REASONS .8. POINTS No.1 to 4:- Considering the nature of points 1 to 4 framed in this case with reference to the facts and circumstances of the case, I feel points 1 to 4 are to be discussed together for better appreciation of evidence on record and to avoid repetition of discussion, I proceed to discuss points 1 to 4 together.
.9. It is contended by the prosecution that Accused is appointed as Anuyayi in KSRP as he belongs to Bhajanthri community. It comes under category 2A. He got concocted and inserted the name of his caste as Nayinda in his service register. It comes under scheduled Tribes. He has done so with an intention to deprive the rights of scheduled Tribe people. Thereafter, on 17.03.1999 Accused got promoted to the post of Jamedar from the post of Anuyayi and deprived the eligible members of the Scheduled Tribe. So it is alleged by the prosecution that Accused has committed the offences punishable u/ss.196, 198, 465, 468, 402 of the I.P.C. and u/s.3(1)(ix) of the SC/ST (PA) Act 1989. 8 Spl. C. No.230/2010
.10. Now it is for the prosecution to prove its aforesaid case by adducing cogent, consistent, corroborative and acceptable evidence before the court.
.11. Now I proceed to discuss how the prosecution has adduced its evidence to prove its aforesaid case. It reveals from the evidence of PW.1 T.R. Krishnamurthy, Dy.S.P., DCRE, Tumkur that on 01.10.2008 his superior officer called him and informed the incident in question and given a memo and directed him to register a complaint. All the papers pertaining to the case were given to him. On that basis, he got typed the complaint. He went to Ulsoor police station and given the same. It is Ex.P-1. He has to investigate the case. As he is the Complainant in this case, he handed over the case file to CW.21 Sheshadri, PSI for further investigation.
.12. It reveals from the evidence of PW.2 Rajappa, Anuyayi, KSRP, Agara, Bangalore that he knows Accused. He appointed in KSRP as Anuyayi / Follower in the year 1975 i.e., on 04.08.1975. Till today he is working in the said post. Be belongs to Bhajanthri 9 Spl. C. No.230/2010 community. It does not come under SC or ST groups. Accused joined the department during the year 1998 earlier to his promotion. Though both belong to same community, Accused was given promotion earlier to him. He made an enquiry in this regard with Accused. Accused replied that he produced the documents stating that he belongs to Nayinda community and got promoted. The said Nayinda community comes under SC or ST group. It was a false certificate. On the basis of that certificate, Accused got promoted. For this reason, he had filed an application before the Department as per Ex.P-2. He gave the statement before I.O. Thereafter, Accused was demoted.
.13. It reveals from the evidence of PW.3 Munirathnamma that Accused Muninarayana is her brother. Accused is residing at K.R. Puram, Bangalore for the last 15 years. She had another one brother by name Sanjeevappa, who is residing in Mayasandra. She belongs to Bhajanthri community. The said caste is also called as 'Nayinda'. The police had come to her house situated at Kodalipura about 3-4 years ago. The 10 Spl. C. No.230/2010 police have drawn up mahazar in her house as per Ex.P-3. The police had asked her caste and also asked about residential place of Accused.
.14. It reveals from the evidence of PW.4 Y. Nagaraju, Anuyayi, working KSRP, Bangalore that during 1991 he was appointed as Anuyayi in KSRP. Till today he continued in the same post. He knows Accused. He belongs to Gowda community. It does not come under SC or ST group. Accused belongs to Bhajanthri community. The said Bhajanthri does not come under SC or ST group. It comes under General category. Accused joined the department during the year 1983-84 as Anuyayi. About 10 years ago Accused got promoted as Jamedar. It is next higher post of Anuyayi. Accused got promoted by telling that he is belonging to Nayinda community. It comes under ST community. He does not know that Accused had told as to which caste he belongs when he had joined the service. But Accused got promoted under reservation quota by telling that he belongs to Nayinda community at the time of his promotion. At that time, he objected 11 Spl. C. No.230/2010 before the Superior officer. At that time, he knows caste of Accused. Accused is junior to him in the department. In spite of it, he got promoted by telling false information on the basis of the caste. Later, the departmental enquiry was conducted against the Accused. He was demoted after holding that he does not belong to ST community. Thereafter, Accused worked as Anuyayi for few days and got voluntary retirement about 5 years ago.
.15. It reveals from the evidence of PW.5 Srinivas, Government school Teacher, Anekal, that he was working as Teacher in the Government Higher primary school at Kodalipura in the year 2009. The CRE Cell, Tumkur had asked the documents pertaining to Accused Muninarayana. So, on the basis of the school records, he gave Ex.P-4 certificate on 19.11.2008. At that time, he was in charge Head Master. He had also given Ex.P-5 admission extract of Accused. In the said admission extract at Sl. No.43, the name of caste of Accused is recorded as Bhajanthri. 12 Spl. C. No.230/2010
.16. It reveals from the evidence of PW.6 Ramanjaneya, Primary School Teacher, Padmanabha Nagara, Bangalore that he was working as in charge Head Master in Government Primary school, Mayasandra in the year 2009. C.R.E, Cell, Tumkur had asked to furnish the documents pertaining to Accused Muninarayana. During 1967-68 Accused had admitted to the said school to 5th standard. Earlier Accused had studied in Kodalipura School. According to the said document, the name of caste of Accused is written as " PÀëËjPÀ" (Barber). In this regard, he has given certificate as per Ex.P-6.
.17. It reveals from the evidence of PW.7 Lakshminarasamma, Teacher, J.P. Nagar, Bangalore that during 2009 she was in charge Head Mistress in Government Higher primary school, Agara. C.R.E. Cell, Tumkur asked her to furnish T.C. of Manjunath. The said T.C. is marked as Ex.P-8. In the said document, the caste is written as Bhajanthri.13 Spl. C. No.230/2010
.18. It reveals from the evidence of PW.8 Gundegowdaru that during 2002 he was working as District Social Welfare Officer in Bangalore city. He was also working as Board Secretary of District Level Caste Verification committee. The C.R.E. Cell of Bangalore and KSRP, Bangalore had directed him to furnish a report by verifying the caste of Accused. The said committee has given notices to Accused Muninarayana to appear before the committee. But Accused Muninarayana did not appear before the committee. So, on the basis of the document furnished by C.R.E. Cell, Bangalore and KSRP, Bangalore, Accused belongs to Bhajanthri community. But the said Bhajanthri community does not come under ST community and ST caste certificate cannot be given to the said caste and promotion cannot be given. On the basis of the ST certificate of Nayinda community under reservation quota committee has further ordered that wrongly given promotion under reservation quota has to be recorded and promotion has to be given to eligible persons. The said order is at Ex.P-9.14 Spl. C. No.230/2010
.19. It reveals from the evidence of PW.9 K.M. Gangadharappa, Commandant, 9th Battalion, Bangalore that he knows Accused. As per the records, Accused joined the department as Barber (anuyayi) during the year 1983. During December 2008, CRE, Cell, Tumkur had asked him to furnish all the information regarding when Accused had joined the service, who had given appointment to him, who had given permission to Accused to retire from voluntary service, whether an application was filed for promotion and to which community Accused belongs to. So, he verified the service records of Accused. He furnished the information as to Accused joined the service during 1983, one H.F. Nayakar had appointed the Accused, no application was filed for promotion, accused was promoted by IGP and KSRP, permission was given to Accused to retire from service voluntarily by one Sri. Chandranna the then Commandant, as per the service records, the caste of the Accused is shown as Nayinda (ST), Accused had furnished form No.1 while joining the service and in the said form No.1 also it is stated as to 15 Spl. C. No.230/2010 Nayinda (ST). He has further deposed that he has furnished the certified copies of appointment order, school leaving certificate, form No.1 pertaining to the community and service register of Accused. The Assistant Administrative Office by name Krishnappa of the said department has certified the said documents.
He sent the said documents to the CRE, Cell office with a covering letter as per Ex.P-10.
.20. It reveals from the evidence of PW.10 Dr.T.D. Pavar, the then commandant of KSRP Battalion-1that he is working as such during March 2010. The CRE, Cell, Tumkur had called for information of Accused Muninarayana as to Accused Muninarayana as retired anuyayi, as to his promotion and caste of Accused entered in the service register at the time of joining the service. Accordingly, on 27.03.2010 he furnished the Xerox copies of caste certificate furnished in form No.1 by Accused which was found in the service register. The mother of Accused has signed the said form No.1. It is stated in the document that Accused and his mother belonged to Nayinda community. But according to the 16 Spl. C. No.230/2010 report submitted by Social Welfare Department Accused belongs to Bhajanthri community, which comes under backward community 2(A). The said authority informed to take back the promotion given to Accused under reservation.
.21. It reveals from the evidence of PW.11 U.S. Ramachandra, retired Head Master that he was working as Head Master in Hombegowda Boys High School during the year 2008. The CRE Cell, Tumkur had asked to furnish the documents of one Vijaya Kumar s/o Muninarayana studying in the said school namely admission extract. Accordingly on 26.11.2008 he furnished the certified copies of admission extract for having studied 8th standard during 1994-95, application filed for admission to the school, TC, caste certificate and school leaving certificate. The said documents are at Ex.P-12 to 17. It is stated in Ex.P-13 admission extract as Bhajanthri in caste column. So also Ex.P-14, 15, 16 and 17 reveals the name of caste as Bhajanthri.
.22. It reveals from the evidence of PW.12 I.P. Madaiah, Head Constable, KSRP that he knows 17 Spl. C. No.230/2010 Accused. Accused had appointed as anuyayi ( PÀëËjPÀ ) during the year 1983. At that time, one P. Ramakrishna, 1st Davison Assistant was writing service register of the employees. One H.C. Pinto was working under P. Ramakrishna as assistant. He was also working in the said office. All of them are working in the same office. He knows the handwriting of Ramakrishna in the service register. So, he can identify the handwriting of Ramakrishna written in service register. The said Ramakrishna and Pinto are now dead.
.23. It reveals from the evidence of PW.13 M. Krishnappa, Asst. Administrative Officer, Office of District police, Tumkur that during 2008 CRE, Cell, Tumkur had asked the documents pertaining to Muninarayana. Accordingly, he furnished the certified copies of 7 documents pertaining to Accused Muninarayana. The said documents are Ex.P-18 appointment order, Ex.D.1 T.C., Ex.P-19 declaration with regard to the caste, Ex.P-20 4 pages of service register, Ex.P-21 order regarding deputation to the post 18 Spl. C. No.230/2010 of anuyayi , Ex.P-22 a memo for having withdrawal of the promotion and for taking action and Ex.P-23 passing order for having posted to the place by demoting the Accused.
.24. It reveals from the evidence of PW.14 B.P. Jayasimha, PSI, DCRE, Tumkur that he took further investigation of the case from PSI Sheshadri. On 09.03.2010 he recorded the statement of CW.17 Madaiah and CW.18 Krishnappa. That on 20.03.2010 he received the documents pertaining to Accused namely Muninarayana and also received the report of Accused, order copy for having promoted the Accused, and copy of self-declaration. He has further deposed that he recorded the statement of CW.21 Sheshadri, PSI and after completion of the investigation, he filed the charge-sheet.
.25. It reveals from the evidence of PW.15 M.V. Sheshadri, PSI, Tumkur that he has taken up the investigation of this case on 30.10.2008 from CW.1 Dy. S.P. He obtained T.C. No.18/96-97 on 19.11.2008 19 Spl. C. No.230/2010 pertaining to one M. Manjunatha the son of Accused from Head Master of Agara school and name of caste is mentioned in the said document as Bhajanthri. He recorded the statements of witnesses by name Rajappa and Y. Nagaraj. That on 30.12.2008 he drawn the spot mahazar as per Ex.P-3 near the house of one Channappa the father of Accused. He recorded the statements of M. Lakshminarasamma, Ramachandraiah and Ramanjaneya. He obtained the T.C. of Accused from Government Middle primary school. Thereafter, he obtained admission letter, TC, form No.2, another T.C., admission register extract of one Vijaya Kumar son of Accused from Head Master of Hombegowda Boys High School. Ex.P-7 is the admission register extract pertaining to Accused. That on 21.11.2011 he obtained admission register extract i.e., Ex.P-5 pertaining to Accused. He obtained Ex.P-8 T.C. of one Manjunatha the son of Accused from Head Master of the said school. On 30.01.2009 he obtained the caste certificate of mother of Accused from Tahsildar, Anekal as per Ex.P-
25. 20 Spl. C. No.230/2010 .26. It reveals from the evidence of PW.16 Mallikarjuna. B the then Tahsildar of Anekal that on 12.01.2009 PSI, CRE, Cell, Tumkur had sent a requisition letter asking him to furnish a report regarding community of Accused and his family members. Accordingly, he obtained the report from Deputy Tahsildar and on that basis, he submitted a report stating that Accused and his family members are residing at Kodalipura village and they belonged to Bhajanthri community. Ex.P-25 is the report given by him.
.27. It reveals from the evidence of PW.17 Subramani, retired Sub-Inspector that on 01.10.2008 at about 6.10 p.m., the Complainant came to police station and filed a typed complaint as per Ex.P-1. He received the same, registered the case and sent FIR to the court.
.28. The prosecution has relied upon following documents in support of its case. Ex.P-1 is the written complaint filed by the Complainant PW.1 T.R. Krishnamurthy, Dy.S.P., CRE, Cell, Tumkur to the 21 Spl. C. No.230/2010 Police Inspector, Halasooru police station, Bangalore. He has filed the said Ex.P-1 complaint as per the orders of Superior police officers. This document reveals that Accused Muninarayana has furnished the false caste certificate and promoted to the post of follower Jamedar. According to the investigation, it is noticed that Accused got appointed to the post of Anuyani PÀëËjPÀ on 23.11.1983 in KSRP. Accused furnished a declaration form to be given by the persons of scheduled Tribe in form No.1 in order to get promotion and he has declared in the said declaration form that he belongs to Nayinda community. It comes under scheduled Tribe. Accused got affixed the invisible seal of Tahsildar. Accused also got an affidavit sworn before the Notary wherein Accused has declared that he belongs to scheduled Tribe community and gave the said document to KSRP and got promoted to the post of Anuyayi Jamedar on 17.03.1999 which was reserved for scheduled Tribe members. Later the documents furnished by Accused were sent to the District Social Welfare officer and Member Secretary, District Caste verification committee, Bangalore. The 22 Spl. C. No.230/2010 said committee has examined the same and came to know that Accused belongs to Bhajanthri community. The said committee further stated that Bhajanthri and Nayinda community are belonging to backward community, which come under category 2A. The said committee has opined that the promotion given to Accused on the basis of declaration furnished by Accused as to he belongs to scheduled Tribe is not proper and the said declaration certificate is not a caste certificate. If any facility ought to be given to the members of SC/ST community persons, the Tahsildar has to issue caste certificate in the prescribed form and the same has to be considered. Under the circumstances, the promotion given to Accused to the post reserved for ST community has given wrongly and it has to be withdrawn immediately and promotion has to be given to the eligible persons.
.29. Ex.P-2 is the letter written by PW.2 Rajappa a colleague of Accused working in the KSRP as Anuyayi (follower) to the Addl. General of police, Deputy Social Welfare Department, Inspector General of police, 23 Spl. C. No.230/2010 Director Inspector General of police and Addl. Director General of police, wherein, he has alleged that he belongs to backward community. He is working in KSRP. Accused got promoted as follower barber on 12.04.1983. Accused belongs to backward community. He is 8 years senior than Accused. Accused given false caste certificate. So he requested to make an enquiry in this regard. He also prayed for justice to the eligible persons legally to the post of follower Jamedar.
.30. Ex.P-3 is the spot mahazar. Ex.P-4 is the declaration certificate issued by Head Master, Government primary Middle school, Kodalipura, Anekal Taluk to the PSI, CRE Cell, Tumkur, wherein the said Head Master of Kodalipura school has stated that Accused had admitted in the said school during 1961- 62 and the said Accused belongs to Bhajanthri community as per school records. It is further stated that Accused has not given caste certificate. 24 Spl. C. No.230/2010
.31. Ex.P-5 is the extract of school records, Kodalipura, wherein it is stated that caste of Accused is Bhajanthri.
.32. Ex.P.6 is the letter written by Head Master, PW.6 Ramanjaneya, Government primary Middle school, Mayasandra, Anekal Taluk. This document reveals that Accused got admitted in the said school during 1967-
68. After Accused completed his education in Kodlipura school, he has not availed any benefits to be given to the SC/ST students. This letter further reveals that Accused belongs to PÀëËjPÀ barber caste.
.33. Ex.P-7 (b) is the extract of Mayasandra school. This reveals that caste of Accused is barber. Ex.P7(c) shows the caste of Accused as barber.
.34. Ex.P-8 is the Transfer certificate issued by PW.7 Lakshmi Narasamma, Head Mistress, Government Middle primary school, Agara. This document reveals that Accused belongs to Bhajanthri community. 25 Spl. C. No.230/2010
.35. Ex.P-9 is the letter written by PW.8 Gundegowdaru, District Social Welfare officer to the Director, General of police, Karnataka State Reservation police, Nrupatunga road, Bangalore. This letter reveals that DCRE Directorate sent a requisition to the said District Caste verification committee to verify about the caste of Accused as the said DCRE Cell has stated that Accused though belongs to Bhajanthri community got promoted to Anuyayi Jamedar under reservation quota to be given to scheduled Tribe community persons, Accused did not appear before the said committee. Further reveals that Accused belongs to Bhajanthri community. Bhajanthri and Nayinda community are included in category 2A backward community. It is further stated that it is not proper to give promotion on the basis of declaration certificate furnished. The declaration certificate is not a caste certificate as per law, if any facilities ought to be given to the members of SC/ST community persons, the caste certificate issued by Tahsildar as per the rules has to be considered. The Tahsildar, Bangalore South Taluka has 26 Spl. C. No.230/2010 issued caste certificate of Accused stating that Accused belongs to Bhajanthri community. The said certificate is a valid certificate. Under the circumstances, the said officer has informed that promotion given to the Accused for the post which was reserved for ST persons falsely has to be withdrawn immediately and promotion has to be given to the eligible persons.
.36. Ex.P-10 is the letter issued by PW.9 Gangadharappa, Commandant, KSRP 1st Battalion, Bangalore to the Dy.S.P., CRE Cell, Tumkur wherein he has furnished the information to the said CRE Cell, Tumkur as deposed by him in his evidence.
.37. Ex.P-11 is the letter written by PW.10 Commandant, KSRP 1st Battalion, Bangalore to Dy. S.P., wherein he has furnished the documents to DRE Cell, Tumkur as requested by it as deposed by him in his evidence.
.38. Ex.P-12 is the letter written by PW.11 Ramachandera, Head Master, Hombegowda Boys High school to the Dy.S.P., Tumkur wherein PW.11 has 27 Spl. C. No.230/2010 furnished the information and documents pertaining to Accused as deposed by him in his evidence.
.39. Ex.P-13 to 17 are the documents pertaining to one Vijaya Kumara son of Accused sent by PW.11 to CRE Cell, Wherein caste certificate of the said Vijaya Kumara reveals that he belongs to Bhajanthri community.
.40. Ex.P.18 is the letter written by PW.13 Krishnappa, Assistant Administrative Officer, KSRP 1st Battalion, Bangalore. Ex.P-19 is the Xerox copy of attested declaration given by Accused and his mother on oath in form No.1 that they belong to Nayinda community which comes under ST.
.41. Ex.P-20 is the extract of service register of Accused. Ex.P-21 is the Xerox attested letter of in charge commandant, 1st Battalion KSRP, Bangalore. This document reveals that the promotion given to Accused to the post of Anuyayi Jamedar has to be cancelled immediately and ordered to continue in the earlier post to Anuyayi.
28 Spl. C. No.230/2010
.42. Ex.P-22 is the Xerox copy of attested memo signed by Asst. Administrative officer, 1st Battalion KSRP, Bangalore wherein the said officer has ordered for initiating declaration against Accused as Accused has furnished false ST certificate in order to get promotion.
.43. Ex.P-23 is the letter written by Commandant, KSRP 1st Battalion, Bangalore. Ex.P-18 to 23 are the documents furnished by PW.13 to the CRE Cell, Tumkur.
.44. Ex.P-24 is the portion of Ex.P-4. Ex.P-25 is the letter dated17.01.2009 written by Tahsildar, Anekal Taluk to the Dy.S.P., CRE Cell, Tumkur furnishing the caste of family of Accused, wherein he has stated that Accused and his family members are belonging to Bhajanthri community.
.45. Ex.P-26 is the FIR registered against Accused in this case.
29 Spl. C. No.230/2010
.46. Ex.D.1 is the Transfer Certificate of Accused wherein it reveals that Accused belongs to Bhajanthri community.
.47. I have scrutinised the oral and documentary evidence placed on record. It is contended by the prosecution that Accused belongs to Bhajanthri community, which comes under backward community 2A got appointed as follower barber in KSRP and got promoted as follower Jamedar by furnishing created and fraudulent document of caste. According to the charge sheet, Accused though belongs to Bhajanthri community comes under category 2A got inserted in the service register as he belongs to Nayinda community which comes under ST falsely by creating false document and got promoted to Jamedar from the post of Anuyayi and thereby deprived the rights of ST persons to get promotion.
.48. PW.1 T.R. Krishnamurthy the Complainant, Dy.S.P. CRE Cell, Tumkur in his cross-examination has deposed that job to which Accused got appointed was 30 Spl. C. No.230/2010 not reserved for SC/ST persons. He admitted that Accused did not furnish SC/ST certificate while getting appointment and Accused did not furnish a certificate claiming that he belongs to SC/ST while getting promotion, when suggestions were put by learned counsel for Accused to this witness. But this witness says that Accused has filed an application. He further admits that if a person belongs to SC/ST community, such a person cannot be appointed or promoted without caste certificate. Accused cannot be appointed or promoted on the basis of declaration certificate furnished by Accused. He also admits that Accused belongs to Bhajanthri community. He denied that Accused had furnished a declaration form declaring him he belongs to Bhajanthri community while he got pointed and he has furnished the caste certificate in this regard.
.49. PW.2 Rajappa who had alleged against Accused for having promoted to the higher post by producing the document that he belongs to Nayinda community has deposed that Accused had joined the 31 Spl. C. No.230/2010 service as Anuyayi as he belongs to Bhajanthri community. Accused got promoted by saying that he belongs to Nayinda community which comes under SC/ST group and the said certificate is false certificate. PW.2 had admitted in his cross-examination that Nayinda and Bhajanthri are coming under category 2A and the said castes are not coming under SC/ST list. He also admits that community namely Nayinda, Bhajanthri and PÀëËjPÀ are different names of same caste. He also admits that Accused did not furnish the caste certificate or any declaration while getting promotion and the Department had given promotion to Accused by mistake.
.50. PW.4 Nagaraj, Anuyayi of KSRP has deposed in his evidence that the community Bhajanthri does not come under SC/ST group. Accused got promoted by telling that he belongs to Nayinda community which comes under ST group. This witness has denied in the cross-examination that Nayinda community does not come under ST group. He further deposed in his cross- 32 Spl. C. No.230/2010 examination that Accused did not give an application requesting for his promotion.
.51. PW.5 Srinivas a Techer iof Government Higher Primary school has deposed that as per the school records, Accused belongs to Bhajanthri community. He further deposed in his cross- examination that caste certificate or birth certificate of Accused furnished by Accused at the time of getting admission to the school are not available. Accused did not get any benefits pertaining to SC/ST group.
.52. PW.6 Ramanjaneya, in charge Head Master of Government Primary Middle school has deposed that Accused had taken admission to the school after completing his studies from 1st standard to 4th standard in Kodalipura School. As per school records, the name of caste of Accused is PÀëËjPÀ (barber).
.53. PW.7 Lakshminarasamma in charge Head Mistress of Government Higher Primary school has deposed in her cross-examination that Accused got admitted to the school during 1988. She admits that 33 Spl. C. No.230/2010 the caste names of Bhajanthri, PÀëËjPÀ and barber are different names of same caste.
.54. PW.8 Gundegowdaru, District Social Welfare officer has deposed that Bhajanthri community does not fall under ST and a certificate cannot be issued that the said Bhajanthri community comes under ST. The promotion cannot be given on the basis of declaration certificate by declaring that Nayinda community comes under ST. He deposed in his cross-examination that Nayinda and Bhajanthri means PÀëËjPÀgÀÄ. He does not know whether Accused had given an application requesting for promotion.
.55. PW.9 Gangadharappa, commandant, 9th Battalion, Bangalore has deposed that Accused did not give an application for getting promotion. According to the service register, the name of caste of Accused is recorded as Nayinda (ST). Accused has furnished the form No.1 at the time of joining the job and in the said form it is stated that Accused belongs to Nayinda community (ST). He deposed in his cross-examination 34 Spl. C. No.230/2010 that he has attested Xerox caste declaration certificate. He admits that the left thumb mark found in the caste certificate is not identified and certificate of verification found in back side of form No.1 is kept blank.
.56. PW.14 Jayasimha the I.O. has admitted in his cross-examination that children of Accused have not availed the benefits of SC/ST in schools from the Government.
.57. PW.15 Sheshadri the I.O. has deposed that according to the transfer Certificate, Agara pertaining to Accused, the caste of Accused is Bhajanthri.
.58. PW.16 Mallikarjuna, Tahsildar of Anekal Taluk has deposed that as per the directions of CRE Cell, Tumkur, he gave report as to Accused and his family members belong to Bhajanthri community. He admitted in his cross-examination that Bhajanthri and Nayinda community are all belonging to same caste.
.59. A person has to be appointed or promoted to a post reserved for SC/ST on promotion on production 35 Spl. C. No.230/2010 of valid caste certificate issued by the competent authority namely a Tahsildar and after verification of the said caste certificate as to its genuineness by the District Caste Verification Committee and after issuance of Sindhutva certificate of caste by the said District Caste Verification Committee.
.60. Keeping in mind the aforesaid observation and procedure of law with regard to the issuance of valid caste certificate, I have scrutinised the evidence on record. In the instant case, it is alleged by the prosecution that Accused got promoted by producing created and concocted caste certificate claiming that he belongs to Nayinda caste/ST.
.61. On perusal of the evidence on record, it goes to show that Accused has not produced the caste certificate claiming that he belongs to ST issued by competent authority/Tahildar. The prosecution in support of its case has relied upon Ex.P-19 form No.1 declaration on oath said to be furnished by Accused to the Department where he is employed. On perusal of 36 Spl. C. No.230/2010 this document it goes to show that it is a Xerox document. It is signed by the mother of Accused. The left thumb mark of Accused is found in this document. But the said left thumb mark of Accused is not identified by any persons. This is a declaration said to be made by Accused and his mother declaring that Accused belongs to Nayinda community and it is recognised and included as ST. The said declaration is sworn before somebody. The seal of the officer before whom Accused and his mother have sworn is not visible. On this document, the seal of Tahsildar, Bangalore is affixed. On the back side of the document, it is written as certificate of verification to be signed by a Revenue office not below the rank of a Tahsildar. But this document/certificate of verification is in blank. This document is signed by PW.13 M. Krishnappa. He has only put his signature and seal of his designation. Very interestingly he has not signed this document as true copy of the original and he has not written as attested. He simply signed Ex.P-19 document as Asst. Administrative Officer, 1st Battalion, KSRP, Bangalore. 37 Spl. C. No.230/2010 PW.13 deposed in his cross-examination that he has given Ex.P-19 document by looking to the original document. But the prosecution has not produced the said material original document of Ex.P-19 before this court. If really PW.13 had seen the said original document, he would have attested Ex.P-19 document as true copy or written as attested copy. But he has not done so. No reasons are forth-coming from the prosecution for non-production of original of Ex.P-19 declaration signed by Accused and his mother. More over, Ex.P-19 is not a caste certificate at all issued by the competent authority/Tahsildar. The caste of Accused is not got verified by the employer or Department of Accused through District Caste Verification Committee before coming to the conclusion that Accused belongs to ST community and he is eligible for getting promotion. In the instant case, the Department of Accused has given promotion to Accused without caste certificate and verifying the caste of Accused. The said declaration given by Accused goes to show that he belongs to Nayinda community. The oral 38 Spl. C. No.230/2010 and documentary evidence reveals that Accused belongs to Bhajanthri community. PW.8 District Social Welfare officer and Member Secretary of District Caste Verification committee has admitted in his cross- examination that the persons of Nayinda and Bhajanthri are PÀëËjPÀgÀÄ / barber. He further deposed that Bhajanthri community does not come under ST. PW.16 Mallikarjuna, Tahsildar, Anekal has deposed in his evidence that Accused belongs to Bhajanthri community. He admits in his cross-examination that the community by name Bhajanthri and Nayinda are not coming under scheduled caste and communities Bhajanthri, Nayinda and PÀëËjPÀ are all of same caste.
62. Ex.P-9 is the letter written by Gundegowdaru, District Social Welfare officer and Member Secretary of District Caste Verification committee to the Director General of police, KSRP, Bangalore wherein he has stated that accused belongs to Bhajanthri community. The communities by name Bhajanthri and Nayinda are included under backward 2A category. According to the school records it goes to show that Accused belongs to 39 Spl. C. No.230/2010 Bhajanthri community. According to Ex.P-19 alleged declaration of Accused and his mother it goes to show that Accused belongs to Nayinda community. But either Bhajanthri or Nayinda communities are not listed in ST. According to PW.8 the District Social Welfare officer and Member Secretary of District Caste Verification committee, the caste of Accused Bhajanthri is included under 2A category. Under the circumstances, the employer/Department of Accused while giving promotion to Accused reserved for ST persons should have taken valid caste certificate issued by competent authority/Tahsildar and got it virified through District Caste Verification committee as to its correctness and thereafter only the Department would have given promotion to Accused. But In the instant case, the Department/Employer of Accused has given promotion to Accused on the basis of only declaration made by Accused and his mother without any verification and without on valid and genuine caste certificate. The original of Ex.P-19 Xerox declaration form said to be signed by Accused and his mother is not 40 Spl. C. No.230/2010 produced by the prosecution. Under the circumstances, I am of the opinion that the prosecution has utterly failed to prove the alleged offences against Accused. The evidence of prosecution creates doubt. So, I am of the opinion that benefit of doubt shall be extended to the Accused. Accordingly, the Accused is entitled to be acquitted for the alleged offences. So, I answer point No.1 to 4 in the negative.
.63. Point No.5:- In the result, I proceed to pass the following:-
ORDER Acting under Section 235(1) of Cr.P.C., I hereby acquit Accused for the offences punishable under Section 3(1)(ix) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities Act, 1989 and u/ss.465, 468 and 420 of the I.P.C.41 Spl. C. No.230/2010
The Bail bond of the Accused and surety bond stand cancelled.
(Dictated to the Judgment Writer, revised by me and after corrections, pronounced in open Court on this the 8th day of September, 2016.) (Suresh S. Kogilgeri) II Additional City Civil and Sessions Judge and Special Judge, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED FOR THE PROSECUTION:
P.W.1 : T.R. Krishnamurthy
P.W.2 : Rajappa
P.W.3 : Muni Rathnamma
PW. 4 : Nagaraj
PW. 5 : Srinivas
PW. 6 : H. Ramanjaneya
PW. 7 : Lakshminarasamma
PW. 8 : H. Gundegowdaru
PW. 9 : K.M.Gangadharappa
PW. 10 : Dr.T.D. Pawar, IPS
PW. 11 : U.S. Ramachandra
PW. 12 : I.P. Madaiah
PW. 13 : Krishnappa
PW. 14 : B.P. Jayasimha
PW. 15 : M.V. Sheshadri
42 Spl. C. No.230/2010
PW. 16 : B. Mallikarjuna
PW. 17 : Subramani
2. DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1 : Complaint
Ex.P.1(a)(b): Signatures
Ex.P.2 : Petition
Ex.P 2(a)(b): Signatures
Ex.P.3 : Panchanama
Ex.P 3(a)(b) : Signatures
Ex.P 4 : Certificate
Ex.P 4(a) : Signature
Ex.P 5 : Admission register extract
Ex.P 5(a) : Caste mentioned as ' bajantri'
Ex.P 5(b) : Extract
Ex.P 5(c) : Signature
Ex.P 6 : Certificate
Ex.P 6(a) : Signature
Ex.P 7 : Original Admission register extract
Ex.P 7(a) : Caste mentioned in the register
Ex.P 7(b) : Extract
Ex.P 7(c) : Caste column
Ex.P 7(d) : Signature
Ex.P 8 : Transfer Certificate of Manjunatha
Ex.P 8(a) : Signature
Ex.P 9 : Promotion order
Ex.P 9(a) : Signature
43 Spl. C. No.230/2010
Ex.P 10 : Covering letter
Ex.P 10(a) : Signature
Ex.P 11 : Xerox copy of the Form No.1
Ex.P 11(a) : Signature
Ex.P 12 : Letter
Ex.P 13 : Admission letter
Ex.P 13(a) : Signature
Ex.P 14 : Transfer certificate
Ex.P 14(a) : Signature
Ex.P 15 : Caste certificate
Ex.P 15(a) : Signature
Ex.P 16 : Transfer certificate
Ex.P 16(a) : Signature
Ex.P 17 : Xerox copy of the Admission register
Ex.P 17(a) : Signature
Ex.P 17(b) : Caste mentioned as "Bhajantri"
Ex.P 18 : Copy of the appointment order
Ex.P 18(a) : Signature
Ex.P 19 : Declaration
Ex.P 19(a) : Signature
Ex.P 20 : Copy of the Service register
Ex.P 21 : C£ÀÄAiÀiÁ¬Ä ºÀÄzÉÝUÉ ¤AiÀÄÄQÛUÉƽ¹zÀ DzÉñÀzÀ ¥Àæw
Ex.P 21(a) : Signature
Ex.P 22 : YõÁÕ¥À£Á ¥ÀvÀæ
Ex.P 22(a) : Signature
Ex.P 23 : YõÁÕ¥À£Á ¥ÀvÀæ
Ex.P 23(a) : Signature
Ex.P 24 : Letter issued by Head Master
44 Spl. C. No.230/2010
Ex.P 24(a) : Signature
Ex.P 25 : Caste certificate
Ex.P 25(a)(b): Signatures
Ex.P 26 : FIR
Ex.P 26(a) : Signature
3. WITNESSES EXAMINED FOR THE DEFENCE:
Nil
4. DOCUMENTS MARKED FOR THE DEFENCE:
Ex.D 1 : Transfer certificate
(Suresh S. Kogilgeri )
II Additional City Civil and Sessions Judge Gr/- and Special Judge, Bengaluru.