Bangalore District Court
State By Lingasugur Police vs Sri D.S. Hulageri on 16 December, 2020
IN THE COURT OF LXXXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH 82)
Present:
Sri T. N. Inavally, B.A.L., LL.B.,
LXXXI Addl. City Civil & Sessions Judge,
Bengaluru City (CCH-82)
(Special Court exclusively to deal with criminal cases
related to elected MPs/ MLAs in the State of Karnataka)
Dated this the 16th day of December, 2020
Spl. C. No. 1448 / 2019
COMPLAINANT: State by Lingasugur Police
Lingasugur Circle
Raichur District
(By the learned Public Prosecutor)
V/s
ACCUSED: Sri D.S. Hulageri
Congress Leader
R/at: Lingasugur
Raichur District
(By Sri S.N. Hiremani, Advocate for
Accused)
*****
JUDGMENT
This case is the result of charge sheet filed by the complainant police against the accused for the offence punishable under Sec.171-H of Indian Penal Code ('IPC' for short) and Sec.75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 ('JJ Act' for short).
2 Spl.CC No.1448/2019
2. The prosecution was set into motion against the accused on the information of CW1 Naveen Kumar, the then officer of Flying Squad No.1, Lingasuguru, Raichur District in the Assembly Elections held in the year 2018. The case of the prosecution is that on 05.05.2018 at about 12.00 noon in the open space situated by the side of Bengaluru By-pass road in Lingasuguru Town, the accused conducted an open public meeting on behalf of Congress Party regarding Karnataka Legislative Assembly Elections-2018 for the purpose of procuring votes without special authority and he used children exposing them for the purpose of canvassing in the election and thereby subjected the children to cruelty in contravention of Code of Conduct of Election and thereby the accused has committed the offenses charge sheeted.
3. On the information of CW1 Naveen Kumar, the CW6 Dadavali K.H., the then Sub-Inspector of Police, Lingasugur Police Station, registered the case against the accused as per their Cr. No.249/2018 for the offence punishable under Sec.171-H of IPC and Sec.75 of JJ Act and after completion of the investigation, the complainant police filed charge sheet before the jurisdictional 3 Spl.CC No.1448/2019 Prl. Civil Judge & JMFC, at Lingasuguru, ('the learned Magistrate' for short) for the said offences.
4. In pursuance of the summons issued by the learned Magistrate, the accused appeared before the said Court and got enlarged on bail. The learned Magistrate furnished copy of the charge sheet to the accused and hence, the provision of Sec.207 of the Code of Criminal Procedure ('Cr.P.C.' for short) is complied. After hearing both the parties, the case was posted for framing of charge against the accused.
5. The accused in this case is sitting MLA of Lingasuguru, Hence, in view of establishment of this Special Court exclusively to deal with the criminal cases related to the elected MPs/ MLAs in the State of Karnataka, the learned Magistrate sent the case to this Court for further proceedings. Accordingly, the matter has been taken up before this Court and the case is registered as Spl. C No.1448/2019 and again summons has been issued to the accused to appear before this Court.
6. In pursuance of the summons, the accused has appeared through his counsel before this Court. Thereafter, on considering 4 Spl.CC No.1448/2019 the relevant materials on record, this Court has framed charge against the accused for the offences punishable under Sec.171-H of IPC and Sec.75 of JJ Act, to which the accused has pleaded not guilty and thereby claimed to be tried of the said offences.
7. In support of the case of prosecution, the prosecution has examined 5 witnesses as PW1 to PW5. The prosecution has also produced 3 documents at Exs. P.1 to P.3. After closing of the evidence of prosecution witnesses, this Court has examined the accused under Sec.313(1)(b) of Cr.P.C., in which accused has denied incriminating materials forthcoming against him in the evidence of prosecution witnesses as false, but he has not chosen to adduce any oral evidence or produce any document on his behalf.
8. Heard the argument of the learned Prosecutor and also the learned counsel for the accused. Perused the oral and documentary evidence on record. Now the points that arise for my consideration are:
1) Whether the prosecution proves beyond reasonable doubt that on 05.05.2018 at about 12 noon in the open space situated by the side of Bengaluru By-pass road in Lingasuguru Town, the accused conducted an open public meeting on behalf of Congress party in contravention of Code of Conduct of Election and 5 Spl.CC No.1448/2019 thereby the accused has committed the offence punishable under Sec.171-H of IPC?
2) Whether the prosecution proves beyond reasonable doubt that on the above said date, time and place the accused used children for the purpose of election canvass on behalf of Congress Party and subjected the children to cruelty violating the Code of Conduct of Election and thereby the accused has committed the offence punishable under Sec.75 of JJ Act?
3) What order?
9. After hearing the argument of both the parties and on considering the oral and documentary evidence forthcoming on record, my findings on the above points are as hereunder:
Points No.1 & 2: In the Negative Point No.3: As per final order For the following:
REASONS
10. Points No.1 & 2: Both these points are taken up for consideration together for avoiding repetition of discussion on the facts of the case and also regarding the points of law.
11. As mentioned herein above, the CW6 Dadavali K.H. is the then Sub-Inspector of Police of complainant police station. As per the prosecution case the CW6 registered the case against the accused on the information of CW1 Naveen Kumar and took up investigation and on completion of investigation filed the charge 6 Spl.CC No.1448/2019 sheet. The CW6 has been examined as PW5. In the evidence in chief-examination PW5 has deposed that on 06.05.2018 at about 11.30 a.m. when he was in the police station PW1(CW1) Naveen Kumar came to the police station and gave written complaint and on the basis of the said complaint he registered the case as per Cr.No.249/2018 and submitted the First Information Report ('FIR' for short) to the learned Magistrate and also to his higher officers. The said complaint is already marked at Ex. P.1 in the evidence of PW1 and the signature of PW5 on Ex. P.1 for having received the said complaint is marked at Ex. P.1(b). The FIR and the signature of PW5 therein are marked at Ex. P.3 and Ex. P.3(a) respectively.
12. As argued by the learned Prosecutor, it is also the evidence of PW5 that on the same day he visited the spot of incident and in the presence of panchas PW3 Aziz Pasha and PW4 Basavaraju, he drew panchanama at the spot at the time from 3.50 p.m. to 4.50 p.m. The spot mahazar is already marked at Ex.P.2 and the signature of PW5 in Ex.P.2 is marked as Ex.P.2(c). The PW5 has deposed that he drew rough sketch in the said panchanama. The PW5 has also deposed that on the same day he recorded statements of the then ASI PW2 Mohinuddin and Head 7 Spl.CC No.1448/2019 Constable CW3 Sugurappa. He received permission letter from the Election Officer regarding the conducting of election rally and also received copy of the order regarding appointment of the complainant PW1 in the Flying Squad and on completion of the investigation he filed the charge sheet against the accused in the Court on 02.07.2018.
13. However, as submitted by the learned counsel for the accused, it is pertinent to note that the charge sheet filed against the accused is for the offence punishable under Sec.171-H of IPC and Sec.75 of JJ Act. As pointed out by the learned counsel for the accused, the PW5 in his evidence in cross-examination has deposed that:
"ನ.ಪ.1 ಪರರದನನ ನ ಸಸಸಕರಸನವ ಸಸದರರದಲ ಕಸಸನ ದಖಲನ ಮಡನವದಕಕಸತ ಪವರದಲ ಪರರದನ ವಷಯಗಳನನ ನ ನನನ ಓದ ತಳದನಕಕಸಡರನತತಸನ. ಚನನವಣ ನಸತ ಸಸಹತ ಉಲಲಸಘನ ಆಗದ ಎನನ ನ ವ ಆಧರದಲ ನನನ ಕಸಸನನ ನ ಭರತ ದಸಡ ಸಸಹತ ಕಲಸ 171 ಹಚ ಅಡಯಲ ದಖಲನ ಮಡದ. ಆದರ ಚನನವಣ ನಸತ ಸಸಹತಯ ರವ ನಯಮವನನ ನ ಉಲಲಸಫಫಸದದರನ ಎನನ ನ ವದನನ ನ ನನಗ ಹಸಳಲನ ಸಧಧವಲಲ."
It is also the evidence of PW5 in his cross-examination that:
"ಆರಕಸಪ ಅಥವ ಇತರ ರವದಸ ವಧಕತರಗಲ ಮಕಕಳ ಮಸಲ ಕಕಯರ ಅಥವ ಹಸಸ ಮಡರನತತರ ಎಸದನ ನ.ಪ.1 ಪರರದನಲ ಹಸಳಲಲ ಎಸದರ ಸರ. ಮಕಕಳನನ ನ ಚನನವಣ ಪಕಚರದಲ ಬಳಸಕಕಸಡದರ ಎನನ ನ ವ ಕರಣಕಕ ನನನ ಈ ಕಸಸನಲ ಬಲಪರಧ ನಧಯ ಕಯದ (ಜಜ ಅಧನಯಮ) ಕಲಸ 75 ನನ ನ ನನನ ಈ ಕಸಸನಲ ಅಳವಡಸರನತತಸನ."8 Spl.CC No.1448/2019
From the above referred evidence of PW5 it is clear that there is no mention in the complaint at Ex.P.1 that the accused or any other person subjected any children to cruelty. However, the PW5 has deposed that the accused used children in the election rally for canvassing and hence, he registered the case and filed charge sheet against the accused for the offences punishable under Sec.75 of JJ Act. But it is the definite case of the accused that there is absolutely no material against him for the offences punishable under Sec.171-H of IPC and also under Sec.75 of JJ Act.
14. At this stage itself it is relevant to refer to Sec.171-H of IPC. The provision of Sec.171-H of IPC reads thus:
171-H. Illegal payments in connection with an election.-- Whoever without the general or special authority in writing of a candidate incurs or authorises expenses on account of the holding of any public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidate, shall be punished with fine which may extend to five hundred rupees:
Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate.9 Spl.CC No.1448/2019
Hence, the said provision clearly shows that if there is act of any illegal payments in connection with an election, the said act amounts to offence. But in the case on hand, as submitted by the learned counsel for the accused, there is absolutely no whisper either in the complaint of PW1 or in the charge sheet filed by the PW5 that there was any illegal payment by the accused or any other person in connection with the concerned Assembly Election.
15. Further, it is very pertinent to note that from the case of the prosecution itself it is clear that the accused obtained permission of the Election Officer for conducting election rally and also public meeting for election canvass on the date of the alleged incident. The case of the prosecution is that the accused violated the code of conduct of election. But the prosecution has failed to produce any document or examine any concerned person to prove as to what are the Election Code of Conduct, which were in force at the relevant time. Therefore, as pointed out by the learned counsel for the accused, there is no material forthcoming from the prosecution to prove that the accused has committed offence punishable under Sec.171-H of IPC.
10 Spl.CC No.1448/2019
16. Moreover, as submitted by the learned counsel for the accused, the provision of Sec.75 of JJ Act reads thus:
Section 75. Punishment for cruelty to child- Whoever, having the actual charge of, or control over, a child, assaults, abandons, abuses, exposes or willfully neglects the child or causes or procures the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause such child unnecessary mental or physical suffering, shall be punishable with imprisonment for a term which may extend to three years or with fine of one lakh rupees or with both:
From the plain reading of the said provision, it is clear that the punishment for cruelty to child arises only if any person having actual charge of, or control over, a child, assaults, abandons, abuses, exposes or willfully neglects the child or causes or procures the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause such child unnecessary mental or physical suffering. In the case on hand except the allegation that the accused used children in the election rally, there is absolutely no material forthcoming from the prosecution to show who were the children used by the accused in the election rally and what was the age of such children.
17. On the other hand, as submitted by the learned counsel for the accused, the relevant portion in the evidence in cross- examination of PW5 reads thus:
11 Spl.CC No.1448/2019
"ಈ ಮಸಲ ಹಸಳದ ಚನನವಣ ಬಹರಸಗ ಸಭ ನಡದದ ಎನನನ ವ ಸಸಳ ನಮಮ ಠಣ ವಧಪಯತ ಲ ಇತನತ. ಆ ರಸತ ನಮಮ ಠಣ ವಧಪತಯಲ ಬಹರಸಗ ಸಭ ನಡಯನವದದರ ಈ ಬಗಗ ಚನನವಣಧಕರಗಳನ ನಮ ಮ ಠಣಗ ಮಹತ ನಸಡನತತರ ಎಸದರ ಸರ.
ದನಸಕ 05.05.2018 ರಸದನ ಚನನವಣ ಬಹರಸಗ ಸಭಯಲ ಮಕಕಳನನ ನ
ಬಳಸದರ ಎಸದನ ಪಕಸ.2 ಮತನತ ಚಸ.3 ನಸಯವರಗಲ ಅಥವ
ರವದಸ ಸವರಜನಕರಗಲ ರವದಸ ದಕರನನನ ನಸಡಲಲ.
ಚನನವಣ ಬಹರಸಗ ಸಭಯಲ ಬಳಸದರ ಎನನ ನ ವ ಮಕ ಕ ಳನ ರರನ,
ಷ ಮಕಕಳದದರನ ಮತನತ ಮಕಕಳ ವಯಸನ
ಎಷನ ಸ ಗಳಷನ
ಷ ಎನನನ ವದನನ ನ ನನನ
ತಳದನಕಕಸಡಲಲ."
The above referred evidence of PW5 clearly goes to show that the PW5 had not made any investigation to ascertain who were the children allegedly used by the accused in the election rally.
18. In this background, it is relevant to appreciate the evidence of CW1 Naveen Kumar, who is the informant. The CW1 has been examined as PW1. In the evidence in chief-examination, the PW1 has deposed that in the year 2018 he was the head of the Flying Squad Team No.1 in the Lingasuguru Assembly Election and on 05.05.2018 at about 12 noon in the open space by the side of Bengaluru By-pass road in Lingasuguru Town, public meeting was conducted by Congress Party and permission was obtained regarding the same from the Election Officer. On that day, the Congress party people used children in the rally and thereby violated the Election Code of Conduct and hence, he gave 12 Spl.CC No.1448/2019 complaint to the Lingasuguru Police against the accused as per Ex. P.1.
19. The relevant portion in the evidence of PW1 in chief- examination reads thus:
"ಆ ದನದಸದನ ಚನನವಣ ಪ ಕಚರಕಕಗ ಕಸಗಕಸ ಪಕದವರನ ಮಕಕಳ ಬಳಕ ಮಡಕಕಸಡದದರನ ಮತನತ ರಸತ ಯ ಉದದಕಕ ಕ ರಲ ಮಡ ಚನನವಣ ನಸತ ಸಸಹತಯನನ ಉಲಲಸಫಸದರ. ಆದ ಕರಣ ಚನನವಣ ನಸತ ಸಸಹತಯನನ ಉಲಲಸಘನ ಮಡದದರಸದ ಆರಕಸಪಯನ ಚನನವಣ ಪಕಚರಕಕ ಸಸಘಟಸದದರಸದ ಲಸಗಸಕ ಗ ರನ ಪಸಲಸಸ ಠಣಗ ನ.ಪ.1 ರಸತ ಪರರದಯನನ ಕಕಟಷ.."
The accused has denied that the PW1 was the head of the Flying Squad Team No.1 of Lingasuguru Assembly Elections 2018. But neither the PW1 nor the I.O. PW5 has produced the concerned document to prove that the PW1 headed the Flying Squad Team-1 in the said election. Further, it is pertinent to note that the relevant portion in the evidence in cross-examination of PW1 reads thus:
"ಆ ದನ 15 ವಷರ ಕಕಸತ ಜಸತ ವಯಸಸರನವ ಮಕಕಳನನ ಚನನವಣ ಪಕಚರಕಕಗ ಉಪಯಗಸಕಕಳಳಲಗತನತ ಅಸತ ಹಸಳನತತಸನ.
ಆ ಬಹರಸಗ ಸಭಗ ಕಸಗಕಸ ಪಕದ ಶಕಸ ಮಲಕಜನರನ ಖಗರಯವರನ ಬಸದದದರನ. ಬಹರಸಗ ಸಭ ಪಕರಸರವಗನವ ಮಮದಲಸ ರಲ ಪಕರಸರ ಆಗತನತ ಆದರ ಎಷನ ಷ ಗಸಟಗ ರಲ ಪಕರಸರ ಆಗತನತ ಅಸತ ನನಗ ಈಗ ಹಸಳಲನ ಬರನವದಲಲ.
ಆ ಸಭಯಲ ಸಸರದ ಜನರನನ ಈ ಮಕಕಳನನ ರರನ ಕರದನಕಕಸಡನ ಬಸದದರ ಅಸತ ನನನ ವಚರಣ ಮಡಲಲಲ.
ಮಕಕಳ ರಲಯನನ ದ ಣದಸದ ಬಹರಸಗ ಸಭಯವರಗ ನಡದದದನನ
ನ ಬಸ ನಲ
ನನನ ವವಯಕತಕವಗ ನಕಸಡಲಲ. ನನನ ಹಲಪಡ ಕಡಗ ಹಕಸಗದ.
ನಸರವಗ ಬಹರಸಗ ಸಭಯ ಕಡಗ ಬಸದ. ಆ ಬಹರಸಗ ಸಭಯಲ ರವದಸ ಅಪರಧ ಕಕತಧಗಳನ ನಡದಲಲ. ಆ ಬಹರಸಗ ಸಭಯಲ ನನನ 13 Spl.CC No.1448/2019 ಆರಕಸಪಯನನ ನಕಸಡದ. ಆ ಸಭಯ ಹಕರತಗ ನನನ ಆರಕಸಪಯನನ ಬಸರ ಎಲಯಕ ನಕಸಡಲಲಲ."
This evidence of PW1 clearly shows that there was no offence committed by the accused while conducting the public meeting. The evidence of PW1 is that the accused used children in the election rally. But PW1 is not the eye witness to the said rally.
20. Moreover, as per the evidence of PW1, the accused is the candidate from Congress party in the said assembly elections. As submitted by the learned counsel for the accused, it is very much pertinent to note that the relevant portion in the evidence in cross-examination of PW1 reads thus:
"ಆ ರಲಗ ಮಕಕಳನನ ನ ರರನ ಕರದನಕಕಸಡನ ಬಸದರನ ಎಸಬ ಬಗಗ ನನಗ ಗಕತತಲಲ. ಆ ಮಕಕಳನ ಆರಕಸಪಯ ನಯಸತ ತಣದಲ ಇದದರಲಲಲ. ಆ ಮಕಕಳ ಜವಬದಯನನ ಅಥವ ಉಸನತವರಯನನ ಆರಕಸಪ ಹಕಸದರಲಲಲ. ಅ ಮಕಕಳಗ ಆರಕಸಪಯನ ರವದಸ ಹಸಸಯನನಗಲ ಅಥವ ಕಯರವನನಗಲ ಮಡರಲಲಲ. ಆ ಮಕಕಳನ ಆ ರಲಯಲ ಸಸಇಚಚ ಯಸದ ಬಸದದದರಕಸ ಅಥವ ರರದರನ ಒತತಯದಸದ ಕರದನಕಕಸಡನ ಬಸದದದರಕಸ ಎನನ ನ ವ ಬಗಗ ನನನ ವಚರಣ ಮಡಲಲಲ. ಸದರ ರಲಯಲ ಭಗವಹಸದ ಮಕಕಳನ ಮನಸಕವಗ ಮತನತ ದವಹಕವಗ ಬಳಲರಲಲಲ. ಆರಕಸಪಯನ ಆ ಮಕಕಳನನ ಚನನವಣ ಪಕಚರಕಕಗ ದ ಬಳಸಕಕಸಡದನನ ನನನ ನಕಸಡಲಲ ಅದರ ಬಗಗ ನನಗ ಗಕತತಲಲ."
This evidence of PW1 clearly proves that no children were subjected to any cruelty by the accused. Moreover, even though it is evidence of PW1 in the cross-examination that video recording of the rally was done, no document regarding any such video 14 Spl.CC No.1448/2019 recording is produced by the prosecution. Hence, the cumulative effect of the oral evidence of PW1 and the contents of the document at Ex. P.1 absolutely does not make out any offence against the accused punishable under Sec.171-H of IPC and also under Sec.75 of JJ Act.
21. The CW2 Mohinuddin is the then ASI of the complainant police station. He is alleged to be on duty along with PW1 on the relevant date. The CW2 has been examined as PW2. The relevant portion of evidence of PW2 in his chief-examination is that:
"ಸದರ ಸಭ ಮನಗದ ನಸತರ ನಗರದಲ ಕಸಗಕಸ ಪಕದ ಪ ಕಚರಕಕ ಮಕಕಳನನ ನ ಬಳಸಕಕಸಡರನತತರ. ನಸತರ ನಮ ಮ ಚನನವಣಧಕರ ವನಯ ಕನಮರ ರವರನ ದನಸಕ 06.05.2018 ರಸದನ ಠಣಗ ಹಕಸಗ ಪರರದನ ನಸಡರನತತರ. ಈ ಪಕಕರಣಕಕ ಸಬಸಧ ಪಟಷಸತ ನನನ ಪ.ಎಸ.ಐ ರವರ ಮನಸದ ಹಸಳಕ ನಸಡರನತತಸನ."
But it is very much pertinent to note that even though the accused has denied that the PW2 was on duty at the spot on the relevant date, no document is produced by the prosecution in support of its case that PW2 was on duty on that day. Moreover, as pointed out by the learned counsel for accused, as per the evidence of PW2 in chief-examination, the rally was conducted after completion of the open public election meeting. But as discussed herein above, the 15 Spl.CC No.1448/2019 complainant PW1 in his evidence has deposed that the rally was conducted earlier to the open public meeting and after the rally the public meeting was conducted. Hence, there are contradictions and discrepancies in the evidence of PW1 and PW2 regarding the time of conducting of the rally by the Congress Party on the relevant date.
22. Further, as submitted by the learned counsel for the accused, the relevant portion in the evidence in cross-examination of PW2 reads thus:
"ಲಸಗಸಗಕರನ ವಧನಸಭ ಕತ ತಕಕ ಸಸಬಸಧಪಟಷಸತ ಒಟನ ಷ ನಲನಕ ಫಲಕಯಸಗ ಸಕಸಡ ಟಸಸ ಗಳನನ ನ ಮಡಲಗತನತ. ಸದರ ಪಕತ ಟಸಸಗ ನಖರವದ ಸಸಳಗಳ ವಧಪತಯನನ ನ ನಧರರಸಲಗತನತ ಎಸದರ ಸರ. ನನನ ಕತರವಧದಲದದ ಟಸಸ ನಸಬರ 1 ರ ವಧಪತಯಲ ಲಸಗಸಗಕರನ ನಗರ ಮತನತ 42 ಹಳಳಗಳನ ಇತನತ. ಉಳದ 2 ರಸದ 4 ನಸ ಟಸಸ ನ ವಧಪತಯಲ ರವಲ ಲ ಗಕಮಗಳನ ಇದದವ ಎಸದನ ನನಗ ಗಕತತಲಲ."
It is also the evidence of PW2 in his cross-examination that:
"ಈ ಮಸಲ ಹಸಳರನವ ಕಸಗಕಸ ಪಕದ ಪ ಕಚರ ಸಭಗ ರರನ ರರನ ಬಸದದದರನ ಎನನ ನ ವದನನ ನ ನನನ ಹಸಳಲನ ಸಧಧವಲಲ. ಸದರ ಪಕಚರ ಸಭ ಎಷನ ಷ ಗಸಟಗ ಪಕರಸರವಗ ಎಷನ ಷ ಗಸಟಗ ಮನಗದರನತತದ ಎಸದನ ನನಗ ಈಗ ನನಪಲಲ. ಪಕಚರಕಕ ಮಕಕಳನನ ನ ಕರದನಕಕಸಡನ ಹಕಸಗದರ ಎನನ ನ ವ ಬಗಗ ಮಕಕಳನನನ ಎಷನಷ ಗಸಟಗ ಕರದನಕಕಸಡನ ಹಕಸಗದದರನ ಎನನ ನ ವದನ ನನಗ ಗಕತತಲಲ. ಸದರ ಪಕಚರದಲ ಎಷನ ಷ ದ ಮಕಕಳದರನ, ಮಕಕಳಲ ಎಷನ ಷ ಗಸಡನ ಮತನತ ಎಷನ ಷ ಣ ಹಣನ ಮಕ ಕ ದ ಳದ ರನ ಹಗಕ ಮಕಕ ಳ ವಯಸನಸ ಎಷನ ಷ ನ ವದನ ನನಗ ಗಕತತಲಲ. ನನನ ಸದರ ಮಕಕಳನನ ಎನನ ನ ವಚರಸಲಲ.
ಪಕಸ.1 ನಸಯವರನ ಸಹ ಮಕಕಳನನ ನ ವಚರಣ ಮಡಲಲ. ಮಕಕಳನನ ನ ರರನ ಎಲಸದ ಕರದನಕಕಸಡನ ಬಸದದದರನ ಎನನ ನ ವದನ ನನಗ ಗಕತತಲಲ. ಮಕಕಳ ತಸದ ತಯಗಳನ ಇದರಸ ಎಸಬನದನನ ದ ನ ನನನ ತಳದನಕಕಳಳಲಲಲ.
ಚನನವಣ ಪಕಚರ ರಲಯಲ ಮಕಕಳನನ ನ ಕರದನಕಕಸಡನ ಹಕಸಗನತತದದರನ
ಎನನ ನ ನನನ ಕಣಣರ ನಕಸಡಲಲ."
ನ ವದನನ
16 Spl.CC No.1448/2019
The evidence of PW2 in his cross-examination is also that:
"ಈ ಮಸಲ ಹಸಳದ ದನ ಆರಕಸಪಯನನ ನ ನನನ ಚನನವಣ ಪಕಚರ ಸಭಯ ಮವದನದಲ ನನಕಸಡರನತತಸನ. ಪಕಚರ ರಲ ಸಭ ಮನಗದ ನಸತರ ಪಕರಸರವಗರನತತದ. ಸದರ ವಷಯವನನ ನ ನನಗ ಪಕಸ.1 ನವಸನ ಕನಮರ ಅವರನ ಹಸಳರನತತರ."
Hence, if the above referred evidence of PW2 is considered, as discussed herein above, it is clear that there are discrepancies and contradictions in the evidence of PW1 and PW2 regarding the alleged incident. Moreover, it is very pertinent to note that the PW2 has not given any complaint to the concerned Officer under JJ Act alleging that the accused used children in the election rally and thereby subjected children to cruelty. Therefore, if the evidence of PW1 and PW2 are considered together, doubt arises regarding the case alleged by the prosecution against the accused that the accused violated any of the code of conduct of elections and that the accused subjected any children to cruelty in the alleged rally.
23. Moreover, it is pertinent to note that except the official witnesses - PW1 and PW2, the I.O. has not chosen to examine any other independent witnesses to prove the alleged incident that the accused used children in the election rally and thereby the accused committed violation of any of the code of conduct of election. 17 Spl.CC No.1448/2019
24. The CW4 Aziz Pasha and CW5 Basavaraju are alleged to be attestors to the spot panchanama at Ex.P.2. They have been examined as PW3 and PW4 respectively. As discussed herein above, the evidence of PW5, the I.O. is that he drew panchanama at Ex.P.2 at the spot in the presence of PW3 and PW4. However, in the evidence in chief-examination itself both the PW3 and PW4 have deposed that they put their signatures to the spot mahazar at Ex. P.2 in the police station about 3-4 years ago, but they do not know the contents of the said panchanama and that the police did not draw any such panchanama at the spot and they do not know for what purpose the police took their signatures on the said panchanama. Hence, the evidence of PW3 and PW4 regarding the spot panchanama at Ex.P.3 is quite contrary to the case of prosecution and therefore, both the PW3 and PW4 are treated hostile and subjected to cross-examination by the learned Prosecutor. Even in the evidence in cross-examination by the prosecution, the PW3 and PW4 have denied that the police drew the panchanama at Ex.P.2 in their presence at the spot. Therefore, the spot panchanama at Ex.P.2 is not proved by the prosecution with the support of any independent evidence. 18 Spl.CC No.1448/2019
25. Moreover, even though the PW5 in his evidence in chief-examination has deposed that PW1 was present at the spot and he showed the spot to him, as pointed out by the learned counsel for the accused, in the panchanama at Ex.P.2 there is no signature of the person, who allegedly showed the spot of the incident to the police. Therefore, the contents of the panchanama at Ex.P.2 falsify the case of prosecution that the PW1 was present at the spot and he showed the spot of the alleged incident to the police at the time of drawing of the alleged panchanama.
26. Further, the relevant portion in the evidence of PW5 in cross-examination reads thus:
ನ.ಪ.2 ಪಸಚನಮಯಲ ಗನನನ ಸಸಳ ತಕಸರಸದವರ ಸಹ ಇಲಲ ಎಸದರ ಸರ.
ಸದರ ಪಸಚನಮಯ ಕಲಸ 9 ರಲ ಕಲವ ವಷಯಗಳನನ ನ ಬರದನ ನಸತರ ಅದನನನ ವವಟನರ ನಸದ ಅಳಸ ಹಕಲಗದನದ ಕಸಡನ ಬರನತತದ ಎಸದರ ಸರ.
The above referred admission of PW5 in his cross-examination makes the spot panchanama at Ex.P.2 not believable. Therefore, the entire evidence of prosecution witness forthcoming on record creates doubt regarding the alleged incident and also regarding the spot panchanama at Ex.P.2. As stated herein above, there is no independent witness examined by the prosecution to prove the 19 Spl.CC No.1448/2019 alleged incident. Hence, doubt arises regarding the case of the prosecution about the alleged incident itself.
27. Moreover, as discussed herein above, there are discrepancies and contradictions in the evidence of PW1 and PW2 regarding the alleged incident. Hence, in support of this contention the learned counsel for accused has drawn the attention of this Court to the principles of law laid down by the Hon'ble Supreme Court of India in the decisions reported in:
1) (2017)13 SCC 98 (Krishnegowda & others Vs. State of Karnataka)
2) (2007)4 SCC 45 (State of Rajasthan Vs. Netrapal & others) and
3) 2009 SCC Online Sikk 17 (Mrityunjay Kumar Vs. State of Sikkim) It is true that the offences alleged against the accused persons in the case of the above referred decisions are different from the offences alleged against the accused in the case on hand. However, those decisions are applicable to the case on hand regarding appreciation of evidence by the Court, if there are discrepancies and contradictions in the evidence of prosecution witnesses.
Therefore, on the facts of the case and also on the principles of law laid down in the above referred decisions, it is clear that the 20 Spl.CC No.1448/2019 evidence of PW1, PW2 and PW5 are not believable to prove the alleged incident and thereby the offence alleged against the accused in the case on hand.
28. Further, as pointed out by the learned counsel for the accused, the alleged incident took place on 05.05.2018. The said fact is forthcoming in the complaint at Ex.P.1. But the complaint at Ex.P.1 was given and the FIR at Ex.P.3 was registered on 06.05.2018 at about 11.30 a.m. There is no mention in the FIR at Ex.P.3 of the reason for the delay in registering the FIR. As argued by the learned counsel for the accused, the PW1 in his evidence in chief-examination has not stated the date of his giving complaint to the police. However, the I.O.-PW5 has admitted in the evidence in cross-examination thus:
"ಈಗ ತಕಸರಸದ ನ.ಪ.1 ಪರರದನಲ ಸಮಯ ಮತನತ ದನಸಕವನನ ನ ತದದ ಬರಯಲಗದ ಎಸದರ ಸರ. ಸದರ ತದನ ದ ಪಡ ಬಗಗ ಪರರದನದರರನ ಅವರ ಸಹ ಮಡಲಲ. ನ.ಪ.1 ಪರರದನನ ನ ಒಸದನ ದನ ತಡವಗ ರವ ಕರಣಕಕ ಸಲಸಲಗದ ಎಸದನ ಕರಣವನನ ನ ಸದರ ಪರರದನಲ ಹಸಳಲಲ.
ನ.ಪ.3 ಪಕಥಮ ವತರಮನ ವರದಯಲ ಪರರದನನ ನ ತಡವಗ ವರದ ಮಡದ ಬಗಗ ಕರಣವನನ ನ ನನನ ನಮಕದನ ಮಡಲಲ ಎಸದರ ಸರ."
It is also deposed by the PW5 that the Lingasugur Court is at the distance of 2 km from the police station and one can reach the Court from the police station by 15 minutes if traveled by vehicle.21 Spl.CC No.1448/2019
The relevant portion in the evidence of PW5 in cross-examination reads thus:
"ನಮಮ ಪಸಲಸಸ ಠಣಯಸದ ಲಸಗಸಗಕರನ ನಧರಲಯವ 2 ಕ.ಮಸ ದಕರದಲದ. ನಮ ಮ ಠಣಯಸದ ಸದರ ನಧರಲಯಕಕ ವಹನದಲ ಹಕಸದರ 15 ನಮಷ ಸಮಯದಲ ತಲನಪಬಹನದನ."
But as per the endorsement of the learned Magistrate in the FIR at Ex. P.3 the said FIR was submitted to the concerned Court at 5.00 p.m. on 06.05.2018. Hence, there is delay of about 6 hours in submitting the FIR to the concerned Magistrate from the time of its registration. There is no explanation forthcoming in the evidence of PW5 for such a delay in registration of FIR and also in submitting the FIR to the learned Magistrate.
29. The learned counsel for the accused has relied on the decisions of Hon'ble Supreme Court of India reported in:
1) (1972)2 SCC 393 (Thulia Kali Vs. State of Tamil Nadu) and
2) AIR 1991 SC 1356 (Peddireddy Subbareddi and others Vs. State of Andhra Pradesh) These decisions are regarding the delay in filing FIR. It is true that as per the facts of the cases of those decisions, the offences alleged against the concerned accused persons are different from the offences alleged against the accused in the case on hand. However, from the principles of law laid down in the above referred 22 Spl.CC No.1448/2019 decisions, it is clear that if there is no explanation for the delay in filing the FIR, the case of the prosecution cannot be believable.
Hence, from the discussion made herein above, it is clear that on the facts of the case and also on the principles of law laid down in the above referred decisions relied by the learned counsel for the accused, doubt arises regarding the case alleged against the accused and the said case cannot be believable. It is well settled principle of law that the accused is entitled to benefit of such doubt.
30. It is undisputed fact that the accused contested the said election from Congress Party. It is the suggestion of the learned counsel for the accused to PW2 and PW5 in their evidence in cross-examination that the false case was foisted against the accused to help Sri Manappa D. Vajjal, who contested the said election from BJP. The said suggestion is denied by both the PW2 and PW5 in their evidence in cross-examination. It is undisputed that the PW2 and PW5 are police officers. Further, even though PW1 is the complainant, he filed the complaint in his official capacity. There is absolutely no material forthcoming from the accused to show as to in what way the PW1, PW2 and PW5 are 23 Spl.CC No.1448/2019 interested in Sri Manappa D. Vajjal, who contested the said election from BJP. It is true that the accused in his statement recorded under Sec.313 of Cr.P.C. has stated that:
''ನನನ ತಸಜಕಸವಧ ಮಡನವ ಬಗಗ ಈ ಸನಳನ ಳ ಕಸಸನ ಹಕದರ ''' But that contention and also the above referred suggestion of the learned counsel for the accused in the cross-examination of PW2 and PW5 do not merit consideration without the support of evidence of any independent witness to prove that the PW1, PW2 and PW5 are interested in Sri Manappa D. Vajjal, who contested the election from BJP.
31. However, as discussed herein above, if the entire evidence forthcoming from the prosecution is taken into consideration, it is clear that no ingredients for the offences punishable under Sec.171-H of IPC and Sec.75 of JJ Act are made out against the accused in the case on hand. It is true that the learned Prosecutor has drawn the attention of this Court to the evidence of PW1, PW2 and PW5 in chief-examination and argued that there are sufficient materials in such evidence to make out case for the offences charged against the accused. But, as discussed herein above, if the evidence in chief-examination of 24 Spl.CC No.1448/2019 those witnesses are considered along with evidence in cross- examination, there are contradictions and discrepancies, which go to the root of the case making the case of prosecution disbelievable. Hence, doubt arises regarding the alleged incident that the accused violated any of the code of conduct in arranging the open public meeting and rally for election canvassing and that he subjected any children to cruelty in any manner. Therefore, the prosecution has utterly failed to prove beyond reasonable doubt the offences charged against the accused in the case on hand. Hence, the prosecution has failed to prove points No.1 & 2 and consequently, the points No.1 & 2 are answered in the negative.
32. Point No.3: From the discussion made herein above, it is clear that the accused deserves to be acquitted for the offences charged against him in this case. In the result, therefore, I proceed to pass the following:
ORDER Acting under Sec.255(1) r/w Sec.235(1) of Cr.P.C., the accused is acquitted of the offence punishable under Sec.171-H of Indian Penal Code and Sec.75 of Juvenile Justice (Care and Protection of Children) Act, 2015.25 Spl.CC No.1448/2019
The bail bond executed by the accused and the surety bond shall stand cancelled.
(Dictated to the Judgment Writer, transcribed and typed by him, revised and corrected by me and then pronounced in the Open Court on this the 16th day of December, 2020) (T.N. Inavally) LXXXI Addl. City Civil & Sessions Judge, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/ MLAs in the State of Karnataka) Annexure List of witnesses examined on behalf of prosecution:
PW1 Naveen Kumar
PW2 Mohinuddin
PW3 Aziz Pasha
PW4 Basavaraju
PW5 Dadavali K.H. s/o Hussain Sab
List of documents exhibited on behalf of prosecution:
Ex.P.1 Complaint of PW1
Ex.P.1(a) Signature of PW1 in Ex. P.1
Ex. P.1(b) Signature of PW5 in Ex. P.1
Ex. P.2 Spot Panchanama
Ex. P.2(a) Signature of PW3 in Ex. P.2
Ex. P.2(b) Signature of PW4 in Ex. P.2
Ex. P.2(c) Signature of PW5 in Ex. P.2
Ex. P.3 FIR
Ex. P.3(a) Signature of PW5 in Ex. P.3
List of witnesses examined on behalf of accused:
NIL 26 Spl.CC No.1448/2019 List of documents exhibited on behalf of accused: NIL List of material objects marked on behalf of prosecution: NIL (T.N. Inavally) LXXXI Addl. City Civil & Sessions Judge, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/ MLAs in the State of Karnataka)