State Of Karnataka vs Sri R.G. Somashekar Gowda @ on 15 April, 2021

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Bangalore District Court

State Of Karnataka vs Sri R.G. Somashekar Gowda @ on 15 April, 2021

 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 15th day of April, 2021

                  Spl. C. No. 382 / 2018

COMPLAINANT:                State of Karnataka
                            by Cubbon Park P.S.,
                            Bengaluru
                            (By Smt. B. Rajeshwari,
                            the learned Prosecutor)

                              V/s
ACCUSED:               1.   Sri R.G. Somashekar Gowda @
                            Somegowda, Aged about 47 years
                            R/o No.124, 12th 'B' Main Road
                            6th Block, Rajajinagar
                            Bengaluru-560 010

                       2.   Sri Vijayananda Kashappanavar
                            S/o Late Shivashankarappa R.
                            Kashappanavar
                            Aged about 45 years
                            MLA, Hunugund Vidhana Sabha
                            Constituency,
                            R/at. No.452, Joshi Galli, Ilkal,
                            Hungunda Taluk, Bagalkote District
                            Current Address: No 35, 3rd Cross,
                            Judicial Officers Layout, RMV 2nd
                            Stage, Sanjayanagara, Bengaluru
                            (Sri S. Balan, Advocate for the accused No.1)
                            (Sri Vipin Kumar Jain, Advocate for the
                            accused No.2)

                            *****
                                 2                Spl.C. No.382/2018

                        JUDGMENT

This case is the result of charge sheet filed by the complainant police against the accused No.1 and 2 for the offences punishable under Sec.341, 332, 353, 504 and 506 r/w Sec.34 of Indian Penal Code ('IPC' for short).

2. The prosecution was set into motion against the accused persons on the information of CW1 Kiran Kumar, the then Police Constable of complainant police station. The case of the prosecution is that on 1/2.07.2014 at about 1.00 a.m. when CW1 Kiran Kumar and CW36 Prashanth Nayak, the Police constables of complainant police station, were on beat duty on beat No.5 in Lavelle Road and Vittal Mallya Road, within the jurisdiction of complainant police station, they came to know that Sky Bar and Restaurant situated at 15th Floor, U.B. City Building, Vittal Malya Road, Bengaluru City, was kept open beyond the permitted time i.e., even after 11.30 p.m. on 01.07.2014. Hence, both CW1 and CW36 went to the spot and CW1 with his mobile tried to videograph the situation at the bar. At that time the accused No.2 questioned him and snatched the mobile from the hands of CW1 and with an intention to prevent CW1, who being public servant, from discharging his duties and used criminal force on CW1. 3 Spl.C. No.382/2018 Further, in the said incident, the accused No.1 and 2 in furtherance of common intention assaulted CW1 and also CW36 to 38, they being public servants, preventing them from discharging their duties as public servants. Moreover, the accused No.1 and 2 also insulted CW1 by abusing him in filthy language and the accused No.2 threatened CW1 with dire consequences with an intention to cause alarm to CW1. Hence, the accused No.1 and 2 have committed the offences charge sheeted.

3. As stated herein above, the prosecution was set into motion on the information of CW1 Kiran Kumar, the then Police Constable of complainant police station. On the basis of said complaint, the complainant police registered the case as per their Cr.No.147/2014 for the offences punishable under Sec.143, 323, 353 and 504 r/w 149 of IPC against the accused No.1 and 2 and other five unknown persons and took up investigation. Thereafter the investigation was handed over to the Organized Crime Squad, CCB, Bengaluru City. After completion of the investigation, filed charge sheet against the accused No.1 and 2 for the offences punishable under Sec.341, 332, 353, 504, 506 r/w 34 of IPC before 4 Spl.C. No.382/2018 the learned 1st Addl. CMM, Bengaluru ('the learned Magistrate' for short).

4. The learned Magistrate furnished copy of the charge sheet to the accused persons and hence, the provision of Sec.207 of the Code of Criminal Procedure ('Cr.P.C.' for short) was complied with. After hearing both the parties, the learned Magistrate framed charge against the accused No.1 and 2 for the offences punishable under Sec.332, 353, 504 and 506 r/w 34 of IPC as early as on 03.01.2018, to which the accused No.1 and 2 pleaded not guilty of the offences charged and thereby they claimed to be tried of the said offences.

5. However, the accused No.2 being the sitting MLA of Hunagunda Legislative Assembly Constituency and 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 sent to this Court for further proceedings and hence, the matter is taken up before this Court and this case is registered as Spl. C No.382/2018. 5 Spl.C. No.382/2018

6. Both the accused No.1 and 2 have appeared through their counsel and got enlarged on bail. This Court has framed altered charge against the accused No.1 and 2 for the offences punishable under Sec.332, 353, 504 and 506 r/w 34 of IPC, to which the accused No.1 and 2 have 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 37 witnesses as PW1 to PW37. The prosecution has produced documents at Exs. P.1 to P.65 and also properties at M.O.1 to M.O.4. After closing of the evidence of prosecution witnesses, this Court has examined the accused No.1 and 2 under Sec.313(1)(b) of Cr.P.C., in which they have denied incriminating materials forthcoming against them in the evidence of prosecution witnesses as false, but the accused No.1 and 2 have not chosen to adduce any defence evidence on their behalf. However, the accused No.1 has submitted his statement separately in writing along with one document during his examination under Sec.313 of Cr.P.C. by this Court. Moreover, during the evidence of prosecution witnesses, the accused persons have produced 6 Spl.C. No.382/2018 documents and got marked them as Exs.D.1 to D.10 in the cross- examination of the concerned prosecution witnesses.

8. Heard the argument of the learned Prosecutor and also the learned counsel for both the accused No.1 and 2. Perused the oral and documentary evidence on record and also the principles of law laid down in the decisions relied on the learned Prosecutor and also the learned counsel for the accused No.2. Now the points that arise for my consideration are:

1) Whether the prosecution proves beyond reasonable doubt that on 01.07.2014 at about 01.00 A.M. i.e., at 1 O' Clock on 02.07.2014 at Sky Bar and Restaurant situated in VI Floor, U.B. City Building, Vittal Malya Road, Bengaluru, when CW1 being police constable on duty came there for inquiry, the accused No.2 in furtherance of common intention, voluntarily snatched the mobile phone from the hands of CW1 with intention to prevent him from discharging his public duty and thereby the accused No.1 and 2 have committed the offence punishable under Sec.332 r/w 34 of IPC?

2) Whether the prosecution proves beyond reasonable doubt that on the above said date, time and place in furtherance of common intention the accused No.1 and 2 assaulted CW1-as public servant and used criminal force on him to deter him from discharging his duty as public servant and thereby the accused No.1 and 2 have committed the offence punishable under Sec.353 r/w 34 of IPC?

3) Whether the prosecution proves beyond reasonable doubt that on the above said date, time and place in furtherance of common intention, the accused No.1 and 2 intentionally insulted CW1 and others by using abusive words provoking them to cause breach of public peace and thereby the accused No.1 and 2 have committed the offence punishable under Sec.504 r/w 34 of IPC?

7 Spl.C. No.382/2018

4) Whether the prosecution proves beyond reasonable doubt that on the above said date, time and place in furtherance of common intention the accused No.2 threatened CW1 saying "¤£Àß §mÉÖ ©aÑ¸ÀÄvÉÛÃ£É" with intention to cause alarm to CW1 and thereby the accused No.1 and 2 have committed offence punishable under Sec.506 r/w 34 of IPC?

5) What order?

9. After hearing the argument of both the parties and on considering the oral and documentary evidence forthcoming on record and also principles of law laid down in the decisions relied on by both the parties, my findings on the above points are as hereunder:

Points No.1 to 4 : In the negative Point No.5: As per final order For the following:

REASONS

10. Points No.1 to 4: All 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. The offences charged against the accused No.1 and 2 are punishable under Sec.332, 353, 504 and 506 r/w 34 of IPC. It is well settled principle of law that the prosecution has to prove its case beyond reasonable doubt for the offences charged against the 8 Spl.C. No.382/2018 accused persons. The informant/ victim is CW1 Kiran Kumar S.C., the then police constable of complainant police station. As per the case of the prosecution, the accused No.1 and 2 with common intention voluntarily caused hurt to CW1, who is public servant, deterring him from discharging his duties as public servant and also used criminal force to CW1 by assaulting him. The accused No.1 and 2 with common intention also insulted CW1 by abusing in filthy language and also threatened on the life of CW1 causing alarm to him. Hence, it is the entire burden on the prosecution to prove that the CW1 being the police constable on the relevant day was on duty as public servant at the time of alleged incident and he was prevented from discharging his duty by the accused persons using force on him and also deterring him from discharging his duties.

12. As stated herein above, the prosecution was set into motion on the complaint of the informant CW1 Kiran Kumar. He has been examined as PW1. In the evidence in chief-examination the PW1 has stated that on 01.07.2014 he was deputed to work on night duty at beat No.5 from 8.00 p.m. to 8.00 a.m. on the next day. The police constable PC 3869 was also deputed along with 9 Spl.C. No.382/2018 him. Accordingly, they were on beat duty and at 1.00 a.m. after midnight i.e., 1.00 O'clock in midnight on 02.07.2014 when the PW1 along with CW36 was on duty at Lavelle Road Grand Circle, some public told him that the Sky Bar and Restaurant was open even after permitted time and there was supply of hot drinks and the people were consuming hot drinks. As per the rules, after 11.30 p.m. the Bar and Restaurant should be closed. Hence, he along with CW36 went to Sky Bar and Restaurant.

13. As per the evidence of PW1, when he along with CW36 went to Sky Bar and Restaurant, there were 8-9 persons having drinks and he told Richard, who is bouncer at the said Bar as to why the Bar was kept open even after 11.30 p.m. and such opening of the Bar is illegal. Thereafter, the PW1 tried to record the scene at the Bar through his mobile phone. At that time one of the persons present there came and snatched his mobile phone. The said person is the accused No.1. The another person present there is the accused No.2 and he came and assaulted on his left cheek and abused him in filthy language.

14. The relevant portion in the evidence in chief- examination of PW1 reads thus:

10 Spl.C. No.382/2018

"£ÀªÀÄäªÉÄÃ¯Á¢üPÁjUÀ½UÉ ¸ÀzÀj «ZÁgÀªÀ£ÀÄß w½¸À®Ä ªÉÆ¨ÉÊ¯ï ªÀÄÆ®PÀ ¨Ágï CAqï gÉ¸ÉÆÖÃgÉAmï ZÁ®Æ EzÀÝ §UÉÎ ªÀÄvÀÄÛ UÁæºÀPÀgÀÄ ªÀÄzÀå¥Á£À ªÀiÁqÀÄwÛzÀÝ zÀÈ±ÀåªÀ£ÀÄß ¸ÉgÉ »rAiÀÄÄªÁUÀ C°èzÀÝ PÉA¥ÀÅ ªÀÄvÀÄÛ ©½AiÀÄ r¸ÉÊ£ï£À ±Àmïð ºÁQzÀ ªÀåQÛ KPÁKQ §AzÀÄ £À£Àß ¥ÉÇÃ£ï PÀ¹zÀÄPÉÆAqÀ. CªÀgÀ eÉÆvÉ EzÀÝ fÃ£ïì ¥ÁåAmï ªÀÄvÀÄÛ ©½AiÀÄ CAV ºÁQzÀ ªÀåQÛ ºÁUÀÆ CªÀgÀ ¸ÀAUÀqÀ EzÀÝ G½zÀ d£ÀgÀÄ KPÁKQ £À£Àß ªÉÄÃ¯É zÁ½ ªÀiÁr ©½ CAV ªÀÄvÀÄÛ fÃ£ïì ¥ÁåAmï ºÁQzÀ ªÀåQÛ £À£Àß JqÀ PÀ¥Á¼ÀPÉÌ ºÉÆqÉzÀÄ ¤ £ÀßªÀÄä£À, ¤£ÀßPÀÌ£À CAvÀ CªÁZÀå ±À§Ý¢AzÀ ¨ÉÊzÀ. DUÀ PÉÆÃmïð ªÀÄÄA¢gÀÄªÀ 1£ÉÃ DgÉÆÃ¦ £À£Àß PÀ¥Á¼ÀPÉÌ ºÉÆqÉzÀ ªÀåQÛ ±Á¸ÀPÀ¤zÀÄÝ ¤£Àß §mÉÖ ©aÑ ºÁQ¹ PÉ®¸À¢AzÀ vÉUÉ¹ºÁPÀÄvÁÛgÉ CAvÀ £À£ÀUÉ ¨ÉzÀj¹zÀgÀÄ ªÀÄvÀÄÛ ¸ÀzÀjAiÀÄªÀjUÉ ¥ÀæZÉÆÃzÀ£É ªÀiÁrzÀgÀÄ."

At that time ASI Muniraju and the police constable Mahesh (PC- 8742) came to the spot and they took PW1 and PC 3869 to the lift. Even in the lift the accused and others persons present there tried to assault them. At that time, the accused along with others came by lift to the ground floor for assaulting them. Thereafter, at the parking spot the accused tried to assault and abuse them. The relevant portion regarding the said incident as deposed by PW1 in his evidence in chief-examination reads thus:

"£ÁªÀÅ ¥ÁQðAUï eÁUÀzÀ°èzÁÝUÀ §AzÀÄ ºÀ¯Éè ªÀiÁqÀ®Ä §A¢zÀÄÝ ¤ªÀÄä ¥ÉÇÃ°Ã¸ï E¯ÁSÉ £ÀªÀÄä §ÆnUÉ ¸ÀªÀiÁ£À CAvÀ CªÁZÀå ±À§Ý¢AzÀ ¨ÉÊzÀgÀÄ. «zsÁ£À¸À¨sÁ ¹àÃPÀgï ªÀÄÄAzÉ ¤ªÀÄä£ÀÄß PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃV ¤°è¸ÀÄvÉÛÃªÉ CAvÀ ¨ÉzÀj¹zÀgÀÄ."

At that time, the security staff and valet parking staff of the Bar came to the spot and witnessed the incident. Further, the Hoysala-1 staff ASI Sri Puttaswamy (CW-39) and other police personnel 11 Spl.C. No.382/2018 CW40 to 43 and PC-8742 came to the spot. At that time the accused No.1 pushed PW1. Thereafter, the PW1 informed CW17, the Police Inspector, regarding the incident and he also informed the Station House Officer ('SHO' for short) regarding the incident. The SHO sent him along with CW45 to Bowring Hospital for treatment. Thereafter, in the morning on 02.07.2014 at about 08.00 O'clock the PW1 gave complaint in the police station as per Ex.P.1. Subsequently, at 9.00 a.m. he came to the spot and showed the spot to the Police Inspector and the panchanama was drawn at the spot from 9.00 a.m. to 11.30 a.m. as per Ex.P.2. Thereafter, the case was transferred to City Crime Branch, Bengaluru (CCB police) for investigation and he gave statement before the Investigating Officer ('IO' for short) by seeing the video recorded in the Sky Bar CCTV regarding the incident.

15. As submitted by the learned Prosecutor, if the above referred evidence of PW1 is taken into consideration, it is clear that the PW1 has deposed regarding the alleged incident and such evidence shows that the accused No.1 and 2 were present at the time of incident and they used force and assaulted PW1 deterring him from discharging his duties. But, as submitted by the learned 12 Spl.C. No.382/2018 counsel for the accused No.2, the evidence of PW1 in chief- examination cannot be solely considered without considering his evidence in cross-examination.

16. At this stage itself it is relevant to refer to the complaint at Ex.P.1. As argued by the learned counsel for the accused No.2, as per the endorsement made in Ex.P.1, the said complaint was given at 8.00 a.m. on 02.07.2014. The alleged incident, as per the complaint, took place at about 1.00 to 1.15 a.m. on the same day. As submitted by the learned counsel for the accused No.1, the PW1 has stated in his chief-examination that immediately after the incident he informed the SHO regarding the alleged incident. The prosecution has produced copy of the Station House Diary ('SHD' for short) as per Ex.P.6. As per the said document at Ex.P.6, the PW1 along with another Police Constable (PC3869) came to the police station and reported regarding the alleged incident at 02.20 hours in the night of 01.07.2014. In the said information the names of the accused No.1 and 2 are mentioned. As per the evidence of PW1, immediately after informing the police in the night, he was sent to Bowring Hospital for treatment.

13 Spl.C. No.382/2018

17. The CW35 Dr. K.L. Shankar is alleged to have given treatment to PW1 in the hospital. He has been examined as PW19. At this stage itself, it is relevant to refer to the evidence of PW19. In the evidence in chief-examination PW19 has deposed that on 02.07.2014 at about 2.48 a.m. Kiran Kumar (PW1) was brought by the police constable of Cubbon Park police station on the alleged history of assault in the incident took place at UB City Sky Bar and on examination of PW1 he found injuries such as:

1) Swelling over left side of jaw and cheek

2) Tenderness over left temperomandibular joint

3) Tenderness over the left shoulder area All the said injuries were simple in nature and the PW19 issued wound certificate as per Ex.P.21. As submitted by the learned counsel for the accused No.2, it is relevant to note that in the evidence in cross-examination the PW19 has deposed that in the wound certificate at Ex.P.21 the injured told that two people-

strangers assaulted him. Moreover, the history of injury as mentioned in the wound certificate at Ex.P.21 reads thus:

"alleged assault on 02.07.2014 at around 1 a.m. in Sky Bar, UB City by two people-strangers using hands and fists."

As per the evidence of PW19 and the wound certificate Ex.P.21, the PW19 Dr. Shankar examined PW1 at 2.48 a.m. on 02.07.2014. 14 Spl.C. No.382/2018 As per the evidence of PW1 and the SHD at Ex.P.6, the PW1 informed the police station regarding the alleged incident earlier to that i.e., at 2.20 hours on the same day. Even though in the document at Ex.P.6 the names of the accused are mentioned, it is strange to note that the PW1 did not tell the names of the accused persons as assailants before the Doctor-PW19 while giving history of assault.

18. Moreover, in the evidence the PW1 has deposed that he knew the accused No.1 about one year earlier to the alleged incident. Further, he has deposed that he also knew the name of the accused No.2 earlier to giving complaint. But, it is very strange to note that the PW1 did not mention the names of the accused persons before Doctor-PW19. As pointed out by the learned counsel for the accused No.1, the PW1 in his evidence in cross- examination has deposed that:

"WÀl£ÉUÉ ¥ÀÇªÀðzÀ°è MAzÀÄ ªÀµÀð¢AzÀ MAzÀ£ÉÃ DgÉÆÃ¦ UÉÆvÀÄÛ. J¯ÁèzÀgÀÆ CªÀgÀ£ÀÄß £ÉÆÃrzÀgÉ MAzÀ£ÉÃ DgÉÆÃ¦ ¸ÉÆÃªÀÄ±ÉÃRgÀ UËqÀ CAvÀ £Á£ÀÄ UÀÄgÀÄw¸ÀÄvÉÛÃ£É. ¦gÁå¢ PÉÆqÀÄªÀ ¥ÀÇªÀðzÀ°è 2£ÉÃ DgÉÆÃ¦ ºÉ¸ÀgÀÄ UÉÆwÛvÀÄÛ. D¸ÀàvÉæUÉ ºÉÆÃUÀÄªÀ ¥ÀÇªÀðzÀ°è PÀÆqÀ DgÉÆÃ¦vÀgÀ ºÉ¸ÀgÀÄ UÉÆwÛvÀÄÛ D¸ÀàvÉæAiÀÄ°è ªÉÊzÁå¢ügÀUÀ¼ÀÄ K£ÁVzÉ CAvÀ PÉÃ½zÀÄÝ ºÀ¯Éè DVzÉ CAvÀ ºÉÃ½zÉÝÃ£É. C°è DgÉÆÃ¦vÀgÀ ºÉ¸ÀgÀÄ ºÉÃ½®è. JgÀqÀÄ d£À C¥ÀjavÀgÀÄ ºÀ¯Éè ªÀiÁrzÁÝgÉ CAvÀ £Á£ÀÄ ªÉÊzÁå¢üPÁjUÀ¼À ªÀÄÄAzÉ ºÉÃ½zÉÝÃ£É CAzÀgÉ ¤d."

15 Spl.C. No.382/2018

Therefore, there are contradictions in the evidence of PW1 and the documents available on regarding the persons, who were alleged to have assaulted PW1.

19. Moreover, as submitted by the learned counsel for the accused No.2, the PW1 has admitted in his evidence that he was on beat duty in beat No.5 on the relevant date. Further, it is undisputed fact that the Sky Bar and Restaurant is within the jurisdiction of beat No.3. As per the evidence of PW1, on receiving the information from the public that the Sky Bar was open even after the permitted time, he went to Sky Bar and Restaurant. But there is absolutely no material forthcoming from PW1 to show as to why he being on beat duty in beat No.5, went to the spot, which comes within the jurisdiction of beat No.3, even though there were also the police constables on duty in beat No.3 on the relevant day. As pointed out by the learned counsel for the accused No.2, the PW1 in his evidence in cross-examination has stated that he did not know as to who were deputed for night duty in beat No.3 on the relevant date. The beat No.5 and beat No.3 were at the distance of 50 to 100 meters.

16 Spl.C. No.382/2018

20. Further, PW1 has admitted in his evidence that the Sky Bar and Restaurant is not within the jurisdiction of beat No.5. It is also admitted by PW1 in the evidence that the persons, who were on the concerned beat duty should put their signatures in the Beat book and the police officers, who were supervising the beat duty, should put their signatures to the Beat book. The relevant portion in the evidence in cross-examination of PW1 reads thus:

"¥Á¬ÄAmï ¥ÀÅ¸ÀÛPÀUÀ¼À£ÀÄß ªÀÄÄRå ¸ÀÝ¼ÀUÀ¼À°è ºÁQgÀÄvÁÛgÉ JAzÀgÉ ¤d. AiÀÄÆ© ¹n ¥ÀæªÀÄÄR ¸ÀÝ¼À EzÀÄÝ C°è ¥Á¬ÄAmï ¥ÀÅ¸ÀÛPÀ ºÁQzÁÝgÉ JAzÀgÉ ¤d. AiÀÄÆ© ¹n 3£ÉÃ ©ÃnUÉ ¸ÉÃjzÀÄÝ JAzÀgÉ ¤d. ¸ÁQë ªÀÄÄAzÀÄªÀjzÀÄ ºÉÃ¼ÀÄªÀÅzÉÃ£ÉAzÀgÉ £ÁªÀÅ 5£ÉÃ ©Ãmï£ÀªÀgÉÃ WÀl£É DUÀÄªÀ MAzÀÄ ªÀµÀð ¥ÀÇªÀð¢AzÀ PÀvÀðªÀå ¤ªÀð»¸ÀÄvÁÛgÉ."

"D ¢ªÀ¸À 1 jAzÀ 8£ÉÃ ©ÃnUÉ AiÀiÁgÀ£ÀÄß £ÉÃ«Ä¹zÀÝgÀÄ CAvÀ J¸ïºÉZïrAiÀÄ°è «ªÀgÀªÁVgÀÄvÀÛzÉ. D ¢ªÀ¸À 3£ÉÃ ©ÃnUÉ ºÉZï¹ 4820, ¦¹ 2320 £ÉÃ«Ä¹zÀÝgÀÄ CAzÀgÉ EgÀ§ºÀÄzÀÄ. ¸ÀzÀjAiÀÄªÀgÀÄ AiÀÄÆ© ¹n ¥Á¬ÄAmï ¥ÀÅ¸ÀÛPÀzÀ°è ¸À» ªÀiÁrzÁÝgÉ CAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. £Á£ÉÃ£ÀÄ D ¢ªÀ¸À AiÀÄÆ© ¹n ¥Á¬ÄAmï ¥ÀÅ¸ÀÛPÀzÀ°è ¸À» ªÀiÁrzÉÝ£ÉÆÃ E®èªÉÇÃ £É£À¦®è. £ÀªÀÄä ©Ãmï ©lÄÖ ¨ÉÃgÉ ©ÃnUÉ ºÉÆÃzÀgÉ ¥Á¬ÄAmï ¥ÀÅ¸ÀÛPÀPÉÌ ¸À» ªÀiÁqÀ¨ÉÃPÁUÀÄvÀÛzÉ JAzÀgÉ ¤d. ªÉÄÃ¯É ºÉÃ½zÀ 3£ÉÃ ©Ãmï qÀÆånAiÀÄ ªÉÄÃ°zÀÝ ¹§âA¢AiÀÄ ©Ãmï ¥ÀÅ¸ÀÛPÀzÀ°è £Á£ÉÃ£ÀÄ ¸À» ªÀiÁr®è. £À£Àß ©Ãmï ¥ÀÅ¸ÀÛPÀzÀ°è CªÀgÀÄ ¸À» ªÀiÁr®è."

The evidence of PW1 in cross-examination also reads thus:

"AiÀÄÆ© ¹n ©Ãmï £ÀA.3 gÀ°è §gÀÄvÀÛzÉ JAzÀgÉ ¤d. CqÀ½vÁvÀäPÀ zÀÈ¶×¬ÄAzÀ 5£ÉÃ ©Ãmï£ÀªÀgÉÃ CzÀ£ÀÄß £ÉÆÃqÀÄvÁÛgÉ. D ¢ªÀ¸À 3£ÉÃ ©Ãmï qÀÆån ªÀiÁqÀ®Ä ¨ÉÃgÉAiÀÄªÀgÀ£ÀÄß £ÉÃ«Ä¹zÀÝgÀÄ. £ÀªÀÄUÉ ªÁQmÁQ PÉÆqÀÄvÁÛgÉ JAzÀgÉ ¤d. K£ÁzÀgÀÆ WÀm£ÉAiÀiÁzÀgÉ ªÁQmÁQ ªÀÄÆ®PÀ PÀAmÉÆÃæ¯ï gÀÆAUÉ w½¸ÀÄvÉÛÃªÉ. WÀl£É §UÉÎ ªÁQmÁQ ¥ÀÅ¸ÀÛPÀzÀ°è D §UÉÎ £ÀªÀÄÆzÀÄ ªÀiÁqÀÄvÁÛgÉ."

17 Spl.C. No.382/2018

Even though PW1 was deputed to do duty at beat No.5 on the relevant date, there is absolutely no material forthcoming in the evidence of PW1 to show as to why he came on the relevant day to the said Bar and Restaurant, which is within the jurisdiction of beat No.3. Moreover, the learned counsel for the accused No.2 has produced copy of the Beat route report in respect of beat No.3 of complainant police station and it is marked at Ex.D.1. As per the said document, PW1 Kiran Kumar and CW36 Prashanth Nayak had not visited any of the beat points in beat No.3 on the relevant date when they were on night duty on the relevant date. There is absolutely no documentary evidence forthcoming from the prosecution to show that the PW1 and CW36 Prashanth Nayak visited Sky Bar and Restaurant, which is in beat No.3, on the relevant date.

21. As per the evidence of PW1, he was recording the scene at the spot of the alleged incident through his mobile phone and at that time, the accused No.1 snatched the said mobile phone from him. As pointed out by the learned counsel for the accused No.2, the relevant portion in the evidence of PW1 in cross-examination reads thus:

18 Spl.C. No.382/2018

"ªÉÆ¨ÉÊ¯ï£À°è gÉÃPÁqïð DzÀ «rAiÉÆÃªÀ£ÀÄß £ÁåAiÀiÁ®AiÀÄzÀ°è £Á£ÀÄ £ÉÆÃr®è. ªÉÆ¨ÉÊ¯ï£À°è EzÀÝ zÀÈ±ÀåUÀ¼À£ÀÄß £À£ÀUÉ vÉÆÃj¹zÁÝgÉ. ªÉÆ¨ÉÊ¯ï£ÀÄß ¸ÉÊ§gï ªÉj¦üPÉÃµÀ£ïUÉ PÀ¼ÀÄ»¹zÁÝgÉÆÃ E®èªÉÇ £À£ÀUÉ UÉÆwÛ®è. £À¤ßAzÀ ªÉÆ¨ÉÊ¯ï ¥ÀqÉ¢zÀÄÝ ªÀÄÄAzÉ CzÀ£ÀÄß J°èUÉ PÀ¼ÀÄ»¹zÁÝgÉÆÃ £À£ÀUÉ UÉÆwÛ®è. «rAiÉÆÃ Qè¥ï£ÀÄß qË£ï¯ÉÆÃqï ªÀiÁrPÉÆAqÀ £ÀAvÀgÀ ¢£ÁAPÀ 02.07.2014 gÀAzÀÄ ªÉÆ¨ÉÊ¯ï ªÁ¥À¸ÀÄì PÉÆnÖzÀÄÝ. ¢£ÁAPÀ 05.07.2014 gÀAzÀÄ ¹.¹.©. ¥ÉÇÃ°¸ÀgÀÄ £À£Àß ªÉÆ¨ÉÊ¯ï ¥ÀqÉzÀÄ «rAiÉÆÃ Qè¦AUï qË£ï¯ÉÆÃqï ªÀiÁrPÉÆAqÀÄ CzÉÃ ¢ªÀ¸À ªÁ¥À¸ÀÄì PÉÆnÖzÁÝgÉ."

But, it is interesting to note that no such mobile phone was seized and produced in the case. Moreover, any digital evidence regarding the scene of the alleged incident, which is alleged to have been recorded by the PW1 in his mobile phone, is not forthcoming in the prosecution papers on record. Regarding this fact the evidence of IO-CW53 M.P. Jayamaruthi, who has been examined as PW37, is referred hereinafter at the relevant stage. However, the scene of the alleged incident said to have been recorded by PW1 in his mobile phone would have been the best evidence to prove the alleged incident. But there is no material forthcoming from the prosecution to show as to why the prosecution has suppressed such material evidence. Therefore, the benefit of suppression of such material evidence should go in favour of the accused persons in the case on hand.

19 Spl.C. No.382/2018

22. As per the evidence of PW1 and also as forthcoming from the prosecution papers on record, the CW36 Prashanth Nayak, the then Police Constable of complainant police station, was along with PW1 at the time of alleged incident and he is alleged to be the eye witness to the incident. The CW36 Prashanth Nayak has been examined as PW3. As per the evidence of PW3 in chief-examination, on 01.07.2014 he along with PW1 was on night beat duty at beat No.5 on the relevant date i.e. on 01.07.2014 from 8.00 p.m. till 8.00 a.m. on the next day. At 1 O' Clock in the mid- night on that day when he along with PW1 were on duty at Lavelle Road, some public told them that there was supply of liquor at Sky Bar and Restaurant even after the permitted time. Hence, he along with PW1 went to UB City Sky Bar and saw that some 5-10 men and 2 women were drinking liquor in one table. They enquired the bouncer Richard as to why the liquor was being supplied illegally after the permitted time and the PW1 was recording the scene at the spot through his mobile to report the incident to the higher officer. At that time, one among 5-6 men present there snatched the mobile from PW1 and the another person assaulted on the cheek of PW1.

20 Spl.C. No.382/2018

23. The relevant portion in the evidence in chief- examination of PW3 regarding the alleged incident reads thus:

"£ÀAvÀgÀ £ÀªÀÄä ªÉÄÃ¯Á¢üPÁjUÀ½UÉ ªÀgÀ¢ ¤ÃqÀÄªÀ PÀÄjvÀÄ ¹qÀ§Æè å 1 ªÀÄzÀå ¸ÀgÀ§gÁdÄ ªÀiÁqÀÄªÀ zÀÈ±ÁåªÀ½UÀ¼À£ÀÄß ¸ÉgÉ »rAiÀÄÄªÁUÀ C°èzÀÝ 5-6 d£À UÀAqÀÄ ªÀÄPÀÌ¼ÀÄ MnÖUÉ §AzÀÄ CªÀgÀ ¥ÉÊQ M§âgÀÄ §AzÀÄ ¹qÀ§Æè å 1 gÀ PÉÊAiÀÄå°èzÀÝ ªÉÆ¨ÉÊ®£ÀÄß QvÀÄÛPÉÆArzÀÄÝ, ©½ ±Àmïð ºÁQzÀ E£ÉÆß§â ªÀåQÛ ¹qÀ§Æè å 1 FvÀ£À PÉ£ÉßUÉ ºÉÆqÉzÀ. D UÀÄA¦£À°è 1£ÉÃ DgÉÆÃ¦ ¸ÉÆÃªÉÄÃUËqÀgÀÄ ºÁdjzÀÝÄ, 1£ÉÃ DgÉÆÃ¦ AiÀiÁgÀÄ CAvÀ ¤ªÀÄUÉ UÉÆvÁÛ CªÀgÀÄ JAJ¯ïJ «±ÀAiÀiÁ£ÀAzÀ PÁ±Àå¥Àà£ÀªÀgï ¹qÀ§Æè å 1 FvÀ¤UÉ ¤£Àß §mÉÖ ©aÑ¹ ¸À¸ÉàAqï ªÀiÁr¹ ªÀÄ£ÉUÉ PÀ¼ÀÄ»¸ÀÄvÁÛgÉ CAvÀ 2£ÉÃ DgÉÆÃ¦ «dAiÀiÁ£ÀAzï PÁ±Àå¥Àà£ÀªÀgï EªÀjUÉ ¥ÀæZÉÆÃzÀ£É ¤ÃrzÀ. 2£ÉÃ DgÉÆÃ¦ ¨ÉÆÃ½ ªÀÄPÀÌ¼À, ¸ÀÆ¼É ªÀÄPÀÌ¼À, ¤ªÀÄäªÀÄä£À PÉÃAiÀÄ CAvÀ CªÁZÀå ±À§Ý¢AzÀ £À£ÀUÀÆ ºÁUÀÆ ¹qÀ§Æè å 1 EªÀjUÉ ¨ÉÊzÀÄ £ÀªÀÄä ªÉÄÃ¯É ºÀ¯Éè ªÀiÁqÀ®Ä §AzÁUÀ ªÉÄÃ¯É ºÉÃ½zÀAvÉ ¤ªÀÄä£ÀÄß §mÉÖ ©aÑ¹ ªÀÄ£ÉUÉ PÀ¼ÀÄ»¸ÀÄvÉÛÃªÉ CAvÀ 1£ÉÃ DgÉÆÃ¦ ¥ÀæZÉÆÃzÀ£É ªiÁrzÀ."

Further, it is the evidence of PW3 that they informed the staff of Hoysala-1 and Cheetah-121 and 13 and also to the staff of beat No.4 regarding the incident through wireless. At that time, the bouncer Richard was pacifying them and the accused No.2 and other persons tried to assault them. Thereafter, the CW38 came to the spot and at that time, the accused No.2 abused them in filthy language. The CW37 took them towards lift and at that time, the accused No.1 and another person came inside the lift and the accused No.2 caught hold of the shirt collar of PW1 and tried to drag him out of the lift. Thereafter, they came to the ground floor of the UB City by lift and at that time, the accused No.2 also came 21 Spl.C. No.382/2018 to the ground floor and abused them with filthy language and tried to assault them.

24. The relevant portion in the evidence of PW3 regarding the alleged incident reads thus:

D PÁ®PÉÌ E£ÉÆßAzÀÄ °¦üÖ£À°è 2£ÉÃ DgÉÆÃ¦ £É® ªÀÄºÀrUÉ §A¢zÀÄÝ , £ÀªÀÄä ¥ÉÇÃmÉÆÃ vÉUÉzÀ ¸ÀÆ¼É ªÀÄUÀ ¨ÉÆ½ ªÀÄUÀ AiÀiÁgÀÄ CªÀ£À£ÀÄß vÉÆÃj¹j CAvÀ ¨ÉÊzÀgÀÄ. ¥ÉÇÃmÉÆÃ vÉUÀÉzÀ ªÀåQÛ ¹qÀ§Æè å 1 CAvÀ UÉÆvÁÛV DvÀ£À ªÉÄÃ¯É ºÀ¯Éè ªÀiÁqÀ®Ä ¥ÀæAiÀÄwß¹zÀgÀÄ. 2£ÉÃ DgÀÉÆÃ¦ ¤ÃªÀÅ ¥ÉÇÃ°Ã¸ÀgÀÄ £ÀªÀÄä §ÄÆn£À ¸ÀªÀiÁ£À ¤ªÀÄä£ÀÄß ¹àÃPÀgï ªÀÄÄAzÉ MAiÀÄÄÝ ¤°è¹ §mÉÖ ©aÑ¸ÀÄvÉÛÃ£É CAvÀ, r¹¦ ªÀÄvÀÄÛ ¥ÉÇÃ°Ã¸ï PÀ«ÄµÀ£Àgï ¸ÀÝ¼ÀPÉÌ §gÀÄªÀAvÉ ªÀiÁqÀÄvÉÛÃ£É CAvÀ ºÉÃ½zÀÝ®èzÉ ªÀÄvÉÛ CªÁZÀå ±À§Ý¢AzÀ ¨ÉÊzÀÄ £ÀªÀÄä PÀvÀðªÀåPÉÌ CqÀZÀuÉ ªÀÄÁrzÀgÀÄ. ºÉÆAiÀÄì¼À 1, 4£ÉÃ ©Ãmï ¹§âA¢AiÀÄªÀgÀÄ £ÁªÀÅ ¥ÉÇÃnðUÉÆÃ ºÀwÛgÀ ºÉÆÃzÁUÀ C°èUÉ §AzÀgÀÄ. DgÉÆÃ¦vÀgÀ UÀÄA¦£À°èzÀÝ 2 ºÉtÄÚ ªÀÄPÀÌ¼ÀÄ ºÀ¯Éè ªÀÄÁqÀÄªÀÅzÀÄ ¨ÉÃqÀ CAvÀ ºÉÃ½ vÀqÉzÀgÀÆ ¸ÀºÀ CªÀgÀ£ÀÄß vÀ½î CªÀgÀ ªÉÄÃ¯É ºÀ¯Éè ªÀÄÁrzÀgÀÄ. DgÉÆÃ¦vÀgÀÄ ºÁUÀÆ CªÀgÀ eÉÆvÉ EzÀÝªÀgÀÄ PÁj£À°è ºÉÆÃzÀgÀÄ.

It is also the evidence of PW3 that thereafter he along with PW1 went to the police station and informed the SHO regarding the incident and the SHO sent PW1 by Hoysala Vehicle to the hospital for treatment. The PW3 informed the PSI of Kengeri traffic Police station regarding the alleged incident at about 2 O'Clock in the night. The PW1 gave complaint to the police and thereafter on 06.07.2014 he gave statement before the IO regarding the incident.

25. If the above referred evidence of PW3 is taken into consideration, it is clear that the said evidence is not in accordance 22 Spl.C. No.382/2018 with the evidence of PW1 regarding the alleged incident. However, the submission of learned Prosecutor is that the evidence of PW1 and PW3 proves the presence of the accused No.1 and 2 in Sky Bar and Restaurant at 1 O'clock in the night i.e., at the time of the alleged incident and also proves the alleged incident. But, on the other hand, as submitted by the learned counsel for the accused No.2, the relevant portion in the evidence of PW3 in chief- examination itself is as hereunder:

"¹¹©¬ÄAzÀ £À£ÀUÉ ºÉÃ½PÉ ¥ÀqÉAiÀÄ®Ä £ÉÆÃnÃ¸ï §A¢zÀÄÝ ¢B 24.2.2016 gÀAzÀÄ £Á£ÀÄ ¹¹©AiÀÄ vÀ¤SÁ¢üPÁj ªÀÄÄAzÉ ºÀÉÃ½PÉ PÉÆnÖzÉÝÃ£É. D PÁ®PÉÌ ¹¹n«AiÀÄ ¥ÉÇÃmÉÃeïUÀ¼À£ÀÄß £ÀªÀÄUÉ vÉÆÃj¹ D ¥ÉÇÃmÉÆÃUÀ¼À°èzÀÝ ¸ÀåQÛUÀ¼ÀÄ ªÀÄvÀÄÛ ¸ÀªÀÄAiÀÄªÀ£ÀÄß UÀÄgÀÄw¸À®Ä ºÉÃ½ £Á£ÀÄ UÀÄgÀÄw¹zÉÝÃ£ÀÉ. ¸ÀzÀj zÀÈ±ÁåªÀ½UÀ¼À°è £Á£ÀÄ ªÀÄvÀÄÛ ¹qÀ§Æè å 1 AiÀÄÆ© ¹nAiÀÄ ¸ÉÌ ø ¨ÁjUÉ ºÉÆÃVzÀÄÝ WÀl£É £ÀqÉzÀ §UÉÎ zÀÈ±ÁåªÀ½UÀ¼À°è ªÀiÁrzÀÝ£ÀÄß £Á£ÀÄ UÀÄgÀÄw¹zÉÝÃ£É. ¸ÀzÀj WÀl£É ªÀÄvÀÄÛ zÀÈ±ÁåªÀ½UÀ¼À §UÉÎ £Á£ÀÄ ºÀÉÃ½PÉ ¤ÃrzÉÝÃ£É. ¹¹n«AiÀÄ ¥ÉÇÃmÉÃeïUÀ¼À°è D ¢ªÀ¸À 1£ÉÃ DgÉÆÃ¦ ¤Ã° ±Àmïð zÀsj¹zÀÄÝ 2 £ÉÃ DgÉÆÃ¦ ©½ ±Àmïð zÀsj¹zÀÝ. ©½ ±Àmïð zÀsj¹zÀ ªÀåQÛ 2£ÉÃ DgÉÆÃ¦ «dAiÀiÁ£ÀAzÀ PÁ±Àå¥Àà£ÀªÀgï DVzÁÝgÉ."

While discussing the evidence of PW1 herein above, there is reference to the document at Ex.P.6. It is pertinent to note that the document at Ex.P.6 is got marked by the learned counsel for the accused No.2 in the cross-examination of PW3. As discussed herein above, the document at Ex.P.6 is not in accordance with the prosecution case regarding the alleged incident. Moreover, the PW3 in his evidence in cross-examination by the learned counsel 23 Spl.C. No.382/2018 for the accused No.2, has admitted that there was electronic beat programme in the complainant police station at the time of alleged incident and the electronic tags were kept in the beat points. It is also admitted by PW3 that tag reader was provided to them when they were on beat duty and in such tag the date and time of the visit of the police to the concerned beat point would be recorded. But, as pointed out by the learned counsel for the accused No.2, no such document in respect of the tag reader is produced in the present case. Such document would have been the material document to prove that the PW1 and PW3 were on beat duty at the spot of alleged incident at the relevant time.

26. Further, copy of the diary written by PW3 at the relevant time is part of the prosecution papers on record and the said document is got marked at Ex.P.7 by the learned Counsel for the accused No.2 in the evidence in cross-examination of PW3. In such evidence the PW3 has admitted that the document at Ex.P.7 is his personal diary and he would write such diary regarding the beat points visited by him while on beat duty. But the PW3 has also admitted that he did not mention in the document at Ex.P.7 of the beat points visited by him on the relevant date. Further, the PW3 24 Spl.C. No.382/2018 has admitted that UB City is not situated within the jurisdiction of beat No.3. The PW3 has also deposed in his evidence in cross- examination that even though it is mentioned in Ex.P.7 that there were 5-6 cars found parked at the parking place, he did not mention the registration number, names of the drivers and names of the owner of those cars in the diary at Ex.P.7.

27. Moreover, the document at Ex.P.8 is regarding the diary maintained in respect of beat No.5. The said document is got marked in the cross-examination of PW3 by the learned counsel for the accused No.2. The relevant portion in the document at Ex.P.8 is marked at Ex.P.8(a). The portion written by PW1 in Ex.P.8 is got marked at Ex.P.8(b). As per the document at Ex.P.8, both PW1 and PW3 were deputed for discharging night beat duty on the relevant date in beat No.5 from 8.00 p.m. to 8.00 a.m. on the next day. There is absolutely no mention in Ex.P.8 that the PW1 and PW3 were also deputed/ directed by their higher officers to do beat duty in beat No.3, wherein UB City is situated.

28. The concerned photos produced by the prosecution are got marked in the evidence in the cross-examination of PW3 by the learned counsel for the accused No.2 and those photos are 25 Spl.C. No.382/2018 together marked at Ex.P.9. The relevant portion in the evidence of PW3 in his cross-examination regarding those photos is as hereunder:

"FUÀ vÉÆÃj¹zÀ ¥ÉÇÃmÉÄÁÃUÀ¼ÀÄ 1 UÀAmÉ 7 ¤«ÄµÀPÉÌ £ÀAvÀgÀ vÉUÉzÀ ¥ÉÇÃmÉÆÃUÀ¼ÀÄ JAzÀgÉ ¤d. AiÀÄÆ© ¹nAiÀÄ £É®¢AzÀ MAzÀÄ ¯ÉÊ£ï ¯ÉÊlÄ ºÁQzÀÄÝ ¥ÉÇÃmÉÆÃzÀ°è PÁtÄvÀÛzÀÉ JAzÀgÉ ¤d. ¸ÉÌ ø ¨Ágï£ÀªÀgÀzÀÄÝ °¥sïÖ ¥ÉÇÃnðPÉÆÃ EzÉ JAzÀgÉ ¤d. PÁªÀÄ£ï KjAiÀiÁzÀ°è ªÀiÁªÀÄÆ° ¯ÉÊmï ºÁQzÁÝgÉ. AiÀÄÆ© ¹nAiÀÄ ¥ÉÇÃnðPÉÆÃzÀ°è §AzÀÄ ¸ÉÌ ø ¨ÁgïUÉ °¥sïÖ£À°è ºÉÆÃUÀ¨ÉÃPÁUÀÄvÀÛzÉ JAzÀgÉ ¤d. ¥ÉÇÃnðPÉÆÃzÀ°è ¸ÀºÀ ¹¹ PÁåªÀÄgÁ EzÉ. WÀl£É £ÀqÉzÀ ¸ÀÝ¼ÀzÀ°è gÉPÁqïð CzÀ ¹¹ n« ¥ÉÇÃmÉÆÃeïUÀ¼À£ÀÄß £ÀªÀÄUÉ vÉÆÃj¹zÀÄÝ CªÀÅUÀ¼À£ÀÄß ºÉÆgÀvÀÄ¥Àr¹ ¨ÉÃgÉ ¸ÀÝ¼ÀzÀ ¥ÉÇÃmÉÃeïUÀ¼À£ÀÄß vÀ¤SÁ¢üPÁj £ÀªÀÄUÉ vÉÆÃj¹®è. ¸ÀzÀj ¥ÉÇÃlÉÆÃUÀ¼ÀÄ WÀl£ÉAiÀÄ PÁ®PÉÌ gÉPÁqïð DzÀ ¹¹ PÁåªÀÄgÁzÀ ¥ÉÇÃmÉÃeï£À ¥ÉÇÃmÉÆÃUÀ¼ÁVªÉ. J®è ¥ÉÇÃmÉÆÃUÀ¼À£ÀÄß ¸ÉÃj ¤.¦.9(¥ÀÅl ¸ÀARÉå 186 jAzÀ 207) CAvÀ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ."

Immediately after getting the photos at Ex.P.9 marked in the evidence in cross-examination of PW3, the learned counsel for the accused No.2 showed one photo kept in his file and the PW3 has admitted that the said photo is regarding Sky Bar area and in the said photo lighting decoration is appearing. The said photo is marked at Ex.D.2 in the evidence in cross-examination of PW3. Regarding the photos at Ex.P.9 the evidence of PW3 that there is complete darkness in the photos and only 25% of the portico portion was closed, as there was darkness. Further, the PW3 has 26 Spl.C. No.382/2018 deposed in his evidence in cross-examination that except photos at Ex.P.9 he was not shown any documents regarding any video of the scene of the alleged place of incident by the IO during the investigation of the case. Therefore, even if the evidence of PW3 is taken into consideration, it is not in accordance with the case of prosecution.

29. Further, as submitted by the learned counsel for the accused No.2, there is absolutely no digital evidence forthcoming from the prosecution to prove the CCTV footage of the CCTV kept in the Sky Bar and Restaurant at the relevant time. The discussion regarding digital evidence forthcoming on record will be made subsequently at the relevant stage by considering the evidence of the IO-PW37 and also the evidence of PW35 K.L. Thomas, who was then working with CDAC laboratory, Cyber Forensic Group, Thiruvananthapuram and he is alleged to have examined the electronic devises and gave report in the case accordingly.

30. However, as discussed here in above, no digital evidence is forthcoming on record regarding the scene of the offence, which is alleged to have been video recorded by PW1 in his mobile 27 Spl.C. No.382/2018 phone. As mentioned earlier, no such mobile phone was also seized and produced by the I.O. in the case on hand. Moreover, it is very much relevant to note that when it is the fact that the PW1 and PW3, who are the police constables, were deputed for night duty in beat No.5 and there were other police personnels deputed on the relevant day for night duty in beat No.3, wherein Sky Bar and Restaurant is situated, it cannot be considered at this stage that PW1 and PW3 were on official public duty at the spot of the alleged incident on the relevant date. It is the evidence of PW1 and PW3 that one of the staff of the Bar i.e., Bouncer Richard was present at the spot and he witnessed the incident. Hence, unless there is evidence of independent witnesses in support of the case of the prosecution, only the evidence of PW1 and PW3 does not merit consideration to prove the alleged incident.

31. In this back ground, the evidence of other independent witnesses and also the evidence of IO can be considered accordingly. Richard Solman, the then staff of Sky Bar and Restaurant, being bouncer, is CW10. He has been examined as PW2 by the prosecution. The evidence of PW2 in his chief- examination is that on 01.07.2014 at about 6.30 to 7.00 p.m. he 28 Spl.C. No.382/2018 went to Sky Bar for work and at that time CW11 and 12 were also working with him and the CW9 was the Manager, CW16 was the server and CW13 and CW15 were stewards in the said Bar. The Manager told him that at about 8.00 p.m. there would be birthday party and about 15-20 persons would be coming. The Manager also told him to manage the things in the party. Thereafter, at about 9.30 to 10 p.m. the accused No.1 was present in the said party. Subsequently, the friends of the accused No.1 came one by one at about 11 to 11.30 p.m. the party started and they cut the cake. At about 11.30 he told them that the Bar would be closed. But the persons in the party were still having dinner and they told that within 10-15 minutes they would complete dinner. But the persons in the party were having dinner and also taking drinks.

32. It is also the evidence of PW2 that at about 11.45 to 12.00 O'clock in the night the Manager John told him that the bill was not settled and asked him to go to the spot as the bill was not settled yet. Hence, the PW2 was at the spot till 1 O'clock in the night and at that time, the police came to the Bar and enquired him and he told the police that the bill was not settled and he also told the police to enquire with the Manager regarding not closing of the 29 Spl.C. No.382/2018 Bar even after 11.30 p.m. Hence, the police went inside to meet the Manager. 10 to 15 minutes thereafter, he heard the galata and hence, he went to the spot.

33. Regarding the alleged incident, the evidence of PW2 in chief-examination reads thus:

"¥ÉÇÃ°Ã¸ÀgÀÄ ªÀÄvÀÄÛ ¥ÁnðUÉ §AzÀªÀgÀÄ M§âjUÉÆ§âgÀÄ ªÀiÁw£À ZÀPÀªÀÄQ £ÀqÉ¹zÀgÀÄ. £ÀªÀÄUÉ ¸ÀªÀÄAiÀÄ DUÀÄwÛzÉ ¤ÃªÀÅ DZÉUÉ ºÉÆÃV K£ÁzÀgÀÆ ªÀiÁrPÉÆ½î CAvÀ ºÉÃ½zÉ. CªÀgÀÄ K£ÀAvÀ ¨ÉÊzÀgÀÄ CAvÀ £À£ÀUÉ UÉÆwÛ®è. £Á£ÀÄ ¨ÁV® ºÀwÛgÀ ¤AwzÀÝjAzÀ 1 ªÀÄvÀÄÛ 2£ÉÃ DgÉÆÃ¦vÀgÀÄ ¥ÉÇÃ°Ã¸ÀjUÉ K£ÀÄ ªÀiÁrzÀgÀÄ CAvÀ £Á£ÀÄ UÀªÀÄ¤¹®è. G¨ÀsAiÉÄÃvÀgÀjUÀÆ £Á£ÀÄ w¼ÀÄªÀ½PÉ ¤ÃqÀ®Ä ¥ÀæAiÀÄwß¹zÉÝÃ£É. M¨ÉÆâ§âgÀ£ÀÄß £Á£ÀÄ PÀgÉzÀÄPÉÆAqÀÄ ¨Ágï¤AzÀ ºÉÆgÀUÉ PÀ¼ÀÄ»¹zÀÄÝ ¥ÀÅ£ÀB °¥sïÖªÀgÉUÉ ºÉÆÃUÀÄªÀªÀgÉUÀÆ CªÀgÀ £ÀqÀÄªÉ ªÀiÁw£À ZÀPÀªÀÄQ D¬ÄvÀÄ. °¥sïÖ£À°è ¥ÉÇÃ°Ã¸ÀjUÉ DgÉÆÃ¦vÀgÀÄ ¨ÉÊ¢zÀÄÝ £Á£ÀÄ UÀªÀÄ¤¹®è. D PÁ®PÉÌ ¥ÉÇÃ°Ã¸ÀjUÉ DgÉÆÃ¦vÀgÀÄ ¨ÉÊzÀzÀÄÝ CAvÀ UàªÀÄ¤¹®è."

As pointed out by the learned counsel for the accused No.2, the above referred evidence of PW2 regarding the alleged incident clearly goes to show that the PW2 has not deposed anything regarding the presence of the accused No.2 in the alleged incident. Moreover, the evidence of PW2 is not in accordance with the prosecution case regarding the alleged incident. However, the submission of the learned Prosecutor is that the evidence of PW2, who is independent witness, proves the presence of the accused No.1 and 2 at the spot during the alleged incident. But as discussed 30 Spl.C. No.382/2018 herein above, there is absolutely no evidence forthcoming from PW2 regarding the alleged incident occurred after 1 O'Clock in the night. Further, if evidence of PW2 is considered along with the evidence of PW1 and PW3, the evidence of PW2 is not in accordance with the evidence of PW1 and PW3 regarding the alleged incident.

34. Moreover, the PW2 has deposed in his evidence that on the next day of the incident, CW8 Boregowda, Manager called him over phone and at that time the I.T. Cell of the police came and the CW8, who was looking after the management of CCTV Camera, also came. The police showed PW2 the photos recorded in the CCTV camera and in the said photos he had seen scene of the altercation between the police and the accused persons having been recorded. At that time, he gave statement to the police. The notice issued to the PW2 by the police is marked at Ex.P.3 and the bond executed by the PW2 before the police is marked at Ex.P.4. But the evidence of PW2 is not in accordance with the prosecution case and hence, he is treated hostile in part and subjected to cross- examination by the learned Prosecutor. The relevant portion in his statement alleged to have been given before the I.O. is marked at 31 Spl.C. No.382/2018 Ex.P.5. Therefore, as submitted by the learned counsel for the accused No.2, as evidence of PW2 is not in accordance with the prosecution papers on record, his evidence does not merit consideration to prove any incident allegedly occurred at 1.00 O'Clock in the night at the spot.

35. Before adverting to the evidence of other independent and material witnesses, it is necessary to refer to the evidence of concerned police officers, who registered the case and took up investigation at the initial stage. The CW44 K.N. Subramani is the then ASI of complainant police station. As per the case of the prosecution, initially the informant/ victim-PW1 informed the CW44 K.N. Subramani, the then ASI of complainant police station, about the alleged incident. The CW44 has been examined as PW21. In the evidence in chief-examination the PW21 has deposed that on 01.07.2014 at about 2.15 hours in the mid night PW1 Kiran Kumar and PW3 Prashanth Nayak came to the police station and informed him that there was supply of liquor at Sky Bar and Restaurant in UB City building even after 1.30 hours in the night and hence, after receiving the information they went to the spot and the PW1 tried to videograph the scene at the spot 32 Spl.C. No.382/2018 through his mobile phone to intimate the same to his higher officers. At that time, the persons, who were having drinks at the spot tried to snatch the mobile phone and assaulted PW1.

36. It is also the evidence of PW21 that the PW1 stated that those persons were Somegowda and MLA Kashappa, who are the accused No.1 and 2 respectively. The PW21 received the said information and informed the then PSI CW50 U.V. Udayabhaskar and as per the advice of the said PSI, he mentioned the information in the SHD and sent PW1 Kirankumar to Bowring Hospital for treatment. After taking treatment the PW1 returned to the police station and gave complaint before the IO. It is also the evidence of PW21 that on the date of alleged incident ASI Muniraju was also on night beat duty and that the said ASI also informed him that there was supply of liquor at UB City Sky Bar even after prescribed time. The report given by ASI Muniraju is at Ex.D.4. As per the said report, the case in Cr.No.146/2014 was registered in the police station. The registration of the case in crime No.146/2014 against the Sky Bar and Restaurant is also mentioned in SHD, the copy of which is at Ex.P.6. But, as submitted by the learned counsel for the accused No.1, even though the PW21 33 Spl.C. No.382/2018 received report regarding the alleged incident in the night at 2.15 hours, there was no case registered against the accused persons immediately after the receipt of any such report.

37. Moreover, the relevant portion in the evidence of PW21 in cross-examination by the learned counsel for the accused No.2, is as hereunder:

"ಆ ದನ ಮಧಧ ರತತ 2.30 ಗಗಟಗ ನನನ ಸಸಸ ಬರನವರ ಮಮಲ ಪತಕರಣ ನನಗದಯಸಕನಗಡದನ. ಸದರ ಸಸಸ ಬರನವರನ ನನನ ವರದ ಕನಡನವ ಸಮಯದಲ ಗಲಟ ಆದ ಬಗಗ ತಳದನ ಬಗತನ ಅಗತ ಹಮಳದರ. ಕರಣ‍ ಕನಮರ ನನನ ನ ಆಸಸತತಗ ಕಳನಹಸದ ಬಗಗ ದನಚರಯಲ ಬರದಲಲ ಆದರ ಮಮಮ ಕನಟನ ಟ ಕಳನಹಸದನ. ಆ ಮಮಮ ನಮ ಮ ಠಣಯ ಕಡತದಲರಬಹನದನ. ನನನ ಮನಖಧ ವಚರಣ ಸಮಯದಲ ಆ ಮಮಮದ ನಕಲನನ ನ ನನಗ ತನಮರಸಲಲಲ."

Hence, the evidence of PW21 does not show that immediately after the alleged incident case was registered on the report of PW1. Further, there is no material forthcoming in the evidence of PW21 to show as to why he did not register the case immediately after the receipt of report, even though the information given by PW1 is regarding cognizable offence.

38. The CW45 Revanasiddappa is the then Head Constable of complainant police station and he was an reserve Station House Officer on the night of the alleged incident. He has been examined as PW22. The evidence of PW22 is also that when he was on duty on the relevant date at about 2.15 hours in the midnight the PW1 34 Spl.C. No.382/2018 and PW3 came to the police station and reported regarding the alleged incident said to have occurred at Sky Bar and Restaurant of UB City at about 1.05 hours on the same day and the PW1 and PW3 gave complaint to PW21 (CW44) to take further steps. Thereafter, as per the direction of PW21, he took PW1 Kirankumar to Bowring Hospital by Hoysala vehicle for treatment. But, as submitted by the learned counsel for the accused No.2, it is pertinent to note that the PW22 also did not register any case on the alleged report of PW1 regarding the alleged incident.

39. Moreover, even though in the evidence in chief- examination the PW22 has deposed that during the investigation he was shown video clips regarded in the CCTV and in the said video the accused persons were found abusing and pushing PW1 and PW3, it is very much interesting to note that when those video clips were got played in the open Court during the evidence of PW22 and the concerned CDs were not reading. Further, the evidence of PW22 regarding the alleged incident is hearsay one. There is absolutely no document forthcoming in the evidence of PW22 to prove that PW1 and PW3 informed him regarding the alleged incident.

35 Spl.C. No.382/2018

40. Further, as mentioned herein above, even though it is the evidence of PW22 that he had seen video clips regarding the alleged incident, the concerned CD was not reading before the Court at the time of recording of evidence of PW22. Moreover, in the evidence in cross-examination PW22 has deposed that he did not put his signature to the memo given by PW21 (CW44). Hence, in proof of oral evidence of PW22, absolutely no document is forthcoming on record regarding the information allegedly given by PW1 and PW3 in the police station at the initial stage.

41. The CW50 G.V. Udayabhaskar, the then PSI of the complainant police station, is alleged to have registered the case and submitted FIR to the learned Magistrate regarding the alleged incident. CW50 has been examined as PW28. The evidence of PW28 in chief-examination is that on 02.07.2014 at about 8.00 a.m. PW1 Kiran Kumar was present in the police station at 8.15 a.m. and he gave computer typed complaint at Ex.P.1. Accordingly, he registered the case in Cr.No.147/2014 and submitted FIR to the concerned Magistrate as per the document at Ex.P.27. On the same day at about 9.15 a.m. he visited the spot and drew panchanama at Ex.P.2, as the informant showed the spot of incident. At the time of 36 Spl.C. No.382/2018 drawing panchanama the PW1, PW3, CW3 and CW36 were present and they put their signatures to the panchanama.

42. It is deposed by PW28 that on 03.07.2014 he took up further investigation and on the same day CW8 came to the police station and produced the concerned NVR1610 along with letter at Ex.P.11. Accordingly, he drew panchanama at Ex.P.10 and seized the said NVR and packed the said NVR in a sealed cover. The said NVR is produced as per M.O.3. On the same day he recorded the statements of CW9 John, CW10 Richards, CW11 Aruna and CW12 Anand. The further investigation was handed over to CCB as per the letter at Ex.P.28 and the CW51-K.P. Ravi Kumar took up further investigation. The CD was given by the UB City Building Maintenance Forum and the said CD is marked at M.O.1.

43. It is also deposed by PW28 in his chief-examination that on 11.07.2014 as per the request of CW51 he submitted the document at Ex.P.6 as per his letter at Ex.P.29. But, as pointed out by the learned counsel for the accused No.1, the relevant portion in the evidence of PW28 is that he does not know what was the source of Hard disc at M.O.3 when CD at M.O.1 was produced before him. Moreover, the PW28 did not try to visit UB City 37 Spl.C. No.382/2018 building and seize the NVR at M.O.3 from the spot. In the evidence in cross-examination PW28 has deposed that he does not know the source of the said NVR. It was deposed by PW28 that there was no case registered against the management of Sky Bar regarding violation of any of the conditions of permission granted to run the Bar. However, he has deposed that as per the report at Ex.D.4, the case was already registered against the Sky Bar under Excise Act as per Cr.No.146/2014.

44. Moreover, as pointed out by the learned counsel for the accused No.2, the following portions in the evidence in the cross- examination of PW28 clearly show that there is no explanation forthcoming from the PW28 for the delay in registering the case. Hence, it creates doubt regarding the investigation done by him in the case on hand. The relevant portions in the evidence in cross- examination of PW28 read as hereunder:

"ಈ ಪತಕರಣಕಸ ಸಗಬಗಧಪಟಟಗತ ನನನ ದನರನಲ ಪರರದ ಹಲಗನಳಗಗದದ ಅಗತ ಮಹತ ಬಗದದದರಗದ ಅವನಗ ವವದಧಕಮಯ ಚಕತತ ಕನಡಸನವ ಕನರತನ ಲಭಧ ಇರನವ ಸಬಬಗದಯಗದಗ ಆಸಸತತಗ ಕಳನಹಸಕನಡಲಗತನತ. ಅ ಸಮಯದಲ ನಮ ಮ ಠಣಯಲ ಪರರದಯನನ ನನಗದಯಸನವ ಕನರತನ ತಗತತಕ ಸಬಬಗದ ಹಜರರಲಲಲ. ಆದದರಗದ ಬಳಗಗ 8 ಗಗಟಗ ಈ ಪತಕರಣವನನ ಪಮಲಮಸ‍ ಐಟ ತಗತತಗಶದಲ ದಖಲಸಲಯತನ. ಈ ಮಮಲ ಹಳದ ಅಗಶಗಳನನ ವಳಗಬವಗ ಪರರದಯನನ ನನಗದವಣ ಮಡದ ಬಗಗ ಪತಥಮ ವತರಮನ ವರದಯಲ ಬರದಲಲ. ನ.ಪ.27 ಪತಥಮ ವತರಮನ ವರದಯ ಮಮಲ ಪರರದಯ ಸಹ ಇಲಲ."

It is also the evidence of PW28 in cross-examination that: 38 Spl.C. No.382/2018

"ನನನ ತನಖ ಸಮಯ‍ದಲ ಘಟನಯ ಮದಲನ ಎಷನ ಟ ಜನ ಸಸಸ ಬರನಲ ಪತವಮಶ ಮಡದರನ ಎಗಬ ಬಗಗ ನನನ ತನಖ ಮಡಲಲ.

ದದ1.7.2014 ರಗದನ ರತತ 10 ರಗದ 11 ಗಗಟಯವರಗ ಎಷಟಲ ಲ ಗತಹಕರನ ಸಸಸ ಬರನ ಒಳಗ ಬಗದನ ಹನಮದರನ ಎಗದನ ಮಹತಯನನ ಕನಡಲನ ಸಸಸ ಬರನ ವಧವಸದಪಕರಗ ದದ3.7.2014 ರಗದನ ನನಮಟಮಸನನ ಕನಟಟದ.

ದದ1.7.2014 ರಗದನ ಈಗ ನಧರಲಯದ ಮನಗದರನವ ಇಬಬರನ ಆರನಮಪಗಳನ ಸಸಸ ಬರಗ ಟ ಗಗಟಗ ಒಳಗ ಹನಮದರನ ಎಗದನ ನನನ ತನಖ ಸಮಯದಲ ಮಹತ ತಳಯಲಲಲ. ಎಷನ ಪರರದ ಕರಣ‍ ಕನಮರ ಘಟನ ಆಯತನ ಅಗತ ಹಮಳನವ ಸಮಯದಲ ಬಮಟ‍ ನಗ. 4 ಅಥವ 5 ರಲ ಅಥವ ಘಟನ ಆಯತನ ಅನನ ನ ವ ಸದಳದಲ ಇರಲಲಲ, ಅವನನ ತನನ ದ ದ ಮನಯಲದ ಆದರಗದ ನನನ ಅವನ ಮಬವಲ‍ ಪಮನ ನನ ನ ಜಪತ ಮಡಲಲಲ ಎಗದರ ಸರಯಲಲ. ವವದಧಕಮಯ ವರದಯ ಪತಕರ ಕರಣ‍ ಕನಮರ ಆ ದನ ಮದಧ ಸಮವನ ಮಡದದ ಅಗತ ಗನತತಗದದರನ ಸಹ ನನನ ಉದಶಪವರಕವಗ ನನನ ಆ ದಖಲತಯನನ ಸಸಧಮನ ಪಡಸಕನಗಡಲಲ ಎಗದರ ಸರಯಲಲ. ನನನ ತನಖ ಸಮಯದಲ ಪರರದಯಲ ಬರದ 7-8 ಜನರ ಚಹರ ಗನರನತನಗಳನನ ಪರಶಮಲನ ಮಡಲಲ.

ನನನ ಪತಕರ ಮಮಲ ಹಮಳದ ದನರನದರ ಕರಣ ಕನಮರ ಮತನತ ಪತಶಗತ‍ ನಯಕ‍ ಕನನನನ ಸನವಧವಸದ ಮತನತ ಶಗತ ಕಪಡಲನ ಸಸಸ ಬರಗ ಕನನನನ ಪತಕರ ಪತವಮಶ ಪಡದದರ ಅಗತ ಹಮಳನತತಮನ. ಮಮಲ ಹಮಳದ ಕರಣ‍ ಕನಮರ ಮತನತ ಪತಶಗತ‍ ನಯಕ‍ ಸಸಸ ಬರಗ ಪತವಮಶ ಮಡನವ ಮದಲನ ಲಖತವಗ ರವದಮ ದನರನ ಠಣಗ ಬಗದರಲಲಲ. ನನನ 2 ದನಗಳ ತನಖ ಸಮಯದಲ ಆರನಮಪಗಳಬಬರನ ಯನಬ ಸಟ ಕಟಟಡದ ಲಫಟ ಗಳ ಮನಲಕ ಸಸಸ ಬರ ಪತವಮಶ ಮಡದ ಬಗಗ ದದಶಧವಳಗಳನನ ನನನ ನನಮಡಲಲ."

The evidence of PW28 in his cross-examination is also that:

"ನನನ ಸಸಸ ಬರಗ ಮಹಜರ ಸಲನವಗ ಹನಮಗನವ ದನ ಆ ಯನಬ ಸಟ ಕಟಟಡದಲ ಸಸ ಟವಯನನ ಅಳವಡಸದರ ಅಗತ ಗ‍ನತತಯತನ. ಸಸಟವ ಅಳವಡಸದದರ ತಕಣಕಸ ದದಶಧವಳಗಳನನ ನನಮಡಬಹನದನ. ನನನ ಸಸ ಟವಯ ದದಶಧವಳಗಳನನ ನನಮಡದ. ಆ ದದಶಧವಳಗಳಲ ಆರನಮಪಗಳನ ಯನಬ ಸಟಯ ಕಟಟಡದಲ ಪತವಮಶ ಮಡದ ಬಗಗ ಸಸಸ ಬರನ ಒಳಗ ಹನಮದ ಬಗಗ ದದಶಧವಳಗಳನ ಕಗಡನ ಬರಲಲಲ , ಆದದರಗದಲಮ ಆ ದದಶಧವಳಗಳನನ ನನನ ಸಸಧಮನ ಪಡಸಕನಗಡಲಲ ಎನನ ನ ವದನ ಸರಯಲಲ."

Moreover, the relevant portions of evidence in cross-examination of PW28 regarding the complaint read thus:

"ಬಳಗಗ 2.20 ಗಗಟಗ ಕರಣ‍ ಕನಮರ ಲಖತ ವರದಯನನ ಠಣಧಕರಯವರಗ ಕನಟಟ ಬಗಗ ದನಚರಯಲ ನಮನದದ. ಅದಮ ದನಚರಯನನ ನನನ ಬಳಗಗ 8.15 ಗಗಟಗ ನನಗದಯಸಕನಗಡದನ.

ನ.ಪ.1 ಪರರದಯಲ ಬಳಗಗ 2.20 ಗಗಟಟಗ ದನರನನ ನ ಕನಡಲಯತನ ಅಗತ ದನರನದರರನ ನಮನದಸಲಲ. ಕರಣ‍ ಕನಮರ ಆ ದನ ರತತ ಹಲಗನಳಗಗ ಆಸಸತರಯಲ ಚಕತತ ಪಡದನಕನಗಡನ ರವ ಸಮಯದಲ ಠಣಗ ವಪಸ‍ ಬಗದರನ ಅಗತ ಠಣ ದನಚರಯಲ ನಮನದಲಲ.

ಆ ದನ ಬಳಗಗ 3 ರಗದ 8 ಗಗಟಯತನಕ ಪರರದ ಕರಣ‍ ಕನಮರ ರವದಮ ದನರನನ ಠಣಧಕರಗ ಕನಡಲಲಲ. 2 ನಮ ಆರನಮಪಯ ಮಮಲ ಪತಕರಣ ನನಗದಯಸಕನಳಳಲನ ನನನ ರವದಮ ಲಖತ ಅನನಮತಯನನ ನ ಪಡದನಕನಳಳಲಲಲ ಆದರ ಪತಕರಣದ ಬಗಗ ನನನ ಮಮಲಧಕರಗಳಗ ತಳಸದ.

39 Spl.C. No.382/2018

ದದ2.7.2014 ರ ಬಳಗಗ 7 ಗಗಟಗ ನಮ ಮ ಡಸಪಯವರನ ದನರವಣ ಮನಲಕ ವಚರಣ ಮಡದರನ ಮತನತ ದನರದಶರನದಲ ಘಟನಯ ಬಗಗ ಪ ತಸರ ಆಗನತತದ ಅಗತ ಕಮಳದರನ.

       ನನನ ಘಟನ ನಡದ ಬಗಗ ಹಮಳದ. ಆಗ ನಮ            ಮ  ಡಸಪಯವರನ ದನರನ
       ದಖಲಸಕನಳನ    ಳ ವಗತ ನದಮರಶನವನನ ನಮಡದರನ."

As submitted by the learned counsel for the accused No.2, if the above referred evidence of PW28 is considered, it is clear that the case registered against the accused No.1 and 2 as per FIR at Ex.P.27 might have been an afterthought of the PW28 after consulting his higher officers for the reason that one of the accused persons is the sitting MLA. As discussed herein above, there is no explanation forthcoming in the evidence of PW28 for the delay in registering the case. Moreover, it is very pertinent to note that in the evidence in cross-examination of PW22, copy of the FIR at Ex.D.9 was shown and in the said FIR there is signature of the complainant PW1. But no such signature is in the FIR at Ex.P.27.

45. Further, it is the evidence of PW28 that when the police officials, who are on beat duty in the particular beat point, go to another point, it should be informed to the higher officers and the said visit should be explained to the concerned police officer. Regarding the said fact the relevant portion in the evidence of PW28 in his cross-examination reads thus.

40 Spl.C. No.382/2018

"ಗಸನತ ಕತರವಧದಲದದ ಪಮಲಮಸ‍ ಪಮದ ತನನ ಸರಹದನ ದ ಬಟನಟ ಬಮರ ಬಮಟಗ ಹನಮಗಲನ ಆಗನವದಲಲ. ಹಗ ಹನಮಗಬಮಕದರ ಆ ಬಗಗ ಸಮಥರನಯನನ ಕನಡಬಮಕನ. ಒಗದನ ಬಮಟ‍ ನಲ ಕನಷಷ ಇಬಬರನ ಪಮಲಮಸ‍ ಪಮದಗಳನ ಗಸನತ ಕತರವಧದಲರನತತರ. ನಗದ ಪಡಸದ ಬಮಟ‍ ನಗದ ಮತನತಗದನ ಬಮಟಗ ಹನಮಗಬಮಕದರ ಸಮಥರನ ಕನಡದ ಬಮರ ಬಮಟಗ ಹನಮಗಲನ ಆಗನವದಲಲ."

It is also the evidence of PW28 in his cross-examination that:

"ಸಮನಧವಗ ಎಷನ ಟ ಗಗಟಗ ಬರ ಮತನತ ರಸನ ನ ಮನಚಚಬಮಕನ ಎಗದನ ಬರನ ಟ ರಗಟನನ ಮಲಮಕರಗ ಹಗನ ವಧವಸದಪಕರಗ ಗಸನತ ಪಮಲಮಸರನ ಸನಚನಯನನ ಕನಡಬಮಕಗನತತದ. ಸಮನಧವಗ ವನ ಕರಣ ರವದಮ ಗಸನತ ಕತರವಧದಲದದ ಪಮಲಮಸರನ ಬರ ನನಳಗ ಹಮಳದಮ ಕಮಳದ ಪ ತವಮಶ ಮಡಲನ ಆಗನವದಲಲ. ಕನನನನ ಉಲಲಗಘನರದರ ಹನಮಗಬಹನದನ. ಗಸನತ ಕತರವಧದಲದಗ ರವದಮ ಗನನನ ಕಗಡನಬಗದಲ ಕನಡಲಮ ನಸತಗತನ ಸಗದಮಶದ ಮನಲಕ ಹರಯ ಅಧಕರಗಳಗ ಮತನತ ಠಣಧಕರಗಳಗ ತಳಸಬಮಕಗನತತದ."

The above referred evidence of PW28 clearly shows that there was no permission to PW1 and PW3 to visit Sky Bar and Restaurant on the date of alleged incident, as the said Sky Bar and Restaurant was not within the beat point, to which these these police officials were deputed to work. There is no independent oral or documentary evidence forthcoming on record to prove that the PW1 and PW3 obtained any prior permission from their higher officers to go to beat No.3 for visiting Sky Bar and Restaurant, which is in beat No.3. The beat map of the complainant police station is produced by the accused No.2 and it is got marked in the cross-examination of PW28 at Ex.D.10. Hence, the fact that the Sky Bar and Restaurant of UB City building comes within the beat No.3 and it is not in beat No.5, wherein the PW1 and PW3 were on 41 Spl.C. No.382/2018 duty, is proved by the documentary evidence forthcoming on record.

46. It is undisputed fact that the CCTV Cameras were fixed at the relevant points, in UB City Building. It is very strange to note that even though such CCTV footage was the relevant evidence to prove the alleged incident, the PW28 did not try to seize any such CCTV footage recorded in the CCTV cameras fixed in the UB City Building, especially fixed in the concerned areas in Sky Bar and Restaurant. The relevant portion in the evidence in cross-examination of PW28 reads thus:

"ನನನ ನನನ ತನಖ ಸಮಯದಲ ಯನಬ ಸಟ ಕಟಟಡಕಸ ಹನಮಗ ಪಮಟರಕನಮ ಮತನತ ಲಫಟ ಏರರ, ಪತವಮಶ ದಸರದ ಸಸ ಟವ ದದಶಧವಳಗಳನನ ನನಮಡ ಅವಗಳನನ ಸಸಧಮನ ಪಡಸಕನಗಡಲಲ."

The PW28 also did not seize the valet parking receipt from the security staff of UB City working at entry point of UB City building in the case on hand. As submitted by the learned counsel for the accused No.2, such document would have been relevant evidence to prove the time of entry and exit of the accused persons to the Sky Bar and Restaurant, if at all the accused persons visited Sky Bar and Restaurant at the time of the alleged incident. There is no explanation forthcoming from PW28 in his evidence to show as 42 Spl.C. No.382/2018 to why he did not obtain such relevant documentary evidence in the case on hand.

47. The CW8 Boregowda Kumar @ Kumar, CW2 Vijay Kumar and CW3 B.N. Gowda are alleged to be the panchas to the spot panchanama at Ex.P.2. The CW8, CW2 and CW3 have been examined as PW8, PW15 and PW25 respectively. In the evidence PW8 has deposed that on 02.07.2014 at about 8.00 a.m. the I.O. came to the spot and drew panchanama at Ex.P.2 and seized CCTV footage. Again he was called to the police station in the evening and at that time he put his signature to Ex.P.10 regarding seizure of concerned NVR at M.O.3. He gave letter regarding the same as per Ex.P.11.

48. The evidence of PW15 Vijay Kumar in chief-

examination is only regarding drawing of panchanama at Ex.P.2. He is one of the panchas to the said panchanama. The PW25 B.N. Gowda is also one of the panchas to the panchanama at Ex.P.2. In the evidence in chief-examination itself PW25 has deposed that he was not called to the spot and the police did not draw any panchanama at Ex.P.2 in his presence. Hence, evidence of PW25 is quite contrary to the prosecution case regarding spot panchanama 43 Spl.C. No.382/2018 at Ex.P.2 and therefore, the PW25 is treated hostile by the prosecution and subjected to cross-examination. In the evidence in cross-examination by the prosecution, PW25 has denied drawing of panchanama at Ex.P.2 at the spot in his presence.

49. However, even if on the basis of evidence of PW8 and PW15, the panchanama at Ex.P.2 is taken as proved, the drawing of such panchanama does not make out any case against the accused persons to prove that they were present at the spot of incident at the time of alleged incident and they committed any offence as alleged by the prosecution. Moreover, it is relevant to refer to the evidence of PW8 regarding panchanama at Ex.P.10 under which the NVR at M.O.3 was seized by the Police. As deposed by the then PSI-PW28 and also as per the evidence of PW8, the NVR was brought to the police station and at the Police station the NVR at M.O.3 was seized by the police as per the panchanama at Ex.P.10. Hence, the panchanama at Ex.P.10 regarding the alleged seizure of NVR at M.O.3 does not support the case of prosecution to prove the alleged incident.

50. The CW4 Bhavith and CW5 Shyleshkumar are alleged to be attestors to the seizure panchanama at Ex.P.10. The CW4 and 44 Spl.C. No.382/2018 CW5 are examined as PW6 and PW14 respectively. PW6 Bhavith is Journalist in Bengaluru. As per his evidence, on 02.07.2014 he was called to Cubbon Park Police station and in his presence, panchanama at Ex.P.10 was drawn and the NVR at M.O.3 was seized. It is also the evidence of PW6 that on 08.07.2014 the Cyber crime police called him to CID office and he was asked to be pancha to the mirror image videos recorded in the said NVR. Accordingly, the panchanama at Ex.P.14 was drawn at that time and the M.O.3 was packed and sealed. However, the evidence of PW6 is not in accordance with the case of prosecution and hence, the prosecution has treated him hostile and subjected him to cross- examination. In the evidence in cross-examination the PW6 has admitted that the M.O.3 was seized in his presence regarding the video clips of the incident occurred on 01.07.2014 in the midnight from 12.55 to 01.20 hours.

51. The PW14 Shylesh Kumar is the pancha to the seizure panchanama at Ex.P.10. He has deposed in his chief-examination that in the police station the panchanama at Ex.P.10 was drawn and NVR at M.O.3 was seized. But in the evidence in cross- examination by the learned counsel for the accused No.2, the 45 Spl.C. No.382/2018 PW14 has deposed that he did not know what was recorded in the said NVR. Moreover, he has denied that the said NVR was produced before the police by Kumaregowda. The PW14 has also deposed that he did not go to UB City Bar and that he put his signature to Ex.P.10 in the police station. Hence, even though the evidence of PW6 and PW14 are taken into consideration regarding the seizure of NVR at M.O.3 as per the panchanama at Ex.P.10, their evidence is in no-way helpful to the case of prosecution regarding the video clips recorded in the NVR at M.O.3. Hence, evidence of PW6 and PW14 does not help the prosecution to prove the alleged incident and thereby to prove the offences alleged against the accused persons.

52. Some of the police officials are alleged to be eye- witnesses to the incident. Hence, now it is relevant to consider the evidence of said witnesses. The CW38 Mahaesh T.M. is the then Head Cconstable of complainant police station as on the date of the alleged incident. He was on night beat duty in Cheetah-129 vehicle. He has been examined as PW4. As per the evidence of PW4 in chief-examination, on the date of alleged incident he was on night beat duty along with ASI Muniraju in beat No.5. At about 46 Spl.C. No.382/2018 11.00 p.m on that day ASI Muniraju called him over phone and told him to come to the police station. Accordingly, he went to the police station at 11.00 p.m. and thereafter from 11.00 p.m. till 1 O'clock in the midnight he was on beat duty in beat No.3, 4 and 5 along with ASI Muniraju, inspecting the police officials, who were deputed to work on night beat duty on those beats. When they were going towards UB City at about 1.00 to 1.10 hours in the midnight near Hotel Empire, the PW3 Prashanth Nayak, who was on duty in beat No.5, told them to come to UB City. Accordingly, he along with ASI Muniraju went to UB City by Cheetah vehicle and at UB City when they enquired the Security guard, the Security guard told them that two police men went to Sky Bar situated in 16th Floor of the said building. Hence, he along with ASI Muniraju went to 16th Floor. At that time he witnessed the alleged incident.

53. Regarding the alleged incident the evidence of PW4 in chief-examination reads thus:

"ºÁUÉ £ÁªÀÅ ¸ÉÌ ø ¨ÁgïUÉ ºÉÆÃV £ÉÆÃrzÁUÀ ªÀÄÆgÁß®ÄÌ d£ÀgÀÄ ¸ÉÃj £ÀªÀÄä oÁuÉAiÀÄ DgÀPÀëPÀ ¥Àæ±ÁAvï £ÁAiÀÄPÀ£À£ÀÄß GzÉÝÃ²¹ ¨ÉÆÃ½ ªÀÄPÀÌ¼ÉÃ, ¸ÀÆ¼É ªÀÄPÀÌ¼ÉÃ CAvÀ CªÁZÀå ±À§ÝUÀ½AzÀ ¨ÉÊAiÀÄÄvÁÛ CªÀgÀ£ÀÄß vÀ½îPÉÆAqÀÄ QgÀÄZÁqÀÄvÁÛ §gÀÄwzÀÝgÀÄ. £Á£ÀÄ ªÀÄvÀÄÛ ªÉÄÃ¯É ºÉÃ½zÀ ªÀÄÄ¤gÁdÄ ¥Àæ±ÁAvï £ÁAiÀÄPÀ£À£ÀÄß GzÉÝÃw¹ K£ÀÄ UÀ¯ÁmÉ CAvÀ PÉÃ¼À¯ÁV DUÀ ¥Àæ±ÁAvï £ÁAiÀÄPÀ £ÀªÀÄUÉ ¦¹ QgÀuï PÀÄªÀiÁgï£À£Àß ¨Ágï M¼ÀUÀqÉ ºÉÆqÉzÀgÀÄ CAvÀ ºÉÃ½zÀgÀÄ.

47 Spl.C. No.382/2018

QgÀuïPÀÄªÀiÁgï ¸ÀªÀÄªÀ¸ÀÛçzÀ°è PÀvÀðªÀåzÀ°èzÀÝ. CµÀÖgÀ°èAiÉÄÃ ªÀÄÆgÁß®ÄÌ d£ÀgÀÄ ¦¹ QgÀuïPÀªÀÄgï£À£Àß vÀ½îPÉÆAqÀÄ £ÀªÀÄä §½ §AzÀgÀÄ ªÀÄvÀÄÛ £ÀªÀÄä£ÀÄß GzÉÝÃ²¹ ¤ªÀÄUÉ M¼ÀUÉ §gÀ®Ä AiÀiÁgÀÄ ºÉÃ½zÀgÀÄ ¨ÉÆÃ½ ªÀÄPÀÌ¼ÉÃ ¸ÀÆ¼É ªÀÄPÀÌ¼ÉÃ CAvÀ ¨ÉÊvÁ EzÀÄæ."

The evidence of PW4 in chief-examination regarding the alleged incident is also that:

"£ÁªÀÅ C°èAzÀ JJ¸ïL ªÀÄÄ¤gÁdÄgÀªÀgÀ ºÉÃ½PÉAiÀÄ ªÉÄÃgÉUÉ ¸ÉÌ ø ¨Ágï£À °¥sïÖ PÀqÉUÉ PÁjqÁgï£À°è §gÀÄvÁÛ EzÉÝªÀÅ. CzÉÃ ¸ÀªÀÄAiÀÄPÉÌ M§â ©½AiÀÄ ±Àmïð zÀsj¹zÀ ªÀåQÛ ¦¹ QgÀuï PÀÄªÀiÁgï£À ±Ànð£À PÀwÛ£À ¥ÀnÖAiÀÄ£Àß »rzÀÄ ¤ªÀÄUÉ AiÀiÁgÀÄ M¼ÀUÉ §gÀ®Ä w½¹zÁÝgÉ ¥ÉÇÃmÉÆÃ vÉUÉAiÀÄ®Ä AiÀiÁgÀÄ PÉÆlÖgÀÄ. ¥ÉÇÃmÉÆÃ vÉUÉzÀ ¦¹ AiÀiÁgÀÄ CAvÀ C£ÀÄßvÁÛ ¨ÉÆÃ½ ªÀÄPÀÌ¼ÉÃ ¸ÀÆ¼É ªÀÄPÀÌ¼ÉÃ CAvÀ ¨ÉÊzÀgÀÄ. £ÀAvÀgÀ JJ¸ïL ªÀÄÄ¤gÁdÄgÀªÀgÀÄ £ÀªÀÄä£Éß¯Áè °¥sïÖ ªÀÄÆ®PÀ UËæAqï ¥ÉÇèÃjUÉ PÀgÉzÀÄPÉÆAqÀÄ §AzÀgÀÄ. ºÁUÉ £ÁªÀÅ °¦üÖUÉ §gÀÄªÀ ¸ÀªÀÄAiÀÄzÀ°è M§â ªÀåQÛ °¥sïÖ M¼ÀUÉ §AzÀ. DUÀ ¥Àæ±ÁAvï £ÁAiÀÄPÀ£ÀÄ D ªÀåQÛAiÀÄ£ÀÄß GzÉÝÃ²¹ K£ÀÄ ¸ÉÆÃªÉÄÃUËqÉæ F vÀgÀºÀ ªÀiÁrzÀæ®è CAvÀ PÉÃ½zÀ. D ¸ÉÆÃªÉÄÃUËqÉæAzÀgÉ FUÀ £ÁåAiÀiÁ®AiÀÄzÀ°ègÀÄªÀ MAzÀ£ÉÃ DgÉÆÃ¦AiÀiÁVzÁÝgÉ. £ÁªÉ¯Áè ¸ÉÃj UÀËæAqï ¥ÉÇèÃjUÉ §AzÉªÀÅ CµÀÖgÀ°è £ÀªÀÄA E¯ÁSÁ ªÁºÀ£À ºÉÆAiÀÄì¼À 1 £Á®Ì£ÉÃ ©Ãmï£À ¹§âA¢AiÉÆA ¢UÉ C°èUÉ §AvÀÄ. £ÁªÉ¯Áè MAzÀÄ ¸ÀÝ¼ÀzÀ°è ¸ÉÃjzÉªÀÅ. CzÉÃ ¸ÀªÀÄAiÀÄPÉÌ £Á¯ÉÌ ø zÀÄ C¥ÀjavÀ ªÀåQÛUÀ¼ÀÄ ªÀÄvÉÆÛAzÀÄ °¥sïÖ£À°è £Á«zÀÝ°èUÉÃ §AzÀÄ ©½AiÀÄ §tÚzÀ ±Àmïð zÀsj¹zÀ ªÀåQÛAiÀÄÆ ¸ÀºÀ C°èUÉ §AzÀgÀÄ. ºÁUÉ §AzÀªÀgÉÃ £ÀªÀÄä£ÀÄß PÀjvÀÄ AiÀiÁgÀÄ ¥ÉÇÃmÉÆÃ vÉUÉzÀªÀgÀÄ CAvÀ CªÁZÀå ±À§ÝUÀ½AzÀ ¨ÉÊzÀgÀÄ. D ©½ ±Àmïð zÀsj¹zÀ ªÀåQvÀ JAJ¯ïJ PÁ±Àå¥Àà£ÀªÀgï CAvÀ UÉÆvÁÛ¬ÄvÀÄ. £Á£ÀÄ CªÀgÀ£ÀÄß £ÉÆÃrzÀgÉ UÀÄgÀÄw¸ÀÄvÉÛÃ£É. ºÁUÉAiÉÄÃ QgÀuïPÀÄªÀiÁgï£À£ÀÄß »rAiÀÄ®Ä »A¨sÁ°¸ÀÄvÁÛ ¨ÉÆÃ½ ªÀÄUÀ£ÉÃ ¤AvÀÄPÉÆ¼Àî¯ÉÆÃ CAvÀ vÀªÀÄä PÁ°£À §ÆlÄUÀ¼À£Àß vÉÆÃj¹ ¥ÉÇÃ°Ã¸ÀgÀÄ £À£Àß §ÆnUÉ ¸ÀªÀiÁ£À £Á¼ÀÉ ¹àÃPÀgï ªÀÄÄAzÉ ¤°è¹ AiÀÄÆ¤¥sÁgÀA ©aÑ¸ÀÄvÉÛÃ£É, PÀ«ÄµÀ£Àgï E°èUÉ §gÀ¨ÉÃPÀÄ, r¹¦ E°èUÉÃ §gÀ¨ÉÃPÀÄ CAvÀ PÀÆUÁrzÀgÀÄ. £ÀªÀÄä ©Ãn£À PÁ£ïìmÉ§¯ïUÀ¼ÁzÀ QgÀuïPÀÄªÀiÁgï ªÀÄvÀÄÛ ¥Àæ±ÀÁAvï £ÁAiÀÄPÀgÀ£Àß £ÀªÀÄä ¥ÀPÀÌzÀ°èAiÉÄÃ ¤°è¹PÉÆArzÉÝªÀÅ. £ÀAvÀgÀ UÀ¯ÁmÉ ªÀiÁrzÀ ªÀåQÛUÀ¼É¯Áè C°èAzÀ PÁgÀÄUÀ¼À°è ºÉÆgÀlÄ ºÉÆÃzÀgÀÄ. ªÀÄAzÀ ¨É¼ÀQzÀÝjAzÀ PÁgÀÄUÀ¼À £ÀA§gï £ÉÆÃqÀ¯ÁUÀ°®è."

48 Spl.C. No.382/2018

Hence, as submitted by the learned Prosecutor, the PW4 has deposed regarding the alleged incident and such evidence of PW4 would prove that the accused No.1 and 2 were present at the spot and they committed the alleged offence.

54. However, as per the evidence of PW4, it is clear that there were 4-5 unknown persons at the spot at the time of alleged incident. Moreover, as pointed out by the learned counsel for the accused No.2, in the evidence in cross-examination the PW4 has deposed that:

"£ÀªÀÄä PÀ§â£ï ¥ÁPïð ¥ÉÇÃ°Ã¸ï oÁuÉAiÀÄ ªÀÁå¦ÛAiÀÄ°è UÀ¸ÀÄÛ ¸ÀªÀÄAiÀÄzÀ°è £ÁªÀÅ £ÀªÀÄä ªÁå¦ÛAiÀÄ°è §gÀÄªÀ J¯ÉPÁÖç¤Pï ©Ãmï J£ÀÄßªÀ ¥Àj¸ÀgÀ EzÉ. ¥ÀæwAiÉÆAzÀÄ ©Ãmï£À°è DgïJ¥sïLr mÁåUÀ£Àß C¼ÀªÀr¹gÀÄvÁÛgÉ. DgïJ¥sïLr jÃqÀgï ¥ÀæPÁgÀ CAzÀgÉ ¤.r.1gÀ ¥ÀæPÁgÀ QgÀuïPÀÄªÀiÁgï ©Ãmï ¥ÀæPÁgÀ £ÁªÁågÀÆ ©Ãmï £ÀA.5PÉÌ UÀ¸ÀÄÛ PÀvÀðªÀåPÉÌ ºÉÆÃUÀ¯ÉÃ E®è C£ÀÄßªÀÅzÀÄ ¸ÀjAiÀÄ®è. ©Ãmï £ÀA.7PÉÌ ªÀiÁvÀæ D ©Ãmï£À PÁ£ï¸ÉÖ§¯ï ªÀiÁvÀæ ¥Àj²Ã®£É ªÀiÁrzÀ §UÉÎ ¤.r.1 gÀ°è PÀAqÀÄ §gÀÄvÀÛzÉ. £ÀªÀÄä PÀ§â£ï¥ÁPïð ¥ÉÇÃ°Ã¸ï oÁuÉUÉ ¸ÀA§AzÀs¥ÀlÖAvÉ aÃvÁ 129 ªÁºÀ£ÀPÉÌ f¦J¸ï C¼ÀªÀr¸À¯ÁVzÉ. FUÀ £À£ÀUÉ vÉÆÃj¹zÀ zÁR¯ÁwAiÀÄ£ÀÄß £ÉÆÃrzÉ CzÀÄ ªÉÄÃ¯É ºÉÃ½zÀ aÃvÁ ªÁºÀ£À £ÀA.129 gÀ ¢B2.7.2014 gÀAzÀÄ ¨É½UÉÎ 1.05 ¤«ÄµÀ¢AzÀ 1.31 ¤«ÄµÀzÀ vÀ£ÀPÀ AiÀiÁªÀ AiÀiÁªÀ ¸ÀÝ¼ÀPÉÌ D ªÁºÀ£À ºÉÆÃVzÉ JA§ §UÉÎ ©¦J¸ï zÁR¯ÉAiÀiÁVzÉ. D zÁR¯Áw ¤.r.3 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ."

Moreover, it is also the evidence of PW4 in cross-examination that:

"«oÀ¯ï ªÀÄ®å gÀ¸ÉÛAiÀÄ°è ¤AvÀÄPÉÆAqÀÄ AiÀÄÆ© ¹nAiÀÄ°ègÀÄªÀ ¸ÉÌ ø ¨Ágï vÉgÉ¢zÉAiÉÆÃ CxÀªÁ E®èªÉÇÃ JA§ §UÉÎ ºÉÃ¼À®Ä DUÀÄªÀÅ¢®è. D ¢£À 49 Spl.C. No.382/2018 AiÀÄÆ© ¹nAiÀÄ°è AiÀiÁgÀÄ ¨ÀszÀævÁ ¹§âA¢AiÀiÁVzÀÝgÀÄ JA§ §UÉÎ £À£ÀUÉ ºÉÃ¼À®Ä §gÀÄªÀÅ¢®è. AiÀÄÆ© ¹nAiÀÄ PÀlÖqÀzÀ 16£ÉÃ ªÀÄºÀrAiÀÄ°è ¸ÉÌ ø ¨Ágï EzÉ. AiÀÄÆ© ¹nAiÀÄ£ÀÄß ¥ÀæªÉÃ±À ªÀiÁqÀÄªÀ ¸ÀÝ¼ÀzÀ°è ¹¹nAiÀÄ£ÀÄß C¼ÀªÀr¹zÁÝgÉ."

Further, the relevant portion in the evidence in cross-examination of PW4 reads thus:

"£Á£ÀÄ vÀ¤SÁ¢üPÁjUÀ¼À ªÀÄÄAzÉ ºÉÃ½PÉ PÉÆqÀÄªÀ ¸ÀªÀÄAiÀÄzÀ°è D ¢£À £ÁªÀÅ AiÀÄÆ© ¹nAiÀÄ M¼ÀUÀqÉ ¥ÀæªÉÃ±À ªÀiÁrzÀ §UÉÎ AiÀiÁªÀÅzÉÃ ¹¹n«AiÀÄ ¥ÉÇÃmÉÃd£Àß PÉÆnÖ®è. £À£Àß ºÉÃ½PÉAiÀÄ£ÀÄß ¥ÀqÉzÀÄPÉÆ¼ÀÄîªÁUÀ vÀ¤SÁ ¢üPÁjUÀ¼ÀÄ AiÀÄÆ© ¹nAiÀÄ AiÀiÁªÀÅzÉÃ bÁAiÀiÁavÀæUÀ¼À£Àß £À£ÀUÉ vÉÆÃj¸À°®è. FUÀ £À£ÀUÉ vÉÆÃj¹zÀ bÁAiÀiÁavÀæUÀ¼À°è ¯ÉÊmï ¨É¼ÀPÀÄ EzÀÝzÀÄÝ PÀAqÀÄ §gÀÄªÀÅ ¢®è. ¸ÀzÀj bÁAiÀiÁavÀæ ¤.¦.9 DvzÉ.

D¯ÁÒ JAzÀgÉ oÁuÉAiÀÄAiÀÄ°èlÖgÀÄªÀ mÁåUï CzÀ£ÀÄß jÃqï ªÀiÁr D mÁåUÀ£Àß £ÁªÀÅ vÉUÉzÀÄPÉÆArzÉÝÃªÉ JAzÀÄ CxÀð. ¸ÀzÀj mÁåUï£À°è CzÀgÀ ¦æAmï Omï vÉUÉzÁUÀ JµÀÄÖ UÀAmÉUÉ CzÀ£ÀÄß jÃqï ªÀiÁqÀ¯Á¬ÄvÀÄ JA§ §UÉÎ £ÀªÀÄÆzÀÄ EgÀÄvÀÛzÉ. D mÁåUÀ£Àß WÀl£É D¬ÄvÀÄ CAvÀ ºÉÃ¼ÀÄªÀ ¢£À UÀ¸ÀÄÛ PÀvÀðªÀåzÉÆA¢UÉ vÉUÉzÀÄPÉÆAqÀÄ ºÉÆÃzÀ §UÉÎ ¦æAmïOmï vÉÆÃj¹®è, PÉÆnðUÉ PÉÆnÖ®è."

If the above referred evidence of PW4 in the cross-examination is taken into consideration, the concerned RFID reader, the Tag and the CCTV footage regarding CCTV camera fixed in UB City premises are the crucial evidence to prove that the PW4 visited the spot and at that time the accused No.1 and 2 were present there and they committed the alleged offence.

55. The ASI H.V. Muniraju referred to by PW4 in his evidence is CW37. The CW37 is the then ASI of the complainant 50 Spl.C. No.382/2018 police station. He has been examined as PW5. As per his evidence, he was on beat duty in Cheetah-129 vehicle at night till 1.00 a.m. in beat No.3, 4 and 5 and on receiving information from PW3 Prashanth Nayak through walkie talkie, he went to UB City Sky Bar and enquired security guard at the entrance and the Security guard told him that two police men went inside Sky Bar situated at 16th floor of the building. Accordingly, he went by lift to Sky Bar. Regarding the alleged incident, the evidence of PW5 in chief- examination reads thus:

"C°èUÀÉ ºÉÆÃUÀÄªÀµÀÖgÀ°è ¥Àæ±ÁAvï £ÁAiÀÄPï C°èzÀÝ. D ¸ÀªÀÄAiÀÄzÀ°è ©½AiÀÄ ±Àmïð zÀsj¹zÀ M§â ªÀåQÛ ¥Àæ±ÁAvï £ÁAiÀÄPÀ£À£Àß vÀ½îPÉÆAqÀÄ ¨ÉÆÃ½ ªÀÄPÀÌ¼Á CAvÀ CªÁZÀå ±À§ÝUÀ½AzÀ ¨ÉÊvÁ EzÀÞ ¥ÉÇÃmÉÆÃ AiÀiÁPÉ vÉUÉ¢j CAvÀ ¨ÉÊAiÀÄÄwÛzÀÝ. ºÁUÉ ¥ÉÇÃmÉÆÃ vÉUÉzÀªÀgÀ ºÉ¸ÀgÀÄ ªÀÄvÀÄÛ £ÀA§gï PÉÆr CAvÀ ºÉÃ½zÀ. £ÁªÀÅ ¥Àæ±ÁAvï £ÁAiÀÄPÀ£À£Àß PÉÃ¼À¯ÁV ¸ÀªÀÄAiÀÄ «ÄÃj ¸ÉÌ ø ¨Ágï£À°è C°èzÀÝ ªÀåQÛUÀ¼ÀÄ ¨Áj£À°è PÀÄ½vÀÄPÉÆArzÀÝgÀÄ AiÀiÁPÉ CAvÀ PÉÃ¼À¯ÁV UÀ¯ÁmÉ ªÀiÁrzÀgÀÄ. QgÀuï PÀÄªÀiÁgï J£ÀÄßªÀ DgÀPÀëPÀ£À£Àß ±Àlð£Àß ©½ ±Àmïð zÀsj¹zÀ ªÀåQÛ »rzÀÄPÉÆArzÀÝ. ¸ÀzÀj QgÀuïPÀÄªÀiÁgï ªÀÄvÀÄÛ ¥Àæ±ÁAvï £ÁAiÀÄPï vÀªÀÄä ¤UÀ¢vÀ E¯ÁSÉAiÀÄ ¸ÀªÀÄªÀ¸ÀÛçzÀ°èzÀÝgÀÄ."

This evidence of PW5 in chief-examination itself clearly goes to show that he came to know regarding the alleged incident on enquiring PW3 Prashanth Nayak. Therefore, the PW5 might not have witnessed the alleged incident and his evidence regarding the alleged incident is hearsay one.

51 Spl.C. No.382/2018

56. Moreover, in chief-examination itself the evidence of PW5 is that the accused persons abused policemen and the accused No.2 insisted that Commissioner and DCP should come to the spot, otherwise he would make the police to remove their shirts in front of the Speaker. Immediately, the PW5 informed the Inspector through phone and at that time the Hoysala staff came to the spot and when the other beat police came to the spot, the accused persons went away by car. The PW1 Kiran Kumar gave complaint regarding the alleged incident in the police station.

57. However, regarding the beat duty, as pointed out by the learned counsel for the accused No.2, the evidence of PW5 in his cross-examination reads thus:

"ºÁUÉ ©Ãmï PÀvÀðªÀå ªÀiÁqÀÄªÀ ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ DgïJ¥sïLr jÃqÀgï £À£Àß eÉÆvÉUÉ vÉUÉzÀÄPÉÆAqÀÄ ºÉÆÃVzÉÝ. 11 UÀAmÉ¬ÄAzÀ 1 UÀAmÉ vÀ£ÀPÀ £ÁªÀÅ AiÀÆªÀÅzÉÃ ©Ãl£Àß ¥Àj²Ã®£É ªÀiÁr®è. aÃvÁ 129PÉÌ f¦J¸ï C¼ÀªÀr¸À¯ÁVzÉ. FUÀ £À£ÀUÉ vÉÆÃj¹zÀ ¤.r.3£ÀÄß £ÉÆÃrzÉ CzÀgÀ°è aÃvÁ 129 gÀ ¯ÉÆPÉÃµÀ£ï PÀAqÀÄ §gÀÄvÀÛzÉ. 1.05 ¤«ÄµÀPÉÌ £ÁªÀÅ AiÀÄÆ© ¹n ºÀwÛgÀ EgÀ°®è D ¸ÀªÀÄAiÀÄzÀ°è £ÁªÀÅ ¥ÀsgÁlï ¥ÁèeÁzÀ ºÀwÛgÀ ¤.r.3 gÀ°è §gÉzÀAvÉ EzÉÝªÀÅ C£ÀÄßªÀÅzÀÄ ¸ÀjAiÀÄ®è. D ¢£À 1.05 ¤«ÄµÀ 30 ¸ÉPÉArUÉ £ÁªÀÅ JA.f gÀ¸ÉÛ AiÀÄ°è UÀ¸ÀÄÛ PÀvÀðªÀåzÀ°èzÉÝªÀÅ J£ÀÄßªÀÅzÀÄ ¸Àj EzÉ. ¤.r.3 gÀ°è £ÁªÀÅ J¯Éè°è UÀ¸ÀÄÛ PÀvÀðªÀå ªÀiÁrzÉªÀÅ J£ÀÄßªÀÅzÀÄ PÀAqÀÄ§gÀÄvÀÛzÉ. ¸ÁQë ¸ÀévÀB ºÉÃ¼ÀÄvÁÛ£É D ªÀgÀ¢AiÀÄzÀ°è 1-2 ¤«ÄµÀ ªÀåvÁå¸À PÀAqÀÄ §gÀÄvÀÛzÉ. £Á£ÀÄ WÀl£ÉAiÀÄ §UÉÎ D ¢£À 2.30 UÀAmÉUÉ PÀ§â£ï ¥ÁPïð ¥ÉÇÃ°Ã¸ï oÁuÉUÉ ¦gÁå¢ PÉÆqÀ°®è. ¸ÁQë ªÀÄvÉÛ ºÉÃ¼ÀÄvÁÛgÉ ªÀgÀ¢ PÉÆnÖzÉÝÃ£É. D ªÀj¢AiÀÄ £ÀPÀ®£Àß £ÉÆÃqÀÄwÛzÀÄÝ CzÀÄ ¤.r.4 DVzÉ."

52 Spl.C. No.382/2018

As pointed out by the learned counsel for the accused No.2, the document at Ex.D4 is the report submitted by PW5. But there is absolutely no concerned documentary evidence forthcoming from the prosecution to prove that the PW5 along with PW4 was at the spot at the time of alleged incident. Further, as discussed herein above, the evidence of PW5 in chief-examination is that he came to know of the alleged incident on inquiring PW1. Hence, the evidence of PW5 does not stand for consideration to prove that he is the eyewitness to the incident.

58. The CW39 M.Puttaswamy is the then ASI of complainant police station. He has been examined as PW7. As per his evidence in chief-examination, he was on night beat duty on the relevant date in Hoysala-1 vehicle. When he was on night beat duty on that day, at about 1.10 hours in the midnight, PW1 Kiran Kumar and PW3 Prashanth Nayak informed him through walkie talkie to come near UB City. Accordingly, he went to UB City. When he went to the spot there was verbal altercation between the police officials and 5-6 persons. The accused No.1 and 2 were among the 5-6 persons present at the spot. However, in the evidence in chief-examination itself PW7 has deposed that he 53 Spl.C. No.382/2018 enquired PW3 Prashanth Nayak regarding the incident and at that time he came to know of the alleged incident. Such evidence of PW7 shows that he is not the eyewitness to the incident and his evidence regarding the alleged incident is hearsay one, as it is stated as told to him by PW3 Prashanth Nayak.

59. It is true that one CD is got marked in the evidence in chief-examination of PW7 as per M.O.2. The said CD was got played during the recording of evidence of PW7 before the Court, but the said CD did not read. Therefore, the CD produced by the prosecution at M.O.2 does not help the case of prosecution to prove the alleged incident. Moreover, the PW7 in his evidence in cross-examination has deposed that:

"£ÁªÀÅ D ¢£À UÀ¸ÀÄÛ PÀvÀðªÀåzÀ°èzÀÝ ¸ÀªÀÄAiÀÄzÀ°è G¥ÀAiÉÆÃV¹zÀ ªÁºÀ£ÀzÀ f¦J¸ï ¯ÉÆPÉÃ±À£ï PÀAqÀÄ §gÀÄvÀÛzÉ. CzÀ£ÀÄß ¤.r.5 JAzÀÄ UÀÄgÀÄw¸À¯ÁVzÉ. ºÉÆAiÀÄì¼À ªÁºÀ£ÀzÀ PÀÄjvÀÄ UÀ¸ÀÄÛ PÀvÀðªÀå ªÀiÁrzÀ ¢£ÀZÀj ¥ÀÅ¸ÀÛPÀ ªÀÄvÀÄÛ ¯ÁUï ¥ÀÅ¸ÀÛPÀªÀ£Àß §gÉAiÀÄÄvÉÛÃªÉ. FUÀ £À£ÀUÉ vÉÆÃj¹zÀ zÁR¯ÁwAiÀÄ£Àß vÉÆÃj¹zÉ. CzÀÄ PÀ§â£ï¥ÁPïð ºÉÆAiÀÄì¼À 1 ¥Àè¸ï 2, ¢B1.7.2014 gÀ ¢£ÀZÀjAiÀiÁVzÉ."

The said document is got marked at Ex.D.6. The PW7 in his evidence has deposed that the said diary was written by himself and as per the said document, on the relevant date he did not go to Sky Bar and at that time his driver Shivanna was with him. 54 Spl.C. No.382/2018

60. It is also the evidence of PW7 in his cross-examination that:

"JAf gÀ¸ÉÛ 1£ÉÃ ©Ãmï£À°è §gÀÄvÀÛzÉ. ¤.r.7 gÀ°è §gÉzÀ JnJA PÉ£ÀgÁ ¨ÁåAPï¤AzÀ mÉÊªÀiïì D¥sï EArAiÀÄÁ vÀ£ÀPÀ JAf gÀ¸ÉÛ EzÉ. D ¢£À £ÁªÀÅ ©Ãmï 2 ªÀÄvÀÄÛ ©Ãmï 7 gÀ°è ªÀiÁvÀæ UÀ¸ÀÄÛ PÀvÀðªÀå ªÀiÁrzÉªÀÅ JAzÀgÉ ¸Àj EzÉ. ªÉÄÃ¯É ºÉÃ½zÀ WÀl£É £ÀqÉ¢zÀÝjAzÀ £ÀªÀÄUÉ ¨ÉÃgÉ ©ÃnUÉ UÀ¸ÀÄÛ PÀvÀðªÀåPÉÌ ºÉÆÃUÀ®Ä DUÀ°®è CAvÀ ºÉÃ¼ÀÄvÉÛÃ£É."

Now it is relevant to refer to the documents at Exs.D.5 to D.7. the document at Ex.D.5 is the Visit report of Cubbon Park Hoysala-01 vehicle of the date 02.07.2017 for the time from 1.05 to 1.30 hours. As admitted by PW7 in his evidence in cross-examination itself, the document at Ex.D.6 is the diary written by him regarding night beat duty. The Ex.D.7 is Reader-wise report of beat manager Sri Puttaswamy ASI, who is PW7. As per the diary at Ex.D6, at 1.00 hours on the relevant night the PW7 along with policemen were on St. Marx Road, Museum Road and they were on beat duty at beat No.5. After they went to concerned spot, PW7 came to know of the alleged incident from the concerned police officers. Further, as per the reader wise report at Ex.D.7, the PW7 did not visit the beat No.3 at the any time on 02.07.2014. Hence, the documentary evidence forthcoming on record is quite contrary to the oral evidence of PW7. Therefore, the evidence of PW7 that he 55 Spl.C. No.382/2018 went to the spot of incident at the relevant time and witnessed the incident, cannot be believable.

61. The CW41 B. Nanjundaiah is the then Head Constable of complainant Police station, who was on night beat duty on the relevant date. He has been examined as PW20. As per the evidence of PW20, he was on night beat duty on 01.07.2014 in beat No.4. At about 1.10 hours in the midnight, when he was on beat duty, the police staff by name Mahesh was giving message by wireless to Hoysala staff to come to UB City. He heard the said message and hence, he along with Mahesh went to UB City. At that time, about 4 to 5 persons were making galata with PW1 Kiran Kumar and PW3 Prashanth Nayak. The relevant portion in the evidence in chief-examination of PW20 reads thus:

"ಹಗ ಬವಯನತತ ಇದದ ವಧಕತ ಈಗ ನಧರಲಯದ ಮನಗದ ಹಜರದರ. ಅವರನ ಆರನಮಪ ನಗ.1 ಆಗದರ. 1 ನಮ ಆರನಮಪಯನ ಪಮಲಮಸ‍ ಇಲಖಯನನ ನ ಕನರತನ ಸನಳ ಮಕಸಳನ, ಬನಮಳ ಮಕಸಳನ ಪಮಲಮಸರ ಬಟಟ ಬಚಚಸ ಸಸಮಕರ ಹತತರ ಕರದನಕನಗಡನ ಹನಮಗನತತಮನ ಅಗತ ಹಮಳದರನ. ನಗತರ ಕಲನಲದದ ಶನ ತನಮರಸ ಪಮಲಮಸರನ ನನನ ಬನಬಟಗ ಸಮನ ಮತನತ ಸದಳಕಸ ಕಮಷನರ ಮತನತ ಡಸಪ ಬರಬಮಕನ ಆ ತರಹ ಮಡನತತಮನ ಎಗದನ ಏರನ ಧಸನಯಗದ ಕನಗಡಕನಗಡನ ನಮ ಮ ಸಬಬಗದರದ ಪತಶಗತ‍ ಕನಮರ ಮತನತ ಕರಣ‍ ಕನಮರ ರವರಗ ಹಲ ಮಡಲನ ಪ ತಯತನ ಮಡನತತ ಇದದರನ."

However, PW20 has further deposed that he enquired PW3 Prashanth Nayak regarding the alleged incident and at that time PW3 told him regarding the incident. The said evidence of PW20 in chief-examination reads thus:

56 Spl.C. No.382/2018

"ನನನ ಘಟನಯ ಕನರತನ ನಮ ಮ ಸಬಬಗದರದ ಪತಶಗತ‍ ನಯಕ‍ ನನನ ನ ವಚರಣ ಮಡದ ಆಗ ಪತಶಗತ‍ ನಯಕ‍ ಯನಬ ಸಟಯ ಸಸಸ ಬನರಲ ಮಧಧ ರತತ ಮದಧ ಸರಬರಜನ ಆಗನತತದದ ನ ಸನದದ ಬಗತನ ಆದದರಗದ ಅಲಗ ಬಗದದವ. ಅಲಗ ತನನ ಮತನತ ಕರಣ‍ ಕನಮರ ಬಗದಗ ಸಸಸ ಬನರಲ 6-7 ಜನ ಗಗಡಸರನ ಮತನತ ಇಬಬರನ ಹನಡನಗಯರನ ಇದದರನ. ಆ ದದಶಧವಳಯನನ ಮಬವಲ‍ ಮನಲಕ ವಮಡಯ ಚತತಮಕರಣ ಮಡಲನ ಹನಮದಗ ಗಲಟ ಆಯತನ. 1 ನಮ ಆರನಮಪ ಸನಮಮಮಗಡ ನಮಮ ಠಣಯ ಹಳಯ ಕಮಸ ನಲ ಆರನಮಪರಗದದರನ ಅಗತ ಹಮಳದರನ. ಅವರ ಜನತ ಹನನಗನಗಡ ಶಸಕರದ 2 ನಮ ಆರನಮಪ ವಜರನಗದ ಕಶಪಸನವರ ಸಹ ಇದದರನ. ಸದರ 2 ನಮ ಆರನಮಪಯನ ನಮ ಮ ಸಬಬಗದರದ ಕರಣ‍ ಕನಮರನಗ ಕಪಳಕಸ ಹನಡದರನ. ಹಲ ಮಡದರನ. ಅದರಗದಲಮ ಗಲಟರಯತನ ಅಗತ ಪ ತಶಗತ‍ ನಯಕ‍ ನನಗ ಹಮಳದ."

Further, regarding the alleged incident, the evidence of PW20 is that:

"ಇಬಬರನ ಆರನಮಪಗಳನ ಪಮಲಮಸ‍ ಸಬಬಗದಯನನ ನವ ಸದಳಕಸ ಹನಮದಗ ತಳಳಡನತತ ಇದದರನ. ಅವಚಧ ಶಬದಗಳಗದ ಬವಯನತತ ಇದದರನ. 2 ನಮ ಆರನಮಪಯನ ತನನ ಮಬವಲ‍ ಮನಲಕ ಬಮರ ಬಮರಯವರಗ ಏನನನನಮ ತಳಸನತತದದ. ಮಧಧ ರತತ 1.30 ಗಗಟಗ ತಮಮ ಕರನಲ ಹನರಟನ ಹನಮದರನ."

Hence, if the entire evidence of PW20 in his chief-examination is considered together, it is clear that his evidence regarding alleged incident is hearsay one.

62. Moreover, in the evidence in chief-examination itself, the PW20 has deposed that during the investigation i.e., 25.02.2016 the I.O. called him to the police station and showed CCTV video clips. In the said video clips he saw the accused persons making galata with police staff. The concerned CD at M.O.1 was got played in the open Court during the evidence of PW20. But the said CD was not reading. Hence, the digital evidence forthcoming on record does not support the case of 57 Spl.C. No.382/2018 prosecution regarding the alleged incident. Further, as discussed herein above, the evidence of PW20 regarding the alleged incident is hearsay one. Further, as pointed out by the learned counsel for the accused No.2, the photos at Ex.P.9 were shown to PW20 during his evidence in cross-examination, in which the PW20 has stated that he did not identify the persons appearing in the said photos.

63. Moreover, regarding beat duty the evidence of PW20 in his cross-examination is that:

"ಇಲಕಟತನಕ‍ ಬಮಟಗ ಇಲಕಟತಮನಕ‍ ಟಧಗ‍ ಅಳವಡಸರನತತರ . ಹಗ ನವ ಬಮಟ‍ ಕತರವಧಕಸ ಹನಮದಗ ಠಣಧಕರಗಳನ ಆರ ಎಫ‍ ಐಡ ರಮಡರ ನನ ನ ಠಣಧಕರ ಕನಟಟರನತತರ. ಆರ ಎಫ‍ ಐಡ ರಮಡರನನ ಗಸನತ ಮನಗದ ನಗತರ ಠಣಧಕರಗ ಕನಡಬಮಕನ."

As discussed herein above, no such RFID reader is forthcoming from the prosecution. The documentary evidence forthcoming on record does not prove that the PW20 was present at the spot of incident at the relevant time.

64. The CW43 S. Thipppeswamy is the then Police Constable of the complainant police station, who was on night beat duty in beat No.6, 7 and 8 on the relevant date. He has been examined as PW24. As per the evidence of PW24, when he was on beat duty in beat No.8 at about 1.00 to 1.10 hours in the night, 58 Spl.C. No.382/2018 PW3 Prashanth Nayak informed the police officials of Cheetah and Hoysala vehicles by walkie talkie to come to U.B. City. Accordingly, PW24 along with ASI Puttaswamy (PW7), H.C. Nanjundaiah, and P.C. Shivamurthy went by Hoysala-1 vehicle to the spot. The evidence of PW24 in chief-examination regarding the alleged incident reads thus:

       "ನನನ ಯನಬ ಸಟಗ ಹನಮದಗ ಯನಬ ಸಟಯ ಹತತರ ಹನಯ                ತ ಳ 1 ನಗತತನತ
       ಅದರಲ ಎಎಸ‍ ಐ ಪಟಟಸಸಮ ಮತನತ ಹಚ ಸ ನಗಜನಗಡಯ       ಧ ಮತನತ ಪಸ ಶವಮನತರ

ರವರನ ಇದದರನ. ಅವರನಗಳನ ಸಕನ ಧ ರಟಯ ಹತತರ ಮತನಡನತತ ಇದದರನ. ನನನ ಸಹ ಅವರ ಜನತ ಸಮರಕನಗಡ. ಅದಮ ವಮಳಗ ಸಸಸ ಬರನ ಲಫಟನಗದ ಪಸ ಕರಣ‍ ಕನಮರ ಮತನತ ಪಸ ಪತಶಗತ‍ ನಯಕ‍, ಎಎಸ‍ ಐ ಮನನರಜನ ಪಸ ಮಹಮಶ ಬಗದರನ. ಅವರನನ ಹಗಬಲಸಕನಗಡನ 5-6 ಆಸಮಗಳನ ಕನಡ ಬಗದರನ. ಆ ಆಸಮಗಳಲ ಒಬಬ ವಧಕತ ಬಳಯ ಶಟರನನ ಧರಸದದ. ಆ ವಧಕತಯನ ಪಮಲಮಸ‍ ಇಲಖಯ ಕನರತನ ಜನಮರಗ ಕನಗಡಕನಗಡನ ಸನಳ ಮಕಸಳ, ಬನಮಳ ಮಕಸಳ, ನಮ ಮ ಮಮ ನನ ಕಮಯ, ನಮ ಮ ಕಸನನ ಕಮಯ ಅಗತ ಬವಯನ ಧ ತತ ಕರಣ‍ ಕನಮರ ನನನ ಹಡಯಲನ ಹನಮಗನತತದದರನ ಅಷಟರಲ ಒಳಗಡಯಗದ ಇಬಬರನ ಮಹಳಯರನ ಬಗದನ ಗಲಟ ಬಮಡ ಅಗತ ಹಮಳದಗ ಆ ಮಹಳಯರಗ ಕವಯಗದ ಹನಡದರನ ಮತನತ ಬವದನ ಕಳನಹಸದರನ. ಹಗ ಕನಗಟ ಮನಗದನವರಸ, ಪಮಲಮಸರನ ಬನನಟಗ ಸಮನ ನಳ ಸಸಮಕರ ಮನಗದ ನಲಸ ಯನನ ಫರಗ ಬಚಚಸನತತಮನ, ಕಮಷನರ ಇಲಗಮ ಬರಬಮಕನ ಡಸಪ ಇಲಗಮ ಬರಬಮಕನ ಆ ತರಹ ಮಡನತತಮನ ಅಗತ ಏರನ ಧಸನಯಲ ಕನಗಡಕನಗಡನ ಹನಮದರನ. ಮಮಲಮ ಹಮಳದಗತ 2 ನಮ ಆರನಮಪ ಕನಗಡದ ವಧಕತರಗದರ. 1 ನಮ ಆರನಮಪಯನ 2 ನಮ ಆರನಮಪಗ ಕನಮ ಸ ಕನಡನತತ ಇದದರನ."

ಮ ಕನ PW24 has also deposed that during the investigation, CCB Police called and showed him the CCTV recorded video clips and at that time he gave statement before the I.O. regarding the alleged incident. But, as submitted by the learned counsel for the accused No.2, the PW24 in his evidence in cross-examination has deposed that from the Video clips he could not identify the persons and those video clips are not in accordance with the photos at Ex.P.9. 59 Spl.C. No.382/2018

65. Further, regarding the beat duty the evidence of PW24 in his evidence in cross-examination has deposed as hereunder:

"ಅ ದನ ನನನ ಎಲ ಲ ಬಮಟ‍ ಗಳಲ ಆರ ಎಫ‍ ಐಡ ರಮಡರನನ ಉಪಯಗಸದನ.

ನ ಸಸಧನ‍ ಮಡದನ. ಕಬಬನ‍ ಪರಸ‍ ಬಮಟನಲ ಆ ಸಮಯದಲ ಎಪಪಟಲ ಟಧಗನನ ಲ ಇಲಕಟತನಕ‍ ಟಧಗ‍ಗಳದದವ ಎಗದನ ಈಗ ನನಪಲಲ. ಗಸನತ ಕತರವಧ ಮನಗದ ನಗತರ ಠಣಗ ವಪಸ‍ ಹನಮಗ ಆರ ಎಫ‍ ಐ ಡ ಟಧಗ‍ ಗಳನನ ಠಣಗ ವಪಸ‍ ಕನಡನತತಮವ."

It is also the evidence of PW24 that:

"ಬಮಟ‍ ಕತರವಧದಲದಗ ನವ ಎಲಕಟತನಕ‍ ಟಧಗ‍ ಗಳನನ ಉಪಯಗಸ ಆರ ಎಫ‍ ಐ ರಮಡರ ಮನಖಗತರ ರಮಡ‍ ಮಡನತತಮವ. ಹಗ ಎಲಕಟತನಕ‍ ಟಧಗ‍ ಉಪಯಗಸ ಆರ ಎಫ‍ ಐ ಡ ರಮಡ‍ ಮಡ ಮರನ ದನ ಬಳಗಗ ಪಮಲಮಸ‍ ಠಣಗ ಆ ಬಗಗ ತಳಸನತತಮವ. ಪಮಲಮಸ‍ ಠಣಯಲ ಕಗಪಧಟರ ಮನಲಕ ಆ ಆರ ಎಫ‍ ಐ ಡ ರಮಡರನನ ಅಳವಡಸ ಮನದತತ ಪತತಯನನ ಠಣಧಕರಗಳನ ಪಡದನಕನಳನಳ ತತರ.

ಚಮತ ವಹನಕಸ ಜಪಎಸ‍ ಅನನ ನ ಅಳವಡಸಲಗದ. ಚಮತ ವಹನಕಸ ಜಪಎಸ‍ ಅಳವಡಸಲಗದ. ಆದರ ಜಪಎಸ‍ ನಲ ರಕರರ‍ ಆದ ವಷಯವನನ ಠಣಧಕರಗಳಗ ಪರವಸನತತದದ ಬಗಗ ನನಗ ಮಹತ ಇಲಲ. ಜಪಎಸ‍ ರಕರರ‍ ದಲ ಬಮಟ‍ ಕತರವಧದಲದದ ಸಮಯದಲ ನವ ಎಲಲ ಹನಮಗನತತಮವ ಎಗಬ ಬಗಗ ವವರ ಇರನತತದ."

Further, the evidence of PW24 in his cross-examination reads thus:

ಯನಬ ಸಟ ಕಟಟಡದ ಮನಗದ ಸಸ ಟವ ಕಧಮರವನನ ನ ಅಳವಡಸಲಗದ. ಯನಬ ಸಟ ಒಳಗ ಪತವಮಶ ಮಡನವ ಸಮಯದಲ ಆ ಬಗಗ ಸಸ ಟವಯಲ ರಕರರ‍ ಆಗನತತದ. ಗತಧಗಡ‍ ಸಕರಲ‍ ಬಳ ಸಸ ಟವಯ ಕಧಮರ ಇದ. ಪತವಮಶ ದತವದಲ ರರಲ ಲ ಪತವಮಶಸದರ ಎಗಬ ಬಗಗ ತನಖಧಕರಗಳನ ನಮಗ ಸಸ ಟವ ದದಶಧವಳಗಳನನ ತನಮರಸಲಲ.

As discussed herein above, the concerned Tag document in respect of the beat duty, RFID reader and the concerned Video clips recorded in the CCTV camera fixed in the premises of Sky Bar and Restaurant of UB City would have been the crucial evidence to prove that the PW24 and also other police officials-PW4, PW5, PW7 and PW20 were present at the spot at the time of alleged incident and also to prove that the accused No.1 and 2 were present at the spot and they committed the offence as alleged. But, 60 Spl.C. No.382/2018 for the reasons best known to the I.O. and also to the prosecution, no such documentary evidence is forthcoming on record.

Moreover, the police officials PW4, PW5, PW7, PW20 and PW24 were not on beat duty in beat No.3 on the relevant date. Therefore, the case of prosecution that those police officials went to the spot and witnessed the alleged incident is not believable and any such evidence does not merit consideration on the facts of the case without the support of any independent evidence.

66. As discussed earlier, at the time of considering the evidence of PW1, it is clear that some of the staff of the Bar witnessed the alleged incident. Hence, it is relevant to refer to evidence of such witnesses forthcoming on record. CW12 Ananda D.C. is the bouncer at Sky Bar and Restaurant. The CW12 is alleged to be the eyewitness to the incident. He has been examined as PW9. In his evidence in chief-examination he has deposed that his duty as bouncer in the Sky Bar is from 10 p.m. to 1.00 O'Clock in the midnight on Friday and Saturdays and from 6.00 p.m. to 11.00 p.m. on other week days. There are total 5 bouncers including him in the said Sky Bar. But in the evidence in chief- examination itself he has stated that he did not witness the alleged 61 Spl.C. No.382/2018 incident and at that time he had gone to washroom. He came to know of the alleged incident subsequently. The PW9 has denied that he gave any statement to the police regarding the alleged incident and identified any persons in the concerned video clips. Hence, the evidence of PW9 is quite contrary to the prosecution case and therefore, he is treated hostile and subjected to cross- examination by the prosecution. Even in the evidence in cross- examination, the PW9 has denied the case of prosecution. He has also denied that he gave any statement to the police as per Ex.P.13.

67. The CW17 Shankar is the Lift Operator at UB City building and he is also alleged to be the eyewitness to the incident. The CW17 has been examined as PW11. However, in the evidence in chief-examination itself PW11 has deposed that he did not see the accused No.1 and 2 and he does not know the alleged incident taken place at Sky Bar in UB City building. Hence, evidence of PW11 is quite contrary to the prosecution case and therefore, he has been treated hostile and subjected to cross-examination by the learned Prosecutor. Even in the evidence in cross-examination, the PW11 has denied that he witnessed the incident and gave any 62 Spl.C. No.382/2018 statement and further statement before the police as per Exs.P.16 and P.17 respectively.

68. The CW21 K.C. Kumaraswamy is the Security Field officer at UB City. CW21 is alleged to have witnessed the incident. He has been examined as PW12. In the chief examination the evidence of PW12 is that on 01.07.2014 at about 1 O'clock in the midnight Kiran and Nayak (PW1 and PW3) came and asked him, to whom the cars parked in front of the building belonged and to which he told that he did not know. Thereafter, PW1 and PW3 went inside UB City. After half-an-hour some people came to the ground floor shouting. On the next day morning he came to know that there was MLA in the said galata and the police were also there with MLA. He saw the news in the TV regarding the said galata. On 10.07.2014 and 19.07.2014 the police called him and he stated before the police what he had witnessed on the date of alleged incident. At that time, the police showed him video clips. But, it is very much pertinent to note that during the recording of evidence of PW12 the DVD at M.O.2 was got played before the Court, but it was not reading. Further, the evidence of PW12 is not in accordance with the case of prosecution regarding the alleged 63 Spl.C. No.382/2018 incident. Moreover, the digital evidence forthcoming on record does not support the case of prosecution to prove the alleged incident.

69. The CW22 Vijay Kumar is the valet driver at UB City parking area, He was working on the relevant date at the spot. He is a crucial witness to prove the incident. The CW22 has been examined as PW13. However, in the chief-examination itself the PW13 has deposed that when he was on duty he did not know which car came inside UB City premises and at the time of incident, he had gone for dinner. Hence, there is absolutely no material forthcoming in the evidence in chief-examination of PW13 regarding the alleged incident. Therefore, his evidence is quite contrary to the case of prosecution and hence, he has been treated hostile and subjected to cross-examination by the prosecution. Even in the evidence in cross-examination, the PW13 has denied of having witnessed the alleged incident and also of having given any statement before the police as per Ex.P.18. Further, in the evidence in cross-examination by the learned counsel for the accused No.2, the PW13 has deposed that there was security camera in the parking area, but he was not shown the 64 Spl.C. No.382/2018 CCTV video clips regarding such CCTV camera kept in the basement of UB City building.

70. The CW23 Mahantesh is Valet driver working at parking area in UB City building. He is also alleged to be the material witness. He has been examined as PW16. As pointed out by the learned Prosecutor, the evidence of PW16 in chief-examination reads thus:

ಹಗ ನನನ ಕತರವಧದಲದಗ ರತತ ಅಗದಜನ 1.15 ರಗದ 10.30 ಗಗಟಗ ಯನಬ ಸಟ‍ಯ ಮನಖಧ ದಸರದ ಹತತರ ನಲನ ಸ ಕರನಗಳನ ಬಗದವ. ಸದರ ಕರನಗಳನನ ಮಲನ ಎದನರನಗಡ ನಲಸದದರನ. ನವ ವಧಲಟ‍ ಟಧಗನನ ಕನಡಲನ ಹನಮದವ. ಆಗ ಒಗದನಮ ಆರನಮಪಯನ ನನನ ಎಗಎಲ‍ಎ ಇದನ ಅಗತ ಹಮಳದರನ. ಕಲನ ಗಗಟ ಆದ ನಗತರ ಸದರ ಕರನಗಳ ಚಲಕ ಕರನ ಕಮಗಳನನ ಕನಟಟರನ. ನವ ಅವಗಳಗ ಟಧಗನನ ಹಕದವ.

However, regarding the alleged incident the PW16 has deposed that after 1.30 in the midnight he heard shouting in the lift of UB City Building. Thereafter, he went home as his work shift was over. On the next day he came to know regarding the alleged incident. He had not seen the alleged incident personally. He has also deposed that he did not give any statement to the police regarding the alleged incident. Therefore, the evidence of PW16 is also contrary to the prosecution case and hence, he is treated hostile and subjected to cross-examination by the learned Prosecutor. In the evidence in cross-examination also, the PW16 65 Spl.C. No.382/2018 has denied of having witnessed the incident and having given any statement to the police as per Ex.P.19.

71. Moreover, in the evidence in cross-examination by the learned counsel for the accused No.2 the PW16 has deposed that the I.O., did not show any CCTV footage to him regarding the vehicles entered into UB City premises on 1.7.2014. Further, he did not produce any valet parking ticket before the police to show as to which were the vehicles parked at the parking area on the relevant date. Hence, there is absolutely no evidence forthcoming from PW16 regarding the alleged incident and also to prove the accused persons were in the UB City premises at the time of alleged incident on the relevant date.

72. The CW16 Balusamy is the Bar Manager of the Sky Bar and Restaurant. He is alleged to be the eyewitness to the incident. He has been examined as PW18. As per the evidence of PW18, on the night of the relevant date he was on duty at Sky Bar and Restaurant. Moreover, relevant portion in the evidence of PW18 regarding alleged incident reads thus:

       ಗಲಟ ಆಯತನ ಅಗತ ಹಮಳನವ ದನ ಆರನಮಪಗಳನ ನಮ       ಮ ಸಸಸ ಬರ ಮತನತ
       ರಸನ

ಟ ಮರಗಟ ನಲ 15 ರಗದ 20 ಜನರನ ಬರನತತರಗದನ ಹಮಳ ಟಮಬಲ‍ ಗಳನನ ಕಯದರಸದದರನ. ಆ ದನ ರತತ 9 ರಗದ 10 ಗಗಟ ಒಳಗ ಸನಮರನ 15 ರಗದ 20 ಜನ ನಮ ಟ ಮರಗಟ ಗ ಬಗದರನ. ಊಟವನನ ಮತನತ ಡತಗಕತನನ ಮ ಬರ ಮತನತ ರಸನ ನ ಆಡರರ ಮಡದರನ. ಹಗ ಆರನಮಪಗಳನ ಹಮಳದ ಡತಗಕತನನ ನನನ ಸರಬರಜನ ಮಡನತತದ . ಆ 66 Spl.C. No.382/2018 ದನ ರತತ 1 ರಗದ 1.30 ಗಗಟ ಯ ತನಕ ನಮ ಟ ಮರಗಟನಲ ಇದದರನ.

                                     ಮ ರಸನ                ನಮಮ ಬರ
       ರತತ 11.30 ಗಗಟಯ ತನಕ ತರದತನತ.

It is also the evidence of PW18 in his chief-examination that:

"ಮಧಧ ರತತ 1 ಗಗಟಗ ಇಬಬರನ ಕಬಬನ‍ ಪರಸ‍ ಪಮಲಮಸರನ ಸಸಸ ಬರಗ ಬಗದರನ. ಹಗ ಪಮಲಮಸರನ ಬಗದಗ ಆರನಮಪಗಳಗ ಮತನತ ಪಮಲಮಸರ ನಡನವ ಗಲಟ ಆಯತನ. ನನನ ಆ ಸಮಯದಲ ಊಟ ತರಲನ ಅಡನಗ ಕನಮಣಗ ಹನಮಗದ.

ಗಲಟ ಆದ ಮರನ ದನ ಕಬಬನ‍ ಪರಸ‍ ಪಮಲಮಸರನ ನನನನನ ನ ಕರಸದರನ. ಪಮಲಮಸರಗ ನನನ ಆರನಮಪಗಳನ ಹಗನ ಪಮಲಮಸರ ನಡನವ ಆದ ಗಲಟಯನನ ನ ಹಮಳದ.

ಆ ಬಗಗ ಸಸ ಟವಯಲ ಚತತಮಕರಣಗನಗಡದ ಅಗತ ದದಶಧವಳಗಳನನ ತನಮರಸದರನ. ಆ ದದಶಧವಳಗಳಲ ಪಮಲಮಸರನ ತಮ ಮ ಮಬವಲ ನಗದ ರಸನ ಟ ಮರಗಟನಲ ಚತತಮಕರಣ ಮಡನತತ ಇದದರನ. ಇಬಬರನ ಪಮಲಮಸರನ ಇದದರನ. ಹಗ ಚತತಮಕರಣ ಮಡನವ ಸಮಯದಲ ಪಮಲಮಸರನ ಮತನತ ಆರನಮಪಗಳ ನಡನವ ಗಲಟ ಆಗನತತ ಇತನತ . ಆರನಮಪಗಳಬಬರನ ಪಮಲಮಸರಗ ಹನಡದರನ. ಹಗ ಪಮಲಮಸರಗ ಹನಡದನ ಎಳದನಕನಗಡನ ಲಫಟ‍ನಲ ಕಳಗ ಹನಮದರನ. ಈ ಎಲ ಲ ಘಟನ ಸಸ ಟವಯಲ ಸರರಗದ."

However, when the CDs at M.O.1 and M.O.2 when got played before the Court during the recording of the evidence of PW18, both those CDs were not reading. Hence, there is absolutely no evidence forthcoming from the prosecution to prove as to which are the video clips recorded in the CCTV Cameras downloaded in the CDs at M.O.1 and M.O.2.

73. However, the submission of the learned Prosecutor is that the evidence of PW18 would clearly prove that the accused were present in the Bar on the date of alleged incident till 1.30 p.m. But, it is relevant to note that as per the evidence of PW18 in chief-examination itself, the Bar was kept open only till 11.30 p.m. Hence, there are contradictions in the evidence of PW18 regarding the alleged incident and therefore, without any independent 67 Spl.C. No.382/2018 supportive material evidence, the evidence of PW18 does not merit consideration to prove the alleged incident.

74. The CW19 Paramesh B.D. is working as Security Supervisor and he was security in charge in the front portion of the premises of UB City Mall. He has been examined as PW26. Regarding the alleged incident the evidence of PW26 is that on 01/02.07.2014 at about 1.00 O'Clock in the night two police constables of the complainant police station came to UB City Mall and asked him regarding the four cars parked in front of the Mall. He told the said police that he did not know as to whom the said cars belonged. He also told the police to enquire regarding the same at valet parking. Thereafter, the police went inside UB City building. Thereafter, Cheetah vehicle came and 5 to 10 minutes thereafter the police and other persons came to basement shouting. At that time he tried to send those persons. But they did not heed to his request. Thereafter, at about 2.00 O'Clock after midnight a police jeep and also traffic police jeep came. The PW26 came to know thereafter regarding the incident taken place in UB City Sky Bar and Restaurant. Subsequently, the complainant police called him to the station and showed video clips recorded in CCTV 68 Spl.C. No.382/2018 cameras and he identified the persons shown in the said CCTV as the accused and gave statement before the Police.

75. However, if the above said evidence of PW26 is taken into consideration, it is clear that he is not the eyewitness to the incident allegedly took place in Sky Bar and Restaurant. Moreover, in the cross-examination by learned counsel for the accused No.2, the evidence of PW26 is that he did not know which of the persons came to UB City on the relevant date. The PW26 has also deposed that there were CCTV Cameras fixed on different points in the basement of UB City Building, but the police did not show any video clips recorded in those CCTV cameras. Moreover, as pointed out by the learned counsel for the accused No.2, the PW26 in his evidence in cross-examination has deposed that:

"ಯನಬ ಸಟಯ ಕಟಟಡದ ಒಳಗಡ ಹನಮಗಬಮಕದರ ವಹನಗಳನನ ಪರಶಮಲನ ಮಡನತತರ ಮತನತ ವಹನಗಳ ಪಮಟನಮಗತಫನನ ಳ ತತರ ಮತನತ ಪಕರಗಗ‍ ನ ಪಡದನಕನಳನ ಟಕಟ‍ ಕನಡನತತರ. ರವ ಸಮಯಕಸ ವಹನವ ಕಟಟಡದ ಒಳಗ ಬಗತನ ಎಗದನ ದಖಲತ ಇರನತತದ. ವಧಲಟ‍ ಪಕರಗಗನಲ ವಹನವನನ ಪಕರಗಗ‍ ಮಡದರ ವಧಲಟ‍ ಪಕರಗಗ‍ ಟಕಟನನ ಕನಡನತತರ. ಯನಬ ಸಟಯ ಕಟಟಡದ ಚಲರನ ಟಧಗನನ ನ ಕಮ ಸಹತ ಇಟನ ಟ ಕನಳನತತತರ. ವಧಲಟ‍ ಟಕಟನನ ಗತಹಕರಗ ಕನಡನತತರ. ವಧಲಟ‍ ಟಕಟನನನ ವಪಸ‍ ಕನಟಟಗ ವಹನದ ಕಮಯನನ ನ ವಪಸ‍ ಕನಡನತತರ."

It is also the evidence of PW26 in his cross-examination that:

"ವಧಲಟ‍ ಪಕರಗಗನವರನ ಟಕಟನನ ಮತನತ ಪಕರಗಗ‍ ಟಕಟನನ ಲಕಸಪತ ತ ವಭಗಕಸ ಕನಡಬಮಕನ. ಸದರ ಟಕಟಲ ವಹನ ಎಷನ ಟ ಗಗಟಗ ಬಗತನ ಎಷನ ಟ ಗಗಟಗ ಹನರಗ ಹನಮಯತನ ಎಗದನ ನಮನದನ ಇರನತತದ. ಘಟನ ಅಯತನ ಅಗತ ಹಮಳನವ ದನ ನನನ ಇಬಬರನ ಆರನಮಪಗಳನನ ಗನರನತಸಲಲಲ. ಘಟನ ಅದ ಮರನ ದನ ಟವ ಮಧಧಮದಲ ಗಲಟ ಆದ ಬಗಗ ಗನತತಯತನ. ಆರನಮಪಗಳಬಬರನ ಯನಬ ಸಟ ಕಟಟಡಕಸ ಆ ದನ ಬಗದದದರನ ಎಗದನ ನನನ ಸಸ ಟವ ಪಮಟಮಜನನ ನನಮಡಲಲ . ಆ ದನ ಈ ಬಗಗ ನನನ ಪಮಲಮಸರ ಮನಗದ ತಳಸಲಲಲ. ಸಸಸ ಬರನಲ ಅ ದನ ಏನಲ ಲ ಆಯತನ ಎಗಬ ಬಗಗ ನನಗ ಗನತತಲಲ."

69 Spl.C. No.382/2018

As submitted by the learned counsel for the accused No.2, the concerned valet ticket is the relevant documentary evidence to prove that the accused persons entered the UB City premises on the relevant date. But, for the reasons best known to the I.O., no such document is forthcoming on record from the prosecution.

76. Further, it is very much relevant to note that when photos at Ex.P.9 were shown to PW26 during the recording of his evidence in cross-examination before the Court, he has deposed that said photos were in accordance with CCTV footage, but nothing appears in the said photos. The PW26 has also deposed that he did not know what had happened inside U.B. City Building on the relevant date. Hence, if the entire evidence of PW26 is considered, it is clear that his evidence does not prove the case of the prosecution regarding the alleged incident.

77. The CW9 John victor Anjanappa was the then Manager in Sky Bar and Restaurant at the relevant time. He has been examined as PW29. As per the evidence of PW29, on 01.07.2014 at 1.00 p.m. he came for duty. On that day at about 6.30 p.m. the accused No.1 called him over mobile and told to reserve table for 70 Spl.C. No.382/2018 15-20 persons stating that there would be birthday party. Thereafter, on the same day at 9.30 p.m. the accused No.1 came and met him and then he showed accused No.1 the reserved table. At 9.30 p.m. 5-6 ladies and 15 men along with the accused No.2 came and the drinks and snacks were supplied to them. At about 10.30 p.m. he sought order from the accused No.1 for dinner. At that time the accused No.1 told him to come after 10 minutes. At 10.40 p.m. the accused No.1 gave order for food and told him to bring cake at 11.00 p.m. But they did not have dinner and they continued with drinking. At 11.10 p.m. the music was stopped and at that time, the accused No.1 asked him as to why the music was stopped. Then PW29 told the accused No.1 that at 11.00 p.m. the music would be stopped and Bar would be closed by 11.00 p.m. otherwise police would come. Then the accused No.1 told him that he would talk with police.

78. Further, the relevant portion in the evidence of PW29 in chief-examination regarding the alleged incident reads thus:

"ಆರನಮಪಗಳಗದ ನಮಗ 1,34,000 ರನಪಯ ಮದಧ ಹಗನ ತಗಡ ತನಸನಗಳ ಕನರತನ ಬರಬಮಕಗತನತ. ನಮ ಮ ಹರಯ ಮಧನಮಜರ ಜನತ ಮತನಡ ಶಮ.20 ರಷನ ಟ ರರಯತ ಕನಡಲನ ಒಪಸಕನಗಡರನ. ಪನದ ರತತ 11.40 ಗಗಟಗ ನನನ ಆರನಮಪಗಳ ಹತತರ ಹನಮದ ಬಲಲನನ ಸಟಲ‍ ಮಡ ಅಗತ ಕಮಳಕನಗಡ. ಎಲಲರನ ಊಟ ಮಡದ ಮಮಲ ಬಲಲನನ ಸಟಲ‍ ಮಡನತತಮನ ಅಗತ ಹಮಳದರನ. 1 ನಮ ಆರನಮಪಯನ ನನನ ಹಗಲ ಮಮಲ ಕವ ಹಕ ಮನಗದ ಕರದನಕನಗಡನ ಹನಮಗ ರಗನ ಧ ಲರಗ ಕನಡನವ ಡಸಸಗಟ‍ ಕನಡ ಅಗತ ಕಮಳದರನ. ಆಗ ನನನ ನನಗ ಅಧಕರ ಇಲ ಆಗನವದಲಲ ಅಗತ ಹಮಳದ. ನಮ ಲ ಮ ಹರಯ ಮಧನಮಜರ ಹತತರ ಮತನಡ ಶಮ.20 ರಷನ ಟ ರರಯತ ಕನಟನ ಟ 71 Spl.C. No.382/2018 ಆರನಮಪಗಳಗ 87,000 ರನಪಯ ಕನಡಲನ ಹಮಳದ. 1 ನಮ ಆರನಮಪಯನ ನನನ ಲಕಸಚರ ಮಡನವ ಸಮಯದಲ ಶಚಲಯಕಸ ಹನಮಗನವದಗ ಹನರಟರನ. ಹಗ ಹನಮಗನವ ಸಮಯದಲ ಇಬಬರನ ಪಮಲಮಸರನ ಎದನರಗ ಅವಧ ಮಮರ ವಧವಹರ ನಡಸನತತದದ ಬಗಗ ಆಕಪಸದರನ. ಇಬಬರನ ಪಮಲಮಸರಲ ಒಬಬರನ ಮಮಬವಲ‍ ಮನಲಕ ವಡಯ ಶನಟಗಗ‍ ಮಡನತತ ಇದದರನ. ಆಗ 1 ನಮ ಆರನಮಪಯನ ಪಮಲಮಸರನನ ತಳಳಕನಗಡನ ಹನರಗ ಬಗದರನ. ಎಗ ಎಲ‍ ಎ ಪಟರ ಇತನತ ಅಗತ ಹಮಳನತತ ಲಫಟ‍ ಏರರಗ ಹನಮದರನ. ನವ ನಮ ಮ ಸಸಸ ಬರ ಬಗಲನನ ಮನಚಚದವ. ಒಬಬ ಪಮಲಮಸರನ ಸಸಸದ ಬರ ಒಳಗ ವಮಡಯ ಚತತಮಕರಣ ಮಡನವ ಸಮಯದಲ ಅವರನನ 1 ನಮ ಆರನಮಪಯನ ತಳಳಕನಗಡನ ಬಗದ. ನಗತರ ಸಸಸ ಬರನ ಸಬಬಗದಯವರನ ಹಗದನಗಡ ಬಗಲನಗದ ಕಳಗಡ ಬಗದವ. ಆಗ ಕಳಗಡ ಪಮಲಮಸ‍ ಜಮಪ‍ ಗಳನ ಬಗದದದವ."

On the basis of the above referred evidence of PW29, the submission of the learned Prosecutor is that the evidence of PW29 proves the presence of the accused No.1 and 2 at Sky Bar and Restaurant at the relevant time. But, as submitted by the learned counsel for the accused No.2, the above referred evidence of PW29 is only regarding the events took place till 11.40 p.m. on the relevant date. As per the prosecution case, the alleged incident occurred in between 1.00 to 1.10 hours in the midnight. Therefore, even if the above referred evidence of PW29 is taken into consideration, it does not make out any case for the offences charged ragainst the accused No.1 and 2 in this case.

79. Moreover, in the evidence in chief-examination itself PW29 has deposed that the CCB police did not show him CCTV video clips and he did not give any statement to the police regarding the alleged incident. Therefore, evidence of PW29 is quite contrary to the prosecution case. Hence, he is treated hostile 72 Spl.C. No.382/2018 and subjected to cross-examination by the prosecution. It is true that in the evidence in cross-examination by the learned Prosecutor, the PW1 has deposed that he gave statement before the complainant police once and CCB police twice regarding the alleged incident. But he has denied that he was shown photos at Ex.P.9 by the police during investigation. He has also denied that he identified the accused persons by seeing the said photos. Therefore, the evidence of PW29 does not merit consideration to prove the alleged incident and also to prove the offences said to have been committed by the accused No.1 and 2 on the relevant date.

80. Further, in the evidence in cross-examination by the learned counsel for the accused No.1 the PW29 has deposed:

"ಘಟನ ಆಯತನ ಅಗತ ಹಮಳನವ ದನ ಆರನಮಪಗಳಬಬರನ ನಮ ಮ ಬರಗ ಬಗದದದರನ ಅಗತ ಹಮಳನವ ಬಗಗ ನನಗ ನಖರವಗ ಹಮಳಲನ ಬರನವದಲಲ."

Moreover, in the evidence in cross-examination by the learned counsel for the accused No.2, the PW29 has deposed that:

ನಮ ಮ ಸಸಸ ಬರಗ ಬರನವ ಗತಹಕರನ ರತತ 11.30 ಗ ತಮಮ ಊಟವನನ ಮನಗಸ ಹನರಗ ಹನಮಗನವಗತ ನನಮಡಕನಳನ ಳ ತತದವ. ರವದಮ ಗತಹಕರನ 11.30 ನಗತರ ಊಟ ಮಡದದದರನ ಸಹ ಬರನ ಎಲ ಲ ಲವಟ ಗಳನ ಕಗಟರ ಅಡನಗ ಕನಮಣ ಎಲಲವ ಬಗದಗನತತದದವ. ಸಸಚಚ ಮಡನವ ಸಬಬಗದಯ ಹನರತಗ ಉಳದ ಎಲ ಲ ಸಬಬಗದ ರತತ 11 ಗಗಟಗ ಮನಗ ಹನರಟನ ಹನಮಗನತತದದರನ. ದದ1.7.2014 ರಗದನ ಸಹ ರತತ 11.30 ಗಗಟಟಗ ನಮಮ ಬರನನ ನವ ಮನಚಚದವ ಮತನತ ಅದಮ ಸಮಯಕಸ ಎಲ ಲ ಗತಹಕರನನ ಹನರಗ ಕಳನಹಸದವ.

73 Spl.C. No.382/2018

Such evidence of PW29 in his cross-examination clearly disproves the case of prosecution that the accused No.1 and 2 were in Sky Bar and Restaurant on the relevant date of the incident after 11.30 p.m. and they committed any offences as alleged by the prosecution.

81. The CW14 Madan Kumar is the staff in Sky Bar, who was working as server in the said Bar at the relevant time. He is alleged to be the eye-witness to the said incident. The CW14 has been examined as PW33. However, the PW33 in his evidence in chief-examination itself has deposed that on the date of alleged incident at about 11.30 p.m. he was supplying dinner food at Sky Bar, but he did not know the alleged incident. On the next day the police showed him CCTV video clips and in the said video clips he had seen the video clips regarding supply of food to the accused persons and Bouncers pacifying the persons. He gave statement regarding the same before the Police. Hence, the evidence of PW33 is not in accordance with the prosecution case and therefore, he is treated hostile and subjected to cross-examination by the prosecution. In the the evidence in cross-examination by the prosecution also, the PW33 has denied the case of the prosecution 74 Spl.C. No.382/2018 and he also denied that he gave any statements to the police as per Exs.P.33 and P.34. Therefore, absolutely there is no material forthcoming in the evidence of PW33 to prove the alleged incident.

82. Moreover, the concerned CCTV video clips are not forthcoming on record to prove the presence of accused persons at the spot on the date of alleged incident and also to prove the identity of the accused persons. Hence, any of the above mentioned independent witnesses, who are staff at Sky Bar and Restaurant, also does not help the prosecution to prove the alleged incident. Moreover, PW9, PW11, PW13 and PW16 have turned hostile to the case of prosecution and they have denied that they gave any statements before the police regarding alleged incident.

83. From the discussion made herein above, it is clear that there is absolutely no independent oral evidence forthcoming from the prosecution to prove the alleged incident. Except the evidence of PW1 and PW3, the evidence of other witnesses who are police officials, are not in accordance with the case of prosecution regarding alleged incident. There are discrepancies in their evidence. Moreover, it is admitted fact and it is also forthcoming in 75 Spl.C. No.382/2018 the documentary evidence on record that the PW1 and PW3 were not deputed for night beat duty on beat No.3, within the jurisdiction of which the Sky Bar and Restaurant is situated, wherein the alleged incident took place.

84. The CW5 Charan V. is alleged to be the attestor to the panchanama at Ex.P.15 regarding the seizure of sealed cover said to have contained the Hard disc cable at M.O.4. He has been examined as PW10. As per the evidence of PW10, on 13.08.2016 the police called him to CCB office and showed the CD, which was received from Kerala and drew panchanama at Ex.P.15 and packed the said CD in the sealed cover. The Hard disc cable in the said cover is marked at M.O.4(c). However, in the cross- examination by the learned counsel for the accused No.2, the PW10 has deposed that the police did not show him the contents of the cover at Ex.P.4(c) and he does not know whether the said cover contained the CD and Hard-drive. Moreover, even if the evidence of PW10 is taken into consideration to prove the panchanama at Ex.P.15 regarding the seizure of M.O.4, such evidence does not prove the offence charged against accused persons, unless the 76 Spl.C. No.382/2018 prosecution proves beyond reasonable doubt the alleged incident with the support of evidence of independent witnesses.

85. The CW28 B. Venkatesh is the IT Executive working at Canberra Block in UB City building in the 16 th floor. He is examined as PW17. He was System Administrator regarding the CCTV fixed in the premises of Sky Bar. The evidence of PW17 is that on the following day of the alleged incident, Kumaregowda, the Manager of Sky Bar, who was examined as PW8, called him to verify the CCTV. Accordingly, on that day in the morning at 10 O'clock he went to Sky Bar. At that time the said Kumaregowda was present along with police and others. PW17 opened the CCTV and showed it to the police. At that time there were video clips regarding the presence of the customers.

86. However, it is pertinent to note that the relevant portion in the evidence of PW17 in chief-examination reads as hereunder:

"ಆ ಸಸ ಟವಯಲ ನನನ ಏನಲ ಲ ನನಮಡದ ಎಗದನ ತನಗಬ ದನಗಳದದರಗದ ಈಗ ನನಗ ಹಮಳಲನ ಬರನವದಲಲ. ಸದರ ಸಸ ಟವಯಲ ಸನಮರನ 10 ನಮಷಗಳ ಕಲ ಸರರದ ದದಶಧವಳಗಳದದವ. ಆದರ ರವಲ ಲ ದದಶಧವಳಗಳದದವ ಎಗದನ ನನಗ ಲ ಬ ಗನತತಲ. ಸದರ ದದಶಧವಳಯಲ ಇಬರನ ಪಮಲಮಸರನ ಸಸಸ ಬರಗ ಬಗದ ಬಗಗ ಮತನಡದ ಬಗಗ ದದಶಧ ಕಗಡನ ಬಗತನ. ಕನಮರಮಗಡರ ಹಮಳಕಯ ವನಮರಗ ನನನ ಮನದಮಲನ 3 ಎನ‍ವಆರನನ ನ ಪಮಲಮಸರಗ ಕನಟಟ ನನನ ಸದರ ಮನದಮಲನನ ನ ಕನಮರಮಗಡರಗ ಕನಟಟ . ಅವರನ ಪಮಲಮಸರಗ ಕನಟಟರನ. ಸದರ ಸಸ ಟವಯನನ ಆ ಹನಮಟಲ‍ ನಲ 2012 ನಮ ಇಸವಯಲ ಅಳವಡಸಲಗತನತ. ಒಟನ ಟ 7 ಕಧಮರಗಳದದವ. ಸದರ ಸಸ ಟವಯಲ 2000 ಜಬ ಸಮಥಧರದ ಹರರ‍ ಡಸಕ‍ ಇತನತ. 4-5 ದನಗಳ ದದಶಧಗಳನ ಸಸ ಟವಯಲ ಸರರಗನತತದದವ. ಪಮಲಮಸರನ ಸಸಧಮನ ಪಡಸಕನಗಡ ದದಶಧವಳಗಳ ಸಡಗಳನನ ಮತತ ತನಮರಸಲಲಲ."

77 Spl.C. No.382/2018

The PW17 came to know subsequently that there was altercation between MLA and police. Hence, the evidence of PW17 is quite contrary to the prosecution case and therefore, he is treated hostile and subjected to cross-examination by the prosecution. Even in the evidence in cross-examination by the learned Prosecutor, the PW17 has denied the case of prosecution. Further, in the evidence in cross-examination by the learned counsel for the accused No.2, the PW17 has deposed that:

ಕನಮರಮಗಡ ಎನನ ನ ವ ವಧವಸದಪಕರ ಹಮಳಕಯ ಮಮರಗ ನನನ ಮನದಮಲನ 3 ನನನ ಬಚಚ ಅವರಗ ಕನಟಟ ಕನಮರಮಗಡರನ ಮನದಮಲನ 3 ನನ ನ ಪಮಲಮಸರಗ ಠಣಗ ಹನಮಗ ಕನಟಟದರ. ನನನ ಮನದಮಲನ 3 ನನ ನ ನನಮಡಲನ ಪಮಲಮಸ‍ ಠಣಗ ಹನಮಗಲಲ. ಹಮಳಕ ಕನಡಲನ ಮತ ತ ಹನಮಗದ. ನನನ ಕನಮರಮ ಗಡರಗ ಮನದಮಲನ 3 ಕಸ ಸಗಬಗಧಪಟಟ ರವದಮ ಪವರ ಕಮಬಲ‍ ಆಗಲ ಅಥವ ಎಸ‍ ಡ ಎಗ ಐ ಕಮಬಲ‍ ಆಗಲ ಕನಡಲಲಲ.

Hence, the evidence of PW17 is not in accordance with the case of prosecution regarding the seizure of NVR at M.O.3 by the police in the case.

87. The CW52 Thammaiah M.K. is the then ACP, Organized Crime Branch, CCB, at the relevant time. He has been examined as PW27. The evidence of PW27 is that on 07.02.2015 he took up further investigation of the case from CW51 K.P. Ravi Kumar and on the same day he received report at Ex.P.23 from Forensic Science Lab, Hyderabad. In the said report it is mentioned that the material objects sent for scientific investigation could not be 78 Spl.C. No.382/2018 examined, since no instruments were available in the said lab. Thereafter, on 07.03.2015 the PW27 sent the Hard-disc along with NVR to the Center for Development of Advances Computing ('C- DAC' for short), Thiruvananthapuram, for scientific examination as per the letter at Ex.P.31. The said request was sent through the letter at Ex.P.33 through his higher officer. Hence, the evidence of PW27 is only regarding sending of NVR at M.O.3 to C-DAC for scientific investigation. Hence, unless there is concerned technical evidence regarding the NVR at M.O.3, the evidence of PW27 does not help the prosecution to prove the alleged incident in the case on hand.

88. The CW49 K.J. Ramanna is the then ASI in CCB. He has been examined as PW30. The evidence of PW30 is that as per the direction of the then ACP he received the concerned properties from CDAC, Thiruvananthapuram and gave it to his higher officer along with his report Ex.P.30. The CW47 K.S. Tanvir is the then PSI in CCB. He has been examined as PW31. According to the evidence of PW31, on 08.07.2014 as per the direction of the concerned DCP, he took the property at M.O.3 to the cyber crime lab and sent the same to PW6 Bhavith. The said M.O.3 was packed 79 Spl.C. No.382/2018 and sealed as per panchanama Ex.P.14. Thereafter, he gave the letter and NVR at M.O.3 to his higher officer. The CW48 Dayanand Segunasi, is the then ASI of CCB. He has been examined as PW32. His evidence is that as per the direction of CW27 on 07.03.2015 he went to CDAC, Thiruvananthapuram along with the requisition at Ex.P.31 and gave it to the said computer center and thereafter, he gave report regarding the same to his higher officer as per Ex.P.32.

89. The CW30 Moses Samuel is the then Deputy Commissioner of Excise, Bengaluru Urban District (South). He has been examined as PW34. As per the evidence of PW34, in the case on hand the I.O. requested him to furnish documents regarding violation of permission granted to the Sky Bar. Accordingly, he produced the documents before the I.O. as per his letter at Ex.P.35. The concerned documents are marked at Exs.P.35(b) to P.34(f). The Ex.P.35(a) is the signature of PW34 in Ex.P.35. It is deposed by PW34 that there was case registered against the owner of the Sky Bar and Restaurant for having violated the conditions of the permission, and the said document is at Ex.P.36. In the said case the owner of the Bar paid penalty of 80 Spl.C. No.382/2018 Rs.25,000/-. The copy of the order is at Ex.P.37. The copy of the receipt for having paid the fine is at Ex.P.28 and there were four cases registered against the Sky Bar and the total fine of Rs.1,00,000/- was imposed on the said Bar. However, as submitted by the learned counsel for the accused No.2, the case referred to by the PW34 in his evidence is regarding violation of permit condition by the owner of Sky Bar and for which the penalty was imposed. The said case is no way concerned to the incident alleged in the case and the offences alleged to have been committed by the accused persons.

90. Moreover, it is very pertinent to note that in the evidence in cross-examination by the learned counsel for the accused No.2, the PW34 has deposed that as per Ex.P.36 on 01.07.2014 the Sky Bar was kept open and it did business till 11.55 p.m. Hence, if the totality of the evidence of PW34 is taken into consideration, it is clear that the Sky Bar was open on the date of alleged incident till 11.55 p.m. only. Therefore, the case of prosecution that the alleged incident taken place between 1.00 to 1.30 hours after mid-night on the relevant date appears to be false.

81 Spl.C. No.382/2018

91. As discussed herein above, the digital evidence on record does not support the case of prosecution to prove alleged incident. Now it is relevant to refer to the scientific evidence regarding those digital documents produced in the case. The CW33 Gour Hari Kamila is the then Assistant Director (Ballistics) at Central Forensic Science Laboratory, Hyderabad ('CFSL, Hyderabad' for short). He has been examined as PW23. As per his evidence, on 10.07.2014 he received sealed parcel from the I.O. as per letter at Ex.P.22 with forwarding note Ex.P.23. The said parcel contained NVR instrument and one CD. He opened the seal of the said articles and conducted examination in his laboratory. After examination of those articles he prepared report as per Ex.P.25 that the Hard disc drive contained 2.00 TB capacity and could not be imaged unless Forensic Dossier since the Hard disc under reference was not supported with the existing hardware/ software tools available in his laboratory and the data retrieval analysis could not be carried out. Therefore, there is absolutely no result forthcoming in the examination done by the PW23 regarding the concerned NVR at M.O.3.

82 Spl.C. No.382/2018

92. Moreover, in the evidence in cross-examination by the learned counsel for the accused No.2, the PW23 has deposed that the I.O. did not send any documents along with M.O.3 and CD so as to identify the images of the persons so alleged to be found in the Hard disc and he could not identify the persons by names only by seeing the photographs. Therefore, the evidence of PW23 is in no way helpful to the prosecution to prove its case.

93. The CW35 K.L. Thomas, who was working with CDAC, Thiruvananthapuram, is the material witness. He is examined in proof of digital evidence forthcoming on record. The CW35 has been examined as PW35. As per the evidence of PW35, in view of the request of the I.O., he analyzed NVR and Hard disc at his work-station by using the software and hardware. On analysis of the image of the Hard disc identified itself as a Linux partition and there were three folders containing their recorded videos and they were exported and viewed using SM player. In chief-examination itself it is the evidence of PW35 that on examination he noticed that NVR Media files information were saved in Excel format. Detailed analysis of each camera was conducted for analyzing the data based file being loaded using the NVR media player. There 83 Spl.C. No.382/2018 were no still images available as the evidence was a network video recorder. He gave report with a conclusion as per Ex.P.39 along with his letter at Ex.P.40. As per evidence of PW35, in the Hard disc so examined it was noticed the video clippings of 7 cameras and he saw the said video clippings about scuffle in between the police officials and the customers. All the said video clips were extracted and stored in the Hard disc supply. He took the still images of the video clippings and stored in the Hard disc so supplied. Along with the report he returned NVR and Hard disc to the ACP, CCB, Bengaluru as per letter Ex.P.40. Moreover, the PW35 submitted soft copy of the seven video channel files to the I.O. as per his covering letter at Ex.P.41. The DVDs are got marked through PW35 at Exs.P.42 to P.48, which were sent to him by the I.O.

94. However, it is very much pertinent to note that the relevant portions in the evidence of PW35 reads thus:

"Now DVD No.1 marked as Ex.P.42 is played with the help of laptop. On seeing the said display it is seen that a dark picture is noticed and no images of any person is noticed in this Ex.P.42. Ex.P.43 DVD is played and it shows no images. Ex.P.44 is played and it shows no images and there is no mirror image found in this DVD."

It is also the evidence of PW35 in his chief-examination that: 84 Spl.C. No.382/2018

"It is noticed that there is no clarity in the picture and we find movement of the people in the hotel room. The faces of the said persons cannot be identified. There is no clarity in the picture. Likewise Ex.P.46 is played with the help of the laptop. It is noticed that the said DVD is not able to read and it shows that the folder is empty.

Ex.P.47 is played with the help of laptop. It is noticed that movement of some people is noticed pushing with each other. There is no clarity in the picture and faces of the said persons cannot be identified. The picture of two ladies is seen but their faces cannot be identified."

Further, the relevant portion in the evidence of PW35 reads thus:

"Now Ex.P.48 is played with the help of laptop. It is noticed that the tables are arranged in the hotel with chairs. Movement of some persons is noticed in the pictures. Date is also being seen as 2.7.2014 and time is 1.10 a.m. The faces of the persons cannot be identified. (It is in channel 7)."

The document at Ex.P.49 is covering letter received from CDAC. However, as per the evidence of PW35, in Channel 1 it was noticed about movement of people and darkness of images. The persons, who were moving, could not be identified.

95. As pointed out by the learned counsel for the accused No.2, in the evidence in cross-examination the PW35 has admitted that there are softwares available to give clarity in the images which are blurred and dark images. It is also admitted by PW35 in his evidence in cross-examination that in his report he has stated that files could be viewed only using the proprietary software from the Hardware manufacturer (NVR Media player VI.0). The 85 Spl.C. No.382/2018 relevant portion in the evidence in cross-examination of PW35 by the learned counsel for the accused No.2 reads thus:

"It is true to suggest that the I.O has informed the CDAC that the NVR was seized from the scene of occurance. In the NVR there were seven channels. The aforesaid seven channels have not reflected any of the pictures of scenes showing videographing the pictures by any Police Constable in the alleged place.

It is true to suggest that unless the topography of the scene of the offence is sent to the CDAC we cannot identify the scene of offence in proper manner to know that whether it was Sky Bar and Restaurant in UB City or otherwise.

It is true to say that I.O asked to report about still images of the persons involved in the scuffle between the police man and the customers as recorded in the media clips between 01.00 a.m to 01.40 a.m available on the NVR hard disc.

It is true to suggest that one DVD have the capacity of storing of 4.7 GB data. It is true to suggest that in respect of channel no.1 to 7 I have not mentioned about the video clippings were of 4.7 GB.

We have not taken the hash value of individual files. Naturally the seven DVDs hash value would not match the main device hash value.

In 392 media files we have not computed the MD5 hash value. It is true to suggest that Ex.P.39 report is silent about the hash value of 392 media files."

From the above referred portions in the evidence of PW35 it is clear that if his evidence is considered in its totality, there is absolutely no material in the Video clippings of the concerned CCTV file to prove the presence of the accused persons at Sky Bar and Restaurant at the relevant time and also to prove that the incident as alleged by the prosecution had taken place. 86 Spl.C. No.382/2018

96. The main offence alleged against the accused persons is punishable under Sec.332 and 353 of IPC. The case alleged against the accused persons is that CW1-PW1 and other concerned police officials were on duty and at that time they were deterred by the accused persons from discharging their duty and the accused persons used force on PW1 assaulting him when he was on duty. Therefore, unless the prosecution proves beyond reasonable doubt that the PW1 was present at the spot being on duty and that the accused persons assaulted him as contended by the prosecution, no case can be made out against the accused persons for the offences charged in the case.

97. Now it is relevant to refer to the evidence of concerned I.O.s who took up further investigation and on completion of investigation filed charge sheet in the case on hand. In this respect, in the case on hand CW51 K.P. Ravi Kumar and CW53 M.P. Jayamaruti, who were the then ACPs in CCB, Bengaluru, were the IOs, who took up further investigation and the CW53 filed charge sheet on completion of investigation. The CW51 and CW53 are examined as PW36 and PW37 respectively. Hence, now it is relevant to refer to the evidence of PW36 and PW37. 87 Spl.C. No.382/2018

98. The CW51 K.P. Ravi Kumar is the then ACP in CCB, Bengaluru. He has taken up further investigation of the case from PW28 on 05.07.2014. The CW51 has been examined as PW36. As per the evidence of PW36, he took up further investigation as per memo Ex.P.50 in view of the order of the then ACP, Crime Branch, Bengaluru City dated 04.07.2014 as per Ex.P.51. He recorded the statements of the concerned witnesses. On 09.07.2014 he received property along with panchanama at Ex.P.14 from PW31 K.S. Tanveer. He also received the documents Exs.P.8 and P.35 along with its annexures at Exs.P.35(b) to P.35(f). During investigation i.e., on 24.07.2014 he received bill regarding the accused persons from Sky Bar and Restaurant and also KOT receipt as per Exs.P.53 and P.54 respectively. The document at Ex.P.54 is the receipt regarding the bill issued by Sky Bar and Restaurant. The PW36 also made arrangement for sending the Hard disc to CFSL. On 06.02.2015 as the PW36 was transferred, the further investigation was handed over to PW27 Thammaiah M.K., the then ACP. The Business Certificate issued in favour of M/s. Black Rain by BBMP and Clearance Certificate were collected by PW36 during his investigation and same are at Exs.P.56 and P.57 respectively. 88 Spl.C. No.382/2018

99. It is also the evidence of PW36 that he received the fine paid receipt from the Deputy Commissioner in respect of Bar and Restaurant regarding the case registered in Cr.No.146/2016 and it is at Ex.P.37. As mentioned earlier, the further investigation from PW37 Thammaiah M.K. was taken up by CW53 M.P. Jayamaruthi, the then ACP of Crime Branch, Bengaluru. The CW53 M.P. Jayamaruthi has been examined as PW37. As per the evidence of PW37 on 26.05.2015 he took up further investigation of the case from ACP Siddamallappa and thereafter he sent requisition to CDAC, Thiruvananthapura for sending digital video recorder on 21.09.2015 by e-mail. Thereafter on 08.01.2016 he sent PW30 ASI Ramanna to CDAC, Thiruvananthapura and on the next day i.e., on 09.01.2016 the PW30 returned from Thiruvananthapura and produced the Video recorder and Hard disc in a sealed packet as per the letter of CDAC at Ex.P.40 along with report of CDAC. The report of PW30 regarding the same is at Ex.P.30. On 21.01.2016 he received photos and one CD from CDAC. Those photos are at Ex.P.9. On 16.02.2016 the PW37 received 7 DVDs as per Exs.P.42 to P.48 with covering letter at Ex.P.41 from CDAC. Thereafter, he recorded statements of concerned witnesses.

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100. It is also the evidence of PW37 that on 02.03.2016 he called PW29 John Victor Anjanappa and shown the Video clips of seven DVDs and recorded his statement. On 20.02.2016 the accused No.1 came to his office and at that time he recorded voluntary statement of the accused No.1. Thereafter, the PW37 received the endorsement at Ex.P.58 from Assistant Revenue Officer, BBMP on 22.06.2016. On 23.06.2016 he received document at Ex.P.35 from Excise Deputy Commissioner, Bengaluru. In the course of investigation, the PW37 also recorded the statements of the concerned witnesses. The food bill issued by the Sky Bar, DVD recorder install invoice and copy of the receipt for having paid fine to Excise Department are produced and marked at Ex.P.59, P.60 and P.38 respectively in the evidence of PW37.

101. The PW37 has also deposed in his evidence that on 12.07.2016 he received work order quotation bill and delivery chalan regarding Black Rain Hospitality from CW29 and same are at Exs.P.61 to P.63 respectively. On 13.08.2016 he received the sealed packet containing the Hard-disc sent by CDAC, Thiruvananthapura and thereafter seized the said sealed packet in 90 Spl.C. No.382/2018 the presence of panchas PW10 Charan and CW7 Jayanth as per the panchanama at Ex.P.15. On the same day he completed the investigation and filed charge sheet. The PW37 has deposed that PW9, PW11 and PW33 gave further statements before him as per Exs.P.13, P.17 and P.34 respectively. But, as discussed herein above, those witnesses have turned hostile to the case of prosecution and denied that they gave any such statements before the Police.

102. Further, if the evidence of PW36 and PW37 in their cross-examination is considered along with evidence of other witnesses, it is clear that the PW36 and 37 have suppressed the material evidence for the reasons best known to them. As pointed out by the learned counsel for the accused No.1, the PW36 in his cross-examination has admitted that PW1 was not deputed on beat duty in the concerned beat, wherein the Sky Bar and Restaurant is situated. Further, the PW1 did not obtain any written permission from his higher officer for entering the Sky Bar and Restaurant on the relevant date. The PW36 has deposed that he did not receive any document during the investigation to ascertain the tower location of the mobile phone of PW1 Kiran Kumar when he was 91 Spl.C. No.382/2018 on beat duty on the night of 1/2.7.2014 to show that the PW1 was at the concerned location at the relevant time.

103. Moreover, it is admitted by PW37 that the CCTV cameras were fixed in the premises of UB City and also in the premises of Sky Bar and Restaurant. Hence, if any incident happened in the concerned premises, the video of the such incident would be recorded in the CCTV cameras. But, as discussed herein above, there is absolutely no digital evidence forthcoming from the prosecution to prove the alleged incident. Further, the video alleged to have been recorded by PW1 in his mobile phone is not forthcoming in the evidence on record. It is also admitted by PW37 that he did not examine the concerned police officials who were on beat duty on the relevant date to show as to which of the officials were on which beat duty.

104. Further, the PW37 has deposed in his evidence in cross-examination by the learned counsel for the accused No.2 that the photos at Ex.P.9 were of the video clippings recorded in the CCTV footage, but in the said photos the persons could not be identified. Further, as per the evidence of PW37, in the report at Ex.P.19 it is mentioned that:

92 Spl.C. No.382/2018

"The complainant/ police constable on reaching the place started to take video by using his mobile phone."

But as discussed herein above, the concerned mobile phone of PW1 was not seized in this case. The said mobile phone would have been the crucial evidence to prove the alleged incident and also to prove the location of PW1 in the relevant place at the relevant time.

105. Moreover, as pointed by learned counsel for the accused No.2, the relevant portion in the evidence in cross- examination of PW37 reads thus:

"ಪತಸ.1 ನಮಯವರನ ಮವಕನತಮ ಮಧಕ ತ 111 ಮಬವಲ‍ ಫಮನ‍ ಇಟನ ಟ ಕನಗಡದದರನ ಎನನ ನ ವದನ ನನಗ ತಳದನ ಬಗದರನತತ ದ ಎಗದರ ಸರ. ಸದರ ಮಬವಲ‍ಫಮನನಲ ಈ ಕಮಸನಲ ಆಗದ ಎನನ ನ ವ ಘಟನಯನನ ನ ಪತ ಸ .1 ನಮಯವರನ ರಕಡರ ಮಡಕನಗಡದದ ರನ ಮತನತ ಸದರ ರಕಡರನ ಮಬವಲ‍ಫಮಟಮಜನನ ನ ಪಮಲಮಸ‍ಠಣಯ ಕಗಪಧಟರ ನಲ ಡನ ಲನಮಡ‍ ಮಡಕನಗಡದದರನ ಎನನನ ವ ವಷಯ ನನನ ಗಮನಕಸ ಬಗದತನತ ಎಗದರ ಸರ."

However, the PW37 has further deposed that he did not take any steps to seize the mobile phone of PW1. Moreover, it is admitted by PW37 in his evidence in cross-examination that:

"ಪತಸ.1 ನಮಯವರನ ಈ ಕಮಸನಲ ಹಮಳದ ಘಟನಯನನ ನ ಮಬವಲ‍ ಫಮನನಲ ರಕಡರ ಮಡನತತದದರ ಆ ರಮತ ರಕಡರ ಮಡನತತರನವ ದದಶಧ ನ.ಪ.42 ರಗದ ಪ.48 ಡವಡಗಳಲ ಕಗಡನ ಬರನತತತನತ ಎಗದರ ಸರ."

It is also deposed by PW37 that he came to know that in the wound certificate Ex.P.21 the name of the assailant is not mentioned. The relevant portion in the evidence of PW37 reads thus:

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"ನ.ಪ.21 ಗಯದ ಪತಮಣ ಪತ ತದಲ ಏನನ ವಷಯಗಳನನ ನ ಬರದದ ಎನನ ನ ವದನನನ ನನನ ಓದ ತಳದನಕನಗಡರನತತಮನ. ತನಗ ನಖರವಗ ರರನ ಹಲ ಮಡರನತತರ ಎನನ ನ ವ ಬಗಗ ಹಲ ಮಡದವರ ಹಸರನನ ನ ಪತಸ.1 ನಮಯವರನ ವವದಧರ ಮನಗದ ಹಮಳಲಲ ಎನನ ನ ವದನ ನ.ಪ.21 ರಲ ಕಗಡನ ಬರನತತದ ಎಗದರ ಸರ. ನ.ಪ.21 ದಖಲಯ ಪತಕರ ಪತಸ.1 ನಮಯವರನನ ನ ವವದಧರನ ಪತಥಮ ಬರಗ ದನಗಕ 02.07.2014 ರಗದನ ಬಳಗನ ಜವ 2.48 ಗಗಟಟಗ ನನಮಡದನ ದ ಎಗದನ ಕಗಡನ ಬರನತತದ ಎಗದರ ಸರ."

As discussed herein above while considering the evidence of PW1, it is clear that the PW1 has deposed that he knew the accused No.1 about one year earlier to the alleged incident. Further, the PW1 has also deposed that he knew the accused No.2 as on the date of alleged incident. If at all the accused No.1 and 2 assaulted PW1 as alleged by the prosecution, the PW1 could have mentioned the names of the accused persons before the Doctor when he took treatment.

106. Moreover, as pointed out by the learned counsel for accused No.2, the PW37 in his evidence in cross-examination has deposed that:

"ನ.ಪ.53 ರಲ ಮಬವಲ‍ ನಗ.9482202606 ಮಬವಲ‍ 1 ನಮ ಆರನಮಪಗ ಸಗಬಗಧಪಟಟದದ ನ ಎಗದನ ತನಮರಸನವ ಬಗಗ ನನನ ಸಗಬಗಧಪಟಟ ಮಬವಲ‍ ಕಗಪನಯಗದ ರವದಮ ದಖಲಯನನ ನ ಪಡದನಕನಗಡಲಲ.

ನ.ಪ.54 ರಗತ ಇರನವ 34 ರಶಮದಗಳಲ ಇರನವ 'ಕ.ಒ.ಟ' ಎಗದರ ಏನನ ಎನನ ನ ವ ಬಗಗ ಕಮಸನ ತನಖ ಕಲದಲ ನನನ ಸಗಬಗಧಪಟಟವರನನ ನ ವಚರಣ ಮಡಲ ಲ .

ಆರನಮಪಗಳನ ಘಟನ ಆಗದ ಎನನ ನ ವ ದನ ಯನಬ ಸಟಗ ಬಗದಲಲ ಮತನತ ಸಗಬಗಧಪಟಟ ವಮಟರ ಗಳನ ಆರನಮಪಗಳನನ ನ ಆ ದನ ಗನರನತಸಲಲ ಮತನತ ಈ ಕರಣದಗದ ನ.ಪ.54 ರಶಮದಗಳಲ ಹಸರಸದ ವಮಟರ ಗಳನನ ನ ನನನ ಈ ಕಮಸನಲ ವಚರಣ ಮಡಲಲ ಎಗದರ ಸರಯಲಲ. ನನನ ಹಗದನ ವಚರಣಧಕರಗಳನ ನ.ಪ.54 ರಶಮದಗಳಲ ಹಸರಸದ ವಮಟರ ಗಳನನ ನ ವಚರಣ ಮಡದರಯಮ ಎನನ ನ ವದನ ನನಗ ಗನತತಲಲ. ನ.ಪ.54 ರಶಮದಗಳಲ ವಮಟರ ಎಗದನ ಸಹ ಮಡರನವ ವಧಕತಗಳನ ರರನ ಎಗದನ ಸಸಸ ಬರ ಅಗಡ‍ರಸನ ಟ ಮರಗಟನ ಆಡಳತ ವಗರದವರನನನ ವಚರಸ ನನನ ತಳದನಕನಗಡಲಲ."

It is also the evidence of PW37 in his cross-examination that: 94 Spl.C. No.382/2018

"ಈ ಕಮಸನ ವಚರಣ ಸಗದಭರದಲ ನ.ಪ.54(ಎ) ಮತನತ ಪ.59 ದಖಲಯನ ನನನ ಗಮನಕಸ ಬಗದರನತತದ. ನ.ಪ.54(ಎ) ಬಲನಲ ಸಮಯ 1.09.01 ಪ.ಎಗ ಎಗದನ ನಮನದನ ಇದ ಎಗದರ ಸರ. ಸದರ ಸಮಯ ದನಗಕ 01.07.2014 ಅಪರಹನ 1.09 ಗಗಟಗ ಸಗಬಗಧಸದನ ದ ಎಗದರ ಸರ."

Moreover, it is admitted by PW37 that in the beat route report up to what points was visited by the cheetah vehicle staff during beat duty would be mentioned. Therefore, there are discrepancies in the evidence of material witnesses forthcoming from the prosecution.

107. Further, there is absolutely no independent witnesses forthcoming from the prosecution to prove the alleged incident, which is said to have been occurred in Sky Bar and Restaurant after 1 O'clock in the night. The concerned staff of Sky Bar and Restaurant have deposed that the Bar was closed at 11.30 p.m. on the relevant date. Moreover, failure on the part of the investigating officers who conducted the investigation to collect material evidence, such as the mobile phone of PW1 and video clippings of CCTV cameras fixed in the premises of Sky Bar and Restaurant, creates doubt regarding the alleged incident itself. It is well settled principle of law that the accused persons are entitled to benefit of such doubt.

108. Moreover, as argued by the learned counsel for the accused No.1 the Sky Bar and Restaurant was under CCTV 95 Spl.C. No.382/2018 surveillance, but no such evidence is forthcoming from the prosecution. Hence, there is no evidence to prove the incident, which is alleged to have occurred inside the said Bar. The evidence of the concerned staff of the Bar and the digital evidence forthcoming on record does not corroborate the evidence of PW1 and other police officials, who have been examined by the prosecution in the case.

109. Further, the learned counsel for the accused No.1 has drawn the attention of this Court to the provision of Sec.51 of Karnataka Excise Act 1965, which deals with the power to enter and inspect places of manufactures or stores any intoxicant or any place, in which any intoxicant is kept for sale by any person holding a licence under the Act. As submitted by the learned counsel for the accused No.1, per the said provision, the Excise Commissioner or a Deputy commissioner or any Excise Officer not below such rank as may be prescribed or any Police Officer duly empowered in that behalf has the power to enter and inspect the places of manufacture and sale. Hence, if at all Sky Bar and Restaurant was kept open beyond the permitted period in the night 96 Spl.C. No.382/2018 on the relevant date, the concerned police on beat point could have reported the same to the Excise Department.

110. Moreover, as forthcoming from the prosecution papers, the concerned police official reported matter of Bar being kept open, to his higher officer and the Excise Department registered case against the owner of the Sky Bar and Restaurant. It is not the case of prosecution that till 11.30 p.m. or in and around 12.00 O'Clock in the midnight there was any incident took place in Sky Bar and Restaurant. As discussed herein above, when the prosecution has failed to prove beyond reasonable doubt that the accused persons were present at Sky Bar and Restaurant after 1 O'clock in the midnight on the night of 1/2.07.2014 and that the PW1 and PW3 and also other police officials examined in this case, were on beat duty on Beat No.3 within the jurisdiction of which the Sky Bar and Restaurant is situated, the question of the accused No.1 and 2 preventing PW1 or any other officials from discharging their official duty or using force on PW1 or others deterring them from discharging their duty and also allegedly abusing the PW1 and other police officials does not arise on the facts of the case.

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111. Moreover, the PW37 in his cross-examination has stated that he came to know that there were about 8 persons including the accused No.1 and 2 were in the table in Sky Bar and Restaurant on 01.07.2014. But he did not know as to who were the other six persons. The PW37 also did not make any enquiry as to who were two ladies present along with the accused persons in the Bar on the night of 01.07.2014. He did not enquire any such ladies. This also falsifies the case of prosecution that either any persons or the accused No.1 and 2 were present in the Sky Bar and Restaurant on the relevant date after 1 O'clock in the night.

112. It is true that the during the recording of statements of the accused No.1 and 2 under Sec.313 of Cr.P.C. the accused No.1 has submitted that in the year 2011 he filed private complaint against the police officers and media persons and the accused No.1 therein is Devaraj, the then ACP. The police officers and media were pressurizing him to withdraw the said case at the instance of his political enemies and therefore, the statement of the accused No.1 is that out of vengeance the present false case was registered against him. The accused No.1 has produced copy of the order dated 07.12.2012 of the learned Presiding Officer, Fast Track 98 Spl.C. No.382/2018 Sessions Court-XVI, Bengaluru City in Crl.R.P. No.216/2012, wherein the learned Sessions Judge allowed the Revision Petition filed by the accused No.1 herein challenging the order dated 10.04.2012 in PCR No.16621/2011 of the learned VIII Addl. CMM, Bengaluru City, which was filed by the accused No.1 against the said Devaraj and others. But the said document does not merit consideration in support of the contention of the accused No.1 that the present case is false case registered against him, as any of the IOs in the case on hand is not the accused in the said private complaint filed by the accused No.1 before the learned Magistrate.

113. Further, there is no explanation forthcoming from the accused No.1 to show as to why the accused No.2 should be made as party in the case on hand, if at all the present case is false case registered against the accused No.1. Moreover, the accused No.1 has not chosen to adduce any defence evidence on his behalf in support of his contention put forth in his statement recorded under Sec.313 of Cr.P.C. that due to vengeance the case on hand is falsely registered against him. Moreover, the fact that the accused No.1 is the rowdi sheeter, as deposed by the concerned witnesses 99 Spl.C. No.382/2018 in their evidence, is not controverted by the accused No.1. Hence, the fact that put forth by the accused No.1 in his statement recorded under Sec.313 of Cr.P.C. does not merit consideration on the facts of the case and also in law. However, mere fact that the accused No.1 has not able to prove his contention that present case is falsely registered against him due to any vengeance on the part of the police officers, cannot be a ground to come to the conclusion at this stage that the prosecution has proved its case beyond reasonable doubt.

114. The learned counsel for the accused No.2 has argued that the prosecution has to prove its case beyond reasonable doubt and if there are any infirmities or any lapses in the investigation of the case by the IO, the benefit should be given in favour of the accused and the accused should be acquitted of the offences charged in the case. In support of his argument, the learned counsel for the accused No.2 has relied on the decision of Hon'ble Apex Court reported in (2019)0 Supreme(SC) 1304 (Jai Prakash Vs. State of Uttar Pradesh). As per the facts of the said case, the offence alleged to have been committed by the accused was punishable under Sec.302 and 120-B of IPC, wherein Hon'ble High Court of 100 Spl.C. No.382/2018 Judicature at Allahabad allowed the appeal and set aside the order of conviction of the accused passed by the trial Court. The Hon'ble Apex Court in the said decision relied on its earlier decision reported in (2008)11 SCS 153 (State of Uttar Pradesh Vs. Punni and others), wherein while dealing with the Appeal against the order of acquittal passed by the High Court, the Hon'ble Apex Court has been pleased to hold that:

"It would not ordinarily interfere with the findings of the High Court unless it is satisfied that such a finding is vitiated by some glaring infirmity in the appraisement of evidence or such finding is perverse or arbitrary. In the present case, the High Court has analysed entire evidence and recorded its findings as to how the trial Court has gone wrong in not appreciating the material inconsistencies in the prosecution case. The findings recorded by the High Court in acquitting the respondents-accused Nos.1 and 2 and 4 does not suffer from any infirmity warranting interference with the impugned judgment. The appeals filed by the complainant and the State of Uttar Pradesh are liable to be dismissed"

The learned counsel for the accused No.2 has also relied on another decision of Hon'ble Supreme Court of India reported in 2018(4) Crimes 412 (State of Rajasthan Vs. Madan @ Madaniya) in which in the case for the offences punishable under Sec.302 and 460, the Hon'ble High Court of Judicature for Rajasthan at Jodhpur acquitted the accused of the charges giving him the benefit of doubt. In Appeal the Hon'ble Apex Court has held that: 101 Spl.C. No.382/2018

"It is the duty of the Court to separate the grains from the chaff and to extract the truth from the mass of evidence. In our opinion, the case of the prosecution is based on mere conjectures and surmises. Moreover, the material contradictions inevitably raises a doubt as to whether it was the accused- respondent, who had caused the death of the deceased-Santosh. After examining the rationale behind the conclusion of the High Court in acquitting the accused- respondent, we do not find any compelling reasons to deviate from the same.

In our opinion, there exists no perversity in the judgment of the High Court. Further, in the absence of compelling reasons, this Court is not keen to entertain this appeal challenging the order of acquittal."

The learned counsel for the accused No.2 has relied on another decision of Hon'ble Apex Court reported in (2019)3 Crimes(SC) 440 (Samsul Haque Vs. State of Assam) in which for the offences punishable under Sec.147, 148, 302 r/w sec.149 of IPC the trial Court found that the accused No.5 and 6 were guilty of the offences and Hon'ble High Court of Gauhati in the Appeal acquitted the accused. In Appeal the Hon'ble Apex Court has held that:

"The subsequent testimonies, however, sought to assign a different role than the one assigned in the FIR, bringing about an inconsistency. The view taken by the trial Court is, at least, a plausible view though that may not be the only plausible view or if one may say even the less probable one. We are, thus, of the considered opinion that the prosecution has not been able to prove the case beyond reasonable doubt against these two accused, and they must get the benefit of doubt and consequently have to be acquitted."

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The learned counsel for the accused No.2 has relied on one more decision of the Hon'ble Apex Court reported in 2015(3) SCC (Cri) 54 - 2015(7) SCC 178 (Tomaso Bruno and another Vs. State of UP) in which it is held that:

"There is no doubt that conviction can be based solely on the circumstantial evidence. But it should be tested on the touchstone of the law relating to circumstantial evidence."

Further, referring to Sec.45 of Evidence Act, it is held that:

"Credibility of Expert opinion:

(i) The courts, normally would look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory and unsustainable.

(ii) The purpose of an expert opinion is primarily to assist the Court in arriving at a final conclusion but such report is not a conclusive one. This Court is expected to analyse the report, read it in conjunction with the other evidence on record and then form its final opinion as to whether such report is worth of reliance or not."

Hence, on the basis of the above referred decisions of Hon'ble Apex Court the submission of the learned counsel for the accused No.2 is that there are contradictions and several lapses in the investigation in the case and therefore, from the evidence on record doubt arises regarding the case alleged against the accused No.1 and 2 and the accused persons are entitled for benefit of such doubt and thereby, the accused No.1 and 2 are entitled to be acquitted of the offences charged in the case.

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115. However, as against this argument of the learned counsel for the accused No.2, the submission of the learned Prosecutor is that 'mere fact that there are any lapses on the part of the IO in the investigation of the case' cannot be a ground to give benefit of doubt in favour of the accused persons and acquit them for the offences alleged. In support of this argument, the learned Prosecutor has drawn the attention of this Court to the decision of the Hon'ble Apex Court in Appeal (Crl.) 263 of 1994 (State of Karnataka Vs. K. Yarappa Reddy) decided on 05.10.1999 in which it is held that:

"It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well nigh settled that even if the investigation is illegal or even suspicious the rest of evidence must be scrutinized independently of the impact of it. Otherwise criminal trial will plummet to that level of the investigating officers ruling the roost. The Court must have predominance and pre- eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made the casually for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit investigating officer's suspicious role in the case."

The learned Prosecutor has also relied on the decision of Hon'ble High Court of Madhya Pradesh in CRA No.2615/2005 (Sukhendra 104 Spl.C. No.382/2018 Singh S/o Niranjan Singh Ghosh Vs. State of Madhya Pradesh) decided on 07.09.2017, wherein the Hon'ble High Court of Madhya Pradesh has been pleased to refer to the judgment of the Hon'ble Apex Court reported in (2010)9 SCC 567 (C.Muniappan and others Vs. State of Tamil Nadu), wherein it is held that:

"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the I.O. and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by CRA No.2615/2005 perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. (Vide Chandra Kanth Lakshmi v. State of Maharashtra, (1974) 3 SCC 626; Karnel Singh v. State of Madhya Pradesh, (1995) 5 SCC 518; Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC 517; Paras Yadav v. State of Bihar, (1999) 2 SCC 126; State of Karnataka v. K. Yarappa Reddy, (1999) 8 SCC 715; Amar Singh v. Balwinder Singh, (2003) 2 SCC 518; Allarakha K. Mansuri v. State of Gujarat, (2002) 3 SCC 57; and Ram Bali v. State of U.P., (2004) 10 SCC 598."

105 Spl.C. No.382/2018

The learned Prosecutor has also relied on the decision of Hon'ble Apex Court in Crl. Appeal No.1247 of 2012 (V.K. Mishra & another Vs. State of Uttarkhand & another) decided on 28.07.2015 in which it is held that:-

"In the case for the offences punishable under Sec. 304B, 498A, 302 of IPC and Sec.3 and 4 of the Dowry Prohibition Act the investigating officer is not obliged to anticipate all possible defences and investigate in that angle. In any event, any omission on the part of the Investigating Officer cannot go against the prosecution. Interest of justice demands that such acts or omission of the Investigating Officer should not be taken in favour of the accused or otherwise it would amount to placing a premium upon such omissions."

Hence, as argued by the learned Prosecutor and also in view of the principles of law laid down in the above referred decisions relied on by the learned Prosecutor, it is clear that only on the basis that there are any lapses on the part of the I.O. in the investigation of the case, benefit of doubt cannot be given in favour of the accused persons entitling them to be acquitted of the offences charged in the case.

116. It is true that the learned counsel for the accused No.2 has submitted that if two views are possible on the basis of appreciation of evidence on record by the trial Court and also by the Appellate Court on re-appreciation of entire evidence, the view 106 Spl.C. No.382/2018 beneficial to the accused to be taken into consideration. In support of this argument the learned counsel for the accused No.2 has relied on the decision of the Hon'ble Apex Court reported in

(i) 2019(5) SCC 436 (Vijay Mohan Singh Vs. State of Karnataka),

(ii) 2007(2) SCC (Cri) 325 (Chandrappa and others Vs. State of Karnataka and

(iii) 2011(11) SCC 24 (Anil Kumar Gupta Vs. State of U.P.) On going through the facts of the case and the principle of law laid down in the above referred decisions, it is clear that those decisions are regarding the power of the Appellate Court in re- appreciating and re-considering the evidence upon which the order of acquittal is founded and if two reasonable conclusions are possible on the basis of evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the Trial Court.

117. The learned counsel for the accused No.2 has also relied on the decision of the Hon'ble High Court of Delhi reported in 2016(4) JCC 2201 (Smt. Kavita Vs. State (Govt of NCT of Delhi) & another) in which it is held that:

"Even at the stage of charge the Court is under obligation to consider the entire material placed by the prosecution on the basis of impeccable evidence of CCTV footage the Court 107 Spl.C. No.382/2018 could have discharged the accused. For the purpose of considering whether charge can be framed against the accused, the Court can sift the material placed before it."

This decision is relied on by the learned counsel for the accused No.2 in respect of electronic evidence produced by the prosecution regarding the concerned CCTV footage. However, the said decision is regarding stage of the case for discharging the accused under Sec.227 of Cr.P.C. Now in the present case, the evidence available on record should be appreciated by this Court on merits after conclusion of trial. Therefore, even though there is no dispute regarding the principle of law laid down in the above referred decision regarding the power of the Court under Sec.227 of Cr.P.C., the said decision is not applicable to the case on hand in support of any of the contentions put forth by the learned counsel for the accused No.2 to make out case for acquittal of the accused persons in the case.

118. However, it is not the lapses or infirmities of the IO in conducting the investigation of the case on hand, but the IO failed to collect material evidence in proof of the case of prosecution. The digital evidence forthcoming on record does not prove the alleged incident said to have occurred after 1 O'Clock in the midnight of 1/2.07.2014. There is absolutely no independent 108 Spl.C. No.382/2018 evidence in proof of the fact that the accused No.1 and 2 were present at the Bar after 1 O'Clock in the midnight on the relevant date. At this stage, as pointed out by the learned counsel for the accused No.2, it is relevant to refer to the document at Ex.P.54, which is the bill regarding dinner of the accused No.1 and 2 at Sky Bar. As submitted by the learned counsel for the accused No.2, the said bill is dated 01.07.2014 and the time mentioned therein is 1:09:01 p.m., which shows that the said bill was settled in the afternoon at 1:09 p.m. on 01.07.2014 and it absolutely falsifies the case of prosecution that the accused No.1 and 2 were present after midnight on 01.07.2014 at Sky Bar and Restaurant.

119. It is true that the learned Prosecutor has relied much on the evidence of PW2 Richard Salomon the then Bouncer of Sky Bar and Restaurant, PW12 K.C. Kumara Swamy, the then Security Field Officer of UB City and PW18 Balusami, the then Manager of Sky Bar and Restaurant, who are independent witnesses. But, as discussed herein above while discussing the evidence of those witnesses, it is clear that there is absolutely no evidence forthcoming from those witnesses to prove any incident said to have occurred after midnight on the relevant date at Sky Bar and 109 Spl.C. No.382/2018 Restaurant. Moreover, the PW1 and PW3 not being deputed to do night duty in beat No.3, wherein Sky Bar and Restaurant at UB City is situated, their very entry to Sky Bar and Restaurant on the relevant day after midnight appears to be doubtful. As the prosecution has utterly failed to prove beyond reasonable doubt the incident alleged to have occurred at Sky Bar and Restaurant after midnight i.e., between 1.00 to 1.10 hours on the night of 1/2.07.2014, the offences charged against the accused No.1 and 2 in the case on hand falls to the ground.

120. If the entire evidence forthcoming from the prosecution is taken into consideration, it is clear that no ingredients for the offences punishable under Sec.332 and 353 of IPC are made out against the accused No.1 and 2 in the case on hand. It is true that the learned Prosecutor has drawn the attention of this Court to the evidence of PW1 and PW3 in chief-examination and argued that there are sufficient materials in such evidence to make out case against the accused No.1 and 2 for the offences charged. But, as discussed herein above, if the evidence in chief-examination of those witnesses are considered along with their evidence in cross- examination, there are contradictions and discrepancies, which go 110 Spl.C. No.382/2018 to the root of the case making the case of prosecution regarding the incident said to have occurred after midnight at Sky Bar and Restaurant on the relevant date not believable. Hence, there is also no case made out against the accused No.1 and 2 for the offences punishable under Sec.504 and 506 of IPC. When the prosecution has failed to prove the alleged incident, the question of the accused No.1 and 2 committing any offences with common intention does not arise on the facts of the case and also in law. Therefore, the prosecution has utterly failed to prove beyond reasonable doubt the offences charged against the accused No.1 and 2 in the case. Hence, the prosecution has failed to prove points No.1 to 4 and consequently, the points No.1 to 4 are answered in the negative.

121. Point No.5: From the discussion made herein above, it is clear that the accused No.1 and 2 are found not guilty of the offences punishable under Sec.332, 353, 504 and 506 r/w Sec.34 of IPC and hence, both the accused No.1 and 2 deserve to be acquitted of the offences charged against them in this case. In the result, therefore, I proceed to pass the following:

ORDER Acting under Sec.248(1) r/w Sec.235(1) of Cr.P.C., the accused No.1 and 2 are acquitted of the 111 Spl.C. No.382/2018 offences punishable under Sec.332, 353, 504 and 506 r/w Sec.34 of Indian Penal Code.

In the circumstances, the properties at M.O.3 NVR and M.O.4(c) Hard-disc with cable shall be returned to the IO after expiry of appeal time, with direction to hand over those properties to the concerned Management of Sky Bar and Restaurant.

The properties at M.O.1, M.O.2 , M.O.4 box and M.O.4(a), 4(b) & 4(d) shall be destroyed as worthless after the expiry of appeal time.

The bail bonds executed by the accused No.1 and 2 and the surety bonds 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 15th day of April, 2021) (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               Kiran Kumar S.C.
        PW2               Richard Saloman
        PW3               Prashanth Nayak S.B.
        PW4               T.M. Mahesh
        PW5               H.V. Muniraju
        PW6               Bhavith
        PW7               M. Puttaswamy
        PW8               Boregowda Kumar @ Kumaregowda
                          112                Spl.C. No.382/2018

PW9          Anand D.C.
PW10         Charan V.
PW11         Shankar
PW12         K.C. Kumar swamy
PW13         Vijay Kumar
PW14         Shylesh Naik
PW15         Vijaya Kumar @ Vijay
PW16         Mahantesh
PW17         B.Venkatesh
PW18         Balusami
PW19         Dr. K.L. Shankar
PW20         B. Nanjundaiah
PW21         K.N. Subramani
PW22         Revana Siddappa
PW23         Gour Hari Kamila
PW24         S. Thippeswamy
PW25         B.N. Gowda
PW26         Paramesh B.D.
PW27         Thammaiah M.K.
PW28         G.V. Uday Bhaskar
PW29         John Victor Anjanappa
PW30         K.J. Ramanna
PW31         K.S. Tanveer
PW32         Dayananda Segunasi
PW33         Madan Kumar
PW34         Moses Samuel
PW35         K.L. Thomas
PW36         K.P. Ravi Kumar
PW37         M.P. Jayamaruthi

List of documents exhibited on behalf of prosecution:

Ex.P.1                 Complaint of PW1
                     113                    Spl.C. No.382/2018

Ex.P.1(a)          Signature of PW1 in Ex. P.1
Ex. P.1(b)         Signature of PW28 in Ex. P.1
Ex. P.2            Spot Panchanama
Ex. P.2(a)         Signature of PW1 in Ex. P.2
Ex. P.2(b)         Signature of PW3 in Ex. P.2
Ex. P.2(c)         Signature of PW11 in Ex. P.2
Ex. P.2(d)         Signature of PW15 in Ex. P.2
Ex. P.2(e)         Signature of PW25 in Ex. P.2
Ex. P.2(f)         Signature of PW28 in Ex. P.2
Ex. P.3            Police Notice dated 17.02.2016
Ex. P.3(a)         Signature of PW2 in Ex. P.3
Ex.P.4             Bond in Form No.29 dated 20.02.2016
Ex.P.4(a)          Signature of PW2 in Ex. P.4
Ex.P.5             Statement dated 3.7.2014 of B. Richard
Ex.P.5(a) to (f)   Relevant entries in Ex.P.5
Ex.P.6             Copy of Station House Diary
Ex.P.6(a)          Relevant entry in Ex.P.6
Ex.P.7             Personal diary
Ex.P.8             Beat Book (Beat No.5)
Ex.P.8(a) & (b)    Relevant entry in Ex.P.8
Ex.P.9             Photos (page 1 to 22)
Ex.P.9(a)          Relevant Photo
Ex.P.9(b)          Signature of PW37 in Ex.P.9
Ex.P.10            Seizure Panchanama
Ex.P.10(a)         Signature of PW6 in Ex.P.10
Ex.P.10(b)         Signature of PW7 in Ex.P.10
Ex.P.10(c)         Signature of PW14 in Ex.P.10
Ex.P.10(d)         Signature of PW28 in Ex.P.10
Ex.P.11            Letter dated 03.07.2014 of PW8
Ex.P.11(a)         Signature of PW8 in Ex.P.11
Ex.P.12            Statement of PW9
Ex.P.13            Further statement of PW9
               114                    Spl.C. No.382/2018

Ex.P.14      Seizure Panchanama
Ex.P.14(a)   Signature of PW6 in Ex.P.14
Ex.P.14(b)   Signature of PW31 in Ex.P.14
Ex.P.15      Seizure Panchanama
Ex.P.15(a)   Signature of PW10 in Ex.P.15
Ex.P.15(b)   Signature of PW10 in Ex.P.15
Ex.P.16      Statement of PW11
Ex.P.17      Further Statement of PW11
Ex.P.18      Statement of PW13
Ex.P.19      Statement of PW16
Ex.P.20      Statement of PW17
Ex.P.21      Wound certificate of PW1
Ex.P.21(a)   Signature of PW19 in Ex.P.21
Ex.P.22      Letter dated 09.07.2014 of DCP, Crimes
Ex.P.23      Forwarding Note of CFSL
Ex.P.24      Passport of the concerned police official
Ex.P.25      CFSL report
Ex.P.25(a)   Signature of PW23 in Ex.P.25
Ex.P.26      Letter dated 10.07.2014 of CFSL
Ex.P.26(a)   Signature of Director
Ex.P.27      FIR
Ex.P.27(a)   Signature of PW28 in Ex.P.27
Ex.P.28      Letter dated 04.07.2014 of PW28
Ex.P.28(a)   Signature of PW28 in Ex.P.28
Ex.P.29      Letter dated 11.07.2014 of PW28
Ex.P.29(a)   Signature of PW28 in Ex.P.29
Ex.P.30      Report of PW30
Ex.P.30(a)   Signature of PW30 in Ex.P.30
Ex.P.30(b)   Signature of PW37 in Ex.P.30
Ex.P.31      Letter dated 07.03.2015 of PW27
Ex.P.31(a)   Signature of PW27 in Ex.P.31
Ex.P.32      Report of PW32
                         115                    Spl.C. No.382/2018

Ex.P.32(a)             Signature of PW32 in Ex.P.32
Ex.P.33                Statement of PW33
Ex.P.33(a)             Relevant portion of statement of PW33
Ex.P.34                Further statement of PW33
Ex.P.35                Letter dated 22.06.2016 of PW34
Ex.P.35(a)             Signature of PW34 in Ex.P.35

Exs.P.35(b) to 35(f) Documents (enclosures to Ex.P.35) Ex.P.35(g) Signature of PW37 in Ex.P.35 Ex.P.36 Copy of case report of Excise Department Ex.P.37 Copy of the order dated 14/07/2014 of Excise Department Ex.P.38 Receipt/ Bank challan dated 15.07.2014 for having paid the fine amount Ex.P.39 Cyber analysis report Ex.P.39(a) Signature of PW35 in Ex.P.39 Ex.P.39(b) Signature of PW37 in Ex.P.39 Ex.P.40 Covering letter dated 19.01.2016 Ex.P.40(a) Signature of PW35 in Ex.P.40 Ex.P.40(b) Signature of PW37 in Ex.P.40 Ex.P.41 Covering letter dated 15.02.2016 Ex.P.41(a) Signature of PW35 in Ex.P.41 Ex.P.41(b) Signature of PW37 in Ex.P.41 Ex.P.42 to 48 Seven DVDs placed in sealed cover Ex.P.49 Covering letter dated 15.11.2019 regarding Hard-disc Ex.P.50 Memo dated 03.07.2014 issued by Commissioner of Police Ex.P.51 Copy of of Memo dated 04.07.2014 issued by Deputy Commissioner of Police Ex.P.52 Copy of Beat Book of beat No.4 Ex.P.53 Document (waiting list) for reservation the tables at Sky Bar and Restaurant 116 Spl.C. No.382/2018 Ex.P.54 KOT (34 receipts) Ex.P.54(a) Computer copy Ex.P.55 Letter dated 23.07.2014 issued by ACP Ex.P.55(a) Signature of PW36 in Ex.P.55 Ex.P.56 Copy of Licence issued by BBMP to M/s. Black Rain Ex.P.57 Copy of Clearance Certificate issued to M/s. Black Rain Hospitality Pvt. Ltd.

Ex.P.58                Endorsement issued         by   Assistant
                       Revenue Officer
Ex.P.58(a)             Signature of PW37 in Ex.P.58
Ex.P.59                Receipt (blank)
Ex.P.59(a)             Signature of PW37 in Ex.P.59
Ex.P.60                Supply invoice
Ex.P.60(a)             Signature of PW37 in Ex.P.60
Ex.P.61                Copy of quotation
Ex.P.62                Copy of Work Order
Ex.P.63                Copy of Delivery challan

Exs.P.61(a) to 63(a) Signatures of PW37 respectively Ex.P.64 Copy of letter dated 07.03.2015 issued by PW27 to CDAC (marked by consent) Ex.P.65 Letter dated 07.03.2015 issued by DCP to CDAC (marked by consent) List of witnesses examined on behalf of accused:

NIL List of documents exhibited on behalf of accused:

Ex.D.1                 Beat route report
Ex.D.2                 Photo
Ex.D.3                 Copy of Activity Report Cubbon Park
                       Chetah 129
Ex.D.4                 Report of PW5, the then ASI
                          117                       Spl.C. No.382/2018

Ex.D.4(a)              Relevant entry in Ex.D.4
Ex.D.5                 Copy of Activity report of Cubbon Park
                       Hoysala-01
Ex.D.6                 Copy of Station House Diary of Cubbon
                       Park Hoysala 1+2 dated 01.07.2014
Ex.D.7                 Beat Manager Reader-wise Report dated
                       01.07.2014
Ex.D.8                 Statement of PW18-Balusami
Ex.D.9                 Copy of FIR in Cr.No.146/2014 of
                       Cubbon Park PS
Ex.D.10                Police beat map of Cubbon Park PS

List of material objects marked on behalf of prosecution:

M.O.1                  CD
M.O.2                  CD
M.O.3                  NVR
M.O.4                  Box
M.O.4(a)               Cover made with white cloth
M.O.4(b)               Bag closed with gum-tape
M.O.4(c)               Hard-disc with cable
M.O.4(d)               Blue colour cover


                                 (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)

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State Of Karnataka vs Sri R.G. Somashekar Gowda @ on 15 April, 2021