Bangalore District Court
The State Of Karnataka vs No.1 : Dayananda on 28 March, 2022
IN THE COURT OF THE LI ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY. (CCH 52)
Dated this the 28 th day of March 2022
:PRESENT:
Sri Venkatesh R. Hulgi, B.Com. LL.B(Spl.),
LI Addl. City Civil & Sessions Judge, Bengaluru City.
S.C.No. 1007/2017
Complainant : The State of Karnataka,
Represented by
The Station House Officer,
Kamakshi Palya Police Station,
Bengaluru City.
(By Public Prosecutor)
Vs.
Accused No.1 : Dayananda,
S/o. Veeranna,
Aged: 33 years, Occu: PSI,
R/o.Yesaluru P.S.
Hassan District,
Permanent Address:
Vishweshwarapura,
Nelamangala Taluk,
Bengaluru Rural Dist.
Accused No.2 : Vijaya shekar S/o. A.Palraj,
Aged: 43 years, Occu;Business,
R/o. No. 19/6, Wheeler road,
Frazer Town, Bengaluru.
2 SC No.1007/2017
Permanent Address:
R/at. No.2, Ganeshpuram,
Thattaneri Main road,
Madurai, Tamilnadu.
(A-1 By Sri VKJ Adv.& A-2 by Sri.
RGK Advocate)
1 Date of commission of offence 19/04/2013
2 Date of report of offence 19/04/2013
3 Date of arrest of the
Accused No.1 20/04/2013
Accused No.2 20/04/2013
4 Date of release of accused on
bail:
Accused No.1 17/05/2013
Accused No.2 21/05/2013
5 Date of commencement of
evidence 09/08/2019
6 Date of closing of evidence 07/03/2022
7 Name of the complainant Sri. Umesh
8 Offences complained of Sections 342, 352,
355, 306 of IPC R/w.
Sec. 34 of I.P.C.
3 SC No.1007/2017
9 Opinion of the Judge Accused found not
guilty of the alleged
offences
10 Order of Sentence As per final order
JUDGMENT
The Dy.S.P. H&B squad, CID, Bengaluru has filed the present charge-sheet against the accused No.1 and 2 for the offences punishable under Secs. 342, 352, 355 and 306 of IPC R/w. Sec. 34 of IPC.
2. In brief, the case of prosecution is as under:
The entire case of prosecution revolves around the suicidal death of one Chandu, a Garment factory owner. In this case there is no serious dispute that Chandru died on 19.4.2013 by committing suicide by way of jumping from the 4th floor of the garment factory building situated at 'Hitha complex' Vrushabhavathi Nagar, within the 4 SC No.1007/2017 jurisdiction of Kamakshipalya police station. It is the case of prosecution that since the year 2010 deceased Chandru was running 'Raju Creations' Garment factory in the aforesaid building belonging to Cw-12 M.Thimmarayappa. Around 200-300 workers were working in the factory. The deceased Chandru was looking after the entire affairs of the factory and its workers. In the initial years the factory was running smoothly and in a profitable way, but gradually there was some set-back in the business, due to which Chandru suffered financial problem to run the factory. Hence he approached accused No.2 Vijaya Shekar and obtained financial help and also machines on rent to run the factory. As Chandru did not return the loan and rent to accused No.2 as agreed, hence on 4.3.2013, accused No.2 Vijaya shekara filed a complaint against Chandru to ACP, Frazer town sub-division alleging cheating. The ACP forwarded the said complaint to Pulikeshinagar P.S. with a direction to P.I. to register a 5 SC No.1007/2017 case for the offences U/sec. 420 of IPC and to initiate investigation. Accordingly the PSI of Pulikeshinagar P.S. who is accused No.1 in this case has registered a case against Chandru in Crime No. 59/2013, though he was aware that the nature of the case between accused No.2 and deceased Chandru was of civil nature. However, with a common intention to commit the offences of wrongful confinement and harassment etc., and in furtherance of such common intention accused No.1 and 2 secured deceased Chandru to the station on the evening of 13.3.2012 at about 6 p.m. for enquiry. That day on the request of wife of Chandru, A-1 released deceased Chandru by taking bond as required U/sec. 169 of Cr.P.C.
Despite of this development, accused No.2 did not stop forcing deceased Chandru to return the loan. He was putting constant pressure on the deceased Chandru through Accused No.1 PSI Dayanand and both of them used to visit the factory premises of the deceased and they 6 SC No.1007/2017 used to harass the deceased Chandru in front of his workers. Though the deceased made several requests to accused No.1 and 2, that he would repay the loan the moment his financial condition was improved, however they did not pay any heed to his request. It is also alleged that knowing fully well that deceased Chandru had applied for anticipatory bail and it was posted for orders on 20.4.2013, both the accused in furtherance of their common intention have once again summoned deceased Chandru to the police-station on the morning of 19.4.2013 on the pretext of investigation. He was confined in the police-station illegally and he was harassed. Later on the same day evening accused No.1 and 2 with the help of other police staff took the deceased to his factory premises in a Scorpio car bearing No. KA-03/MD 8191 belonging to accused No.2 with an intention to seize the factory machines and to close the factory premises. After reaching the factory premises though the deceased Chandru 7 SC No.1007/2017 requested the accused No.1 and 2 not to create a scene in front of his workers, however the accused did not pay any heed to the same. They took the deceased to 4 th floor of the factory premises where the machines were kept. At this stage accused No.1 and 2 threatened deceased Chandru that they would video record the entire incident and telecaste in the T.V. so as to defame him in the eyes of public. Several requests made by the deceased Chandru not to do such things did not yield any result. Finally both the accused have abused deceased Chandru in filthy language and voluntarily assaulted him without any provocation from him and insulted him in the presence of the factory workers abusing him that he is an useless person and it is better to die without living such a life. Therefore having felt abeted and insulted by the words of accused No.1 and 2, deceased Chandru jumped from the 4th floor of the factory premises and died by committing suicide. Hence by alleging that accused No.1 and 2 are 8 SC No.1007/2017 guilty of wrongful confinement, using of criminal force on the deceased, assaulting and using of criminal force on the deceased to dishonour him in front of his employees without any grave and sudden provocation; the accused abated the deceased Chandru to commit suicide, a complaint was given by one Umesh one of the factory employees as per Ex.P-1 pursuant to which a case was registered in Cr. No. 323/2013 of the Kamakshipalya P.S. Looking to the gravity of allegations made against the accused-persons and their background, later investigation of the case was handed over to CID police. Consequently, the Dy.S.P. H & B squad, CID, Bengaluru, after having conducted the investigation has laid down the present charge-sheet.
3. The accused No.1 and 2 appeared before the trial court and got released on bail. The committal court after having complied with the provisions of Sec. 207 of Cr.P.C. and after hearing the accused has committed the present 9 SC No.1007/2017 case to the Sessions Court as required U/sec. 209 of Cr.P.C. since the offence punishable U/sec. 306 of IPC is exclusively triable by the court of Session. Therefore having registered the case as S.C. the case is made over to this court for disposal in accordance with law.
4. After receipt of the case papers, this court summoned the accused No.1 and 2. Heard the arguments of accused, and perused the materials placed on record. Sufficient materials are found on record to frame the charge. Hence the charge for the aforesaid offences is framed, read over and explained to both the accused. Accused pleaded not guilty and they claimed to be tried.
5. To prove its case, prosecution has examined in all 24 witnesses as Pws 1 to 24 and got marked documents at Ex.P-1 to P-36. During the course of evidence of prosecution Exs. D-1 to D-6 are also marked for the 10 SC No.1007/2017 accused. Material Objects No. 1 to 4 are also marked for the prosecution.
6. After the evidence of prosecution is closed, the statement of the accused under Section 313 of Cr.P.C. is recorded. Accused have denied every incriminating circumstances appearing against them, however they have not led any evidence in their defence. Total denial of the case of prosecution and their false implication is the defence of the accused persons.
7. I heard the arguments of both sides and perused the materials placed on record.
8. The following points arise for my consideration :
(1) Whether the prosecution proves beyond reasonable-doubt that accused No's.1 and 2 having shared a common intention to harass the deceased Chandru to recover the loan from him and in furtherance of such common intention 11 SC No.1007/2017 on 19.4.2013, they secured the deceased Chandru to Pulikeshi nagar police-station and wrongfully confined him under the pretext of enquiry between 11 a.m. to 6 p.m. in the station and thereby the accused have committed the offence punishable U/Sec.342 of IPC R/w. Sec.
34 of IPC?
(2) Whether the prosecution further proves beyond reasonable-doubt that on the aforesaid date both the accused in furtherance of their common intention have assaulted or used Criminal force on deceased Chandru in Raju creations Garments factory premises at about 6 p.m. and thereby the accused have committed the offence punishable U/Sec.352 of IPC R/w. Sec. 34 of IPC ?
(3) Whether the prosecution further proves beyond reasonable-doubt that, on the aforesaid date, time and place, both the accused in furtherance of their common intention have assaulted or used criminal force on deceased Chandru intending by such assault or use of criminal force to dishonour the deceased in front 12 SC No.1007/2017 of his workers and that they did so otherwise than on a grave and sudden provocation and thereby the accused have committed the offence punishable U/Sec.355 of IPC R/w. Sec. 34 of IPC?
(4) Whether the prosecution further proves beyond reasonable-doubt that, on the aforesaid date, time and place, both the accused in furtherance of their common intention have abused deceased Chandru in filthy language in front of his workers saying that "ನನನನ ಯಯರರನನ ದರನನಡರನಡನನನ, ನನನನತಹವರನ ಇರನವವದಕಕನತ ಸಯಯನವವದನ ಮನಲನ"
and thereby abated Chandru to commit suicide and due to said abatement Chandru has committed suicide by jumping down from the 4 th floor of the 'Raju creations' garment factory premises and thereby the accused have committed the offence punishable U/Sec.306 of IPC R/w. Sec. 34 of IPC?
(5) What order?
9. My findings on the above said points are as under: 13 SC No.1007/2017
Point No.1 .. In the Negative
Point No.2 .. In the Negative
Point No.3 .. In the Negative
Point No.4 .. In the Negative
Point No.5 .. As per the final order
for the following:
REASONS
10. Point No's.1 to 4:- Since these points are inter connected with each other, hence they have been taken together for common discussion to avoid repetition of facts and evidence on record.
11. It is the specific case of prosecution that accused No.1 and 2 with a common intension to extract amount from the deceased Chandru and in furtherance of such common intention have wrongfully confined the deceased in police-station between 11 a.m. to 6 p.m. on 19.4.2013 under the pretext of his enquiry in connection with Cr. No. 59/2013 and they used criminal force on him intending to dis-honour the deceased and they took him to Garment factory premises where they abused him in filthy language 14 SC No.1007/2017 and abeted Chandru to commit suicide and due to the said abetement Chandru committed suicide by jumping down from the 4th floor of the Garment factory premises. Therefore accused are guilty of the offences punishable U/Secs 342, 352, 355 and 306 of IPC R/w. Sec. 34 of IPC.
12. To prove the above allegations made against the accused, the prosecution has mainly relied upon the evidence of factory workers including the complainant Sri. Umesh, Close relatives of deceased Chandru including his wife, parents, brother and sister and also the police officials who have dome some work in the investigation of the present case.
13. The law was set into motion by filing complaint at Ex.P-1 by Pw-1 Umesh. It is the case of prosecution that during the relevant period Pw-1 was an employee of 'Raju Creations' Garment factory. In his evidence Pw-1 has deposed to the effect that he know deceased Chandru as 15 SC No.1007/2017 he was the owner of the Garment factory where Pw-1 was working as mechanic in between 2009 to 2013. It is stated by Pw-1 that he has no acquaintance with the accused as he has seen them for the first time in the court. It is deposed by Pw-1 that on 19.4.2013 when he was present in the factory premises at about 11 a.m. some police came to the factory and picked up Chandru to the police- station. On same day between 5 to 5.30 p.m. again police came to the garment factory along with deceased Chandru accompanied by Sub-Inspector, Head constables, Advocate Gopi and a person by name Rajesh and another person by name Vijaya shekara also came to the factory to pick up the sewing machines. They took the deceased Chandru to the 4th floor godown and Chandru asked Pw-1 to get the key of godown, when he came down to take the key, by that time 30-40 workers of the factory went to the4 th floor and created a scene. They were abusing the police party. At that time his owner Chandru made an attempt to escape 16 SC No.1007/2017 from the custody of the police and during this process he fell down from the 4th floor by loosing his balance. At that time, the factory workers had confined Vijaya Shekara(A2) in a room in the premises. Later he found that his owner Chandru died sustaining bleeding injuries. But he did not file any complaint with regard to the incident. On the other hand he deposed to the effect that after some time as per the say of police, he filed Ex.P-1 complaint. He identified his signature as Ex.P-1(a). He has spoken about the spot mahazars as per Ex.P-2 and Ex.P-3. They were also summoned to the hospital for conducting inquest mahazar. In para 5 of the chief-examination complainant has deposed to the effect that he has not given any statement or complaint alleging that accused were responsible for the suicidal death of his owner Chandru. He has failed to identify accused No.1 and 2 by saying that he cannot say whether they are the persons who had come along with deceased Chandru to the factory premises. In 17 SC No.1007/2017 this way Pw-1 has turned hostile to the case of prosecution. He has been cross-examined at length by the learned P.P. In the cross-examination Pw-1 has denied the entire case of prosecution as false. He denied that by alleging commission of offences against accused No.1 and 2, he filed Ex.P-1 complaint. He has denied that a mahazar was conducted in his presence as per Ex.P-2 and under the said mahazar the belongings of deceased Chandru were seized. He has denied that he has given statement as per Ex.P-4 before the CID Police. Thus the evidence of Pw-1 is totally against the case made out by the prosecution. He has turned hostile to the case of prosecution and he denied having given complaint as per Ex.P-1. Thus at the threshold itself the prosecution has suffered a serious set-back in the evidence of Pw-1. He has given evidence against the case of prosecution that in an attempt to escape from the custody of police his owner Chandru fell down from the 4th floor by loosing his balance 18 SC No.1007/2017 and died. Thus the evidence of Pw-1 is totally against the case of prosecution. It is stated by Pw-1 that he do not know the contents of Ex.P-1 complaint as it is not written by him.
14. The investigating Officer is examined as Pw-22. Pw-22 the then Dy.S.P. H & B squad, Bengaluru, in his cross-examination at Para 29 has admitted that Ex.P-1 complaint is not written by Pw-1 Umesh, but it is written by someone else. After investigation he came to know that Ex.P-1 was written by the advocate of deceased Chandru. Thus it is evident that Pw-1 is not the author of Ex.P-1 complaint. On the other hand the advocate of Pw-1 is the author of Ex.P-1. Who is that advocate and whether any efforts is made to enquire the said person is not made clear from the evidence of Pw-22. Thus I am unable to come to a conclusion that Pw-1 Umesh has set the law into motion by filing complaint as per Ex.P-1. Therefore in my considered opinion the prosecution has failed to elicit any 19 SC No.1007/2017 material worth the name from the mouth of Pw-1 in support of its case.
15. Pw-2 Srinivasa was the supervisor in the Raju creations Garments factory. In his evidence Pw-2 has deposed to the effect that earlier he was working as a Tailor under deceased Chandru and later he started working as Supervisor in the garments factory. According to him on 19.4.2013 when he was in the factory premises at about 5.30 to 6 p.m. Chandru came to the factory premises along with Police. Except the police no other persons were present at that time. Deceased Chandru took the police party to 4th floor where sewing machines were kept. When he was asked to bring the key at that time he heard some noise from the ground floor. When he came outside, he noticed that Chandru had fell down on the ground by sustaining bleeding injuries. In para 4 of the chief-examination Pw-2 has deposed to the effect that his owner died as he had incurred heavy loan. But he has 20 SC No.1007/2017 not given any statement alleging who is responsible for the suicide of Chandru. Thus Pw-2 also failed to support the case of prosecution Hence he has been declared as hostile. In the cross-examination this witness has denied the suggestion made by the prosecution about its case. He has denied that he has given statement before the I.O. as per Ex.P-5. The cross-examination conducted by the counsel for accused No.2 indicates that 4-5 years prior to the date of incident, deceased Chandru was suffering financial crisis and he was not paying salary to the staff regularly every month. Therefore Pw-2 has stated thayt at the relevant point of time deceased Chandru had some financial problems. This evidence of Pw-2 takes away the case of prosecution that Chandru died by committing suicide, because of the abatement by accused No.1 and 2. Hence the evidence of Pw-2 is also not helpful to the case of prosecution.
21 SC No.1007/2017
16. Pw-3 Kumar is the nephew of deceased Chandru. His evidence goes to show that he was working as operator in the garment factory in between 2010 to 2013 on monthly salary of Rs. 10,000/-. Further he has deposed to the effect that on 19.4.2013 Chandru was taken to the police-station by some police. When they had brought Chandru to the Garments factory in the evening, by that time there was some scuffle between the factory workers and the police. During this time, when Chandru wanted to remove himself from the spot, by that time he lost the balance and fell down from the 4 th floor. Thus he sustained injuries and died later. Except this, he do not know anything about the facts of the case. He failed to identify accused No.1 and 2. Thus Pw-3 also turned hostile to the case of prosecution. He has been cross- examined at length by the learned P.P. In the cross- examination this witness has denied that he has given statement before the I.O. as per Ex.P-6. In the cross- 22 SC No.1007/2017 examination by learned advocate for accused No.1, Pw-3 has admitted that he has not seen the alleged incident personally as he was not present on the spot. Later, he came to know from workers that Chandru died by jumping from the 4th floor. Thus the evidence of Pw-3 is quite contrary to the case madeout by the prosecution. Hence the evidence of this witness is not helpful to the case of prosecution to prove the allegations made against the accused.
17. Pw-4. S.Rajesh is one of the customers of the Garments factory. His evidence discloses that he was not prresent on the spot at the time of alleged incident. In para 2 of the chief-examination Pw-4 has deposed to the effect that from somebody he came to know hat Chandru died by jumping down from the 4 th floor. However he do not know the reasons why Chandru committed suicide. He failed to identify the accused No.1 and 2 saying that he do not know them. In this way Pw-4 also turned hostile to the 23 SC No.1007/2017 case of prosecution. In his cross-examination by the prosecution, Pw-4 has denied having given statement before the I.O. as per Ex.P-7. In the cross-examination by the defence counsel, Pw-4 has admitted that he came to know about the alleged incident by somebody as he was not present on the spot. Thus I am of the opinion that Pw- 4 cannot be an eye witness to the incident. Hence the evidence of this witness is not helpful to the case of prosecution.
18. Pw-5 Smt. Sunitha is the wife of deceased Chandru. Her evidence goes to show that at the relevant point of time she was at home. She rushed to the factory premises with her daughter after receiving the information of death of her husband. Therefore, she has deposed to the effect that when she came near factory premises she found her husband falling on the ground with injuries. But she did not make any attempt to know the reason for the incident. She has deposed to the effect she do not 24 SC No.1007/2017 know why her husband died and who is responsible for the same. She has stated that she has not given any statement before the I.O. explaining the incident. Thus the wife of deceased failed to speak in support of prosecution case. She has turned hostile to the prosecution case. In the cross-examination she has denied having given statement before the I.O. as per Ex. P-8. Thus, the evidence of this witness is not helpful to the case of prosecution.
19. Pw-6 Gopi is the Advocate of deceased Chandru. He has spoken about filing of anticipatory bail petition for deceased Chandru in connection with Cr. No. 59/2013. In the chief-examination this witness has stated that when he had been to the Garment factory premises with Chandru and when the police were making enquiry with Chandru and attempted to apprehend him, by that time Chandru jumped from the 4th floor of the factory premises and died by sustaining injuries. He admits that earlier to the incident, no altercation whatsoever took place between 25 SC No.1007/2017 Chandru and the police party. Thus the evidence of Pw-6 is quite contrary to the case madeout by the prosecution. He has been cross-examined by the learned P.P. In his cross-examination Pw-6 has deposed to the effect that he has not given statement before the I.O. as per Ex.P-9. He claims that he do not know the accused and he do not know the reason why Chandru committed suicide.
20. In his cross-examination learned counsel for accused No.1 has got marked Ex.D-1 the certified copy of anticipatory bail application. Except this nothing is elicited from the mouth of Pw-6. However the evidence of this witness in the chief-examination is totally against the case madeout by the prosecution. He has not spoken that his client Chandru died because of the harassment given by accused No.1 and 2 and he committed suicide because of the abatement of accused No.1 and 2. Hence the prosecution has failed to prove its case by examining Pw-6. 26 SC No.1007/2017
21. Pw-7 Shakthivelu is the Garments factory worker and he was working as an Accountant. In para 5 of the chief-examination he has stated that he do not know why his owner Chandru died by jumping from the 4 th floor and he has not given any statement before the I.O. Thus he has failed to support the case of prosecution. Hence he has been declared as hostile. In the cross-examination by the prosecution Pw-7 has stated that he has not given any statement before the I.O. as per Ex. P-15. He has denied the entire case of prosecution suggested to him in the cross-examination. Therefore the evidence of this witness is also not much helpful to the case of prosecution. The cross-examination of this witness goes to show that at the relevant point of time Chandru was having financial problems as he had incurred heavy loans in the business. Being an accountant he deposed that approximately 7-8 27 SC No.1007/2017 crorres loan was pending to be paid by deceased Chandru. Therefore he was under great pressure to repay the loan.
22. Pw-8 Rajamma and Pw-9 Thimmaiah are the parents of deceased Chandru. Their evidence goes to show that at the time of alleged incident both were at their residence. They rushed to the spot only after coming to know about the incident. They have categorically stated that by the time they reached the spot, their son had died due to injuries. But they do not know the reason why he jumped from the 4th floor of the premises and who are responsible for this. Thus the evidence of Pw-8 and 9 is also not useful to prove the allegations made against accused No.1 and 2. They have been declared as hostile and cross-examined by the learned P.P. In their cross- examination both Pws-8 and 9 have denied that they have given statements as per Ex.P-16 and P-17 respectively by narrating the incident and alleging that accused No.1 and 2 are responsible for the death of their son. Thus the 28 SC No.1007/2017 evidence of these witnesses is quite contrary to the case of prosecution. Therefore they do not serve any useful purpose.
23. Pw-10 Mohan is the brother of the deceased Chandru and Pw-11 Jayanthi is the sister. They have also clearly stated that they were not present on the spot at the time of alleged incident and hence they do not know the reason how and why Chandru fell down from the 4 th floor of the factory premises. They have deposed that nobody has enquired them about the incident and they have not given any statements before the I.O. Thus, both Pws-10 and 11 have failed to support the case of prosecution. They have been declared as hostile and cross-examined by the learned P.P. In their cross-examination Pws-10 and 11 have denied that they have given statements before the I.O. as per Ex.P-18 and 19 respectively. Thus the evidence of close relatives of deceased Chandru is not helpful to prove 29 SC No.1007/2017 that deceased Chandru committed suicide because of abatment of accused No.1 and 2 .
24. Pw-12 Purushothama is one of the attesting witnesses to Ex.P-22 seizure mahazar. It is the case of prosecution that on 21.4.2013 along with CW-18 Venkatesh this witness was summoned to the police- station and they were explained the incident. At that time accused No.2 produced Scarpio vehicle and the same was seized in presence of this witness by drawing a mahazar as per Ex.P-22. Later he signed the mahazar as per Ex.P- 22(a). But contrary to the said case, Pw-12 has deposed to the effect that after 3 days of death of Chandru, he was summoned to the police-station and the police obtained his signature on a document. But no vehicle was seized in his presence. He failed to identify the said Scorpio vehicle. Thus Pw-12 has failed to support the case of prosecution. In his cross-examination, prosecution has failed to elicit any material worth the name in support of its case that 30 SC No.1007/2017 Ex.P-22 mahazar was conducted in presence of this witness and the aforesaid Scorpio vehicle shown in the Ex.P-23 Photograph was seized in his presence. He denied that he signed the mahazar as per Ex.P-22(a), only after seizure of vehicle. Thus prosecution has failed to prove the contents of Ex. P-22 Mahazar and seizure of Ex.P-23 vehicle.
25. From the discussions made in the above paras it becomes clear that all the witnesses including complainant and close relatives of the deceased Chandru have failed to support the case of prosecution. The above witnesses have clearly and categorically stated that they do not know the reason for death of deceased Chandru and why he jumped from the 4th floor of the factory premises. Some of the witnesses have stated that Chandru lost balance from the 4th floor and fell down. Some of the witnesses have stated that in a bid to escape from the lawful custody of police, deceased Chandru jumped from 31 SC No.1007/2017 the 4th floor and died. Therefore these witnesses have failed to speak in support of the prosecution case. The evidence of these witnesses is quite contrary to the case of prosecution. Therefore their evidence is not helpful to the case of prosecution is very clear.
26. The prosecution has examined Pw.13. Sridhara H.S., Pw-14 Sunil and Pw-15 Ramesh. Pw-13 has stated that when he had been to Raju Creations Garments factory premises along with deceased Chandru A1 and other staff, at that time the factory workers started commotion. The workers started manhandling the police staff including this witness. In this incident many of the police constables have sustained injuries and later they were admitted to hospital. In the said commotion when Chandru made an attempt to escape from the custody, he jumped from 4 th floor and felldown on the ground sustaining injuries. Though an attempt was made to shift him to the hospital in an Ambulance, but he could not survive and he died due 32 SC No.1007/2017 to injuries. These witnesses have unable to speak about the alleged harassment, wrongful confinement and abatement against accused No.1 and 2 . On the other hand their evidence goes to show that at the time of alleged incident, the deceased was in Police custody in connection with Cr. No. 59/2013 of Pulikeshinagar P.S. and he was taken to garments factory premises to conduct seizure mahazar to seize the sewing machines. At that time the incident as alleged by the prosecution has taken place. Thus it becomes very clear from the evidence of Pw- 16 Puttaiah B. the then SHO of Pulikeshinagar P.S that at the relevant point of time, deceased Chandru was in custody of police in connection with Cr. No. 59/2013. Therefore the question of wrongful confinement of Chandru does not arise at all.
27. Pw-17 S.B.Maheshwarappa has stated that pursuant to the direction given by the ACP Pulikeshi nagar sub-division, he directed the P.I. to register the 33 SC No.1007/2017 complaint given by A-2 Vijayashekar and accordingly a case in Cr. No. 59/2013 was registered for the offence punishable U/sec. 420 of IPC. That on 26.3.2013 accused No.1 had secured Chandru in the station in connection with above case and formerly arrested him and released him on bail. Again non 19.4.2013 at 2 p.m. A-1 secured Chandru and arrested him and took him to the factory premises to conduct mahazar. At that time Chandru died by jumping from 4th floor and sustained injuries. He did not survive despite he was shifted to hospital. Thus the evidence of Pw-17 discloses that deceased Chandru was in lawful custody of accused No.1 in connection with Cr. No. 59/2013. Accused No.1 had secured the deceased for enquiry in connection with above case and he was taken to factory premises for drawing seizure mahazar. Therefore the case of prosecution that deceased Chandru was wrongfully confined by accused No.1 and 2 falls to the ground from the evidence of this witness. Hence in my 34 SC No.1007/2017 opinion the prosecution has failed to prove the ingriedents of Sec. 342 of IPC.
28. None of the above witnesses have stated that accused No.1 and 2 have assaulted or used criminal force against deceased Chandru. But it is madeout from the evidence that some of the factory workers started quarelling with the police party and there was commotion between the factory workers and the police. In the said commotion some police constables have sustained injuries. Thus none of the witnesses referred to above have stated that accused No.1 and 2 have assaulted or used criminal force against deceased Chandru. Thus the prosecution has failed to prove the ingredient of offences punishable U/sec.s. 352 and 355 of IPC from the evidence of aforesaid witnesses.
29. Pw-18 P.Nagesh Kumar is the first investigating officer of the present case. According to him, on 19.4.2013 35 SC No.1007/2017 when he had been to meet Spl.P.P. by that time he received information about the present incident. Therefore, he immediately rushed to the spot and found that relatives of deceased Chandru were in aggressive mood and they were attempting to manhandle the police officials including accused No.1 Dayananda. Hence, he made every effort to pacify the situation and after requesting senior police officers, he secured extra police force to the spot to maintain law and order. According to him at about 10.30 pm he received a complaint from Umesh as per Ex.P-1 and registered a case in Crime No.323/2012 of Kamakshipalya PS for the offence U/sec. 306 of IPC. Later he issued FIR as per Ex.P-25 He has spoken about conducting spot mahazar as per Ex.P-2 and seizure of articles as per list under Ex.P-26. He submitted a requisition to the jurisdictional Magistrate to conduct inquest by sending Ex.P-7 letter and he has spoken about seizure of Scarpio vehicle through Ex.P-3 mahazar. He identified the cloths 36 SC No.1007/2017 on the deadbody which are marked as MO.1 to 4. Later he handed over further investigation to M.B.Nagaraju.
30. The cross-examination of this witness suggest that at the time of alleged incident deceased Chandru was in lawful custody of accused No.1. The incident occurred when accused No.1 had been to garment factory with deceased to effect seizure mahazar. At that time deceased Chandru made an attempt to escape from the lawful custody by way of jumping from the 4 th floor of the building. This witness admits that if any person who is in lawful custody of the police if makes an attempt to escape, it becomes an offence punishable under law. Thus the evidence of Pw-18 is indicative of the fact that Chandru made an attempt to escape from the lawful custody of police and in such an attempt he jumped from the building and died.
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31. Pw-19 Mohd. Rafi is investigating Officer in Crime No.59/2003 of Pulakeshinagara PS. According to him after perusal of the charge-sheet materials in Cr. No. 59/2013 he submitted abated charge-sheet against Chandru. Th evidence of Pw-19 is not so helpful to the case of prosecution, since there is no dispute that Chandru died committing suicide when he was taken to the spot for seizure mahazar in connection with Cr. No. 59/2013.
32. Pw-20 is the 2nd investigating officer and according to him he received further investigation from Pw-21 Narayanaswamy by virtue of order of S.P. at Ex.P-30. It is stated by Pw-20 that as accused No.1 was working as PSI during the relevant period, therefore he obtained sanction to prosecute him as required U/sec. 197 of Cr.P.C. The sanction order is marked as Ex.P-31. Ex.P-32 is the memo dt: 23.11.2013 of S.P. intimating sanction granted by the government Ex.P-33 is the requisition submitted to the court with address of accused No.2. The cross- 38 SC No.1007/2017 examination of this witness goes to show that during the course of investigation he came to know that in connection with Cr. No. 59/2013 accused No.1 and other police staff were manhandled by garment factory workers. He identified the wound certificates of accused No.1 and other police staff at Ex.D-2 to D-6. Having fully aware of the said case, it is surprise to note that this witness has not at all whispered anything about the counter case in the requisition for sanction sent to government. Therefore, it is clear from the evidence of Pw-20 that an attempt was made by him to suppress the true facts of the incident. However, if had given true account of the incident to sanctioning authority, I think the matter would not have been different. It becomes clear when we examine the evidence of Pw-23, the official who accorded sanction to prosecute accused No.1 as per Ex.P-31.
33. Pw-21 is the investigating officer and his role is very limited to the extent of receiving further investigation 39 SC No.1007/2017 of the case from Pw-22 as per Ex.P-34 order of the learned S.P. and handing over further investigation to Pw- 20 S.T. Chandrashekar. Therefore his evidence is not much significant to the present case.
34. Pw-22 is also one of the investigating officer who has spoken about the investigational aspects of the matter and handing over further investigation of the case to Pw-21 Narayanaswamy on his retirement. But the evidence of Pw-22 in the cross-examination assumes lot of importance. In para 21 of cross-examination, Pw-22 has clearly admitted that while making investigation of the present crime he was aware that there was an incident where the garment factory workers had assaulted the police officials while the later were discharging their public duty. Interestingly Pw22 admits that he did not make any efforts to get any documents pertaining to the said incident and charge-sheet filed in CC No. 3008/2014 connected to that case. As discussed above a clear admission is given by 40 SC No.1007/2017 PW-22 that Ex.P-1 complaint is not given in the handwriting of complainant Umesh. But it is in the hand writing of some advocate who is not examined before the court. The admission given by this witness in para 32 of cross-examination clearly goes to show that at the time of conducting mahazar in connection with Cr. No. 59/2013 deceased made an attempt to escape from the custody of police and at that time he fell down from 4 th floor of building and died. This vital admission given by Pw-22 takes away the case of prosecution that deceased Chandru committed suicide due to abatment of accused No.1 and 2.
35. It is the case of prosecution that during the course of investigation of present crime, I.O. has submitted a requisition to Pw-24 the jurisdictional Magistrate to conduct enquiry into the cause of death of Chandru as required U/sec. 176 of Cr.P.C. According to Pw-24, the then 9th ACMM he has conducted a detail enquiry and submitted a report as per Ex.P-36 regarding cause of death 41 SC No.1007/2017 of deceased Chandru. On a perusal of Ex.P-36, it becomes very clear that a detail enquiry was conducted by Pw-24 to findout the cause of death. It is very strange to note that in Ex.P-36, apart from mentioning the cause of death of Chandru learned magistrate has also mentioned the reason for death and the persons responsible for the same. This has become a matter of attack by the learned counsel for accused No.1 and 2.
36. During the course of arguments Sri.V.K.Jain learned advocate for accused No.1 would submit that "Scope of Magistratial enquiry U/sec. 176 of Cr.P.C. is only to the limited extent of ascertaining the cause of death and not to give opinion as to who is responsible for the same". It is submitted that "during the course of enquiry the learned magistrate has to ascertain whether the death is homicidal, suicidal or accidental in nature." He cannot give an opinion has to reason for such death and who is 42 SC No.1007/2017 responsible for the same. This is beyond the scope and ambit of Sec. 176 of Cr.P.C."
37. To support his arguments the counsel has referred to decision of Hon'ble Apex court in the case of " Shambudas Vs. State of Assam". In the said decision Hon'ble Apex court has held that "Inquest report submitted by the magistrate U/s. 176 is not a substantive evidence. It is further held that mentioning the names of the accused and eye witnesses in such report is not required."
38. The counsel has also referred to a decision of Hon'ble Apex court in the case of Guiram Mondal Vs. State of West Bengal (Criminal Appeal No.1268/2007, D/d. 26.04.2013). In the said decision Hon'ble Apex court has explained the scope and ambit of Sec.176 of Cr.P.C. It is held that "The basic purpose of holding an inquest is to report regarding the cause of death, namely whether it is 43 SC No.1007/2017 suicidal, homicidal, accidental etc.," It is further held that "Scope of said report is limited and is confined only to ascertainment of apparent cause of death. Inquest is concerned with discovering whether in a given case the death was accident or suicidal or homicidal and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. The details of overt acts need not be recorded in the inquest report."
39. Our Hon'ble High court in the case of " Ismat Sara Vs. State of Karnataka (Criminal Revn. Petn. No.267 of 1979, D/d 26.08.1980) " has held that Sec. 176 of Cr.PC deals with only enquiry by magistrate into cause of death, provided whenever any person dies while in the custody of police, the nearest magistrate empower to hold enquiry into the cause of death and make a report about his findings and the report being not conclusive and binding and merely recommendatory."
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40. Thus from the ratio laiddown in the decisions referred to above, it becomes clear that in the present case while conducting enquiry U/sec. 176 of Cr.P.C. the learned magistrate (Pw-24) has exceeded his jurisdiction and has opined that who are responsible for the death of the deceased. In my opinion Ex.P-36 report is against the scope and ambit of Sec. 176 of Cr.P.C. Consequently, the report given by Pw-24 is against the mandate of law and at the most it can be accepted only to hold that Chandru died by committing suicide. Therefore the evidence of this Pw-24 is of no assistance to the case of prosecution.
41. Now let me examine the evidence of Pw-23 Siddappa. He was the authority who had accorded sanction to prosecute accused No.1. Ex P-31 is the sanction order. In his evidence Pw23 has stated that he received the case papers pertaining to Cr. No. 323/2013 of Kamakshipalya PS registered against accused No.1 Dayananda. After perusal of the case papers and other 45 SC No.1007/2017 materials sent to him, he found that there were sufficient materials to accord sanction to prosecute accused No.1. for the above offences. Hence having satisfied with materials on record, he accorded sanction U/sec. 197 of Cr.P.C. to prosecute A-1. The said sanction order is at Ex.P-31.
42. In his evidence Pw-22 Rajanna has given evidence that along with case papers he had sent Ex.P 36 the enquiry report of Pw-24. In his evidence PW23 has given a clear admission that in Ex.P31 it is mentioned that sanction is accorded only on the basis of Ex.P36 report. He admits that while according sanction he only relied upon the report at Ex.P-36 and not on any other document. He admits that in the absence of Ex.P-36 report, he would not have accorded sanction to prosecute A-1.
43. From a conjoint reading of above evidence it becomes quite clear that Pw-23 has accorded sanction 46 SC No.1007/2017 based on Ex.P-36 report. He has not seen other materials sent by Pw-22 and he has not applied his mind independently to the records to find out whether they are sufficient to accord sanction. In the above paras I have held that Ex.P-36 is only a piece of evidence and it is not a substantive evidence. Ex.P-36 is tainted with many illegalities as explained in the above paras. Therefore merely based on Ex.P-36 Pw-23 would not have accorded sanction to prosecute accused No.1 for the alleged offence.
44. During the course of arguments learned advocate for the accused would submit that sanction order at Ex.P-31 is Perse illegal. A reading of Sec. 197 of Cr.P.C. in the light of reported decisions it becomes very clear that sanctioning authority has to apply its own mind to the records to find out whether there are reasons to accord sanction or not. But in the present case evidence of Pw-23 clearly discloses that based on Ex.P-36 enquiry report only he had given sanction to prosecute A-1. This is quite 47 SC No.1007/2017 contrary to the well established principle of law and Sec. 197 of Cr.P.C. to support this argument, learned advocate for A-1 has referred to the decision of Hon'ble Apex court reported in 1997 SCC(Crime) 1120 (Manushkhlal Vithaldas Chauhan Vs. State of Gujarath. In the said decision Hon'ble Apex court has held that "the order of sanction must Exfacie disclose that the sanctioning authority had considered the evidence and other material placed before it."
45. Further it is held that " since the validity of sanction depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation. It necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should 48 SC No.1007/2017 any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution."
46. Our Hon'ble High Court in the case of C.S.Krishnamurthy Vs. State of Karnataka (2005(2) JCR 249) has held that " The sanction order itself is eloquently speak that sanctioning authority has applied its mind to the facts of the case and after perusal of materials placed before him has found that a case is madeout to accord the sanction. Therefore the sanction 49 SC No.1007/2017 order without application of mind by the authority has no significance in law."
47. If we look at the case on hand in the light of the ratio laid down in the above two decisions and also the admissions given by Pw-23, it becomes very clear that Ex.P-31 sanction order is quite contrary to the provisions of law. Therefore in my opinion the very sanction itself is bad in law. Hence in my opinion the evidence of these two witnesses is no way helpful to the case of prosecution.
48. Thus the discussion of evidence available on record clearly show that prosecution has utterly failed to prove the ingredients of offences alleged against accused No.1 and 2 and failed to prove the allegations made against them beyond reasonable doubt. Except the evidence of aforesaid witnesses, no other cogent evidence is placed on record which may inspire confidence in the mind of court to hold that accused are guilty of the alleged offences. 50 SC No.1007/2017 Hence, I am of the opinion that prosecution has miserably failed to prove the allegations made against both the accused beyond reasonable doubt. Consequently, the accused are entitled for benefit of doubt and the same is accorded to them. In the result of my above discussions, I answer the Points No.1 to 4 in the 'Negative'.
49. Point No.5: In the result of my above discussions, I proceed to pass the following;
ORDER Acting under Sec. 235(1) of Cr.P.C., Accused No.1 Dayananda and Accused No. 2 Vijaya Shekar are hereby acquitted for the offences punishable under Secs. 342, 352, 355, 306 R/w. 34 of IPC.
The bail bonds and surety bonds of the accused No.1 and 2 stand cancelled.
Accused No.1 & 2 shall comply with provisions of Sec. 437-A Cr.P.C.
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The MOs.1 to 4 being worthless shall be destroyed after the appeal period.
(Dictated to the Judgment Writer, transcribed and typed by her and after corrections, printout taken and then pronounced and signed by me in the open Court, on this the 28th day of March, 2022) (Venkatesha R. Hulgi) LI Addl.City Civil & Sessions Judge, Bangalore City.
APPENDIX List of the witnesses examined for the prosecution side:
P.W.1 Umesha
P.W.2 Srinivasa
P.W.3 Kumara
P.W.4 S. Rajesh
P.W.5 Smt. Sunitha
P.W.6 N. Gopi
P.W.7 Shakthivelu
P.W.8 Rajamma
P.W.9 Thimaiah
P.W.10 Mohan
P.W.11 Jayanthi
P.W.12 Purushothama
P.W.13 H.S.Sridhara
P.W.14 Sunil
P.W.15 Ramesh
P.W.16 B.Puttaiah
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P.W.17 Maheshwarappa S.B.
P.W.18 P.Nagesh
P.W.19 Mohammad Rafi
P.W.20 S.T.Chandrashekara.
P.W.21 Narayanaswamy,
P.W.22 Rajanna
P.W.23 Siddappa
P.W.24 Sri.Vijayanand
List of documents exhibited for the prosecution side:
Ex.P.1 Complaint
Ex.P.1(a) Signature of P.W.1.
Ex.P.2 Spot Mahazar
Ex.P.2(a) Signature
Ex.P.3 Mahazar
Ex.P.3(a) Signature
Ex.P.4 Statement of Cw-1.
Ex.P.5 Statement
Ex.P.6 Statement
Ex.P.7 Statement
Ex.P.8 Statement
Ex.P.9 Statement
Ex.P.10 P.M. Report
Ex.P.11 Further opinion
Ex.P.12 FSL Report,
Ex.P.13 Sketch map
Ex.P.14 Covering letter
Ex.P.15 Statement
Ex.P.16 Statement
Ex.P.17 Statement
Ex.P.18 Statement
Ex.P.20 C.D.
Ex.P.21 Mahazar
Ex.P.22 Seizure Mahazar
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Ex.P.23 Photos of Scorpio vehicle
Ex.P.24 Statement Report
Ex.P.24(a) Signature
Ex.P.25 F.I.R.
Ex.P.25(a) Signature
Ex.P.26 Material Report
Ex.P.26(a) Signature
Ex.P.26(b) Signatureof Mohan
Ex.P.27 Mahazar Request
Ex.P.27(a) Signature
Ex.P.28 Video Cassettee
Ex.P.29 Chargesheet in Cr. No.59/2013
Ex.P.30 Document order
Ex.P.31 Permission from Government
Ex.P.32 Memorandum
Ex.P.33 Correction request
Ex.P.34 Document order
Ex.P.35 Opinion of Magistrate
Ex.P.36 Enquiry report of Judge
List of material objects marked for the prosecution side:
MO.1 Shirts(Black, Red & Grey) MO.2 Cream colour pant & Belt MO.3 Inner wear MO.4 Pair of shoes & socks
List of witnesses examined for the defence side:
Nil 54 SC No.1007/2017 List of documents exhibited for the defence side:
Ex.D.1 Anticipatory bail application.
Ex.D.2 Wound Certificate. Ex.D.3 Wound Certificate. Ex.D.4 Wound Certificate. Ex.D.5 Wound Certificate. Ex.D.6 Wound Certificate.
List of material objects marked for defence side:
Nil LI Addl. City Civil & Sessions Judge, Bangalore City.55 SC No.1007/2017
Judgment is pronounced to-day in the open court, vide separate Judgement.
ORD ER Acting under Sec. 235(1) of Cr.P.C., Accused No.1 Dayananda and Accused No. 2 Vijaya Shekar are hereby acquitted for the offences punishable under Secs. 342, 352, 355, 306 R/w. 34 of IPC.
The bail bonds and surety bonds of the accused No.1 and 2 stand 56 SC No.1007/2017 cancelled.
Accused No.1 & 2 shall comply with provisions of Sec. 437-A Cr.P.C.
The MOs.1 to 4 being
worthless shall be destroyed after
the appeal period.
(Venkatesha R. Hulgi)
LI Addl.City Civil & Sessions Judge,
Bengaluru City.