Bangalore District Court
State By vs S.Santhosh @ Santhosh Reddy on 31 August, 2018
IN THE COURT OF THE X ADDL.C.M.M.
MAYO HALL UNIT, AT BENGALURU
Dated: This the 31st day of August 2018
PRESENT: Sri.NAGESH MURTHY.B.K.
B.A., LL.M.,
X Addl. Chief Metropolitan Magistrate,
Bengaluru City.
C.C.No.56694/2018
Complainant - State by, Inspector of Police
Ramamurthy Nagara Police Station
/vs/
Accused 1. S.Santhosh @ Santhosh Reddy
S/o.R.Subba Reddy, 36 yrs.
R/o.No.824, Sathyaveda Nilaya, VV
Reddy 2nd Main Road, Udayanagar,
Bengaluru.
2. K.Sharavanan S/o.Kandaswamy,
35 yrs. r/o.No.20/49, 4th
Cross, Nehru Street, A.Narayanapura
Main Road, near Mythri School,
Udayanagar, Bengaluru.
3. Edward Williams S/o.J.Williams,
44 yrs. r/o.No.1014, 2nd Main, 7th
Cross, near Old Church, Udayanagar,
Bengaluru.
4. Rajendran @ Raja S/o.Hari, 28 yrs.
No.839, 4th Cross, VSR Layout,
Udayanagar, A.Narayanapura,
Dooravaninagar, Bengaluru
5. Kamalanath S/o.Ashok, 28 yrs.
No.391, I Main Road, 2nd Cross, Kaveri
Road, Udayanagar, Dorrvaninagar,
Bengaluru.
2 CC No.56694/2018
6. Simson S/o.Devaraj, 19 yrs. No.Nil,
13th Cross, TSA Road, Sagyapuram,
Thomas Town, Bengaluru.
7. Surya S/o.Raja, 22 yrs. No.10, I Cross,
A Block, Vinobhanagar, K.G.Halli,
Bengaluru.
8. P.G.Mallikarjun S/o.K.N.Prabhuling-
appa, 37 yrs. r/o.Flat No.A-304, BCIL
Zedwood Apartment, Yelahanka,
Bengaluru.
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JUDGMENT
The Police Inspector of R.M.Nagar Police station has filed this chargesheet against the accused Nos.1 to 8 chargesheet against accused Nos.1 to 8 for the offences punishable u/S.143, 147, 148, 341, 323, 353, 332, 324, 120(B), 504, 506 r/w.149 of IPC and u/S.3 of KOPD Act and u/S.192(A) of KLR Act 1964.
2. It is alleged by the prosecution that the accused Nos.1 to 7 on 2/8/2018 at 12.20 PM near Tin Factory, Opposite to Honda Showroom, R.M.Nagar, Bengaluru formed into an unlawful assembly with common object of assaulting CWs.1 to 10 caused rioting armed with dangerous weapons like Club and Bottles and when CWs.1 to 10 being BBMP authorities, Contractors and Labourers were removing unlawful hoardings and flex as per the order of the Hon'ble High 3 CC No.56694/2018 Court and the Commissioner of BBMP, the accused Nos.1 to 7 have wrongfully restrained them and prevented them from exercising their duty as public servants and all the accused persons have assaulted BBMP officials, Contractors and their labourers voluntarily causing hurt and caused bleeding injury and accused No.1 assaulted CW.1 with Glass bottles on his back voluntarily causing bleeding injury and accused No.4 assaulted CW.7 with Club over his head and assaulted CW.8 over his leg voluntarily causing bleeding injury and without there being any provocation abused CWs.1 to 10 in filthy language as 'bolimagne, sulemagne' and abused in Telugu language as 'donga na kodaka, loafer na kodaka', insulted them and threatened them with life if they tried to touch the flex and accused Nos.1 to 3 and 8 with intention to make profit entered into an agreement and put up hoardings fixed flex in the BBMP property and agreed together by making conspiracy and entered into BBMP property causing criminal trespass and putup unlawful hoardings and flex without any permission by fixing hoardings and flex caused disfiguration to public place by making advertisement and accused Nos.1 to 3 and 8 unlawfully entered into the property belonging to BBMP with 4 CC No.56694/2018 intention of holding that Government land, unlawfully putup hoardings and flex and thereby committed the alleged offences.
3. On the basis of the complaint filed by complainant, a case was registered in R.M.Nagar P.S., Cr.No.369/2018 and FIR was submitted to the court. Panchanama of scene of offence was conducted in presence of panchas. Statement of witnesses were recorded. On completion of investigation chargesheet has been filed against the accused for the alleged offences.
4. Cognizance of offences was taken and summons was issued to the accused. Accused Nos.1 to 3 and 8 have been released on bail by the Hon'ble High Court of Karnataka. Accused Nos.4 to 7 are in JC. Copies of chargesheet were furnished to accused persons u/S.207 of Cr.P.C. After hearing, charges were framed against the accused persons for the alleged offences and accused persons have pleaded not guilty and claimed to be tried.
5. The prosecution in support of its case has examined 19 witnesses as PWs.1 to 19, got marked 52 documents as Exs.P1 to P52 and got identified M.O.s.1 to 4. Statements of accused u/S.313 of Cr.P.C. were recorded and the accused persons have denied the circumstances incriminating them in the evidence. The accused 5 CC No.56694/2018 Nos.1 to 3 and 8 have also filed their written statement u/S.313(5) of Cr.P.C. Perused the same. And the Counsel for Accused No.8 and the learned Special Public Prosecutor submitted Memo with number of citations. Perused the same.
6. Heard the arguments of the learned Sr.APP for the State and the learned counsel for the accused and perused the materials on record.
7. The points for consideration are:
1. Whether the prosecution proves beyond doubt that the accused Nos.1 to 7 on 2/8/2018 at 12.20 PM near Tin Factory, Opposite to Honda Showroom, R.M.Nagar, Bengaluru formed into an unlawful assembly with common object of assaulting CWs.1 to 10 and thus alleged to have committed the offence punishable u/S.143 r/w.149 of IPC?
2. Whether the prosecution proves beyond doubt that on the above said, date, time and place you the accused Nos.1 to 7 were the members of unlawful assembly with common object of assaulting CWs.1 to 10, committed rioting and thus alleged to have committed the offence punishable u/S.147 r/w.149 of IPC?
3. Whether the prosecution proves beyond doubt that on the above said, date, time and place the accused Nos.1 to 7 were armed with dangerous weapons like Clubs, Bottles and committed rioting in furtherance of their common object of assaulting CWs.1 to 10 and thus alleged to have committed the offence punishable u/S.148 r/w.149 of IPC? 6 CC No.56694/2018
4. Whether the prosecution proves beyond doubt that on the above said, date, time and place when CWs.1 to 10 being BBMP authorities were removing unlawful hoardings and flex as per the order of the Hon'ble High Court and the Commissioner of BBMP, the accused Nos.1 to 7 have wrongfully restrained them in furtherance of their common object and thus alleged to have committed the offence punishable u/S.341 r/w.149 of IPC?
5. Whether the prosecution proves beyond doubt that on the above said, date, time and place the accused Nos.1 to 7 while CWs.1 to 5 being the public servants, officers of BBMP and their Contractor CW.6 and their labourers CWs.7 to 10 were removing unlawful hoarding and Flex, accused have assaulted them with intent to prevent them from exercising their duty as public servants and thus alleged to have committed the offence punishable u/S.353 r/w.149 of IPC?
6. Whether the prosecution proves beyond doubt that on the above said, date, time and place the accused Nos.1 to 7 in furtherance of their common object while CWs.1 to 5 being public servants and officers of BBMP were removing unlawful hoardings and flex with their contractor CW.6 and labourers CWs.7 to 10 with intent to prevent or deter them from discharging their duties, all of you assaulted them with hands voluntarily causing hurt and thus alleged to have committed the offence punishable u/S.332 r/w.149 of IPC?
7. Whether the prosecution proves beyond doubt that on the above said, date, time and place accused Nos.1 to 7 assaulted CWs.1 to 10 with hands voluntarily causing hurt and thus alleged to 7 CC No.56694/2018 have committed the offence punishable u/S.323 r/w.149 of IPC?
8. Whether the prosecution proves beyond doubt that on the above said, date, time and place accused No.1 assaulted CW.9 with glass bottle on his back voluntarily causing bleeding injury and you A.4 assaulted CW.7 with Club over his head and assaulted CW.8 over his leg voluntarily causing bleeding injury and thus alleged to have committed the offence punishable u/S.324 r/w.149 of IPC?
9. Whether the prosecution proves beyond doubt that on the above said, date, time and place accused Nos.1 to 7 while CWs.1 to 10 were removing hoardings and flex have intentionally insulted them by abusing them in filthy language as 'bolimagne, sulemagne' and abused in Telugu language as 'donga na kodaka, loafer na kodaka' and thus alleged to have committed the offence punishable u/S.504 r/w.149 of IPC?
10. Whether the prosecution proves beyond doubt that on the above said, date, time and place accused Nos.1 to 7 by showing bottle to CWs.1 to 10 threatened them with life if they tried to touch flex and thus alleged to have committed the offence punishable u/S.506 r/w.149 of IPC?
11. Whether the prosecution proves beyond doubt that on the above said, date, time and place accused Nos.1 to 3 and 8 with intent to make profit entered into an agreement and put up hoardings fixed flex in the BBMP property agreed together by making conspiracy and thus alleged to have committed the offence punishable u/S.120(B) r/w.149 of IPC?8 CC No.56694/2018
12. Whether the prosecution proves beyond doubt that on the above said, date, time and place accused Nos.1 to 3 and 8 entered into BBMP property causing criminal trespass and putup unlawful hoardings and flex and thus alleged to have committed the offence punishable u/S.447 r/w.149 of IPC?
13. Whether the prosecution proves beyond doubt that on the above said, date, time and place accused Nos.1 to 3 and 8 by causing criminal trespass into BBMP property fixed hoardings and flex without any permission and caused disfiguration by making advertisement and thus alleged to have committed the offence punishable u/S. 3 of KOPD Act?
14. Whether the prosecution proves beyond doubt that on the above said, date, time and place accused Nos.1 to 3 and 8 unlawfully entered into the property belonging to BBMP with intention of holding that Government land, unlawfully putup hoardings and flex and thus alleged to have committed the offence punishable u/S.192-A of Karnataka Land Revenue Act 1964?
8. My answer on the above points are:
Point No.1 - Affirmative, Point No.2 - Affirmative, Point No.3 - Affirmative, Point No.4 - Affirmative, Point No.5 - Affirmative, Point No.6 - Affirmative, 9 CC No.56694/2018 Point No.7 - Affirmative, Point No.8 - Affirmative, Point No.9 - Affirmative, Point No.10 - Negative, Point No.11- Affirmative, Point No.12 - Affirmative, Point No.13 - Affirmative, Point No.14 - Affirmative, Point No.15 - as per final order, for the following;
REASONS
9. POINT NOS.1 TO 3:
Since these three points are interlinked, in order to avoid repetition, same are taken together for consideration. In brief I have already stated the facts of this case as mentioned above. In order to prove the guilt of the accused for the offences punishable u/S.143, 147 and 148 r/w.149 of IPC, the prosecution has to prove that with common object of assaulting CWs.1 to 10, accused Nos.1 to 7 formed into unlawful assembly and such unlawful assembly consisting of five or more persons and caused force or violence by unlawful assembly 10 CC No.56694/2018 armed with deadly weapons like Club and Bottle. The prosecution in order to bring home the guilt of the accused Nos.1 to 7 relied upon the evidence of PWs.1, 2 and 5. PW.1 is the Asst. Revenue Officer, PW.2 is the Tax Inspector of BBMP and PW.5 is the injured who is the contract labourer of the BBMP who was engaged to remove the flex. PW.1 Bhattrachar in his evidence deposed that on 2/8/2018 at about 12.00 PM as per the order of the Hon'ble High Court and the Commissioner of the BBMP when he himself along with CWs.2 to 5 went near Chowdeshwari Temple, Tin Factory to remove unlawful flex with the help of contract labourers CWs.6 to 10 along with his staff and when they were removing unlawful flex, all of a sudden the accused Nos.1 to 7 came to the spot and started abusing them in filthy language and assaulted them with Clubs and Bottles.
10. PW.2 V.Sridhar, Tax Inspector of BBMP also deposed that he accompanied PW.1, at that time accused persons came there when they were removing unlawful flex, and assaulted Vishwa, Manu and Chandan with Club.
11. PW.5 Vishwanath, who is the Contract Labourer in his evidence deposed that on the day of incident when he went along with labourers and BBMP officials to the spot and when they were 11 CC No.56694/2018 removing unlawful flexes, 7 to 8 persons came there and questioned them, asking them how they came there and questioned who has asked them to remove the flexes and abused them in filthy language and assaulted Manu, Chandan and among the accused persons one of them assaulted him with bottle on his back, due to which he sustained injury on his back. Subsequently he took treatment at K.R.Pura Government Hospital. All PWs.1, 2 and 5 have identified accused Nos.1 to7 as they only came to the scene of offence and questioned them and assaulted them and abused them in filthy language.
12. PW.6 Deepak, PW.7 Manu Kumar, PW.8 Chandan and PW.9 Nandeep have also deposed regarding the incident taken place at the spot and causing of galata by some persons. But they could not identify the accused persons before the court. The I.O.-PW.19 Chandradhar and police officials have also supported the case of the prosecution.
13. During the course of cross examination of PW.1 by the Advocate for accused No.1 to 3 it is elicited that prior to removal of flex at the spot they have removed flex in many places, he do not know the details of the same and he has not produced removed flex to the police, at the time of removing flex by engaging CWs.6 to 10 they 12 CC No.56694/2018 have not provided them uniform of BBMP and ID Cards and suggested that they have illegally removed the flex near the Tin factory belonging to accused Nos.1 and 2. The advocate for accused Nos.4 to 7 during the cross examination of PW.1 elicited that subsequent to lodging of complaint he has not taken any treatment at the hospital and that is ½ kms. Distance from B.P.halli police station near to the place of incident and there is metro work going on and said place is busy place and there would be traffic police near that place. But during the course of cross examination of PW.2 states that there was no police present at the spot at that time. During the course of cross examination of PW.5 it is elicited that he do not know to read and write Kannada and he was working as office boy in Francis India, Brigade Road since last 6 months and he has signed in the attendance register while entering and exit. He denied the suggestion that he has not sustained any injury to his upper back and elicited that M.O.1 is Survey Pole and further elicited that there is ¾ kms. distance from Honda City Showroom to the place of incident and when 7 to 8 persons when speaking at the spot he was at the height of 20 feet and he heard voice of 7 to 8 persons when they were enquiring with Deepak and further elicited that subsequent to 4/8/2018 he had never 13 CC No.56694/2018 been to R.M.Nagar police station. During the course of cross examination by Advocate for A.4 to A.7 it is elicited that place of incident is a busy place and there will be heavy movements of public and vehicles. The counsel for accused Nos.1 to 7 vehemently argued that other injured, eye witnesses and mahazar witnesses turned hostile and not identified accused persons and therefore accused be acquitted. In this regard the Special Public Prosecutor on behalf of prosecution relied on the decision reported in 2006(1) Crimes 153 (SC), wherein the Hon'ble Supreme Court held that "panch and injured witnesses had turned hostile and panch witnesses had admitted their signature on recovery memos - no body's case that accused and police or PW.2 and PW.9 had previous enmity which could warrant for foisting false case - conviction could not be interfered with". In the instant case also though the counsel for accused have cross examined at length the witnesses PWs.1, 2 and 5, but nothing has been elicited from their mouth that there was enmity between themselves and accused Nos.1 to 7 and nothing is elicited that accused Nos.1 to 7 were not the members of unlawful assembly and caused rioting armed with deadly weapons. Thus principles laid down in the said decision is applicable to the case on hand. To prove the presence of PWs.1 and 2 at the spot, 14 CC No.56694/2018 prosecution produced attendance register extract of BBMP marked at Exs.P7 and 8 which are public documents prepared while discharging of public duty by Government officials which is presumed to be true unless contrary is proved as per the provision of the Evidence Act. Nothing is elicited from the mouth of PWs.1 and 2 to disbelieve Exs.P7 and P8. In order to prove presence of accused persons at the spot, the prosecution produced and relied on the Pen drive and Mobiles marked at M.Os.3 and 4. The counsel for accused vehemently argued that there are certification as per Section 65-B of Evidence Act. But during the course of cross examination of PW.1 a suggestion was put that apart from one accused no others are visible on the photo or video clippings. By putting such suggestion indirectly admitted the presence of accused and admitted regarding the incident taken place as on the date of incident. The evidence of PWs.1, 2 and 5 are corroborated with the evidence of the I.O.-PW.19 and there is nothing on record to disbelieve the version of the prosecution. Hence, I hold that prosecution proved the guilt of the accused persons beyond all reasonable doubt for the offences punishable u/S.143, 147, 148 r/w.149 of IPC. Hence, I answer Point Nos.1 to 3 in the Affirmative. 15 CC No.56694/2018
14. POINT NO.3:
In order to prove the guilt of the accused Nos.1 to 7 for the offence punishable u/S.341 r/w.149 of IPC is concerned, the prosecution has to establish that as on the date of incident when CWs.1 to 10 were removing unlawful flex as per the direction of Hon'ble High Court and the Commissioner of BBMP, the accused Nos.1 to 7 have wrongfully restrained them in furtherance of their common object and caused obstruction voluntarily that it prevented CWs.1 to 10 from proceeding in a direction in which they had a right to proceed. To do the same the prosecution relied on the evidence of PWs.1, 2 and 5. PW.1 Bhhatrachar in his evidence deposed that with the help of contract labourers CWs.6 to 10 along with their staff when they were removing unlawful flex, all of a sudden accused Nos.1 to 7 came near the spot and started abusing them and obstructed them. PW.2 Sridhar also in his evidence states that when they were removing unlawful flex 6 to 7 persons came to the spot and made galata against them, assaulted them and obstructed. PW.5 Vishwanath in his evidence states that when they were removing fourth flex, 7 to 8 persons came near them, questioned CW.6, asked him how they came there and questioned them who had asked to remove the flexes and 16 CC No.56694/2018 assaulted CW.6 and others. PW.6 Deepak, PW.7 Manu Kumar, PW.8 Chandan and PW.9 Nandeep have also deposed regarding obstruction made by some persons but failed to identify the accused persons. As discussed above in view of the principles laid down in the decision relied by the prosecution, merely witnesses turned hostile unless previous enmity proved their evidence cannot be rejected. PWs.1, 2 and 5 have supported the case of the prosecution. During the course of cross examination of PWs.1, 2 and 5 nothing is elicited in their mouth that A.1 to 7 have not wrongfully restrained them and nothing is elicited that there was enmity between themselves and accused persons. Though the other witnesses PWs.6 to 9 have turned hostile and not supported the case of the prosecution and as PWs.1, 2 and 5 have identified accused persons and deposed regarding the incident it is not fatal to the case of the prosecution. There are minor discrepancies in the cross examination of PWs.1, 2 and 5 and much weight cannot be given to the same. Hence, I hold that prosecution proved wrongful restrainment caused by accused Nos.1 to 7 to the BBMP authorities and their labourers as alleged by the prosecution. Accordingly I answer Point No.4 in the Affirmative. 17 CC No.56694/2018
15. POINT NO.5:
In order to prove the guilt of the accused Nos.1 to 7 for the offence punishable u/S.353 r/w.149 of IPC, the prosecution has to establish that CWs.1 to 5 being the public servants and officers of BBMP and their Contractor CW.6 and their labourers CWs.7 to 10 were removing unlawful flex, the accused persons have assaulted them by preventing them from exercising their duty as public servants and the prosecution has to prove that there must be assault or use of criminal force to the public servants while they were acting in execution of their duty or with intent to prevent or deter from discharging their duty and the prosecution has relied on the evidence of PWs.1 and 2. PW.1 Bhattrachar, in his evidence deposed that as per the order of the Hon'ble High Court and BBMP Commissioner on 2/8/2018 at 12.00 PM when they were removing the unlawful flex near Chowdeshweri Temple, Tin Factory, the accused persons came there and assaulted Vishwa and Chandan with Club and Bottle, at that time he himself and CWs.2 to 5 went to pacify the matter, at that time PW.1 had sustained injury over the right thumb and they have pushed them, deterred them while discharging their duty as public servants. PW.2 also in his evidence deposed that accused persons have 18 CC No.56694/2018 obstructed them from discharging their duty as public servants and the during the course of cross examination of PWs.1 and 2 nothing is elicited to disbelieve the version of the prosecution and in the cross examination there are some minor discrepancies and it is not fatal to the case of the prosecution. Thus I hold that prosecution proved criminal force used by accused persons to PWs.1 and 2 when they were acting in execution of their duty and deterred them from discharging their duty. Hence, I answer point No.5 in the Affirmative.
16. POINT NO.6:
In order to prove the guilt of the accused Nos.1 to 7 for the offence punishable u/S.332 of IPC, the prosecution has to establish that in furtherance of their common object by accused persons while CWs.1 to 5 being public servants and officers of BBMP were removing unlawful hoardings and flex with their Contractor CW.6 and labourers CWs.7 to 10, with intention to prevent or deter them from discharging their duty, all of them assaulted them with hands and voluntarily caused hurt. In order to prove the same, such hurt must have been caused to public servant while they were acting in discharging their duty as public servants and the prosecution relied on the evidence of PWs.1 and 2. PW.1 Bhattrachar in his evidence states 19 CC No.56694/2018 that when they were removing unlawful Flex, accused Nos.1 to 7 came there and assaulted Vishwa, Chandan and Manu and when he himself and CWs.2 to 5 went to pacify the matter he sustained injury to his right thumb. PW.2 V.Sridhar in his evidence states that accused persons have obstructed them and assaulted them while they were doing their duty as public servants.
17. PW.3 Dr.Surendra in his evidence deposed that on 3/8/2018 around 7.45 PM injured Bhattracharya came for treatment with a history of assault and on examining him he found the injury No.1 Blackish Tinge Haematoma of right Thumb measuring 1 mm and deposed that said injury can occur if assaulted in mob with hands or club. During the course of cross examination of PW.3 it has been elicited haematoma can be present to a person like PW.1 and may also occur on any part of the body. Initially it will be reddish colour and in due course if may become bluish and black and it may occur due to diseases and multiple causes. During the course of cross examination of PW.1 it was suggested that injury sustained by him may have happened accidentally but said suggestion was denied by PW.1. The cross examination of PWs.1, 2 and 3 is not fatal to the case of the prosecution. In view of the said discussion I hold that prosecution 20 CC No.56694/2018 proved the guilt of the accused persons for the offence punishable u/S.332 of IPC. Accordingly, I answer Point No.6 in the Affirmative.
18. POINT NO.7:
In order to prove the offence u/S.323 r/w.149 of IPC, the prosecution has to prove that accused Nos.1 to 7 voluntarily caused bodily pain with intention to causing hurt the prosecution relied on the evidence of PW.1 Bhattrachar. In his evidence deposed that when he himself along with his staff when they were removing unlawful flex with the help of contract labourers CWs.6 to 10, the accused Nos.1 to 7 came there and assaulted Vishwa, Manu and Chandan with Club and bottle and when he went to pacify the matter he has sustained injury over his right thumb and they have pushed them. PW.2 V.Sridhar in his evidence deposed that when he himself along with CWs.6 to 10 went to remove unlawful flex the accused persons came there and pushed them and assaulted them with hands. PW.5 Vishwanath in his evidence states that when they have removed two flexes and were removing 4th Flex, 7 to 8 persons came near them and questioned CW.6 and said persons have assaulted PW.6 with hands. PW.6 Deepak in his evidence states that at the time of incident when they were removing Banners 30 to 40 peoples came there, started abusing 21 CC No.56694/2018 them, assaulted him and thrown him out of the said place. But PW.6 failed to identify the accused persons before the court. PWs.6 to 9 though failed to identify accused persons have deposed regarding injury sustained by them. PWs.6 to 15 are the injured and witnesses to the mahazar turned hostile to the case of the prosecution. PWs.1, 2 and 5 have supported the case of the prosecution.
19. PW.3 Dr.Surendra who has examined complainant deposed regarding examining of PW.1 and that PW.1 had sustained "Blackish tinge haematoma of right thumb measuring 1mm" and given opinion that said injury can occur if assaulted in mob with hands and PW.3 also examined PW.5 Vishwanath and on examining he found "blunt injury to the body surface non-specific in nature" and given opinion that said injury can occur if assaulted in a mob. During the course of cross examination of PW.1 denied that as per the direction of the Superior he has not falsely implicated accused persons. During the course of cross examination of PWs.1, 2 and 5 nothing is elicited from their mouth that the accused persons have voluntarily caused hurt and nothing is elicited that there was enmity between accused and PWs.1, 2 and 5 and there is nothing to disbelieve the version of prosecution which leads to me to disbelieve that accused Nos.1 to 7 have not 22 CC No.56694/2018 caused voluntarily hurt to PWs.1 and 5. Hence, I answer Point No.7 in the Affirmative.
20. POINT NO.8:
In order to prove the guilt of the accused Nos.1 to 7 for the offence punishable u/S. 324 r/w.149 of IPC the prosecution has to establish the causing of simple hurt by dangerous weapon. The prosecution relied on the evidence of PW.5 to prove the guilt of accused persons. PW.5 in his evidence stated that when they were removing the 4th Flex at the spot, 7 to 8 persons came near them and questioned them about removing of Flexes and assaulted them and among the said persons, one person assaulted him with Bottle on his back due to which he sustained bleeding injury on his back. The witness had shown the injury before the court on the left side of the upper back and this court observed few old injury marks on his upper back and he further states that at that time BBMP officials came to their rescue, at that time accused persons have also assaulted them and further deposed that subsequently he took treatment at K.R.Pura Government Hospital and he has shown injuries to the Doctor and further states that Nurse applied Ointment and told that doctor is having lunch and told him to wait for treatment. Thereafter the 23 CC No.56694/2018 Doctor came and he has shown all the injuries to the Doctor and also told he has not sustained much injuries and he has identified M.O.s.1 and 2 before the court. PW.3 is the Doctor Surendra deposed that on 3/8/2018 at about 9.30 PM the injured came for treatment with history of assault on 28/2018 by group of 7-8 unknown people near R.M.Nagar and on examining him he found the blunt injury to the body surface nonspecific in nature and states that said injury can occur if assaulted with hands or club in a mob and at that stage the Spl. Public Prosecutor sought for treating the Doctor as hostile and sought for examining him after examining PW.5. And the arguments were heard from both sides and by treating the witness as hostile permitted the Spl.P.P to examine the witness and after examining PW.5 and after examination of PW.5 the Doctor was treated as hostile and injury sustained to PW.5 was shown to PW.3 in the open court and the Doctor stated that he cannot say the age of injury and stated that injured has not shown the injury on the date of examining him on his upper back and elicited that he had no impediment to check the injured thoroughly and give wound certificate and states that said injury may occur if assaulted with sharp edge of M.O.2 and the Doctor denied the suggestion that as on the date of examining PW.5 24 CC No.56694/2018 he was not diligent. During the course of cross examination of PW.3 Doctor, it is elicited that if injured PW.5 had shown the injury on his upper back he would have mentioned the same in the wound certificate. Thus it appears that there is variance with medical evidence with the ocular evidence. In this regard the learned Special PP relied on the decision reported in 2004(2) Crimes 493(SC) between Ram Bali /vs/ State of Uttar Pradesh, wherein the Hon'ble Supreme Court held that "medical evidence at variance with ocular evidence regarding time of death held not fatal.´ In view of the principle laid down by the Hon'ble Supreme Court in case of variance with medical evidence with the ocular evidence is not a fatal. Thus the above said variance between the evidence of PW.5 and PW.3 is not a fatal to the case on hand. The counsel for the accused persons taken up the defence that the seizure witnesses and other injured witnesses have turned hostile and seizure of M.O.No.2 not proved In this regard the learned Spl.P.P. relied on the decision reported 2006(1) Crimes page 153(SC) between Surendra Singh /vs/ State of Harayana. Wherein the Hon'ble Supreme Court held that "panch witnesses and injured witness PW.2 and complainant PW.9 also turned hostile and there were discrepancies in the evidence, minor 25 CC No.56694/2018 discrepancy pointed out were not of a nature which created infirmity in the case though the panch witnesses denied the recoveries effected in their presence, had admitted their signature on recovery memos, nobody's case that the accused and police or PW.2 and PW.9 had previous enmity which could warrant for foisting false case - conviction could not be interfered with. As PW.5 has supported the case of the prosecution by deposing regarding injury sustained by him though the other injured and recovery and mahazar witnesses turned hostile with relating to M.O.2 is not a fatal to the case of the prosecution in view of the principle laid down as discussed above by the Hon'ble Supreme Court. Thus, I hold that prosecution proved the guilt of the accused Nos.1 to 7 for the offence punishable u/S.324 r/w.149 of IPC. Hence, I answer Point No.8 in the Affirmative.
21. POINT NO.9:
In order to prove the guilt of the accused Nos..1 to 7 for the offence punishable u/S.504 r/w.149 of IPC, the prosecution has to prove that there was intentional insult made by the accused persons and they gave provocation that the person knows it to be likely such provocation will cause harm. In order to bring home the guilt of the accused persons, the prosecution relied on the evidence of PW.1 26 CC No.56694/2018 Bhattrachar. In his evidence that as on the date of incident with the help of contractor, labourers CWs.6 to 10 when they were removing the unlawful Flex all of a sudden accused Nos.1 to 7 came near the spot and started abusing them in filthy language. PW.2 V.Sridhar in his evidence states that when they were removing unlawful Flex, 6-7 persons came to the spot, made galata assaulted Vishwa, Manu and Chandan with club and bottle. At that time when he himself along with his staff CW.1, 3 to 5 went to the rescue of CWs.6 to 10, they have abused them in filthy language as loafter nan maklu, sule maklu and all the BBMP officials are loafter nan maklu and also abused them in Telugu language. PW.5 Vishwanath in his evidence states that at the time of incident he was on the top of hoardings and 7-8 persons came there and they have abused him in filthy language as 'nin ammanna kyaya' and told him to get down. During the course cross examination of PWs.1,2 and 5 noting is elicited from their mouth that accused persons have not abused them in filthy language as deposed by them and there is nothing is elicited that there was enmity between the accused persons and PWs.1, 2 and 5. There is nothing on record to disbelieve the version of prosecution. Thus the evidence of PWs.1, 2 and 5 proves the intentional insult made to them 27 CC No.56694/2018 by abusing them in filthy language as deposed by PWs.1, 2 and 5. Hence, I answer the Point No.9 in the Affirmative.
22. POINT NO.10:
In order to prove the guilt of the accused Nos.1 to 7 for the offence punishable u/S.506 r/w.149 of IPC, the prosecution has to establish that the accused persons have threatened the prosecution witnesses with injury to their person, reputation or property and the accused persons did so with intention to cause alarm to the victim of the offences and did so to cause the victim to perform any act which he was not legally bound to do. In the instant case PW.1, 2 and 5 who are the supporting witnesses in their evidence failed to depose regarding threat made by accused persons with dire consequences to them, their person and other injured persons have turned hostile. In view of the same I hold that prosecution failed to bring home the guilt of the accused persons for the offence punishable u/S.506 r/w.149 of IPC. Hence, I answer Point No.10 in the Negative.
23. POINT NOS.11 TO 14:
Since the Point Nos.11 to 14 are interlinked in order to avoid repetition the same are taken up together for consideration. 28 CC No.56694/2018
24. In order to prove the guilt of the accused Nos.1 to 3 and 8 for the offences punishable u/S.120(B) r/w.149 of IPC, the prosecution has to establish that the accused Nos.1 to 3 and 8 with intention to make profit entered into an agreement and putup unlawful Flex in the BBMP property, agreed together by making conspiracy. In order to prove he guilt of the accused Nos.1 to 3 and 8 for the offence punishable u/S.447 r/w.149 of IPC the prosecution has to establish the causing of criminal trespass and putting up of unlawful hoardings and flex by the accused Nos.1 to 3 and 8 and in order to prove the guilt of accused persons for the offence of 3 of KOPD Act the prosecution has to establish that accused Nos.1 to 3 and 8 by causing criminal trespass into BBMP property fixed hoarding and flex without any permission caused disfiguration by making Advertisement at the spot and in order to prove the guilt of the accused Nos.1 to 3 and 8 for the offence punishable u/S.192-A of the Karnataka Land Revenue Act, the prosecution to establish that accused Nos.1 to 3 and 8 unlawfully entered into the property belonging to BBMP with intention of holding that Government land and unlawfully putup hoardings and flexes.
29 CC No.56694/2018
25. It is the case of the prosecution that accused Nos.1 to 3 are the owner of the Flex situated near Tin factory opposite to Honda Showroom, R.M.Nagar, Bengaluru and accused No.3 is the Manager and the accused No.8 is the Agreement Holder to fix the unlawful flex at the spot on the BBMP property. In order to prove the ownership of the scene of offence by the BBMP the prosecution relied on the documents marked at Exs.P1 to P4. Ex.P1 is the Notification dated 14/9/2016 and the copy of the Annexure is marked as Ex.P2 and copies of two Maps are marked as Ex.P3 and P4. The said documents are produced by the prosecution in order to show that the place of incident belongs to BBMP. Exs.P1 to P4 are the Government Notification and the Maps relating to the place of incident. In Ex.P2 column No.59 stated to relating to the place of offence subject to objection Exs.P1 to P4 are marked in evidence as same were Xerox copies. Though the said documents are the Xerox copies the same are prepared by the Government of Karnataka and the same carries presumption with respect to their genuineness and as per Section 56 of Evidence Act, this court can take judicial notice of it and the same need not to be proved. Thus, it leads me to believe that the alleged place of incident belongs to BBMP. The accused persons failed to 30 CC No.56694/2018 elicit anything from the mouth of PW.1 and I.O -PW19 Chandradhar to disbelieve Exs.P1 to P4. The accused Nos.1 to 3 and 8 have with intention to make profit entered into the Agreement. The prosecution produced the copy of the Agreement entered into between accused Nos.1, 2 and 8 which is marked at Ex.P50, which is a mutual agreement dated 6/4/2017 entered into between M/s. Media 360 degree Services India (P) Ltd. and M/s.Oxford Advertising. On perusal of the said Agreement the accused No.8 is the Director of M/s.Media 360 degree Services and accused Nos.1 and 2 are the Partners of M/s.Oxford Advertising. On perusal of the said agreement they entered into Agreement of fixing Hoarding/Boards near K.R.Puram area where the incident has taken place. Admittedly there is direction by the Hon'ble High Court in W.P. No.57990/2017 to remove the unlawful Flexes and Hoardings and the Hon'ble High Court in the said writ petition directed the BBMP officials to remove the unlawful flexes in Bengaluru City and this court has taken the judicial notice of it and as per the direction of the Hon'ble High Court while the BBMP officials as on 2/8/2018 at 12.20 PM when they were removing unlawful flexes the alleged incident have taken place. Though there was a direction by the Hon'ble High Court, the accused 31 CC No.56694/2018 Nos1 to 3 and 8 put up the alleged illegal Flex as per the Agreement marked at Ex.P50. On perusal of the said Agreement reflects the involvement of accused Nos1, 2 and 8 in doing the above said illegal act in fixing the banned Flexes. The counsel for accused persons have raised objection to mark Ex.P50 as it was the Xerox copy, and subject to their objection it was marked in evidence. The accused persons have not disputed the agreement entered into between accused Nos.1 and 2 and 8 and their names appeared to have mentioned as Partner of M/s. Oxford Advertising and M/s. 360 degree Services India (P) Ltd. During the course of cross examination PWs1 and PW.19- I.O., nothing is elicited that accused Nos.1 and 2 and 8 are not parties to the Agreement at Ex.P50. During the course of cross examination of PW.2 it is elicited that accused Nos.1 and 2 are the owners of two boards situated at tin factory at page No.12 of the cross examination. The said admission proves that the accused persons have putup the alleged Flexes at the place of incident by trespassing into BBMP property at the alleged spot. During the course of cross examination of PW.1 and PW.19 the I.O., nothing is elicited that the accused Nos.1 to 3 and 8 fixed Hoardings and Flex by causing criminal trespass and they are not conspired together in fixing the alleged hoardings and 32 CC No.56694/2018 flex. Thus the evidence available on record discloses that without any permission the accused Nos.1 to 3 and 8 caused disfiguration by making Advertisement and they entered into the property belonging to BBMP with intention to holding that land and unlawful putup hoardings and flex. During the course of cross examination of PW.1 and I.O. nothing is elicited from their mouth that there was enmity between themselves and accused persons Nos.1 to 3 and 8 and nothing on record to disbelieve the version of the prosecution. Hence, it leads me to believe that prosecution proved the guilt of the accused Nos.1 to 3 and 8 that they have committed the offences punishable u/S.120(B), 447 r/w.149 of IPC and under Section 3 of KOPD Act and Section 192-A of Karnataka Land Revenue Act 1964. Thus I answer Point Nos.11 to 14 in the Affirmative.
25. POINT NO.15:
For the afore said reasons, I pass the following;
ORDER Acting u/S 248(1) of Cr.P.C. the accused Nos.1 to 7 are acquitted for the offence punishable u/S.506 r/w.149 of IPC.
Acting u/S.248(2) of Cr.P.C. the accused Nos.1 to 7 are found guilty for the offences punishable u/S.143, 147, 148, 341, 353, 332, 323, 324, 504 r/w.149 of IPC.33 CC No.56694/2018
Acting uS.248(2) of Cr.P.C. the accused Nos.1 to 3 and 8 are found guilty for the offences punishable u/S.120(B), 447 r/w.149 of IPC and Section 3 of the KOPD Act and Section 192-A of Karnataka Land Revenue Act 1964.
For hearing on sentences.
(Dictated partly to the Steno and also dictated directly on computer to Steno, transcribed and typed by him, same was corrected by me and then pronounced in open court on this the 31st day of August 2018).
(NAGESH MURTHY.B.K) X A.C.M.M., BENGALURU 34 CC No.56694/2018 ORDERS ON SENTENCE Accused Nos.1 to 7 are found guilty for the offences punishable u/S.143, 147, 148, 341, 353, 332, 323, 324, 504 r/w.149 of IPC. Further the accused Nos.1 to 3 and 8 are found guilty for the offences punishable u/S.120(B), 447 r/w.149 of IPC and Section 3 of the KOPD Act and Section 192-A of Karnataka Land Revenue Act 1964.
Heard on quantum of sentence of both sides. The learned Spl.P.P. submitted that the accused persons have wrongfully restrained public servants and assaulted them voluntarily causing hurt and the prosecution proved the guilt of the accused persons beyond reasonable doubt and also Spl.PP relied on the decision reported on the decision reported in 2006(1) Crimes 196 and states by taking into consideration public at large and society the accused persons be convicted to the full extent for the alleged offences.
On the other hand the counsel for the accused Nos.1 to 3 submitted that accused persons hails from respectable family and they have small kids and mother of one of the accused is very serious hence sentence them leniently. The counsel for accused Nos.4 to 7 submitted that they come from poor social background and they are not habitual offenders, they are having deep roots in the society and 35 CC No.56694/2018 having dependents and they are only bread winners of their family and thus prayed to release them by invoking the provisions of the Probation Offenders Act. The counsel for the accused No.8 submitted that he is running an Industry and he is respectable person in the society, more than 100 people are working under him and he has not committed any offence. Hence, prayed to sentence him leniently or release him on admonition.
The accused persons are found guilty for having assaulted BBMP officials while they were exercising their duty as public servants for the alleged offences. By considering the facts and circumstances and the nature and gravity of offence, this court is of the view that accused persons are not entitled for any benefit under the provisions of the Probation Offenders Act or they be released on admonition. Instead they are to be punished for the said offences as hereunder. Hence, I pass the following;
ORDER Accused Nos.1 to 7 are convicted for the offence punishable u/S.143 r/w.149 of IPC and sentenced to undergo simple imprisonment for 3 (three) months.36 CC No.56694/2018
Further, accused Nos.1 to 7 are convicted for the offence punishable u/S.147 r/w.149 of IPC and sentenced to undergo simple imprisonment for 6 (six) months each.
Further, Accused Nos.1 to 7 are convicted for the offence punishable u/S.148 r/w.149 of IPC and sentenced to undergo simple imprisonment for 1 (one) year each.
Further, Accused Nos.1 to 7 are convicted for the offence punishable u/S.341 r/w.149 of IPC and sentenced to undergo simple imprisonment for 1 (one) month each.
Further, Accused Nos.1 to 7 are convicted for the offence punishable u/S.353 r/w.149 of IPC and sentenced to undergo simple imprisonment for 1 (one) year each.
Further, Accused Nos.1 to 7 are convicted for the offence punishable u/S.332 r/w.149 of IPC and sentenced to undergo simple imprisonment for 2 (two) years each.
Further, Accused Nos.1 to 7 are convicted for the offence punishable u/S.323 r/w.149 of IPC and sentenced to undergo simple imprisonment for 6 (six) months.37 CC No.56694/2018
Further, Accused Nos.1 to 7 are convicted for the offence punishable u/S.324 r/w.149 of IPC and sentenced to undergo simple imprisonment for 1 (one) year each.
Further, Accused Nos.1 to 7 are convicted for the offence punishable u/S.504 r/w.149 of IPC and sentenced to undergo simple imprisonment for 6 (six) months each.
Further, Accused Nos.1 to 3 and accused No.8 are convicted for the offence punishable u/S.120(B) r/w.149 of IPC and sentenced to undergo simple imprisonment for 3 (three) months each.
Further, Accused Nos.1 to 3 and accused No.8 are convicted for the offence punishable u/S.447 r/w.149 of IPC and sentenced to undergo simple imprisonment for 3 (three) months each.
Further, Accused Nos.1 to 3 and accused No.8 are convicted for the offence punishable u/S.4 of the KOPD Act and sentenced to pay fine of Rs.1000/- (Rs.One Thousand only) each. In default to pay fine amount, accused Nos.1 to 3 and 8 shall under S.I. for 15 (Fifteen) days each and , Lastly, Accused Nos.1 to 3 and accused No.8 are convicted for the offence punishable u/S.192-A of Karnataka Land Revenue Act 1964 and sentenced to undergo simple imprisonment for 6 (six) 38 CC No.56694/2018 months each and to pay fine of Rs.5,000/- (Rs.Five Thousand only) each. In default to pay the fine amount, accused Nos.1 to 3 and 8 shall under S.I. for 1 (one) month each.
All the above sentences shall run concurrently. M.O.s.1 to 3 being worthless ordered to be destroyed after Appeal period. M.O.4 belongs to PW.2 and same may be handed over to him after Appeal period.
The accused Nos.4 to 7 are under trial prisoners and they are in judicial custody, thus u/S.428 of Cr.P.C. they are benefit of set off for the period they have already undergone in judicial custody. Office to intimation to the Jail Authorities to that effect.
Supply free copy of the Judgment to all the accused persons. (Dictated to the Steno directly on computer, typed by him, same was corrected by me and then pronounced in open court on this the 31st day of August 2018).
(NAGESH MURTHY.B.K) X A.C.M.M., BENGALURU.
39 CC No.56694/2018 ANNEXURE LIST OF WITNESSES EXAMINED Prosecution Defence PW.1 Bhattrachar.B.V.N Nil PW.2 Sridhar. PW.3 Dr.Surendra PW.4 Dr.Suresh PW.5 Vishwanath. PW.6 Deepak. PW.7 Manu Kumar. PW.8 Chandan. PW.9 Nandeep. PW.10 Arul Murgan. PW.11 Tarun PW.12 Alex. PW.13 Nagendra Kumar. PW.14 Deepak. PW.15 Pandiya. PW.16 Venkataraju. PW.17 Revanna Siddappa Indi. PW.18 Narasimha Murthy. PW.19 S.R.Chandradhar. Exhibits Marked Ex.P1 Copy of the Notification. Ex.P1(a)Signature of PW.19 Ex.P2 Copy of the Annexure Ex.P2(a)Signature of PW.19 Ex.P2(b)Serial No.59 area. Ex.P3 Map. Ex.P3(a) Signature of PW.19 Ex.P4 Map Ex.P4(a) Signature of PW.19 Ex.P5 Notice Copy. Ex.P5(a) Signature of PW.1. Ex.P5(b) Signature of PW.19. Ex.P6 Copy of the reply. Ex.P6(a) Signature of PW.1. Ex.P7 Attendance Register. Ex.P7(a) Signature of PW.1. 40 CC No.56694/2018
Ex.P7(b) Signature of PW.1 in attendance Reg. Ex.P8(1) Complaint.
Ex.P8(1)(a) Signature of PW.1.
Ex.P8(1)(b) Signature of PW.18.
Ex.P9 Mahazar Notice.
Ex.P9(a) Signature of PW.1.
Ex.P9(b) Signature of PW.18.
Ex.P10 Spot Mahazar.
Ex.P10(a)Signature of PW.1.
Ex.P10(b)Signature of PW.10.
Ex.P10(c)Signature of PW.11.
Ex.P10(d)Signature of PW.19.
Ex.P11 Seizure mahazar.
Ex.P11(a)Signature of PW.1.
Ex.P11(b)Signature of PW.14.
Ex.P11(c)Signature of PW.15.
Ex.P11(d)Signature of PW.19.
Ex.P12 Covering letter.
Ex.P12(a)Signature of PW.1.
Ex.P13 Notice to CW.2 given by P.I., R.M.Nagar police station.
Ex.P13(a) Signature of PW.2.
Ex.P14 Mahazar.
Ex.P14(a)Signature of PW.2.
Ex.P14(b)Signature of PW.19.
Ex.P14(c)Signature of CW.25.
Ex.P14(d)Signature of CW.26.
Ex.P15 Wound Certificate.
Ex.P15(a) Signature of PW.3.
Ex.P15(b) Signature of PW.19.
Ex.P16 Requisition.
Ex.P16(a) Signature of Venkoba Rao.
Ex.P17 Wound Certificate of Vishwanath.
Ex.P17(a) Signature of PW.3.
Ex.P17(b) Signature of PW.19.
Ex.P18 Requisition.
Ex.P18(a) Signature of Venkoba Rao.
Ex.P19 Wound Certificate of Chandan.41 CC No.56694/2018
Ex.P19(a) Signature of PW.4.
Ex.P19(b) Signature of PW.19.
Ex.P20 Wound Certificate of Manu Kumar.
Ex.P20(a) Signature of PW.4.
Ex.P20(b) Signature of PW.19.
Ex.P21 Requisition.
Ex.P21(a) Signature of PW.1.
Ex.P22 Notice to CW.6.
Ex.P22(a) Signature of CW.6.
Ex.P22(b) Signature of CW.7.
Ex.P22(c) Signature of CW.8.
Ex.P22(d) Signature of CW.9.
Exs.P23 to P26 Photos. Ex.P27 Statement of CW.6/PW.6 Deepak. Ex.P28 Statement of CW.7/PW.7 Manu. Ex.P29 Statement of CW.8/PW.8 Chandan Ex.P30 Statement of CW.9/PW.9 Nandeep Ex.P31 Notice to CW.11. Ex.P31(a) Signature of PW.10. Ex.P31(b) Signature of PW.11. Ex.P31(c) Signature of PW.19. Ex.P32 Statement of CW.12. Ex.P33 Seizure Mahazar. Ex.P33(a) Signature of PW.12. Ex.P33(b) Signature of PW.13. Ex.P33(c) Signature of PW.19. Ex.P34 Notice to CWs.13 and 14. Ex.P34(a) Signature of PW.12. Ex.P35 Statement of PW.12. Ex.P36 Statement of PW.13. Ex.P37 Notice to CWs.14 and 15. Ex.P37(a) Signature of PW.14. Ex.P37(b) Signature of PW.15. Ex.P37(c) Signature of PW.19. Ex.P38 Statement of PW.14. Ex.P39 Statement of PW.15. Ex.P40 Report given by PW.16. Ex.P40(a) Signature of PW.16. 42 CC No.56694/2018 Ex.P40(b) Signature of PW.19. Ex.P41 FIR. Ex.P41(a) Signature of PW.18. Ex.P42 Spot mahazar (PF 85/17) Ex.P42(a) Signature of PW.19. Ex.P43 Requisition to add some other IPC sections. Ex.P43(a) Signature of PW.19. Ex.P44 Seizure mahazar PF 86/2017. Ex.P44(a) Signature of PW.19. Ex.P45 Notice to Media 360 Ex.P45(a) Signature of PW.19. Ex.P46 Reply given by Media 360 Ex.P46(a) Signature of PW.19. Ex.P46(b) Signature of accused No.8. Ex.P47 Tax paid receipt (Xerox) Ex.P47(a) Signature of PW.1. Ex.P48 Seizure mahazar PF 87/2018. Ex.P49 Notice to CWs.2 to 5. Ex.P49(a) Signature of PW.19. Ex.P50 Xerox copy of Agreement. Ex.P50(a) Signature of PW.19. Ex.P51 Mobile seizure. Ex.P51(a) Signature of PW.19. Material Objects got marked M.O.1 Stick. M.O.2 Bottle (broken) M.O.3 Pen Drive. M.O.4 Phone. X A.C.M.M., Bengaluru.