Bangalore District Court
G.Krishnakumar vs Jarze Kutti @ G.K on 2 April, 2024
Digitally signed
by SHRI.
SHRI. SANJEEVKUMAR
SANJEEVKUMAR S HINDODDI
S HINDODDI
Date: 2024.04.02
KABC030895972019 17:15:50 +0530
Presented on : 07-12-2019
Registered on : 07-12-2019
Decided on : 02-04-2024
Duration : 4 years, 3 months, 26 days
IN THE COURT OF THE XXXI ADDL. CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
P RESENT :- SRI.SANJEEV KUMAR S. HINDODDI,
B.C OM ., LL.M.
XXXI ADDL. C.M.M., BENGALURU
Dated this the 02 nd Day of April, 2024
C.C. No.29116/2019
Complainant: The State by Police Sub-Inspector,
Cottonpet P.S., Bengaluru.
(By Sr. Assistant Public Prosecutor)
Versus
2 C.C.No.29116/2019
Accused: George Kutty @ G.K. s/o Jose, R/at Chakka-
purakal House, Pravatturu Dice Home,
Nidur Post, Kottayam District, Kerala State.
(By Sri U.Prasannakumar , Adv.)
PARTICULARS U/S 355 OF THE Cr.P.C., 1973
1. Sl. No. of the Case 29116/2019
2. The date of commission 04-07-2019
of the offence
3. Name of the complainant G.Krishnakumar
4. Name of the accused George Kutty @ G.K.
5. The offence complained of U/sec.224 IPC
or proved
6. Plea of the accused and Pleaded not guilty
his/her examination
7. Final Order Accused Convicted
8. Date of such order 02-04-2024
3 C.C.No.29116/2019
J UD GME N T
The Police Sub-Inspector of Cottonpet P.S., Bengaluru
has filed final report against accused for the offences
punishable U/sec.224 and 225B IPC.
2. The case of prosecution is that on 04-07-2019, CW1
G.Krishnakumar along with CW2 Pradeep Rao, CW3
Suresh Babu and CW4 Krishna Prasad, the Excise Officers
of Thiruvananthapura, Kerala were coming to Bengaluru in
Government Vehicle bearing registration No.KL 01 CC
4648 along with accused, who was being arrested in Crime
No.09/2019 registered for an offence punishable under
Sec.20(B) of NDPS Act, so as to collect evidence. At 8.30
a.m., when they reached near City Railway Underpass of
Khoday Circle, Bengaluru, the accused requested for
passing urine and while getting down, he had pushed CW1
to 4 and escaped from there. Thereby, the accused has
committed the alleged offences.
4 C.C.No.29116/2019
3. On the basis of requisition of police, this court has
issued body warrant against accused on 09-09-2019. On
23-09-2019, he was produced before the court and he was
given to police custody for two days and thereafter he was
remanded to J.C., who was produced from Central Prison,
Thiruvananthapuram, Kerala under body warrant.
4. After investigation, the I.O. has filed final report
against accused for the above said offences.This court has
taken cognizance against accused for the alleged offences.
5. After furnishing prosecution papers to accused in
compliance of Sec. 207 of Cr.P.C. and on hearing both the
sides, Plea for the offences punishable under Sec.224 and
225B IPC was read over and explained to accused, wherein
he claimed to be tried. As such, the case was posted for
trial. However on 04-11-2022, the altered Plea only for the
5 C.C.No.29116/2019
offence punishable under Sec.224 IPC was read over and
explained to accused, wherein he claimed to be tried.
6. To substantiate its case, the prosecution has
examined in all five witnesses as PW.1 to 5 and got marked
seven documents as per Ex.P.1 to 7. CW5 is reported to be
dead. The learned Sr.APP has given up CW4. Inspite of
giving sufficient opportunities to CW6, the concerned police
have failed to secure his presence. Since this is custody
matter, the prayer of learned Sr. APP was rejected and the
side of prosecution was closed.
7. Thereafter, the accused was examined U/Sec.313 of
Cr.P.C., to enable him to explain the incriminating
evidence appeared against him in the evidence of
prosecution witnesses. He denied the same and did not
choose to lead defence evidence.
6 C.C.No.29116/2019
8. Heard arguments from both the sides and perused
the material available on record, the points that arise for
my determination are;
1. Whether the prosecution proved
beyond all reasonable doubt that the
accused who was arrested in Crime
No.09/2019 registered for an offence
punishable under Sec.20(B) of NDPS
Act and brought to Bengaluru by PW1
G.Krishnakumar, PW2 Pradeep Rao,
PW3 Suresh Babu and CW4 Krishna
Prasad, the Excise Officers of
Thiruvananthapura, Kerala in
Government Vehicle bearing
registration No.KL 01 CC 4648, so as to
collect evidence, had escaped from
their custody on 04-07-2019 at about
8.30 a.m. near City Railway Underpass
of Khoday Circle, Bengaluru, by
pushing them while getting down,
when he was allowed to pass urine at
7 C.C.No.29116/2019
his request and thereby committed the
offence punishable U/Sec.224 of IPC?
2. What order?
9. My findings on the above points are as under:
Point No.1 : In the Affirmative
Point No.2 : As per final order for the following:
R EAS O N S
Point No.1:-
10. PW1 G.Krishnakumar, then Excise Inspector of
Excise Circle Office, Trivandrum, Kerala has deposed that
on 04-07-2019, he along with PW2, 3 and CW4 came to
Bengaluru along with accused in department jeep in
connection with Crime No.09/2019 of Excise Circle Office,
Trivandrum, Kerala. When they reached Bengaluru around
8.30 a.m. near Khodays Circle the accused requested for
nature call. So they stopped the vehicle and PW3 and CW4
took the accused for nature call by removing the handcuff.
8 C.C.No.29116/2019
At that time the accused by pushing PW3 and CW4, had
ran opposite and crossed the busiest road. That he along
with PW2 chased the accused, but unable to catch him.
They went to Cottonpet P.S. and filed complaint as per
Ex.P1, after that the said police visited the place of incident
and conducted mahazar as per Ex.P2, which is in Kannada
Language and explained to him in Malayalam Language by
one of the police official of Cottonpet P.S. He has also given
statement to the Assistant Excise Commissioner
(Enforcement), Thiruvananthapuram regarding the
incident, which was translated by one Vinayak Kulkarni,
which is also produced to the court.
11. PW2 Pradeep Rao then Excise Inspector of Kadkutam
Range, Trivandrum and PW3 Suresh Babu then Civil
Excise Officer, Excise Circle Office, Trivandrum, have
deposed almost in similar lines to that of PW1.
9 C.C.No.29116/2019
12. During cross-examination, PW1 to 3 have admitted
that the place of incident is very busiest area. That in the
place of incident, there is no urinals or toilets, but they
have explained and deposed that the accused attended
nature call in the open place. Further they have denied all
other suggestions put to them.
13. PW4 Henry Madan, then A.S.I. of Cottonpet P.S. has
deposed that as per the memorandum given by P.I. to him
at Ex.P4, he left Bengaluru on 11-09-2019 and reached
Thiruvananthapuram, Kerala on 12-09-2019, visited the
Central Prison, served the body warrant of accused to
concerned, returned to Bengaluru and submitted report as
per Ex.P3 to the P.I. During cross-examination, PW4 stated
that he went to Kerala by trian and obtained
acknowledgement about serving of body warrant of
10 C.C.No.29116/2019
accused to Thiruvananthapuram Prison Officers and
handed over the documents in that aspect to I.O., but he
does not know as to whether the I.O. has produced the
same or not. He has denied all other suggestions put to
him.
14. PW5 Satish.K.T. being the I.O. has deposed that PW1
appeared before him and lodged written complaint as per
Ex.P1, on the basis of which he registered Ex.P7 F.I.R. and
sent it to court as well as his superiors. On coming to
know that the accused is in Kerala Jail, he secured body
warrant against accused by way of filing requisition as per
Ex.P6 to court, produced him before the court, took him for
police custody, recorded his voluntary statement as per
Ex.P5, conducted mahazar as per Ex.P2 in the presence of
panchas and filed charge sheet, after completion of
11 C.C.No.29116/2019
investigation. During cross-examination, he has denied all
the suggestions put to him.
15. The learned Sr. APP has vehemently argued that all
the witnesses have supported the case. Further though the
witnesses are cross-examined, nothing worth was elicited
from their mouth. Hence prayed to convict the accused.
16. Per contra, the learned defence counsel has argued
that PW1 to 5 are official witnesses. Though it has come
out during cross-examination of witnesses that the place of
incident is busiest area, the I.O. has not taken much pain
to cite any independent eyewitnesses to the incident.
There is no evidence of independent witnesses. Hence by
giving the benefit of doubt, accused may be acquitted.
17. Having heard the arguments from both sides and on
perusal of the oral evidence of PW1 to 3 goes to show that
12 C.C.No.29116/2019
when they along with CW4 and accused were coming to
Bengaluru in department vehicle for enquiry in one of the
crime, on the request made by accused about natural call,
when they stopped the vehicle, the accused eloped from
their custody. The evidence of PW1 to 3, if taken as a
whole would clearly goes to show that the accused has
committed the alleged offence. In the cross-examination of
PW1 to 3 nothing substantial was elicited, so as to doubt
their evidence.
18. Of course, the evidence of mahazar witnesses is not
before the court. At this juncture, it is worth to mention
the settled principle of law that the evidence of mahazar
witness if not available then evidence of Investigating
Officer who has conducted mahazar can be relied upon.
This proposition of law finds support by the decision of our
own Hon'ble High Court reported in 2015 (1) KCCR 513
13 C.C.No.29116/2019
High Court of Karnataka V/s Syed Mohammed
Ibrahim. Here though the evidence of mahazar witnesses
is not there , but PW5 who has conducted mahazar in the
spot shown by PW1 as per Ex.P2, so also PW1 have clearly
supported the case. In that event, only on account of non-
examination of mahazar witnesses will not affect the case
of prosecution.
19. The another tenor of argument of learned defence
counsel is that except official witnesses no other
independent witnesses have been examined. So on this
count only the prosecution has failed to prove its case. At
this juncture it is profitable to mention the decision of
Hon'ble Apex Court reported in 2016 AIAR (Criminal) 335
Sadhu Saran Singh V/s State of U.P. and others ,
wherein it is observed in paragraph No.21 as follows:
14 C.C.No.29116/2019
"21 (i)......................................................
(vi) As far as the non examination of any other
independent witness is concerned, there is no
doubt that the prosecution has not been able to
produce any independent witness. But, the
prosecution case cannot be doubted on this
ground alone. In these days civilized people are
generally insensitive to come forward to give
any statement in respect of any criminal
offence. Unless it is inevitable people normally
keep away from the court as they feel it
distressing and stressful. Though, this kind of
human behaviour is indeed unfortunate, but it
is a normal phenomena. We cannot ignore this
handicap of the investigating agency in
discharging their duty. We cannot derail the
entire case on the mere ground of the absence
of independent witness as long as the evidence
of the eye witness, though interested is trust
worthy."
20. The above observation of Hon'ble Apex Court has
made it crystal clear that non examination of independent
witness will not be the ground to doubt the case of
prosecution. Here in this case PW1 to 3 have categorically
deposed the case of prosecution. Further, PW4 being the
15 C.C.No.29116/2019
then A.S.I. has deposed about serving the body warrant of
accused to the concerned. PW5 being the investigating
officer has deposed from the point of registration of case till
filing of charge sheet. Though they were cross-examined at
length, but nothing worth was elicited from their mouth to
dis-believe their version.
21. So to sum up, if the entire evidence available on
record in totality is considered, the prosecution has proved
that the accused has committed the alleged offence. On
meticulous consideration of the entire evidence available
on record, the prosecution has successfully proved that on
the alleged date, time and place, the accused resisted or
obstructed his lawful apprehension and escaped from the
custody of PW1 to 3 and CW4. The prosecution is
successful in bringing out the essential ingredients to
prove the alleged offence against accused. Hence I have no
16 C.C.No.29116/2019
hesitation to hold that the prosecution has proved that the
accused has committed the offence punishable under
Sec.224 of IPC, beyond all reasonable doubt. In the result,
I answer the above point in the affirmative.
Point No.2:
22. In this case the accused has escaped from the hands
of PW1 to 3 and CW4, while he was in their custody for
investigation purpose in one of the crime. So in my
considered opinion the accused is not entitle for the benefit
under Probation of Offenders Act.
23. Section 224 of IPC is punishable with imprisonment for
a term which may extend to two years, or fine, or both.
24. It is settled principle of law that sentence imposed shall
respond to cry of the society. Here in this case as already
17 C.C.No.29116/2019
held, the accused has escaped from the custody of Excise
Personnel.
25. At this juncture it is pertinent to mention decision of
the Hon'ble Apex Court reported in 2018 SCC OnLine SC
773 State of Rajasthan V/s Mohan Lal wherein it is held
at paragraph No.13 which reads thus;
"13. From the aforementioned observations, it
is clear that the principle governing the
imposition of punishment will depend upon the
facts and circumstances of each case. However,
the sentence should be appropriate, adequate,
just, proportionate and commensurate with the
nature and gravity of the crime and the manner
in which the crime is committed. The gravity of
the crime, motive for the crime, nature of the
crime and all other attending circumstances,
have to be borne in mind while imposing the
sentence. The Court cannot afford to be casual
while imposing the sentence, in as much as
both the crime and criminal are equally
important in the sentencing process. The
Courts must see that the public does not loose
confidence in the judicial system. Imposing
inadequate sentences will do harm to the
18 C.C.No.29116/2019
justice system and may lead to a state where
the victim loses confidence in the judicial
system and resorts to private vengeance."
26. It is noticed that the accused was involved in one of
the crime and when he was brought by Excise Personnel
for investigation in that case, he has ran away from their
custody. Hence keeping in mind the mitigating factors
against accused and considering the above ratio, I proceed
to pass the following:
ORDER
The accused is hereby convicted for the offence punishable U/s.224 IPC, by acting under Section 255(2) of Cr.P.C.
The accused shall undergo S.I. for Six Months and also pay fine of ₹10,000/-, for the offence punishable U/s.224 IPC, in default of payment of fine, he shall undergo S.I. for 30 days.
19 C.C.No.29116/2019
As the presence of accused is secured in this case by way of issuing body warrant, the accused is not entitle for any set off under Sec.428 Cr.P.C.
Office to supply free copy of this Judgment to the accused.
(Dictated to the stenographer directly on the computer, typed by him, verified and corrected by me, then the judgment pronounced by me in the open court, on this the 02nd day of April , 2024) ( SANJEEV KUMAR S. HINDODDI ), XXXI Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE Witnesses examined for the prosecution :
PW1 : G.Krishnakumar
PW2 : Pradeep Rao
PW3 : Suresh Babu
PW4 : Henry Madan
PW5 : Satish.K.T.
Documents marked on behalf of the prosecution :
Ex.P1 : Complaint
Ex.P2 : Mahazar
20 C.C.No.29116/2019
Ex.P3 : Report of PW4
Ex.P4 : Memorandum
Ex.P5 : Voluntary Statement of Accused
Ex.P6 : Requisition for issuance
of body warrant
Ex.P7 : F.I.R.
Material Objects marked on behalf of the prosecution :
Nil Witnesses examined for the defence:
None Documents marked on behalf of the defence:
Nil XXXI Addl. Chief Metropolitan Magistrate, Bengaluru.21 C.C.No.29116/2019
02-04-2024 Judgment pronounced in the open court vide separately ORDER The accused is hereby convicted for the offence punishable U/s.224 IPC, by acting under Section 255(2) of Cr.P.C.
The accused shall undergo S.I. for Six Months and also pay fine of ₹10,000/-, for the offence punishable U/s.224 IPC, in default of payment of fine, he shall undergo S.I. for 30 days.
As the presence of accused is secured in this case by way of issuing body warrant, the accused is not entitle for any set off under Sec.428 Cr.P.C.22 C.C.No.29116/2019
Office to supply free copy of this Judgment to the accused.
XXXI Addl. Chief Metropolitan Magistrate, Bengaluru.