Bangalore District Court
State By vs Rajashekar H.T on 8 April, 2019
1 CC.No.52059/2016
IN THE COURT OF THE XLIII ADDL.C.M.M
MAYO HALL UNIT, BENGALURU
Dated: This the 8th day of April 2019
PRESENT: Sri. PRAKASH NAYAK,
B.A.(LAW)., LL.B.,
XLIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
CC.No.52059/2016
Complainant: State by, HAL Police Station
(By Sr.APP)
Accused: Rajashekar H.T.
S/o.Thimmegowda
Aged about 39 years
Bill No.130, Depot -14,
R.T.Nagar, Bengaluru
R/at.Udduru, Hosahalli Village,
Hosur Hobli, Keregodu Post,
Holenarasipura Tq, Hasan Dist.
(By Sri. N.V.R. Advocate)
JUDGMENT
The PSI of HAL P.S filed the instant charge sheet against the accused for offence punishable u/s. 341, 504, 354(A) and 506 of IPC. ,,,
2. The gist of the prosecution case is that Cw.1 and Cw.2 were appointed BMTC by check the BMTC passengers and accused is the conductor and Cw.5 is the driver of BMTC bus and on 12-07-2015 2 CC.No.52059/2016 Cw.5 was driving BMTC bus bearing reg.no.KA01-F-4835 in route no.500 F/11 and 500D and accused No.1 working as conductor in the said bus nearby stage-8, Marathahalli Bridge which comes within the limits of HAL P.S., Cw.1 and Cw.2 entered the said bus at about 5-20 p.m. and found that one passenger has not obtained ticket for Rs.25/- and hence they imposed fine of Rs.250/- to the said passenger and issued receipt and further they found some irregularities in the trip sheet of the accused and then Cw.1 informed the accused that he will register the case against him in this regard, then the accused voluntarily restrained Cw.1 and Cw.2, abused them in filthy language and further pulled the uniform of Cw.2 who is lady and thereby tried to outrage her modesty in the public and further posed life threat to Cw.1 and Cw.2 a and thereby the accused has committed aforesaid offence. Concerned police registered Cr.No.500/2015.
3. The accused in response to the summons appeared before the Court through his counsel and he is on bail. As contemplated U/s.207 of Cr.P.C., the copy of charge sheet furnished to the accused. Subsequently, charge is framed and read over to the accused, who pleaded not guilty and claims to be tried.
4. The prosecution in order to prove its case has examined Pw.1 to Pw.6, Ex.P1 to Ex.P4 got exhibited. After closure of the prosecution evidence the accused is examined U/s.313 Cr.P.C.
3 CC.No.52059/2016wherein the accused has denied the incriminating evidence appears against him and he has not chosen to adduce any evidence.
5. Heard. The learned Sr.APP for prosecution and learned counsel for accused and perused the records.
6. The following points arise for consideration of the Court.
1. Whether the prosecution beyond reasonable doubt proves that the accused committed offence punishable U/s. 341, 504, 354(A) and 506 of IPC?
2. What order?
7. My answer of the aforesaid points.
Point No.1 - In the Negative
Point No.2 - As per final order for the following
REASONS
8. Point No.1: In order to substantiate its case the prosecution has initially examined Cw.2 as Pw.1, who deposed that on 12-07- 2017 along with Cw.1 she was checking the BMTC bus driven by Cw.5 nearby Marathahalli Bridge, they found that a passenger is traveling without obtaining ticket and hence they imposed fine of Rs.250/- on him and when they were preparing to register case against the accused, the accused abused them in filthy language and pulled her hand, snatched the case papers and letter, the accused posed life threat to them. She further deposed that she obtained 4 CC.No.52059/2016 signature of Cw.5 on the said memo of accusation and as per the advice of the higher officials along with Cw.1 went to the police station and submitted Ex.P1 FIS. She further deposed that in this regard Cw.1 has given written complaint to the police and later the police have conducted mahazar in their presence. However in her cross-examination Pw.1 admitted that she had no impediment to submit FIS against the accused personally. She admitted that normally whenever inspecting the bus, at the first instance they will collect the gate pass, trip sheet and in this case they have obtained trip sheet and gate pass from the conductor and not handed over it to the police. She admitted that neither in Ex.P1 FIS nor in her statement it is stated about the number and names of passengers who were traveling in the said bus on the said day. She further admitted that she has also not handedover the receipt for having imposed fine to passenger to the police. According to her when the incident took place in the bus all the passengers got down from bus and went away. She has also stated that immediately after the incident at the first instance they went to Hebbal police station and later went to HAL police station. She denied that on the said day no such incident took place and only with an intention to cause loss and hardship to the accused a false case has been registered. She further deposed that on the said day the accused has refused to sign charge sheet and she denied that she is deposing falsehood before the court.
5 CC.No.52059/20169. Further the prosecution has examined Cw.4 Hanumantharaya C.R. as Pw.2, who deposed that as per the instructions of his higher authorities he went to Marathahalli to enquire about the quarrel took place between accused and Cw.1 and Cw.2 and he enquired Cw.1 and Cw.2 and they narrated him about the incident and in this regard he has given statement before the police. However in his cross-examination Pw.2 admitted that as per the rules the charge sheet or memo of accusation has to be signed by the conductor/accused and according to him they have handedover the receipt to the police to show that on the said day a passenger was traveling without ticket and they imposed fine of Rs.250/- to him. He denied that in order to assist his colleagues he is deposing falsehood before the court.
10. Further the prosecution has examined Cw.6 Mariya Carael as Pw.3, who though identified her signature on Ex.P2 panchanama, denied its contents and in her cross-examination made by Lr.Sr.APP she has reiterated that in her presence no panchanama was conducted and she denied that she is deposing falsehood before the court. Further the prosecution has examined Cw.3 Nataraj.N as Pw.4, who deposed that as per the instructions of his higher authorities at about 6 p.m. he went to Hebbal bus stop and enquired about the reason for quarrel between accused and Cw.1 and Cw.2 and both Cw.1 and Cw.2 informed him about the incident and in this regard he has given statement before the court. In his cross-
6 CC.No.52059/2016examination Pw.4 admitted that he has not handedover any documents to the police to show that on the said day he was on duty and he admitted that he is not an eye witness to the incident and he denied that he is deposing falsehood before the court. Further the prosecution has examined Cw.8 Srinivasareddy as Pw.5, who deposed that on 12-07-2015 at 11 a.m. he received Ex.P1 FIS from Cw.1 and registered FIR as per Ex.P3 and handedover the file to Cw.9 for further investigation. In his cross-examination he denied that he has registered a false case against accused and on the said day to submit Ex.P1 along with Cw.1, Cw.2 and another person came to the police station. Further the prosecution has examined Cw.5 Lakshman Naik as Pw.6, who partly supported the case of the prosecution by deposing that about 2/3 years ago while he was driving the bus the accused was working as conductor and nearby Marathahalli at about 6 p.m. the Cw.1 and Cw.2 came and obtained the ticket issuing machine, while some quarrel took place between Cw.1 and Cw.2 and accused and he do not know the reason and details of the quarrel. Since Pw.6 turned hostile to the case of the prosecution he is treated as partly hostile witness and in his cross- examination he denied that on the said day the accused quarreled with Cw.1 and Cw.2, abused them in filthy language and posed life threat to them and misbehaved with Cw.2. He denied that in respect of this he has given statement to police as per Ex.P4 and he is deposing falsehood before the court. However in his cross- examination made by Lr.Counsel for accused he admitted that he has 7 CC.No.52059/2016 not given any statement in respect of incident either before the police or before his higher authorities. The materials on record reveals that in spite of availing sufficient opportunity the prosecution has failed to secure Cw.1, Cw.7 and Cw.9. Considering the failure of the prosecution in securing these witnesses in spite of availing sufficient opportunity the court has constrained to close the prosecution evidence.
11. Relaying upon aforesaid evidence on record the Lr.Sr.APP submitted that the prosecution has proved the case beyond reasonable doubt. On the other hand the Lr.Counsel for accused submitted that the prosecution has not examined any eye witnesses and the prosecution has not proved the case as per law and hence accused may be acquitted. The careful perusal of the materials on record clearly reveals that though the prosecution has alleged several allegations against the accused, it has failed to substantiate these allegations by adducing required, oral and documentary evidence. As mentioned above Cw.1 who is the complainant in this case is not secured by the prosecution in spite of availing sufficient opportunity. Likewise the prosecution has not examined Cw.9 who is the IO. As stated above it is the specific case of the prosecution and the witnesses examined on behalf of the prosecution that on the alleged date of incident one passenger was traveling without obtaining ticket and hence Cw.1 and Cw.2 imposed fine of Rs.250/- on him and issued receipt. Pw.2 Hanumantharaya .C.R. in his examination has 8 CC.No.52059/2016 stated that the copy of said receipt is handedover to the police whereas Pw.1 has stated that the said receipt is not given to the police. Admittedly no such document is placed before the court to corroborate the case of the prosecution. Further according to prosecution and Cw.1 and Cw.2 on the said day the accused misbehaved with Cw.2 by pulling her uniform. Surprisingly the said victim who is examined as Pw.1 not stated anything about the commission of offence punishable u/s.354(A) of IPC. It is an admitted fact that Pw.2 Hanumantharaya C.R., Pw.4 Nataraj.N who are the officials of BMTC and they are not an eye witnesses to the incident and hence their evidence is not helpful to the prosecution in any way. Further Pw.3 Mariya Carael turned hostile to the case of the prosecution and Cw.5 Lakshman Naik also turned hostile to the case of the prosecution and hence their evidence is also not helpful to the prosecution. Pw.5 Srinivasreddy only deposed about the fact of receipt of FIS, registration of FIR. When the evidence of Pw.2 to Pw.6 excluded, the only evidence available on record is the evidence of Pw.1. It is admitted by the prosecution witnesses that normally when the officials of BMTC were inspecting the bus, bus pass and ticket of passengers, usually at the first instance they will take gate pass and trip sheet from the hand of the conductor. In this case as admitted by the Pw.1 that initially they took trip sheet and gate pass from the accused and Pw.1 has stated that same is not handedover to the police. On the other hand Pw.2 has stated that the copy of said trip sheet and gate pass handedover to the police. The said 9 CC.No.52059/2016 contradictions existing in the version of Pw.1 and Pw.2 is not satisfactorily explained by the prosecution. Pw.1 has stated that at the time of the incident the passengers in the bus got down and went away and none of the passengers pacified the quarrel. Therefore, the said version of Pw.1 reveals that at the time of alleged incident except accused and Cw.5 and Cw.1 and Cw.2 none were present. Surprisingly the alleged incident though said to have took place nearby Marathahalli, the complainant and Cw.2 went to Hebbal police station and subsequently FIS was submitted to HAL P.S. No satisfactory explanation is offered by the prosecution why immediately after the incident Cw.1 and other victims not approached the jurisdictional police station which is situated nearby to the alleged place of incident. Further it is the case of the prosecution that at the time of the incident the accused has pulled Cw.2 and posed life threat to her. However said Pw.1 has not supported the case of the prosecution in respect of the said allegation made against the accused in her oral evidence. Further in order to show that on the said day the accused was on duty, the prosecution has not produced any document. The prosecution ought to have produced the relevant trip sheet and gate pass to show that on the said day the accused was on duty in BMTC in the said bus on aforesaid route number. Further it is relevant to note that in Ex.P1 FIS the complainant mentioned that the accused at the time of the incident has voluntarily assaulted him. If at all the accused has assaulted Cw.1 at the time of incident, the complainant ought to have taken treatment in the 10 CC.No.52059/2016 hospital. Admittedly no wound certificate or no documents from the hospital were produced in this case. All these evidence on record clearly reveals that the prosecution in this case has miserably failed to prove guilt of accused beyond reasonable doubt. Further the court opines that the prosecution has not established the existence of mandatory ingredients of the offence as alleged against the accused. Taking into consideration the failure of the prosecution in securing the Cw.1 and the IO and other material witnesses, the court opines that this is a fit case to give benefit of doubt to accused.
12. The aforesaid oral and documentary evidence on record clearly reveal that the prosecution has not adduced any cogent evidence to prove the guilt of the accused beyond reasonable doubt. The evidence of Pw.1 and Pw.6 is not sufficient to accept the case of the prosecution. There is no incriminating evidence against the accused persons which establishes the guilt of the accused persons. In view of the aforesaid materials on record, the Court is of the opinion that the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. Further it is settled law that on assumptions and presumptions the case of the prosecution cannot be proved and accepted. Further it is settled law that when two views are possible the view which is favourable to the accused has to be accepted. In view of the aforesaid discussions and for the aforesaid reasons the Court proceed to answer Point No.1 in the Negative.
11 CC.No.52059/201613. Point No.2 : For the aforesaid reasons, the Court proceed to pass the following ORDER Acting U/s.248(1) of Cr.P.C. accused is hereby acquitted for the offence punishable U/s. 341, 504, 354(A) and 506 of IPC.
The bail bond of the accused shall stand in force for a period of 6 months as contemplated u/s.437(A) of Cr.P.C.
(Dictated to the steno, transcribed by her, same was corrected by me and then pronounced in open Court on this the 8th day of April 2019) (Prakash Nayak) XLIII ACMM, BENGALURU ANNEXURE LIST OF WITNESSES EXAMINED:
Pw.1 - Victim Pw.2 - Hanumantharaya C.R. Pw.3 - Mariya Carael Pw.4 - Nataraj.N. Pw.5 - Srinivasareddy Pw.6 - Lakshman Naik 12 CC.No.52059/2016 LIST OF EXHIBITS MARKED: Ex.P.1 - Complaint Ex.P.1(a) - Signature of Pw.1 Ex.P.1(b) - Signature of Pw.5 Ex.P.2 - Panchanama Ex.P.2(a) - Signature of Pw.3 Ex.P.3 - Report Ex.P.3(a) - Signature of Pw.5 Ex.P.4 - Statement of Pw.6 LIST OF MATERIAL OBJECTS GOT MARKED: Nil (Prakash Nayak) XLIII ACMM, BENGALURU 13 CC.No.52059/2016 14 CC.No.52059/2016 15 CC.No.52059/2016 16 CC.No.52059/2016 17 CC.No.52059/2016 18 CC.No.52059/2016 19 CC.No.52059/2016 20 CC.No.52059/2016 21 CC.No.52059/2016 22 CC.No.52059/2016 23 CC.No.52059/2016