Bangalore District Court
G.R.Naveen vs The State Of Karnataka By on 11 April, 2018
IN THE COURT OF THE LVIII ADDL.CITY CIVIL AND SESSIONS
JUDGE (CCH-59), BENGALURU CITY.
Dated this the 11th day of April, 2018
PRESENT:
Sri.S.A.Hidayathulla Shariff, B.A.,LL.M.,
LVIII Addl.City Civil & Sessions Judge (CCH-59),
Bengaluru.
: CRIMINAL APPEAL NO.1364/2016:
APPELLANTS: 1. G.R.Naveen,
S/o.Ramegowda,
Aged about 33 years,
Residing at No.3,
Lakshmi Nilaya,
10th Cross, 17th Main Road,
FFD Colony,K.G.Layout,
Laggere,
Bangalore - 560 058.
2. Mohana,
S/o.Dharmappa,
Aged about 38 years,
Residing at No.70,
17th Main Road,
10th Cross, FFD Colony,
K.G.Layout, Laggere,
Bangalore - 560 058.
-V/S-
RESPONDENT : The State of Karnataka by
Subramanyanagar Police Station,
Bangalore.
2 Cr.Appeal No.1364/2016
: JUDGMENT :
This appeal is preferred by the appellant/accused persons under section 374(3) of Cr.P.C. is directed against the judgement and order of sentence dated:05.10.2016 passed by the learned VII Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No. 20687/2009 on his file convicting the appellant/accused for the offences punishable under sections 323, 353 and 504 of IPC. The trial court has sentenced the accused Nos.1 and 2 to pay a fine of Rs.1,000/- each and in default to undergo simple imprisonment for seven days, for the offence punishable under section 323 read with section 34 of IPC and sentenced the accused to undergo simple imprisonment for one and half year and to pay a fine of Rs.2,000/- each and in default to undergo simple imprisonment for one month for the offence punishable under section 353 read with section 34 of IPC and sentenced the accused to pay a fine of Rs.2,000/- each and in default to undergo simple imprisonment for one month for the offence punishable under section 504 read with section 34 of IPC.. Aggrieved by the judgement and order of sentence passed by the trial court, the appellant/accused Nos.1 and 2 have preferred the present appeal.
3 Cr.Appeal No.1364/2016
2. For the sake of convenience, the parties will be referred to as per their ranking assigned in the Court below.
3. Brief facts for the disposal of this appeal are as under:
The Police Inspector, Subramanyanagar police station has filed the charge sheet against the accused Nos.1 and 2 for the offences punishable under sections 323, 353 and 504 read with section 34 of IPC. The case of the prosecution in brief is that on the 21.06.2009 at about 3-50 a.m., near Jyothi Bakery junction, M.K.K.Road, when P.W.1-Arunkumar and P.W.3-Shashikumar, the two police constables of Subramanyanagar police station were on beat duty questioned the presence of the accused persons near the Jyothi Bakery junction at the odd hour of the early morning, at that moment, both the accused persons in furtherance of their common intention have picked up quarrel with P.W.1 and P.W.3, the police constables on public duty and intentionally insulted them by abusing them in vulgar words and among the accused, accused No.1-
Naveen has assaulted on the nose of P.W.1-Arunkumar with hands and voluntary caused hurt to him and deterred the public servants on duty from discharging their duties.
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4. After filing of the charge sheet, the trial court has took cognizance and registered a case against the accused Nos.1 and 2 and issued summons to the accused Nos.1 and 2. In response to court summons accused Nos.1 and 2 appeared before the court and they were represented by a counsel. Trial court has framed charge against the accused Nos.1 and 2 for the offences punishable under sections 323, 353 and 504 read with section 34 of IPC. Both the accused have pleaded not guilty of the charge levelled against them and claimed to be tried.
5. A perusal of the trial court record discloses that in proof of its case, prosecution has got examined eight witnesses as PW-1 to P.W.8 and tendered Ex.1 to Ex.P.7 documents in evidence and M.O.1 material object was identified in evidence of the prosecution witnesses. The statement of accused persons under section 313 of Cr.P.C. was recorded with reference to the incriminating evidence found against them. The accused Nos.1 and 2 have denied the incriminating evidence found against them. The accused have not led defence evidence.
6. After hearing both sides and perusing oral and documentary evidence, the learned VII Additional Chief Metropolitan 5 Cr.Appeal No.1364/2016 Magistrate, Bengaluru City, by impugned judgment and order dated 05.10.2016, convicted the accused Nos.1 and 2 for the offences punishable under sections 323, 353 and 504 read with section 34 of IPC. Being aggrieved by the said conviction judgment and order of sentence, the appellant/accused have preferred this appeal challenging the impugned judgment and order of sentence.
7. Several grounds were urged in the memorandum of appeal. It is contended that the impugned judgment and sentence passed by the trial court is not in accordance with the law, facts and probabilities of the case. It is further contended that in absence of production of reliable evidence by the prosecution to prove the charge under section 504 read with section 34 of IPC, the trial court has erred in convicting the accused for the offence punishable under section 504 of IPC. It is further contended that the trial court has erred in not considering the variation of time found in the evidence of prosecution witnesses with regard to the time of commission of the alleged offence has erred in not giving benefit of doubt to the accused persons. The trial court has erred in not considering the admission found in the evidence of PW-4-Medical officer with regard to alternative possibility of sustaining injury by the 6 Cr.Appeal No.1364/2016 injured. It is further contended that the trial court has erred in not considering the fact that PW-1, 3, 6 and 7 are the officials of police department and they are interested witnesses and hence, their evidence is not reliable. . It is further contended that trial court has erred in not considering the fact that the PW-2 and 5, who are two independent witnesses examined by the prosecution have not supported the prosecution case. On these grounds, the appellant/accused have sought to allow the appeal and to set aside the impugned judgment and order of sentence passed by the trial court.
8. After filing of the appeal, notice was issued to the respondent. Respondent has resisted the appeal through learned Public Prosecutor.
9. Heard the learned counsel for the appellant and learned Public Prosecutor. Perused the trial court records.
10. The following points that arise for my consideration are:-
1. Whether the appellant proves that trial Court has committed error in convicting the appellant/accused Nos.1 and 2 for the offences 7 Cr.Appeal No.1364/2016 punishable under sections 323, 353 and 504 read with section 34 of IPC.
2. Whether the impugned judgment and order of sentence passed by the trial court required to be interfered by this Court by exercising appellate jurisdiction?
3. What order?
11. My findings on the above points are as follows:-
POINT NO.1 - Partly affirmative; POINT NO.2 - Partly affirmative; POINT NO.3 - As per final order, for the following:-
: REASONS :
12. POINT NOS.1 and 2: Since, these two points are inter connected with each other, to avoid repetition of facts and findings, both these points are taken up together for consideration
13. The learned counsel for the appellant has argued that in absence of production of reliable evidence by the prosecution to prove the charge under section 504 of IPC, the trial court has erred in convicting the accused for the offence punishable under section 8 Cr.Appeal No.1364/2016 504 of IPC. It is further argued that the trial court has erred in not considering the variation of time found in the evidence of prosecution witnesses with regard to the time of commission of the alleged offence has erred in not giving benefit of doubt to the accused persons. The trial court has erred in not considering the admission found in the evidence of PW-4-Medical officer with regard to alternative possibility of sustaining injury by the injured. It is further argued that the trial court has erred in not considering the fact that PW-1, 3, 6 and 7 are the officials of police department and they are interested witnesses and hence, their evidence is not reliable. . It is further argued that trial court has erred in not considering the fact that the PW-2 and 5, who are two independent witnesses examined by the prosecution have not supported the prosecution case.
14. On the other hand, the learned Public Prosecutor representing the respondent has supported the reasoning and finding recorded by the trial court, which resulted in passing of judgment convicting the appellant/accused for the commission of offences punishable under sections 323, 353 and 504 read with section 34 of IPC.
9 Cr.Appeal No.1364/2016
15. In light of the arguments advanced by the learned counsel for the appellant/accused Nos.1 and 2 and the learned Public Prosecutor representing the respondent, a perusal of the trial court record discloses that the appellant/accused have stood the trial for commission of the offences punishable under sections 323, 353 and 504 read with section 34 of IPC. The charge against the appellant/accused Nos.1 and 2 is that on 21.06.2009 at about 3-50 a.m., near Jyothi Bakery junction, M.K.K.Road, when P.W.1- Arunkumar and P.W.3-Shashikumar, the two police constables of Subramanyanagar police station were on beat duty questioned the presence of the accused persons near the Jyothi Bakery junction at the odd hour of the early morning, at that moment, both the accused persons in furtherance of their common intention have picked up quarrel with P.W.1 and P.W.3, the police constables on public duty and intentionally insulted them by abusing them in vulgar words and among the accused, accused No.1-Naveen has assaulted on the nose of P.W.1-Arunkumar with hands and voluntary caused hurt to him and deterred the public servants on duty from discharging their duties.
10 Cr.Appeal No.1364/2016
16. A perusal of the evidence on record discloses that P.W.1-Arun Kumar, the police constable of Subramanyanagar police station is the injured/first informant. P.W.1 has given evidence stating that on the early morning of 21.06.2009 at about 3-45 a.m near Jyothi Bakery when himself and P.W.3-Shashikumar, who are on beat duty have enquired about the presence of the accused persons, accused No.1 assaulted him on his nose and caused injuries to him. The accused have prevented them from discharging their duties as public servants. He has lodged Ex.P.1 first information statement before the police and attested Ex.P.2-spot mahazar at the place of occurrence and also identified M.O.1 as the shirt belonging to him.
17. P.W.2-Manjunath was examined by the prosecution as one of the independent eyewitness of the incident who has deposed his ignorance with regard to the alleged incident and thereby turned totally hostile to the prosecution case.
18. P.W.3-B.R.Shashikumar, one of the constable of Subramanyanagar police station was examined by the prosecution as one of the eyewitness of the incident. P.W.3 in his evidence has 11 Cr.Appeal No.1364/2016 deposed that on the morning of 21.06.2009 at about 3-50 a.m., near Jyothi Bakery when himself and P.W.1-Arunkumar have questioned the presence of the accused persons, accused have abused them and accused No.1 has punched on the nose of P.W.1 and caused injuries to P.W.1.
19. P.W.4-Dr.M.S.Swarna Gowri, the medical officer of K.C.G.hospital examined by the prosecution has given evidence about the clinical examination of the injured P.W.1-Arunkurmar on 21.06.2009 at about 5-20 a.m. on a history of assault and found that injured had bleeding from septum of the nose and tenderness on the left side of the root of the nose. P.W.4 in her evidence has identified Ex.P.5 as the wound certificate issued by her.
20. P.W.5-Lokesh Shetty, was examined by the prosecution as one of the independent eyewitness of the incident who has deposed ignorance with regard to the alleged incident, thereby turned totally hostile to the case of the prosecution.
21. P.W.6-S.Sridhar, former police inspector of Subramanyanabgar police station, P.W.7-P.Ramaiah, former A.S.I of Subramanyanagar police station were examined by the prosecution 12 Cr.Appeal No.1364/2016 as two investigating officers, who have given evidence with regard to the investigation conducted by them. P.W.8-Rangaswamaiah the former ASI of Subramanyanagar police station has given evidence about the arrest of accused No.2 on 21.06.2009 at his residence at Laggere.
22. In light of the above mentioned evidence led by the prosecution , a perusal of the evidence on record discloses that the first charge against the accused is under section 323 of IPC. It is the case of prosecution that accused persons in furtherance of their common intention among the accused, accused No.1-Naveen has assaulted P.W.1-Arunkumar with hands on his nose and voluntary caused hurt to him.
23. A perusal of the evidence on record discloses that P.W.1-Arunkumar the injured/first informant has given evidence corroborating the material particular of Ex.P.1 first information statement lodged by him stating that during the course of incident accused No.1-Naveen has assaulted him with hands on his nose and caused injuries to him. The evidence of P.W.1 with regard to the alleged assault committed on him by accused No.1 causing injuries 13 Cr.Appeal No.1364/2016 is fully corroborated by the evidence of P.W.3-V.R.Shashikumar another police constable who was accompanying P.W.1 on beat duty. The evidence of P.W.1 and 3 with regard to the alleged injuries sustained by P.W.1, as a result of assault by accused No.1- Naveen was fully corroborated by the medical evidence produced on record. P.W.4-medical officer has given evidence with regard to clinical examination of injured P.W.1-Arunkumar on a history of assault and nature of injuries found on the nose of the injured,
24. A perusal of cross-examination of P.W.1, 3 and 5 discloses that in their cross-examination, no materials were elicited to disbelieve the case of the prosecution to the effect that accused persons shared common intention and accused No.1 in furtherance of his common intention with accused No.2 has assaulted P.W.1- Arunkumar with hands on his nose and voluntary caused injuries to him.
25. With regard to the arguments of learned counsel for the appellant/accused is concerned, merely because P.W.1 and P.W.3 are the police officials and colleagues is not sufficient to brand their evidence as interested evidence in the absence of accused 14 Cr.Appeal No.1364/2016 proving the fact that P.W.1 and 3 they have any personally enmity against him to implicate him in a false case. Further, with regard to the fact that independent eyewitnesses not supporting the prosecution case is concerned, it is pertinent to note that under section 134 of Evidence Act, no particular number of witnesses are required to prove a fact. Hence, in light of the cogent and consistent evidence of P.W.1 and P.W.3 with regard to alleged assault committed by the accused persons on P.W.1-Arunkumar, mere fact that independent witnesses examined by the prosecution have not supported the prosecution case cannot be a dent in prosecution case to disbelieve the case of the prosecution .
26. By perusing the oral and documentary evidence produced on record and re-appreciation of the same, I hold that the prosecution has proved the charge leveled against the accused Nos.1 and 2 for the offence punishable under section 323 read with section 34 of IPC and trial court has rightly came to the conclusion that the prosecution has proved the charge leveled against the accused for the offence punishable under section 323 read with section 34 of IPC.
15 Cr.Appeal No.1364/2016
27. The second charge against the accused is under section 353 read with section 34 of IPC. It is the case of the prosecution that the accused persons in furtherance of their common intention by assaulting P.W.1-Arunkumar the police constable on beat duty have deterred him from discharging his duties as public servant.
28. To prove a charge under section 353 of IPC, prosecution has to prove the following essential ingredients.
1) Accused assaulted or used criminal force to a public servant.
2) Such public servant was then acting in the discharge of his duty.
3) Accused assaulted with intention of preventing or deterring such public servant from discharging his duties.
4) Criminal force was used in consequence of anything done or attempted to be done by the said public servant.
29. A perusal of the evidence on record discloses that the P.W.1 injured/first informant in his evidence has stated a stray sentence that the accused have prevented them from discharging their duties. However, the evidence of P.W.1-Arunkumar with regard 16 Cr.Appeal No.1364/2016 to the alleged deterrence caused by the accused to discharge public duty is not corroborated by any other evidence. P.W.3-Shashikumar, one of the eyewitness of the incident, who was also a police constable accompanying P.W.1 when the alleged incident took place in his evidence has not stated the fact that the alleged assault committed by the accused on P.W.1was with an intention to prevent them from discharging their duties as public servants. Except a stray sentence in the evidence of P.W.1 that the accused have prevented him from discharging his duties, prosecution has not produced any other reliable evidence to prove that the accused have assaulted P.W.1-Arunkumar with an intention to prevent him or cause any deterrence to him from discharging his duty as public servant. In absence of credible evidence to the effect that the alleged assault committed by the accused was with an intention to prevent or deter P.W.1 and 3 from discharging their duties as public servants, a stray sentence in the evidence of P.W.1 is not sufficient to prove the charge leveled against the accused for the offence punishable under section 353 read with section 34 of IPC.
30. The third and the last charge against the accused is under section 504 read with section 34 of IPC. It is the case of 17 Cr.Appeal No.1364/2016 prosecution that during the course of incident, both the accused persons in furtherance of their common intention have abused P.W.1 and P.W.3 in vulgar words and caused intentional insult to them.
31. In a decision reported between Rameshwar Prasad V/s. State 1984 Crl.L.J 996, it was held that in the absence of actual words used by the accused in the complaint and also in the evidence of the prosecution witnesses conviction under section 504 of IPC cannot be sustained.
32. Further in a decision reported between Sadananda V/s Sibkali reported in 1954 Crl.L.J.800, it was held that mere use of abusive word will not come within the purview of section 504 of IPC. It was further held that prosecution is required to prove that the alleged abusive words used by the accused were accompanied by an intention to cause breach of peace or knowledge that the breach of peace is likely to be caused.
33. In light of the ratio of the above cited decisions a perusal of evidence on record discloses that both P.W.1 and 3 in their evidence have not stated the actual words used by the accused which caused intentional insult to them. Apart from that the 18 Cr.Appeal No.1364/2016 prosecution has not produced any reliable evidence to prove that the alleged abusive words used by the accused were used with an intention to cause breach of peace. Under these circumstances, a stray sentence in the evidence of P.W.1 and 3 that the accused have abused them is not sufficient to prove the charge leveled against the accused under section 504 read with section 34 of IPC.
34. By perusing the impugned judgment passed by the trial court in light of re-appreciation of the oral and documentary evidence produced on record by the prosecution, I hold that with regard to the offence under section 323 read with section 34 of IPC, the trial court properly appreciated the oral and documentary evidence in proper perspective and rightly came to the conclusion that the prosecution has proved that the accused have committed an offence punishable under sections 323 read with section 34 of IPC. However, with regard to the charges under sections 353 and 504 read with section 34 of IPC is concerned, the trial court has not properly appreciated the oral and documentary evidence produced on record and erred in coming to the conclusion that prosecution has proved the charges level led against the accused for the offences punishable under sections 353 and 504 read with section 19 Cr.Appeal No.1364/2016 34 of IPC. The appeal filed by the appellant/accused is required to be partly allowed with regard to their conviction and sentence for the offences punishable under sections 353 and 504 read with section 34 of IPC and the appeal filed by the appellant/accused with regard to their conviction and sentence for the offence punishable under sections 323 read with section 34 of IPC deserves to be rejected. With these observations, I answer point Nos.1 and 2 partly in the affirmative.
35. POINT No.3: In view of my finding on point Nos.1 and 2, I proceed to pass the following:
: ORDER :
The appeal filed by the appellant/accused Nos.1 and 2 under section 374(3) of Cr.P.C., is hereby partly allowed.
The judgment and order of sentence passed by the learned VII Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No.20687/2009 dated 05.10.2016 is hereby confirmed with regard to the offence punishable under section 323 read with section 34 of IPC.20 Cr.Appeal No.1364/2016
The judgment and order of sentence passed by the learned VII Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No.20687/2009 dated 05.10.2016 is hereby set aside with regard to the offences punishable under sections 353 and 504 read with section 34 of IPC.
The appellant/accused Nos.1 and 2 are hereby acquitted for the offences punishable under sections 353 and 504 read with section 34 of IPC.
The appellant/accused Nos.1 and 2 are ordered to surrender before the trial court immediately and to undergo the sentence imposed by the trial court for the offence punishable under section 323 read with section 34 of IPC.
Send copy of this judgment to Court below along with trial court record.
(Dictated to the Judgment Writer directly on computer, then corrected and pronounced by me in the open court on this the 11th day of April 2018) (S.A. HIDAYATHULLA SHARIFF) LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59), BENGALURU CITY.
21 Cr.Appeal No.1364/2016
Judgment pronounced in the open Court
(vide separate order)
ORDER
The appeal filed by the
appellant/accused Nos.1 and 2 under section 374(3) of Cr.P.C., is hereby partly allowed.
The judgment and order of sentence passed by the learned VII Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No.20687/2009 dated 05.10.2016 is hereby confirmed with regard to the offence punishable under section 323 read with section 34 of IPC.
The judgment and order of sentence passed by the learned VII Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No.20687/2009 dated 05.10.2016 is hereby set aside with regard to the offences punishable under sections 353 and 504 read with section 34 of IPC.
The appellant/accused Nos.1 and 2 are hereby acquitted for the offences punishable under sections 353 and 504 read with section 34 of IPC.
The appellant/accused Nos.1 and 2 are ordered to surrender before the trial court immediately and to undergo the sentence imposed by the trial court for the offence punishable under section 323 read with section 34 of IPC.
Send copy of this judgment to Court below along with trial court record.
22 Cr.Appeal No.1364/2016(S.A. HIDAYATULLA SHARIFF) LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59), BENGALURU CITY.
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