Bangalore District Court
Union Of India vs Sri Neharu Olekara on 22 September, 2020
IN THE COURT OF LXXXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH 82)
Present:
Sri T. N. Inavally, B.A.L., LL.B.,
LXXXI Addl. City Civil & Sessions Judge,
Bengaluru City (CCH-82)
(Special Court exclusively to deal with criminal cases
related to elected MPs/ MLAs in the State of Karnataka)
Dated this the 22nd day of September, 2020
Spl.C. No. 1 / 2020
COMPLAINANT: Union of India
represented by
Sub-Inspector/RPF/SW Railway
Harihar
(By the learned Special Prosecutor)
V/s
ACCUSED: 1. Sri Neharu Olekara
S/o Channabasappa
Aged about 58 years
Member of Legislative Assembly,
Byadagi Taluk, Haveri District
2. Sri Shivanna Thiluvalli
Aged about 52 years
Member of Legislative Assembly
Ranibennur
(reported Dead, hence, case against
A2 is abated)
3. Sri Shivaraj S. Sajjanar
Aged about 55 years
Member of Legislative Council
Haveri
R/o Bharathi Nagar
Hanagal Road, Haveri
2 Spl.C. No.1/2020
4. Sri Somanna Bevina Marada
District BJP President, Haveri
R/o Near Old Bus Stand, Shiggaon
5. Sri M.V. Gurunath
Aged about 58 years
Active Member of BJP Party
Haveri
R/o Hosamath School
D.C. Office Road, Haveri
6. Sri Kottreshwarappa
S/o Channabasappa Kori
Taluk President of BJP Party
Gramina Ghataka, Haveri
R/o Hosaritti, Haveri
7. Sri Ganesh Arali
S/o Channabasappa Arali
Taluk Panchayath Member
Haveri
8. Sri Manju Dole
S/o Hanumanthappa
Aged about 32 years
Pradhana Karyadarshi,
BJP Party, Haveri
R/o Halagi Post, Haveri
9. Sri C.S. Ramanagouda
S/o Shivanagouda
Aged about 42 years
Zilla Panchayath Member, Haveri
R/o Basaveshwara Nagara
'C' Block, 4th Cross, Haveri
10. Sri Rajendra Haverannanavar
S/o Bharamappa
Zilla Panchayath Member, Haveri
R/o Shivaji Nagara, Haveri
11. Sri Bojaraj Karudhi
S/o B.R. Karundhi
President,
3 Spl.C. No.1/2020
Karnataka State Hunne Nigama,
Haveri, R/o Hanagal
12. Sri Pakkanna Kasetti
S/o Puttappa
Aged about 55 years
Active member of BJP Party,
Haveri
13. Sri Basavara Belavadi
Aged about 45 years
President, APMC, Haveri
R/o Near SBM,
J.P. Rotary School, Haveri
14. Sri B.N. Arabagonda
S/o Neelappa
President, KMF, Haveri
R/o Katenahalli Village
Haveri Tq. & Dist.
15. Sri Dharmanna Goneppanavar
S/o Goneppa
Aged about 58 years
Member of BJP Party, Haveri
R/o Kalihalla Village
Haveri Tq & District
16. Sri Paramesh Agadi
Aged about 40 years
Active Member of BJP Party
Haveri
17. Sri Shivashankarappa Barki
S/o Ningappa
Aged about 43 years
Active Member of BJP Party
Haveri
R/o Kalihalla Village
Haveri Tq. & District
4 Spl.C. No.1/2020
18. Sri Nagaraj Thimmenahalli
S/o Ramannagouda
Aged about 35 years
Active Member of BJP Party
Haveri
R/o Thimmenahalli Village
Haveri Tq.
19. Sri Sangamesha Suralihalli
S/o Nagappa
Aged about 55 years
Zilla Panchayath Member, Haveri
R/o Near Petrol Bunk
Karajagi
20. Sri Shivaraj Shettar
S/o Revappa,
City BJP President, Haveri
R/o Shiva Basava Nagara
Elakki Oni, Haveri
(reported Dead, hence, case against
A20 is abated)
21. Sri Jagadheesha Mularagodu
Municipal President, Haveri
R/o Near G.H. College
Lakampur, Haveri
22. Sri Shambanna Sangur
S/o Bharamajjappa
Aged about 52 years
Grama Panchayath Member,
Devagiri
R/o Devagiri village, Haveri Tq.
(By Sri M.R. Hirematad, Advocate for accused
No.1, 3 to 19, 21 and 22)
*****
JUDGMENT
This case is the result of the complaint under Sec.180A of the Railways Act, 2003 ('Railways Act' for short) filed by CW1 5 Spl.C. No.1/2020 Sri Sanjay R. Karekar, the then Sub-Inspector of Railway Protection Force ('RPF' for short), Harihar against the accused persons for the offences punishable under Sec.147 and 174(a) of Railways Act before the learned Judicial Magistrate First Class, Haveri ('the learned Magistrate' for short).
2. The prosecution was set into motion against the accused persons on the initial information by the CW11 Hanumadasappa, the then Station Master of Haveri Railway Station. The case of the prosecution is that on 22.01.2011 at about 11.45 hours, about 500 delegates of Bharatiya Janata Party ('BJP' for short) of Haveri District including the accused No.1 to 4, who are the then MLA of Haveri, the then MLA of Ranibennur, Member of Legislative Council, Haveri and Haveri District BJP President respectively, and the accused No.5 to 22 were holding banner and shouting slogans against the Governor of Karnataka State and Central Government. The accused No.1 to 22 along with other agitators squatted on the railway track and detained the T.No.56914 passenger Ex. UBL-SBC at K.M.No.394/1-2 towards Karajagi end track of Haveri Railway station from 12.05 to 12.15 hours i.e., for 10 minutes and they also detained the T.No.12079 Janshatabdi Express Ex.SBC-UBL 6 Spl.C. No.1/2020 at K.M.No.393/5-6 towards Byadagi end track of Haveri Railway station from 12.23 to 12.45 hours i.e., for 22 minutes, and thereby the accused persons trespassed into the Railway track and they obstructed the running of the above said trains by squatting on the Railway track, in view of Karnataka bandh called by the BJP and hence, the accused have committed the offences alleged.
3. Immediately after the incident, CW11 Hanumadasappa, the then Station Master of Haveri Railway Station gave information in writing to the Sub-Inspector of Harihar RPF Out- Post regarding the alleged incident. Based on the said information the case was registered in Harihar RPF Out-Post as per Cr.No.93/2011 for the offences punishable under Sec.147 and 174(a) of Railways Act. Accordingly, CW1 Sanjay R. Karekar, the then Sub-Inspector of RPF, Harihar took up investigation and filed the complaint under Sec.180A of Railways Act before the learned Magistrate. On the basis of the said complaint the learned Magistrate registered the case in CC No.397/2011 on the file of JMFC Court, Haveri against the accused persons and took cognizance of the offences alleged. Accordingly, the learned Magistrate issued summons to the 7 Spl.C. No.1/2020 accused persons. In pursuance of the summons, the accused No.1 to 22 appeared through their counsel and got enlarged on bail.
4. During the pendency of the case before the learned Magistrate, the accused No.2 and 20 were reported to be dead and hence, this case against the accused No.2 and 20 is dismissed as abated.
5. The learned Magistrate recorded the plea of the accused No.1, 3 to 19, 21 and 22 for the offences punishable under Sec.147 and 174(a) of Railways Act, to which those accused persons pleaded not guilty and thereby they claimed to be tried of the said offences.
6. After recording the plea of the accused persons, when the case was pending before the learned Magistrate, in view of establishment of this Special Court exclusively to deal with criminal cases related to elected MPs/ MLAs in the State of Karnataka, the accused No.1 and 2 in the case being the then MLAs, the learned Magistrate has sent the case to this Court for further proceedings. Accordingly, the matter is taken up before this Court and the case is registered as Spl.C No.1/2020. 8 Spl.C. No.1/2020
7. After receipt of the records, in pursuance of summons issued by this Court, the accused No.1, 3 to 19, 21 and 22 have appeared before the Court through their counsel and got enlarged on bail and the matter is taken up for trial.
8. In support of the case of prosecution, the prosecution has examined 8 witnesses as P.W.1 to P.W.8 and produced 16 documents at Exs.P.1 to P.16. After closing of the evidence of prosecution witnesses, this Court has examined the accused No.1, 3 to 19, 21 and 22 under Sec.313(1)(b) of Cr.P.C., in which those accused persons have denied incriminating materials forthcoming against them in the evidence of prosecution witnesses as false, but they have not chosen to submit anything on their behalf. The accused persons have also not chosen to adduce any defence evidence.
9. Heard the argument of the learned Special Prosecutor and also the learned counsel for accused persons. Perused the oral and documentary evidence on record. Now the points that arise for my consideration are:-
1) Whether the prosecution proves beyond reasonable doubt that on 22.01.2011 at about 11.45 hours the accused persons along with other agitators trespassed into the Railway track and squatted on the Railway 9 Spl.C. No.1/2020 track at Haveri Railway station and detained the T.No.56914 passenger Ex. UBL-SBC at K.M.No.394/1-2 towards Karajagi end track from 12.05 to 12.15 hours i.e., for 10 minutes and they also detained the T.No.12079 Janshatabdi Express Ex. SBC
- UBL at K.M.No.393/5-6 towards Byadagi end track from 12.23 to 12.45 hours i.e., for 22 minutes and thereby the accused persons have committed the offence punishable under Sec.147 and 174(a) of Railways Act as alleged?
2) What order?
10. After hearing the argument of both the parties and on considering the oral and documentary evidence on record and also the principles of law laid down in the decisions relied on by both the parties, my findings on the above points are as hereunder:
Point No.1: In the Negative Point No.2: As per final order For the following:
REASONS
11. Point No.1: As pointed out by the learned Special Prosecutor, the offences alleged against the accused persons are punishable under Sec.147 and 174(a) of Railways Act and hence, it is necessary to refer to the provisions of Sec.147 and 174(a) of Railways Act at this stage itself. Sec.147 of Railways Act reads thus:
10 Spl.C. No.1/2020
147. Trespass and refusal to desist from trespass.- (1) If any person enters upon or into any part of a railway without lawful authority, or having lawfully entered upon or into such part misuses such property or refuses to leave, he shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both:
Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, such punishment shall not be less than a fine of five hundred rupees.
(2) Any person referred to in sub-section (1) may be removed from the railway by any railway servant or by any other person whom such railway servant may call to his aid.
Further, the Sec.174(a) of Railways Act is as hereunder:
174. Obstructing running of train, etc.- If any railway servant (whether on duty or otherwise) or any other person obstructs or causes to be obstructed or attempts to obstruct any train or other rolling stock upon a railway,-
(a) by squatting or picketing or during any Rail roko agitation or bandh; or
(b) xxxx; or
(c) xxxxx, he shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to two thousand rupees, or with both.
If both the above referred provisions i.e., Sec.147 and Sec.174(a) of Railways Act are read together, it is clear that unless the prosecution proves beyond reasonable doubt that at the place, date and time of the alleged incident, the accused persons being the members of agitation, trespassed into Railway 11 Spl.C. No.1/2020 track and squatted and picketed on the concerned Railway track and obstructed the movement of the above said two trains for the periods as contended by the prosecution, the accused persons cannot be found guilty of the offences alleged. In this back ground it is necessary to discuss the evidence of prosecution available on record.
12. As discussed herein above, the prosecution was set into motion on the information of CW11 Hanumadasappa, who is the then Station Master of Haveri Railway station. He has been examined as PW3. In the evidence in chief-examination the PW3 has deposed the facts in accordance with the information given by him in writing to the then Sub-Inspector, RPF of Harihar. The said written information is marked at Ex.P.1. The signature of PW3 in Ex.P.1 is marked at Ex.P.1(a). However, as pointed out by the learned counsel for the accused persons, the PW3 cannot identify that the accused persons were present in the agitation on the date, time and place of the alleged incident.
13. The relevant portion in the evidence of PW3 in chief- examination reads thus:
"ನ.ಪ.1 ರರತ ಪರರದಯನನ ಕಕಟಟದನ. ನ.ಪ.1 ಎ ನನನ ಸಹರಗದ. ಆ ಬರದ ಪಪತಭಟನ ಕಲದಲ ಈಗ ನನರಲಯದ ಮಮರದರಮವ 12 Spl.C. No.1/2020 ಆರಕರಪಗಳಮ ಹಜರದದ ಬಗಗ ನನಗ ಈಗ ಹರಳಲಮ ಬರಮವದಲಲ . ಸಕ ಸಸತತ ಹರಳಮತತರ ಘಟನರಗ 9 ವರರಗಳಗದದರರದ ಗಮರಮತಮ ಹಡಯಲಮ ಆಗಮವದಲಲ. ನನರಲಯದಲರಮವ 1 ನರ ಆರಕರಪಯನನ ನನಮ ಗಮರಮತಸಮತತರನ."
As submitted by the learned counsel for the accused persons, if the above said evidence of PW3 is taken into consideration, it is clear that except the accused No.1, no other accused persons are identified by PW3. Moreover, it is not the evidence of PW3 that he saw the accused No.1 at the spot on the date and time of the alleged incident. The relevant portion in the evidence in cross- examination of PW3 reads thus:
"1 ನರ ಆರಕರಪ ಶಸಕರಗದಮ ದ ಆಗಗ ರರಲಮ ನಲ ದ ಣಕಕ ಬರದಮ ರರಲಮ ನಲ ದ ಣದಲ ಸಸಚಚತಯನನ ಕಪಡಬರಕಮ ಅರತ ನನಗ ಹರಳಮತತ ಇದದರಮ. 1 ನರ ಆರಕರಪ ಶಸಕರಗದದರರದ ನನಗ ಅವರ ಪರಚಯ ಇತಮತ.
ಅ ಪಪತಭಟನಯಲ ರವಲ ಲ ಪಪತಭಟನಕರರಮ ಬರದದದರಮ, ಅವರಮ ಏನಲ ಲ ಪಪತಭಟನ ಉರಟಮ ಮಡದರಮ ಎರಬ ಬಗಗ ನನಗ ವರಯಕತಕವಗ ಹರಳಲಮ ಬರಮವದಲಲ.
ರವಲ ಲ ಆರಕರಪಗಳಮ ರರಲಮ ತಡ ಉರಟಮ ಮಡದರಮ ಎರಬ ಬಗಗ ನನಗ ಹರಳಲಮ ಬರಮವದಲಲ."
Hence, if the evidence of PW3 is considered, it is clear that there is absolutely no evidence forthcoming from him to prove that the accused persons i.e., 22 accused persons in total were present at the spot and they committed obstruction of the movement of the concerned trains at the spot and time of the alleged incident. Moreover, the PW3 in his evidence in cross- examination has deposed that regarding the alleged incident he 13 Spl.C. No.1/2020 informed the jurisdictional Senior Divisional Operations Manager of Mysuru over phone.
14. Further, as argued by the learned counsel for the accused persons, no document is produced by the prosecution to prove as to at what time the alleged two trains came to Haveri Railway station and departed from the said Railway station on the date of the alleged incident. It is relevant to refer to the relevant portion of the evidence of PW3 in cross-examination, which reads thus:
"ರವದರ ರರಲಮ ರರಲಮ ನಲ ದ ಣದರದ ಹಕರಗ ಹಕರಗಬರಕದರ ಕಗದ ರಹತ ಲರನ ಕಲಯರನನ ಕಕಡಬರಕಗಮತತದ. ಹಗ ಲರನ ಕಲಯರನಮ ನ ಪಡದಮಕಕರಡ ಬಗಗ ಸರಬರಧಪಟಟ ರಜಸಟರ ನಲ ಬರಯಲಗಮತತದ. ಆ ರಜಸಟರನನ ತನಖಧಕರಗಳಮ ನನನರದ ಸಸಧರನ ಪಡಸಕಕರಡಲಲ."
Hence, the failure on the part of the I.O. to produce the concerned document creates doubt in the mind of the Court regarding the time of the alleged incident. Further, the PW3 has deposed that he did not mention in the written information at Ex.P.1 of the fact that he informed Senior Divisional Operations Manager, Mysuru over phone about the alleged incident.
15. The CW1 Sanjay R. Karekar is the then Sub-Inspector of RPF, Harihar, who received the information from PW3 in writing as per Ex.P.1 and registered the case against the accused 14 Spl.C. No.1/2020 persons. He has been examined as PW1. The PW1 has deposed regarding the information received by him from PW3 as per Ex.P.1 and about the alleged incident. But in the evidence in chief-examination the PW1 has identified only the accused No.1, 3 and 4. He has not identified the other accused persons involved in the alleged incident. The evidence of PW1 in his chief-examination is that after receiving the information at Ex.P.1 he registered the case as per Cr.No.93/2011 of RPF Harihar Out-post and reported the said information to the learned Magistrate as per the report at Ex.P.2. The document at Ex.P.3 is the list of the accused persons enclosed to the First Information Report Ex.P.2. On 23.01.2011 he received news paper reports from Prajavani, Kaurava, Samyuktha Karnataka and Vijaya Karnataka and those reports are produced and marked at Exs.P.4 to P.10.
16. It is also the evidence of PW1 that on 02.02.2011, 03.02.2011 and 04.02.2011 he recorded the statements of the concerned witnesses. Further, the documents at Exs.P.11 to P.15 are the photos of the alleged incident taken at the time of investigation and the documents at Exs.P.11(a) to P.15(a) are negatives of the photos at Exs.P.11 to P.15. The complaint filed 15 Spl.C. No.1/2020 by PW1 before the learned Magistrate is marked at Ex.P.16. At this stage itself, it is relevant to consider the argument of the learned counsel for the accused persons, in which on the basis of the evidence of PW1 in chief-examination, he argued that if the said evidence is considered it is clear that in the investigation of the case the I.O. has not followed the procedure contemplated in Sec.180A of Railways Act.
17. At this stage it is better to refer to the Sec.180A of Railways Act, which reads thus:
180A. Inquiry by officer authorised to ascertain commission of offence.-- For ascertaining facts and circumstances of a case, the officer authorised may make an inquiry into the commission of an offence mentioned in sub- section (2) of section 179 and may file a complaint in the competent court if the offence is found to have been committed.
As pointed out by the learned counsel for the accused persons, if the provision of Sec.179(2) is considered, it is clear that the offences alleged against the accused persons in the case on hand are also covered for inquiry to be conducted under Sec.180A of Railways Act. The provision of Sec.179(2) of Railways Act reads thus:
179. Arrest for offences under certain sections.-- (1) xxxx (2) If any person commits any offence mentioned in sections 137 to 139, 141 to 147,153 to 157,159 to 167 and 172 to 16 Spl.C. No.1/2020 176, he may be arrested, without warrant or other written authority, by the officer authorised by a notified order of the Central Government.
(3) xxxx (4) xxxx Therefore, the argument of the learned counsel for the accused persons is that after receiving the information regarding the alleged incident the PW1 should have made inquiry and only after inquiry into the commission of offence, he should file complaint in the competent Court.
18. As pointed out by the learned counsel for the accused persons, the relevant portion in the evidence of PW1 in cross- examination reads thus:
"ಪಪವವಯನನ ಪರರದ ನಕರದಣ ಮಡಕಕರಡಮ ಬರಯಲಮ ಆಗಮವದಲಲ ಎರದರ ಸರ ಇದ."
On the basis of the said evidence of PW1, the submission of the learned counsel for the accused persons is that the first information report at Ex.P.2 does not stand for consideration, as the I.O. did not make any inquiry into the offences alleged in the case earlier to submitting the said report to the Court.
19. However, as submitted by the learned Special Prosecutor, the papers available on record clearly go to show that the complaint under Sec.180A of Railways Act as per 17 Spl.C. No.1/2020 Ex.P.16 was filed by the I.O. before the learned Magistrate on 5.4.2011. The alleged incident took place on 22.01.2011. Hence, earlier to filing of the complaint at Ex.P.16, the I.O. made inquiry into the alleged offences by recording the statements of the concerned witnesses and also collecting the concerned documents. Hence, mere fact that the First Informaton Report at Ex.P.2 was filed by the I.O. before the learned Magistrate earlier to making inquiry into the case, does not vitiate the entire investigation. Moreover, it is well settled principle of law that the technical error, if any, committed by the I.O. during the investigation cannot be a ground in favour of the accused persons for acquitting them in the case on hand, if there are sufficient evidence against them in the case.
20. Now the endevour of this Court is to ascertain whether there is sufficient evidence forthcoming from the prosecution against the accused persons to make out case against them for the alleged offences. As discussed herein above, the PW1 is not the eye witness to the incident. Further, regarding the alleged time of incident no document is forthcoming from the prosecution. The PW1 in his evidence in cross-examination has deposed that:
18 Spl.C. No.1/2020
"ರವದರ ರರಲಮ ಎರಮ ಟ ಗರಟಗ ರರಲಮ ನಲ ದ ಣ ಪಪವರಶ ಮಡತಮ, ಎರಮಟ ಗರಟಗ ಆ ಸಟರರನ ನರದ ಹಕರಡತಮ ಎರಬ ಬಗಗ ಸಟರರನ ರಜಸಟರ ನಲ (ಟಎಸಆರ) ನಲ ಬರಯಮತತರ ಹಗಯರ ವಳರಬವಗ ರರಲಮ ಪ ಪವರಶಸದ ಬಗಗ ಬರಯಮತತರ. ಹಗಯರ ಪಲಟ ಫರರನರದ ರರಲಮ ತಡವಗ ಚಲಸದರ ಆ ಬಗಗ ಟ ಎಸ ಆರ ನಲ ಬರಯಮತತರ . ತನಖ ಸಮಯದಲ ನನಮ ಟ ಎಸ ಆರನನ ಸಸಧರನ ಪಡಸಕಕರಡಲಲ. ಸಕ ಸಸತತ ಹರಳಮತತರ ಸಟರರನ ಮಸಟರ ತಮಮ ಪರರದಯಲ ನಖರವಗ ಸಮಯವನನ ನಮಕದಮ ಮಡದದರರದ ಕರಣ ಸಹತ ಪರರದಯನನ ಕಕಟಟದದರರದ ನನಮ ಟ ಎಸ ಆರನನ ಸಸಧರನ ಪಡಸಕಕರಡಲಲ. ಸಮನನವಗ ರವ ರರಲಮ ಎರಮ ಟ ಗರಟಗ ರರಲಸರ ಪಲಟ ಫರರಗ ಬರತಮ, ಎರಮ ಟ ಗರಟಗ ಅಲರದ ಹಕರಡತಮ ಎರಬ ಬಗಗ ಟ ಎಸ ಆರ ನಕರಡಮವದಮ ಅವಶನಕತ ಇದ ಎರದರ ಸರ ಇದ."
As argued by the learned counsel for the accused persons, if the above referred portion in the evidence of PW1 is concerned, it is clear that unless the concerned document is forthcoming, the case of the prosecution that the time of entry of the said trains to and thereafter departure of those trains from the said Railway station on the date of the alleged incident cannot be proved. The contents of the written information at Ex.P.1 of PW3, who is alleged to be the then Station Master of Haveri Railway station, do not merit consideration to prove the exact time of the entry of the concerned trains to and their departure from the Railway station on the date of the alleged incident. Therefore, the evidence of PW3 and the document at Ex.P.1 do not arise for consideration to prove the exact time of the alleged incident.
21. Moreover, the PW1 in his evidence in cross- examination has stated that in the photos at Exs.P.11 to P.15 the 19 Spl.C. No.1/2020 train numbers of the concerned trains are not appearing. It is also pertinent to note that none of the witnesses examined by the prosecution has identified the persons appearing in those photos as any of the accused persons shown in the case. The prosecution has also not chosen to examine the concerned person who took those photos. Therefore, as argued by the learned counsel for the accused persons, the photos at Exs.P.11 to P.15 do not merit consideration to prove that the accused persons were present at the spot of the alleged incident and they committed the offence as alleged by the prosecution.
22. Further, the argument of the learned counsel for the accused persons is that the paper publication reports at Exs.P.4 to P.10 and the photos at Exs.P.11 to P.15 along with their negatives at Exs.P.11(a) to P.15(a) do not merit consideration on the facts of the case and also in law, unless the concerned authors of those paper publication reports and photos are examined by the prosecution. In support of this argument the learned counsel for the accused persons has drawn the attention of this Court to the decision of Hon'ble Apex Court reported in AIR 1988 SC 1274, (Laxmi Raj Shetty and another Vs. State of Tamil 20 Spl.C. No.1/2020 Nadu) in which referring to Sec.78(2), 81 and 57 of Evidence Act, it is held that:
Judicial notice cannot be taken of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in Sec.78(2) of the Evidence Act, by which an allegation of fact can be proved. The presumption of genuineness attached under Sec.81 of the Evidence Act to a newspaper report cannot be treated as proof of facts reported therein. A statement of fact contained in a newspaper is merely hearsay and, therefore, inadmissible in evidence in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported.
It is very pertinent to note that the I.O. has not chosen to examine the concerned persons, who reported the alleged incident to the concerned news papers. Moreover, in the news paper reports at Exs.P.4 to P.10 there is absolutely no specific mention that the accused No.1 to 22 squatted on the concerned Railway track and obstructed the movement of the trains at the time and spot of the incident as alleged by the prosecution.
Therefore, the oral evidence of PW1 and the documents at Exs.P.4 to P.15 do not stand for consideration to prove the case alleged against the accused persons beyond reasonable doubt.
23. The CW3 N. Kotrappa is the then ASI, RPF, Davanagere at the relevant time. He has been examined as PW2. 21 Spl.C. No.1/2020 As per his evidence he was on bandobasth duty at Haveri Railway Station regarding Karnataka bandh allegedly held on 22.01.2011. The CW4 M.G. Srikumar is the then Loco Pilot of the concerned Passenger train. He is examined as PW4. The CW2 Kemparaju is the then ASI, RPF, Harihar, who was allegedly on bandobasth duty at Haveri Railway station on the date of the alleged incident. He is examined as PW6. The CW8 Allavalli is the then Loco Pilot of Janshatabdi Express train on the date of the alleged incident. He is examined as PW7. The CW9 Uttam Kumar is the then Assistant Loco Pilot of Janshatabdi Express train on the date of alleged incident. He is examined as PW8.
24. The witnesses PW2, PW4 and PW6 to PW8 are alleged to be the eye witnesses to the alleged incident. But, as submitted by the learned counsel for the accused persons, there is absolutely no documentary evidence forthcoming from the prosecution to prove that the PW2 and PW6 were on bandobasth duty at Haveri Railway station on the date of the alleged incident. There is also no documentary evidence forthcoming from the prosecution to prove that the PW4 was the Loco Pilot of Passenger train and the PW7 and PW8 were Loco Pilot and 22 Spl.C. No.1/2020 Assistant Loco Pilot respectively of Janshatabdi Express train on the date of alleged incident.
25. Further, as per the evidence of PW3, who gave written information at Ex.P.1, there were about 500 agitators including the accused persons at the spot of the incident. The PW2 and PW6 have also stated that there were about 500 agitators, who belonged to BJP. But, as per the evidence of PW4, there were about 200 to 300 agitators. On the other hand, the PW8 has deposed that there were about more than 50 agitators at the spot of incident. Hence, there are discrepancies regarding the number of agitators, who were allegedly present at the spot of incident. It is pertinent to note that the case is registered against only 22 accused persons.
26. As discussed herein above, the above referred eye witnesses are the then officials of Railway Department and RPF. In the evidence in chief-examination the PW2 has deposed that:
"ಸದರ ಗಲಟಯ ಮಮರದಳತಸವನನ ಆರಕರಪ 1, 3, 4 ಮತಮತ ಮಮತ 2 ನರ ಆರಕರಪ ವಹಸಕಕರಡದದರಮ. ಆರಕರಪ 1, 3 ಮತಮತ 4 ಈಗ ನನರಲಯದ ಮಮರದ ಹಜರದರ. ಹಗ ಉಳದ ಆರಕರಪಗಳಮ ಸಹ ಸದರ ಗಲಟಯಲ ಹಜರದದರಮ."
However, in the evidence in cross-examination the PW2 has deposed that:
23 Spl.C. No.1/2020
"ಆರಕರಪಗಳಲ 1 ರರದ 3 ನರ ಆರಕರಪಗಳ ಹಸರಮ ಗಕತತತಮತ. 1 ನರ ಆರಕರಪ ಅ ಸಮಯದಲ ಶಸಕನಗದದರರದ ಅವರ ಹಸರಮ ನನಗ ಗಕತತತಮತ. ಸಕ ಸಸತತ ಹರಳಮತತರ ಘಟನ ಸಮಯದಲ ಆರಕರಪ ನರ.1 ಹಜರದದರಮ. ರವ ರವ ಆರಕರಪಗಳಮ ಘಟನಯ ಸಮಯದಲ ರರಲಮ ಹಳಗಳ ಮರಲ ಕಮಳತಮಕಕರಡದದರಮ ಮತಮತ ರವ ರವ ಆರಕರಪ ರರಲಮ ಇರಜನ ಗಳ ಮರಲ ಹತತದರಮ ಮತಮತ ರವ ರವ ಆರಕರಪಗಳಮ ಏನಲ ಲ ಘಕರರಣಗಳನನ ಕಕಗಮತತದದರಮ ಎರದಮ ನನಮ ವವರವಗ ಹರಳಲಲ."
As pointed out by the learned counsel for the accused persons, the PW4 in his evidence in chief-examination itself has deposed that:
"ಈಗ ಘಟನರಗ ಸಮಮರಮ 9 ವರರಗಳಗದದರರದ ಆ ಪಪತಭಟನಯಲ ರರಲ ಲ ಇದದರಮ ಎರದಮ ನನಗ ಗಮರಮತಸಲಮ ಆಗಮವದಲಲ. ಈಗ ನನರಲಯದ ಮಮರದರಮವ ಆರಕರಪಗಳರ ಆ ಪ ಪತಭಟನಯಲ ಭಗವಹಸದರಕರ ಅಥವ ಇಲಲವ ಎರದಮ ನನಗ ಹರಳಲಮ ಬರಮವದಲಲ."
The PW6 in his evidence in cross-examination has deposed that:
"ನನಮ ಹವರರಯಲ ಕಲಸ ಮಡಮತತದದ ಮದದರರದ ಆರಕರಪ ನರ1 ಮತಮತ 3 ನಮ ನ ನನಮ ನಕರಡದ. ಅವರನಮ ನ ರರಲಮ ನಲ ದ ಣಕಕ ಬರದಗ ನಕರಡದನ. .......
....
ಆರಕರಪ ನರ.1 ಮತಮತ 3 ರರಲಮ ನಲದ ಣಕಕ ಮರಟರಗ ಗಗ ಬರಮತತ ಇದದರಮ. ಆರಕರಪ ನರ.1 ಮತಮತ 3 ಶಸಕರಗದದರರದ ಮತಮತ ಅವರಮ ನಮ ಮ ರರಲಸರ ಇಲಖಯಲ ಮರಟರಗ ಗ ಬರದದದರರದ ಮತ ತ ನನಮ ಅವರನನ ನ ವದಮ ಸರಯಲಲ.
ಗಮರಮತಸಮತತರನ ಎನಮ ಅಲ ಸರರದ 500 ಜನ ರರಲ ಲ ಇದದರಮ ಎರಬ ಬಗಗ ನನಗ ಸಸರಟವಗ ಹರಳಲಮ ಬರಮವದಲಲ."
The PW7 Allavalli has deposed in his evidence in chief-
examination itself that:
"ಈಗ ನನರಲಯದ ಮಮರದರಮವ ಆರಕರಪಗಳರ ಆ ಸಮಯದಲದದರಮ ಎರದಮ ಈಗ ನನಗ ಹರಳಲಮ ಬರಮವದಲಲ."
Moreover, in the evidence in cross-examination the PW7, who is alleged to be the Loco Pilot of Janshatabdi express, has deposed that immediately after the incident he gave statement in his own hand writing regarding the alleged incident to the concerned 24 Spl.C. No.1/2020 police. But no such statement is forthcoming in the prosecution papers on record.
27. The PW8 Uttam Kumar in his evidence in chief- examination itself has deposed that:
"ಆ ಪಪತಭಟನಯಲ ರವ ರವ ವನಕತಗಳಮ ಭಗವಹಸದದರರದಮ ನನಗ ಗಮರಮತಸಲಮ ಆಗಮವದಲಲ."
Hence, if cumulative effect of the oral evidence of the above referred officials of Railways department and RPF is taken into consideration, it is clear that there is absolutely no evidence to prove beyond reasonable doubt that the accused persons were present in the spot and at the time of the alleged incident and they squatted on the Railway track and thereby obstructed the movement of the concerned trains as alleged by the prosecution.
28. The CW13 Ravi Kumar is alleged to be the tea vendor at Haveri Railway station at the time of the alleged incident and he is the only independent witness. He has been examined as PW5. As per the evidence of PW5 in chief-examination, about 500 members of BJP were shouting slogans against Central Government at Railway station on the date of the alleged incident. But the PW5 has further deposed in evidence in chief- examination itself that:
25 Spl.C. No.1/2020
"ಹಗ ರರಲ ಲ ಪಪತಭಟನ ಮಡ ರರಲಮ ನಲಸದರಮ ಎರದಮ ನನಗ ಹರಳಲಮ ಬರಮವದಲಲ.
ಈಗ ನನರಲಯದ ಮಮರದರಮವ ಆರಕರಪಗಳರ ಆ ಪ ಪತಭಟನಯಲ ಭಗವಹಸದವರಮ ಎರದಮ ನನಗ ಹರಳಲಮ ಬರಮವದಲಲ.
ಆ ಸಮಯದಲ ನನಮ ಚಹ ಮರಟ ಮಡಮತತದ ಆದದರರದ ರರಲ ಲ ಪಪತಭಟನ ಮಡದರಮ ಎರದಮ ನನಗ ಹರಳಲಮ ಬರಮವದಲಲ."
If the above mentioned evidence of PW5 in chief-examination is taken into consideration, it is clear that there is absolutely no evidence against the accused persons to prove that they were present at the spot and they committed any offence as alleged by the prosecution.
29. As discussed herein above, except PW5 there is absolutely no independent eye witness examined by the prosecution. There is absolutely no material in the evidence of PW5 against the accused persons to prove that they were present at the spot and committed the alleged offence. The argument of the learned Special Prosecutor is that even though the PW1 to PW4 and PW6 to PW8 were official witnesses, their evidence cannot be discarded in its entirety. In support of this argument the learned Special Prosecutor has drawn the attention of this Court to the decision of our Hon'ble High Court of Karnataka reported in 2020 Cr.R. 177 (Kant.) (Manja and others Vs. State) in which it is held that:26 Spl.C. No.1/2020
"Statement of official witnesses have to be taken on their face value and cannot be doubted unless specific motives are attributed."
There is absolutely no dispute regarding the principle of law laid down in the said decision. But, as per the facts of the case of the said decision, the offence alleged against the concerned accused persons is punishable under Sec.324, 498-A and 302 r/w Sec.34 of IPC and the evidence considered in the said case is of the I.O. and of the concerned Doctor, who are official witnesses.
30. However, in the case on hand, even though the PW2 to PW4 and PW6 to PW8 are officials, they are eye witnesses to the alleged incident. As discussed herein above, there are discrepancies in the evidence of those witnesses regarding presence of all the accused persons at the spot and commission of the alleged by the accused persons as alleged by the prosecution. Therefore, the above referred decision of our Hon'ble High Court relied on by the learned Special Prosecutor does not help the prosecution to make out any case against the accused person for the alleged offence.
31. It is true that the learned Special Prosecutor has drawn the attention of this Court to the decision of the Hon'ble Apex 27 Spl.C. No.1/2020 Court reported in (2012)5 SCC 777 (Ramesh Harijan Vs. State of Uttar Pradesh) in which regarding appreciation of evidence in criminal trial it is held that that:
"The maxim "falsus in uno, falsus in omnibus" has no application in India and a witness cannot be branded as a liar. Falsity of witness or material particular at some portion would not ruin testimony from beginning to end. If that maxim is applied then in all the case it is to be feared that administration of criminal justice would come to a dead stop."
In the said decision regarding credibility of evidence of hostile witnesses, it is held that:
"Evidence of hostile witness must be subjected to close scrutiny. Any portion of evidence consistent with the case of prosecution or defence version, can be relied upon. Entire evidence must be evaluated by excluding exaggerated version as witnesses keep adding embellishments to their testimony. If a witness is otherwise trustworthy, then his evidence should not be disbelieved. If major portion is found to be deficient and residue is sufficient to establish guilt of accused, then courts must separate grain from chaff. It has to be appraised in each case as to what extent evidence is admissible. If courts consider some portion of evidence as insufficient or unworthy, it does not mean as a matter of law that entire evidence must be disregarded in all respects."
There is no dispute regarding the principle of law laid down in the above referred decision regarding appreciation of evidence in criminal trial. However, in the case on hand, as discussed herein above, there is absolutely no evidence forthcoming from the prosecution to prove that the accused persons were present at 28 Spl.C. No.1/2020 the spot on the date and time of the alleged incident and they squatted on the Railway track and obstructed the movement of trains as alleged by the prosecution.
32. As per the case of prosecution itself, there are about 500 agitators at the spot of incident. There is no material forthcoming from the prosecution to show as to why the case was registered only against 22 persons, who are the accused persons in the case. It is not in dispute that the accused No.1 and 2 are the then MLAs of Haveri and Ranebennur respectively. It is also undisputed fact that the accused No.3 is the then MLC and the accused No.4 is the then President of BJP Haveri District unit. Therefore, the accused No.1 to 4 might have been known to PW2 to PW8. Mere fact that those accused persons are known to the concerned witnesses cannot be a ground to come to the conclusion that the accused No.1 to 4 were present at the spot and they committed the alleged offence. Further, it is very much pertinent to note that there is no explanation forthcoming from the I.O. as to why he did not draw mahazar at the spot of the alleged incident to prove the exact spot, where the offence allegedly committed by the accused persons.
29 Spl.C. No.1/2020
33. Moreover, as pointed out by the learned counsel for the accused persons, as per the contents of the written information at Ex.P.1 of PW3 Hanumadasappa, the alleged incident took place for the period from 11.45 to 12.45 hours. After the incident both the trains left safely after clearing mob by RPF and local police. The information at Ex.P.1 was written at 12.45 hours. It is very interesting to note that on the same day at 13.00 hours the said information was received by PW1 Sanjay R. Karekar, the then Sub-Inspector, RPF at Harihar. It is undisputed fact that Harihar is at the distance of about 60 km from Haveri. Hence, even if PW3 travelled from Haveri to Harihar on that day by train or by any vehicles on road, it would be humanly impossible for him or to anybody to reach Harihar within 15 minutes. Therefore, as argued by the learned counsel for the accused persons, the contents of the information at Ex.P.1 and the First Information Report at Ex.P.2 create doubt in the mind of the Court regarding the time of the alleged incident and registration of the case by PW1 after the incident.
34. As discussed herein above, if the totality of the evidence of all the witnesses forthcoming on record is considered, it is clear that the prosecution has utterly failed to 30 Spl.C. No.1/2020 prove beyond reasonable doubt that the accused persons were present at the spot on the date and time of the alleged incident and they trespassed into the Railway track, squatted on the Railway track and obstructed the movement of the two trains as alleged by the prosecution. Therefore, the prosecution has utterly failed to bring home the guilt of the accused No.1, 3 to 19, 21 and 22 for the offences punishable under Sec.147 and 174(a) of Railways Act in the case beyond reasonable doubt.
35. The failure on the part of the I.O. to produce the concerned documents to prove the exact time of the alleged incident and also examine any independent witnesses to prove the presence of the accused persons in the alleged agitation at the spot on the date of alleged incident creates doubt in the mind of this Court regarding the commission of the alleged offence by the accused persons. It is well settled principle of law that the accused persons are entitled to benefit of such doubt. Hence, the prosecution has failed to prove point No.1 and consequently, the point No.1 is answered in the negative.
36. Point No.2: From the discussion made herein above, it is clear that the accused No.1, 3 to 19, 21 and 22 deserve to be 31 Spl.C. No.1/2020 acquitted for the offences alleged against them in this case. This case against the accused No.2 and 20 is already dismissed as abated. In the result, this Special Court having power of the Magistrate, I proceed to pass the following:
ORDER Acting under Sec.255(1) r/w Sec.235(1) of Cr.P.C., the accused No.1, 3 to 19, 21 and 22 are acquitted of the offences punishable under Sec.147 and 174(a) of Railways Act.
This case against the accused No.2 and 20 is dismissed as abated.
The bail bonds executed by the accused persons and the surety bonds shall stand cancelled.
(Dictated to the Judgment Writer, transcribed and typed by him, revised and corrected by me and then pronounced in the Open Court on this the 22nd day of September, 2020) (T.N. Inavally) LXXXI Addl. City Civil & Sessions Judge, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/ MLAs in the State of Karnataka) Annexure List of witnesses examined on behalf of prosecution:
P.W.1: Sanjay R. Karekar
P.W.2: N. Kotrappa
P.W.3: Hanumadasappa
P.W.4: M.G. Srikumar
P.W.5: Ravi Kumar
P.W.6: Kemparaju
32 Spl.C. No.1/2020
P.W.7: Allavalli
P.W.8: Uttam Kumar
List of documents exhibited on behalf of prosecution:
Ex.P.1 : Complaint of PW3, the Station Master, SWR, Haveri Ex.P.1(a) : Signature of PW3 in Ex.P.1 Ex.P.2 : Intimation regarding registration of case Ex.P.2(a) : Signature of PW1 in Ex.P.2 Ex.P.3 : List of accused persons Exs.P.4 to 10 : Paper publication reports Exs.P.11 to 15 : Photographs Exs.P.11(a) to 15(a): Negatives of photos at Ex.P.11 to P15 Ex.P.16 : Complaint under Sec.180(a) of Railway Act 2003 Ex.P.16(a) : Signature of PW1 in Ex.P.16 List of witnesses examined on behalf of accused persons: NIL List of documents exhibited on behalf of accused persons: NIL List of material objects marked on behalf of prosecution: NIL (T.N. Inavally) LXXXI Addl. City Civil & Sessions Judge, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/ MLAs in the State of Karnataka)