Karnataka High Court
State By Mahalakshmi Layout vs K B Beetegowda on 7 October, 2015
Equivalent citations: 2016 CRI. L. J. 2505, 2016 (2) AKR 529, (2017) 2 MADLW(CRI) 170, 2016 CRILR(SC MAH GUJ) 1031, (2016) 3 ALLCRIR 3194, (2016) 8 SCALE 749, (2016) 4 BOMCR(CRI) 289, (2016) 97 ALLCRIC 420, (2016) 4 CRIMES 12, 2016 CRILR(SC&MP) 1031
Bench: Mohan M. Shantanagoudar, R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07th DAY OF OCTOBER 2015
PRESENT
THE HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
AND
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL No.73/2012
C/W
CRIMINAL APPEAL No.794/2011,
CRIMINAL APPEAL No.825/2011,
CRIMINAL APPEAL No.72/2012
AND
CRIMINAL APPEAL No.824/2011
IN CRIMINAL APPEAL No.73/2012
BETWEEN:
State by Mahalakshmi Layout
Police Station
Bangalore City. .. APPELLANT
(By Sri P M Nawaz, SPP)
AND:
1. K B Bettegowda
CPI Mahalakshmi Layout
Police Station Sub-Division
Bangalore
Presently working as DSP
2
Ramanagar Sub-Division.
2. K P Gopal
PSI (Crime)
Mahalakshmi Layout Police Station
Bangalore
Presently working at PSI (L & O)
Chikpet Police Station.
3. Hanumaiah
HC-2050, Mahalakshmi Layout
Police Station
Bangalore.
4. Ravikumar
PC-6082, Rajgopalanagar
Police Station
Bangalore
Presently CCB(N.T. Pet)
Bangalore. .. RESPONDENTS
(By Sri C V Nagesh, Sr. Counsel for
M/S C V Nagesh Associates for R1
Sri Ravi B Naik, Sr. Counsel for
M/S Ravi B Naik Associates for R2
Sri H P Leeladhar, Adv. for
M/S H P Leeladhar & Co. for R3-R4)
This Criminal Appeal is filed under Section 377 of
CR.P.C praying to impose maximum sentence on the
respondents/accused -1, 2, 5 and 6 for the offences
punishable under Sections 324, 348, 465, 306 and 201
read with Section 34 of IPC passed in S.C.No.437/2012 of
FTC-VIII, Bangalore dated 15/07/2011.
3
IN CRIMINAL APPEAL No.794/2011
BETWEEN:
1. Sri Hanumaiah
S/o Late Hanumanna
Aged about 63 years
Head Constable-2050
Mahalakshmi Layout
Police Station
Bangalore.
2. Sri Ravi Kumar
S/o Late C Purushotham
Aged about 54 years
Police Constable-6082
Rajagopal Nagar
Police Statioin
Bangalore.
Presently working as
VVIP Security
O/o the Commissioner
Of Police, Infantry Road
Bangalore-560 001. .. APPELLANTS
(By Sri H P Leeladhar, Adv. for
M/s. H P Leeladhar and Co.)
AND:
State of Karnataka by
Mahalakshmi Layout
Police Station
Bangalore City. .. RESPONDENT
(By Sri P M Nawaz, SPP)
4
This Criminal Appeal is filed under Section 374(2) of
CR.P.C praying to set aside the order dated 15.07.2011
passed by the P.O., FTC-VIII, Bangalore in
S.C.No.437/2002 convicting the appellants/accused for the
offence punishable under Sections 324, 348, 465, 306, 201
read with Section 34 of IPC.
IN CRIMINAL APPEAL No.825/2011
BETWEEN:
Sri K P Gopal
S/o Puvaiah
Aged 54 years
Occ: Police Inspector
City Special Branch
Bangalore. .. APPELLANT
(By Sri Ravi B Naik, Sr. Counsel
for M/s Ravi B Naik Associates)
AND:
The State of Karnataka
(through Mahalakshmi Layout
Police Station, Bangalore)
Represented by its
State Public Prosecutor
High Court of Karnataka
Bangalore. .. RESPONDENT
(By Sri P M Nawaz, SPP)
This Criminal Appeal is filed under Section 374(2) of
CR.P.C praying to set aside the order dated 15.07.2011
passed by the P.O., FTC-VIII, Bangalore in
S.C.No.437/2002 convicting the appellant/accused for the
5
offence punishable under Sections 324, 348, 465, 306, 201
read with Section 34 of IPC.
IN CRIMINAL APPEAL No.72/2012
BETWEEN:
State by Mahalakshmi Layout
Police Station
Bangalore City. .. APPELLANT
(By Sri P M Nawaz, SPP)
AND:
1. Lokanath Kadari
PSI (L & O)
Srirampura Police Station
Bangalore
Presently PI
High Court Vigilance
Bangalore.
2. Chikkaboraiah
PSI, Mahalakshmi
Layout Police Station
Bangalore.
3. Narasimhaiah
PC-4205
Shivajinagar Police Station
Bangalore.
4. Srinath
PC-6671
Srirampuram Police Station
Bangalore, Presently
Vyalikaval Police Station
6
Bangalore. .. RESPONDENTS
(By Sri J Prakash, Adv.)
This Criminal Appeal is filed under Section 378(1) and
(3) of CR.P.C praying to grant leave to appeal against that
part of the judgment and order of acquittal dated
15.07.2011 in S.C.No.437/2002 passed by the Presiding
Officer, FTC-VIII, Bangalore City, acquitting the
respondents/accused Nos.3, 4, 7 and 8 for the offences
punishable under Sections 323, 324, 348, 376, 465, 306,
201, 109 and 114 read with Section 34 of IPC.
IN CRIMINAL APPEAL No.824/2011
BETWEEN:
Sri K B Bettegowda
Aged about 63 years
S/o Late Sri Beguraiah
Superintendent of Police (Retd.),
Resident of the premises
Bearing No.8, 2nd Cross, 3rd Stage
Binny Employees' Layout
Attiguppe
Vijayanagar
Bangalore-560 040. .. APPELLANT
(By Sri C V Nagesh, Sr. Counsel
for M/s C V Nagesh Associates)
AND:
State of Karnataka
By the Station House Officer
Mahalakshmi Layout
Police Station
7
Bangalore. .. RESPONDENT
(By Sri P M Nawaz, SPP)
This Criminal Appeal is filed under Section 374(2) of
CR.P.C praying to set aside the order dated 15.07.2011
passed by the P.O., FTC-VIII, Bangalore in
S.C.No.437/2002 convicting the appellant/accused for the
offences punishable under Sections 324, 348, 465, 306,
201 read with Section 34 of IPC.
These Criminal Appeals having been reserved and
being listed for pronouncement today, Budihal R.B., J.,
delivered the following:
JUDGMENT
The judgment and order dated 15.07.2011 passed by the Fast Track Court-VIII, Bengaluru City in S.C. No.437/2002 is called in question in these appeals.
Criminal Appeal No.72/2012 is preferred by the State challenging the judgment and order of acquittal of accused Nos.3, 4, 7 and 8 for the offences punishable under Sections 323, 324, 348, 376, 465, 306, 201, 109 and 114 read with Section 34 of IPC and consequently for conviction and sentence of the accused for the offences in the said appeal.
8
Criminal Appeal No.73/2012 is also preferred by the State against accused Nos.1, 2, 5 and 6 seeking enhancement of the sentence passed by the Court below in respect of the offences punishable under Sections 324, 348, 465, 306, 201, 109 read with Section 34 of IPC.
Criminal Appeal No.824/2011 is preferred by the appellant/accused No.1 seeking to reverse and set aside the impugned judgment passed by the Court below in respect of the offences punishable under Sections 324, 348, 201 and 465 of IPC and to acquit him for the said offences.
Criminal Appeal No.825/2011 is preferred by the appellant/accused No.2 praying to allow the appeal and set aside the order of conviction and the sentence for the offences punishable under Sections 324, 348, 201, 306, 465 read with section 34 of IPC and seeking his acquittal, on the above offences.
Criminal Appeal No.794/2011 is preferred by the appellants/accused Nos.5 and 6 praying to set aside the 9 judgment and order of conviction and sentence and acquit them for the said offences for which they have been convicted.
2. Brief facts of the case are that on 22.3.1993, the accused Nanjunda (deceased) was arrested in connection with Mahalakshmi Layout Police Station Crime No.43/1993 for the alleged offences punishable under Sections 457 and 380 of IPC and some properties were recovered from him. During the night on that day, the said Nanjunda was kept in police lockup of the Mahalakshmi Police Station. During night intervening between 22nd and 23rd of March 1993 at about 3.00 a.m. when the guard P.C. had been to latrine, the said Nanjunda tore the bed sheet which was given to him and with the help of the same, made an attempt to commit suicide by tying the said bed sheet to the iron angle fixed to the door of the lockup. Immediately, he was sent to K.C. General hospital along with ASI Chikkaboraiah. On the basis of the said 10 information, case was registered in Mahalakshmi Police Station crime No.120/1993 for the offence punishable under Section 309 of IPC. Mr. Nanjunda, however died in the hospital at 4.00 a.m. After the death of the deceased Nanjunda, P.W.1 Smt. Sowbhagya also filed a private complaint under Section 190 read with Section 200 Cr.P.C. in PCR No.461/1993 before the 7th ACMM Court at Bengaluru City requesting the Court to take cognizance of the case and to direct for investigation by referring the matter to CBI. The allegations made in the said private complaint in brief are that on 13.2.1993 at about 8.30 p.m., the husband of the complainant was taken forcibly from the house to Mahalakshmi Police Station. When the complainant went and requested for his release, the police refused and demanded money. The complainant used to take food to her husband to the police station. When the complainant used to visit her husband (Nanjunda), he was complaining of the assault and ill treatment meted out by the police. 11 Ultimately, her husband Nanjunda died out of police torture on 22.3.1993 at about 4.30 pm. in Mahalakshmi Police station. The police took the dead body from the lockup to K.C. General hospital and got conducted post mortem and buried in the grave yard of Harishchandra Ghat. The police also did not inform the complainant about the death of her husband. Therefore, accused Nos.1 to 6, as mentioned In the private complaint, have committed the offences of trespass and wrongful confinement to extract confession causing simple and grievous injuries and committed the murder of the deceased and thereby, committed the offences punishable under Sections 448, 341, 348, 323, 324, 326, 302, 306, 354, 201 read with Section 34 of IPC. The ACMM Court-VII, Bengaluru by its order dated 24.4.1993 referred the complaint to COD for investigation and report, under Section 156(3) of Cr.P.C. The COD police after conducting investigation filed charge sheet against accused Nos.1 to 8 for the offences punishable under Sections 348, 323, 324, 376, 193, 465, 109, 114 12 and 201 of IPC. The said charge sheet is in respect of both Cr.No.120/1993 of Mahalakshmi Police Station, Bangalore and P.C.R.No.461/1993 on the file of VII A.C.M.M. Court, Bangalore.
The case was committed to the Sessions Court and the Sessions Court framed charges against the respective accused for the offences punishable under Sections 323, 324 348, 376, 465, 306, 201, 109, 114 read with Section 34 of IPC as per the order (charges) dated 04.04.2005 and plea of the accused were also recorded. Accused pleaded not guilty and claimed to be tried.
3. The prosecution in support of its case, in all examined 48 witnesses and got marked 45 documents and for the defence side, no witnesses were examined. The defence got marked 15 documents. the Trial Court after considering the materials placed on record by both sides ultimately, convicted the accused No.1, 2, 5, 6 for the offences punishable under Sections 324, 348, 465, 306, 13 201 read with Section 34 of IPC and accused No.3, 4, 7 and 8 are acquitted from all the charges leveled against them.
4. Being aggrieved by the judgment and order of conviction and also the order of acquittal, the accused as well as the State, have preferred the above appeals as mentioned supra.
5. We have heard the arguments of learned counsel appearing for the appellants-accused and also the arguments of the learned SPP in respect of all the above appeals.
6. In Crl.A.824/2011, Sri C.V.Nagesh, learned Senior Counsel, submitted that so far as accused No.1 is concerned, absolutely, there is no material placed by the prosecution that accused No.1 has committed any alleged offence. He has submitted that deceased Nanjunda was 14 arrested by the Police on 22.03.1993 in connection with the theft case and FIR was registered in Mahalakshmi Layout Police Station Cr.No.43/1993 against said Nanjunda. He has also submitted that during the night on 22/23.3.1993, when Nanjunda was in Police lockup, along with one Kumar another accused, he made an attempt to commit suicide in respect of which, Crime No.120/1993 came to be regisrterd against said Nanjunda for the offence under Section 309 of I.P.C. on the complaint lodged by P.W.25 Achut Rao (Head Constable of Mahalakshmi layout Police Station).
Learned Senior Counsel also submitted that on 24.03.1993, P.W.1 Smt. Sowbhagya who claims to be the wife of deceased Nanjunda got prepared the private complaint and it was filed before the VII ACMM Court, Bengaluru on 31.03.1993 which was registered in P.C.R. No.461/1993. He also submitted that the VII ACMM Court referred the mater to COD under Section 156 (3) of Cr.P.C. who ultimately filed the charge sheet against 8 accused 15 persons. The main contention of the prosecution so far as accused No.1 is concerned is that he was serving as a Circle Inspector of Police and he created false documents in connection with the arrest of Nanjunda by keeping him in the police lockup. It is also the case of the prosecution that accused No.1 instigated other accused persons to bring the deceased Nanjunda to the Police Station and to harassing him by illegally detaining and wrongfully confining him in the police lockup. Learned Senior Counsel further submitted that another allegation against accused No.1 is that when accused Nos.5 to 7 committed rape on P.W.1 in the police station and when she came and complained to accused No.1, accused No.1 has not taken any action against other accused Nos.5 to 7 in this connection. There are four statements of P.W.1 i.e., to say private complaint in P.C.R. No.461/1993, the statement dated 23.03.1993 recorded during the inquest mahazar proceedings under Ex.P-8, the statement dated 04.04.1993 recorded by the CID police and the last statement that 16 P.W.1 was examined in the Court on 06.12.2001. In none of these statements, she had made any such allegations as against accused No.1 for committing the alleged offences. In this connection, learned Senior Counsel submitted that evidence of P.Ws.1, 5 and 6 is important. He draws the attention of the Court to the relevant portions in the evidence of all these three witnesses and submits that there is omission in their evidence in respect of accused No.1 is concerned. Therefore, it is his submission that all these materials both oral and documentary clearly show that accused No.1 is innocent, he was not at all involved in committing any of the offences and the Trial Court without properly appreciating these materials on record has wrongly came to the conclusion to convict accused No.1. Hence, learned Senior Counsel submitted that the judgment and order of conviction passed by the Trial Court so far as accused No.1 is not in accordance with the material placed on record. The Trial Court is not justified in convicting accused No.1. Hence, he submitted to allow 17 the appeal and to set-aside the judgment and order of conviction passed by the Trial Court as against appellant accused No.1.
In Crl.A.825/2011 Sri Ravi B. Naik, learned Senior Counsel appearing on behalf of accused No.2 during the course of his arguments submitted that accused No.2 was not involved in committing the alleged offences. Even in the private complaint filed by p.w.1 before the VII A.C.M.M Court, Bengaluru, there is no whisper about the involvement of accused No.2. Learned Senior Counsel also submitted that deceased Nanjunda was arrested by Mahalakshmi Police in connection with the theft case and registered crime No.43/1993 against the deceased himself. So far as the said theft case is concerned, recovery mahazaras were conducted by accused No.2, but the said mahazars were conducted by the COD, Bengaluru. He also submitted that except the said recovery, no other materials are placed by the prosecution as against accused No.2. It is also his submission that though there is allegation that 18 accused No.2 has manipulated the records of the police Station, but no material has been produced during the course of the trial to establish the said charge against accused No.2. Learned Senior Counsel also draws the attention of the Court to the relevant portions in the evidence of the prosecution witnesses and submitted that the prosecution material itself shows that no case has been made out against accused No.2. Hence, it is his submission that Trial Court has completely ignored these materials on record and wrongly proceeded to convict accused No.2. Accordingly, he submitted to allow the appeal and to set-aside the judgment and order of conviction passed against accused No.2.
Sri. Leeladhar, learned counsel appearing on behalf of accused Nos.5 and 6 in Crl.A.794/2011 has submitted that with regard to the main allegation against accused Nos.5 and 6 that they have illegally detained the deceased Nanjunda in the police lockup by wrongfully confining him, he submitted that for the said allegations departmental 19 inquiry was initiated and before the departmental inquiring authority, the statement of P.W.1 Sowbhagya was recorded and ultimately, accused Nos.5 and 6 have been exonerated in the departmental inquiry proceedings and these materials were produced by accused Nos.5 and 6 at the time of recording their statement under Section 313 of Cr.P.C. by the Trial Court. Learned counsel has also submitted that regarding the allegation of assault to the deceased by the appellants (accused Nos.5 and 6), no supporting material is placed and even the medical records also clearly show that there were no external injuries on the body of the deceased Nanjunda. Though it is the case of the prosecution that deceased Nanjunda was kept in the police lockup at Mahalakshmi Layout Police Station along with another person one Mr.Kumar and though it is their case that when deceased made an attempt to commit suicide in the police lockup, the said Kumar who was very much present in the lockup could have been the best witness for the prosecution. Though, he is cited as witness 20 in the charge sheet, he has not been examined by the prosecution before the Trial Court. Hence, he submitted that adverse inference has to be drawn as against the case of the prosecution.
The learned counsel further submitted that looking to the prosecution materials placed on record, they clearly show that the allegation of the prosecution that deceased was taken from the house on 27.02.1993 itself is doubtful. Hence, he submitted that no illegal detention of the deceased has been proved. It is also his submission that P.W.25 Achutharao was also involved in committing the alleged offences and instead of arraying him as one of the accused since he was an accomplice, prosecution has not arrayed him as accused but examined him as one of the prosecution witnesses. He has also submitted that so far as the allegation of the prosecution that appellants (accused Nos.5 and 6) have also committed offence of rape on P.W.1 Sowbhagya for which offence they have been acquitted by the Trial Court, the State has not preferred 21 any appeal. Hence, he has submitted that prosecution utterly failed to prove its case as against accused Nos.5 and 6 and submitted to allow the appeal and to set-aside the judgment and order of conviction.
In support of his arguments, learned counsel has also relied upon the decision of the Hon'ble Supreme Court reported in the case of Narender Kumar Vs. State (NCT of Delhi) (2012) 7 SCC 171.
Per contra, Sri Nawaz, learned SPP, during the course of his arguments has submitted that looking to the nature of the offence committed by the appellants-accused, the sentence imposed by the Trial Court is not reasonable and proper and it is also not proportionate in view of the seriousness of the offence. Hence, he has submitted that the sentence imposed by the Trial Court has to be enhanced. So far as the appeals against acquittal of other four accused is concerned, he has submitted that though there is satisfactory material produced by the prosecution but the Trial Court wrongly read the evidence and 22 acquitted them. He has submitted that regarding illegal detention of deceased Nanjunda from 27.02.1993 till 22.3.1993 there is a material placed by the prosecution.
He has also taken us to the evidence of prosecution witnesses, more particularly evidence of P.Ws.1, 5, 6, 21, 22, 25, 34 and 35, he also submitted that looking to the evidence of prosecution witnesses it is clear that the search register maintained in the police lockup there is a manipulation and over writing, which is established by the opinion of expert evidence also. Hence, he has submitted that this itself show that all the accused persons in order to escape from the clutches of law using their position as Police Officers, manipulated the documents. He also submitted that once it has been established by the prosecution that when deceased Nanjunda was kept in the Police lockup then it is for the accused Police Officers to explain how the incident has taken place and why he made an attempt to commit suicide if there is no torture given by the accused persons. He further submitted that regarding 23 the allegation of rape by accused Nos.5 to 7 on P.W.1 Sowbhagya. P.W.1 deposed in detail before the Trial Court and only on the ground that there is no medical evidence, the evidence of P.W.1 ought not to have been rejected by the Trial Court and he submitted that the testimony of prosecutrix itself is sufficient for the prosecution to prove that accused Nos.5 to 7 committed rape on her, this aspect was not properly appreciated by the Trial Court, there was no reason for P.W.1 to make such false allegations against accused Nos.5 to 7, if really no such incident has taken place. Hence, he has submitted that so far as acquittal of four accused persons and so far as imposing the sentence against the accused persons, who have been convicted by the Trial Court, the Trial Court has not properly looked into the matter, not taken into consideration the seriousness of the offences, more particularly that it was the incident, which took place in the police lock up, hence, he submitted that the appeals preferred by the State be allowed. 24
7. We have perused oral and documentary evidence produced in the case. So far as accused No.1 Bettegowda is concerned, P.W.1 Sowbhagya deposed in her evidence in the examination-in-chief that, when accused Nos.5 to 7 dragged her to one room and committed rape on her one after another, she made a cry. Afterthat, a neighbour came to the said place and at that time accused No.8 and deceased Marigowda scolded the said person and sent him back; when accused Nos.5 to 7 committed rape on her only the blouse was on her body and the other clothes were removed by the said accused and they were kept by the side, after accused Nos.5 to 7 committed rape on her she took her paticoat and saree and ran away; she met accused No.1 Bettegowda, who was sitting there and informed him about the rape committed on her; even then the accused have not released her husband and when she told that rape has been committed on her; accused No.1 Bettegowda through the help of another Police Constable pushed her out, then she came 25 back to the house two days she did not went to the Police Station and thereafter again she had been to the Police Station to see her husband and she requested accused No.1 Bettegowda and accused No.2 Gopal to release her husband even then they did not show any mercy to her. Accused Nos.1 and 2 kicked her, she has also deposed that she informed accused No.1 that her husband was not a person to commit suicide; the accused persons have committed his murder and are falsely telling that he committed suicide; she informed the same to accused No.1 orally; accused No.1 has not reduced her statement into writing and he has not taken any action against other accused persons. Then she went to Counselor Narendra Babu and informed about the same, then the news was published in the newspaper about the murder of her husband. She has also informed the Ministers by writing registered letters. Thereafter, she filed one private complaint in the Magistrate Court and by the order of the 26 Magistrate Court, matter was entrusted to COD for investigation and report.
In the cross-examination by the advocate for accused No.1, P.W.1 has denied the suggestion that she informed accused No.1 Bettegowda about the rape committed on her and then he has not released her husband and when she told about the rape committed on her. Accused No.1 Bettegowda through the Police Constable, pushed her outside, then she was weeping and came to the house and about these facts she has not stated either in the private complaint or in the inquest mahazar dated 23.03.1993 or in her statement before the COD Police dated 04.04.1993 and in her statement before the DCP on 06.12.2001. She has also denied the suggestion that she has not stated about the facts that thereafter she went to the Police Station to see her husband and asked accused Nos.1 and 2 to release her husband, even then, they have not shown any mercy to her and at that time, accused Nos.1 and 2 27 kicked her and she has not stated the same in her statements.
8. P.W.5-Shantharajaiah has deposed in his evidence in the examination-in-chief that on 22- 23.03.1993 he was on sentry duty in the Mahalakshmi Layout Police Station, so he came to the Police Station at 2.00 a.m. and he was there up to 6.00 a.m. and he has signed in the Sentry Relief Book, the Station House Officer mentioned in a column of the said book that there are no accused in the station for which he has also signed and on that night accused No.4 was the Station House Officer. During that night at 2.00 a.m. when he came to attend his night duty, P.C.No.2674 Ramachandra was in the Police Station and he relieved said P.C.-Ramachandra. On that day he has not gone to the Police lockup room; during that night there were no lockup guards in the station, during that night in between 2.45-3.00 a.m. in the lockup room one Nanjunda was hanging and said lockup room was 28 locked from outside. After seeing the said Nanjunda he lifted him upwards and in the same room another accused Kumar made him woke up. Then, himself and Kumar screamed, SHO (accused No.4) came with the key and opened the lock and they took Nanjunda downwards as his body was still warm, thinking that he is still alive, sent him to K.C.General Hospital in the auto rickshaw; he remained in the Police Station. Accused No.4 and one P.C. Eshwarappa went to the hospital along with auto. At 6.30 a.m., accused No.1-Bette Gowda and C.W.67 Chalapathy came to the Police Station and they came at 6.30 a.m. By that time, Nanjunda expired in the hospital.
The extract of the Sentry Relief Book in which he has signed is produced as per Ex.P-4, it bears his signature at page No.109. At Page No.109 though it was mentioned there was nobody in the lockup. But, subsequently there were corrections and number "two" has been mentioned in the said column. Earlier in the said place it was mentioned as "Nil" but after the death of Nanjunda accused No.1 29 Bettegowda and PSI Chalapathy were talking with each other that documents are to be created to the effect that Nanjunda was arrested but on that day morning he was supposed to be relieved from duty; however, instead of relieving him he was made to wait in the Police Station up to 7.00 a.m. at that time he asked and told him that there is no any sort of connection between himself and the said case and then accused No.1 Bettegowda told him to go. However, thinking about the happenings in the case, he went to VII ACMM's residence at 8.15 a.m. and submitted report, the certified copy of the same is Ex.P-5, Ex.P-5 bears his signature. According to him deceased Nanjunda was in their Police Station since 15 days. COD Police, Bengaluru have enquired with him about this case and recorded his statement.
In the cross-examination by advocate for accused No.1, P.W.5 has deposed that he is a Government Employee and as he is working in the Police Department, he is a disciplined worker. As he was the disciplined 30 employee, he will not tell lie either orally or in the written form before his superior officers or before the Court. He admitted as true that on 05.04.1993 through his lawyer, he filed one advancement application before VII ACMM Court and filed his affidavit as per Ex.D-13, the advancement application is Ex.D-12 and vakalath is Ex.D-
14. He has also deposed that at that time false allegations were made against him and he was kept under suspension and at that time accused No.1- Bettegowda threatened him and he himself appointed an advocate and through the same advocate he filed Exs.D-12 and 13 before the VII ACMM Court stating that it will be useful for him, because accused No.1 told him he signed on the affidavit and vakalath. He has not filed any complaint before his superior officers or in the Court nor issued any lawyer's notice to accused No.1 even till the date of his deposition before the Court he has not filed any complaint against accused No.1 alleging that he threatened him. He has further deposed that on 12.04.1993 he gave his statement 31 before COD Police but he has not stated that himself and Eshwarappa filed their affidavits before the Court through their advocates and the contents mentioned in the affidavits are true and he has produced the copy of the said affidavits, as per Ex.D-15. He admitted as true that in all his four statements he has not mentioned that on that day accused No.1 Bettegowda and Sub-Inspector Chalapathy came to the Police Station at 6.30 a.m. He deposed that he does not remember that he has not stated in his four statements that after the death of Nanjunda accused No.1, Sub-Inspector Chalapathy were talking with each other to create the documents showing as if Nanjunda was arrested.
9. P.W.6 K.S.Eshwarappa has deposed in the evidence in his examination-in-chief that on 22.03.1993 himself, P.C. Dasegowda and another P.C. Hanumanthaiah and Head Constable C.W.63 were deputed on night duty and they were all in the Mahalakshmi layout Police Station. 32 Accused No.4 Chikkaboraiah and P.W.5 Shanthrajaiah were nearby the lockup. Accused No.4 informed that Nanjunda hanged himself in the lockup and at that time Kumar was providing water to Nanjunda. In the meanwhile, Achutharao C.W.63 brought the auto and himself and accused No.4 took Nanjunda to K.C.General Hospital, Bengaluru after they went to the hospital accused No.4 informed accused No.1 Bettegowda, Chalapathy Sub- Inspector about the said attempt by Nanjunda and accused No.1 and Chalapathy came to the hospital and deceased Nanjunda was taken inside the hospital and they were waiting outside. He has further deposed that he went to accused No.1- Bettegowda and asked accused No.1 that though Nanjunda was not arrested, why the documents were manipulated; but accused No.1 did not take his words into consideration and threatened him to go away. Though Nanjunda was not arrested and as all the accused before the Court created the documents as if he was arrested, he was fed up and went home, deceased Nanjunda when 33 brought to the Police Station. It was not mentioned in the station documents that he was arrested.
In the cross-examination by the learned counsel for accused No.1, P.W.6 has deposed that in his presence if any incident has happened he used to make a mention in the note book. He admitted as true that about the incident dated 22/23.03.1993 which took place in the Police Station, he has not made a mention in the note book. He has also admitted as true that even he has not mentioned in his note book about the incident that the incident has taken place in the morning on 23.03.1993. He admitted as true that the note book mentioning about the incident is very necessary and it is very important document. Regarding the duty done by the Police Constable and the Head Constable in the Police Station, there will be entry in the SHD and duty roster document. The said documents are permanently available in the Police Station and they were shown to the superior officers. If the entries in the said two documents are looked into, then, it will be clear 34 that on 22-23.03.1993 and 23.03.1993 morning himself and P.W.5 and Shantrajaiah were on which duty in the Station. He admits Ex.D-9 affidavit; he has produced before the VII ACMM Court and his signatures are marked as per Ex.D-9(a) to (c). He admitted as true that in his three statements, which he has given before the Police Assistant Commissioner dated 27.03.1993, 09.04.1993 and 21.08.1993 he has not stated that after the death of Nanjunda; accused No.1 and Chalapathy informed C.W.63- Achuthrao to create the documents showing as if Nanjunda was arrested; he heard the said talk but accused No.1 has not told before him about the same. He further admitted as true that he has not mentioned in his statement about the facts that he went to accused No.1 and asked him that, though Nanjunda was arrested why the documents were manipulated, for which accused No.1 did not responded and threatened him to go from that place.
In the further cross-examination P.W.6 has deposed that he has not deposed as per Exs.D-9 to D-11. 35
10. P.W.40 T.D.Durgaiah, Investigating Officer, has deposed during the course of his cross-examination by the counsel for accused No.1 about the facts in chief that accused No.1-Bettegowda was sitting there and she informed that there was a rape committed on her, her husband was not released and when she told that there was rape committed on her, accused No.1-Bettegowda through the help of the Police Constable pushed her; she started to weep and went to the house and in the private complaint, inquest mahazar dated 23.03.1993, statement before the COD Police dated 04.04.1993 and in the statement before the DCP dated 06.12.2001 she has not stated about these facts. He has also admitted that P.W.1 has also not stated about the facts that thereafter she again went to the Police Station to see her husband and asked accused Nos.1 and 2 even then they have not shown any mercy to her, accused Nos.1 and 2 kicked her and she has not stated about these facts in any of her four 36 statements. P.W.6 stated before the Court as per Exs.D- 10 and D-11 before C.W.72 Rudraiah.
Except these witnesses i.e., P.Ws.1, 5 and 6, the other witnesses have not stated anything against accused No.1. With regard to the evidence of P.Ws.1, 5 and 6 about which we have already made detailed reference above, it clearly show that about the material facts which are deposed by the witnesses in their examination-in-chief regarding the involvement of accused No.1 and he committing the alleged offences charged against him, the witness have clearly admitted that there are omissions so far as that part of the evidence is concerned, P.W.1 Smt.Sowbhagya W/o deceased Nanjunda has not at all stated anything about such allegations in her private complaint and so also in her subsequent statements before the COD Police so also in her statement while conducting the inquest mahazar proceedings. Without making such statement or allegations in the earlier statements though there was sufficient opportunity for her for the first time 37 before the Court she deposed about all those things as against accused No.1; it clearly show that there is an improved version by P.W.1 about these material facts. Looking to the allegations or the facts about which she deposed in her evidence for the first time before the Court, those facts are of such a nature that they will go to the very root of the case. Therefore, the omissions amounting to contradictions about these omissions the defence was able to prove by confronting into the concerned Investigating Officer, who recorded the statement during investigation.
Though it was deposed by the prosecution witnesses that, on the date of incident at 6.30 a.m. itself accused No.1 along with Police Inspector Chalapathy came to Mahalakshmi Layout Police Station and though it is deposed by the witnesses that accused No.1 and Chalapathy were conversing with each other to manipulate the documents to show the arrest of the deceased Nanjunda, but as we have discussed about the evidence of 38 the prosecution witnesses more particularly P.Ws.1, 5 and 6, there is no worth believable material placed through the versions of such witnesses.
In the absence of cogent and satisfactory material about the involvement of accused No.1 in committing the alleged offence, it is difficult to believe the story of the prosecution. So far as accused No.1 is concerned, the Trial Court without appreciating these materials on record wrongly proceeded to convict accused No.1; the judgment and order of conviction so far as accused No.1 is concerned is not in accordance with the materials placed on record i.e., both oral and documentary. Therefore, it is not sustainable in law.
11. So far as accused No.2-Gopal is concerned, P.W.1 has deposed that when she had been to Mahalakshmi Layout Police Station in the morning accused Nos.5 and 7 gave ill-treatment to her at that time she was having only Mangalya in her neck, they have snatched the 39 said Mangalya also. Then, she was brought to her house and they have taken the sarees and radio stating that they are the stolen articles and went to the Police Station. On one day when she had been to the Police Station at 11.30 a.m. she was talking with her husband as her husband was assaulted throughout his body. Her husband showed it to her, then she requested accused No.2 to release her husband. At that time accused No.2 scolded her that they are theft/stolen articles and let him suffer the ill-treatment. She further deposed that after accused Nos.5 to 7 committed rape on her, she went to her house and she had not been to the Police Station for two days and as she wanted to see her husband, again she went to the Police Station and met with accused Nos.1 and 2. Even then, they have not shown any mercy to her and accused Nos.1 and 2 kicked her. Her husband told her that she has to get him released otherwise both can consume poison. Even her husband was telling with her to put the poison in the meals. Then, she took two poison bottles to the Police 40 Station and told accused No.2 to release her husband otherwise she will consume poison and she will die. At that time, accused Nos.5 to 8 and Marigowda were also present there. Then accused No.2-Gopal scolded her that she had consumed liquor and pretending as though she had consumed poison and told her that she can consume poison and die. Then she consumed the poison and as she was getting giddiness she fell down. At that time, accused Nos.2 and 5 to 8 shifted her to a clinic; as the doctor in the said clinic told that she has to be shifted to some other Government Hospital, then she was taken in the auto rickshaw by accused Nos.5 to 7 to her house and left her in her house.
Learned counsel for accused No.2 cross examined P.W.1. In the cross examination, P.W.1 has denied the suggestion that she had not deposed in her statement before the police and also in the private complaint that accused No.2 and accused Nos.5 to 8 stating that she has consumed something, took her in their jeep to the hospital. 41 She has also denied the suggestion that she has not mentioned in her private complaint and also in her statement that in connection with the theft case, her husband has been brought by the police. She has further denied the suggestion that she has not mentioned in her private complaint and in her statement that a police constable was writing something on the table and at that time, accused No.1 (Bettegowda) and accused No.2 (Gopal) and two sentry police were present. She has also denied the suggestion that as accused No.2 seized the articles which were stolen and pledged by herself and her husband, she is giving false evidence against him. Except the evidence of P.W.1, no other prosecution witnesses have deposed about the involvement and commission of the alleged offences by accused No.2 (Gopal). Whatever P.W.1 has deposed in her examination in chief relating to accused No.2, we have referred to her cross examination. Though she has deposed that she has stated in her statement about the involvement of accused No.2 (Gopal) 42 also, but defence is able to establish that it is the improved version by her and so far as accused No.2 is concerned, her evidence clearly goes to show that there are omissions and which omissions are of a material fact amounting to contradiction.
12. We have also perused the original records in PCR No.461/1993 before the ACMM Court-VII at Bengaluru. Looking to this private complaint, accused No.2 (Gopal) was not at all arrayed as an accused person in the said PCR nor there are any sort of allegations about the involvement of Gopal in committing the alleged offence. Even with regard to the allegation of manipulation of the documents of the Mahalakshmi police station, the evidence of P.Ws.1, 5 and 6 goes to show that on 23.3.1993 in the morning, they heard that accused No.1 (Bette Gowda) and C.W.63-Chalapathy were under conversation with each other for manipulation of the records. But even with regard to that also, while 43 discussing the evidence as against accused No.1 (Bette Gowda), we have made it clear that the prosecution has failed to establish the said fact with cogent and satisfactory material. If at all accused No.2 (Gopal) was also involved in committing the alleged offence as deposed by P.W.1 and other prosecution witnesses, P.W.1 Sowbhagya was supposed to mention about the said facts in her statement before the COD police, in her statement at the time of recording inquest mahazar proceedings so also in the private complaint filed before the VII ACMM Court and she was not suppose to forget the same. But perusing the materials, more particularly, the original PCR, accused No.2 (Gopal) was not at all arrayed as an accused nor there are any sort of allegations against him in the private complaint.
Even in the cross-examination of PW.6 by advocate for accused No.2, he admitted as true that in his statement dated 27.03.1993, he has not stated that accused No.2 was present in the police station.
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13. Looking to these materials on record, we are of the opinion that the trial Court has not at all looked into these aspects and has wrongly come to the conclusion that accused No.2 has committed the alleged offence.
14. Now coming to the alleged offence of rape against accused Nos.5 to 7 is concerned, there is charge framed by the trial Court that accused Nos.5 to 7 kept the deceased Nanjunda in wrongful confinement, assaulted his hands with clubs and caused injuries and on 10.03.1993 at 10:30 p.m., accused Nos.5 to 7 took P.W.1 (Sowbhagya) to the first floor of the Mahalakshmi Police Station and against her will, they committed the forcible sexual intercourse on her and thereby, they committed the offence under section 376 (2) (a) and (g) of IPC.
To prove the said charge, P.W.1 has been examined by the prosecution before the trial Court wherein in her examination in chief, she has deposed that after her 45 husband was kept in wrongful confinement of Mahalkshmi Layout Police Station, she used to go to the police station everyday in the morning, noon time and the evening, carrying food to him. One day, accused Nos.5 to 7 committed forcible sexual intercourse on her. Though she informed about the said act on her to accused No.1 and one Chalapathy, no action has been taken by them against accused Nos.5 to 7. Then she took her saree and petticoat and ran away from the place of commission of rape. The evidence of P.W.1 during the course of cross-examination by the counsel on behalf of accused Nos.5 to 7 goes to show that about the said incident of rape, P.W.1 has not stated before her parents and sister and she has also not lodged a complaint in writing before ACP. However, she has informed him orally. She has not taken medical treatment on that day from the doctor. As her hand was tied with a rope, it was reddish in colour. But there was no injury and hence she had not taken any treatment. After three days of the incident, she threw away her petticoat 46 and saree. She has denied the suggestion that accused Nos.5 to 7 had not at all committed rape on her in the police station. The suggestion that she was selling the stolen articles and helping the thieves and that, the police may involve her in any offence and hence, she foisted a false story and gave false statement against the police are all denied. Admittedly, even according to P.W.1, she has not taken any treatment from the doctor in connection with the alleged offence of rape. Even she has not produced the clothes before the police. She has not narrated the same before her family members. However, she has filed a private complaint in P.C.R.No.461/1993 before the VII A.C.M.M. Court, Bangalore. Even in the said private complaint also, there is no specific allegation of commission of rape on her by accused Nos.5 to 7 in the first floor of Mahalakshmi Layout Police Station, Bangalore. If really, there was such an incident had taken place on her, the same could have been narrated in her private complaint. Therefore, in the absence of any worth 47 believable material, it is difficult to accept the contention of P.W.1 that there was rape on her. Therefore, the trial court on assessing the materials, both oral and documentary, has rightly come to the conclusion in holding that prosecution has failed to prove the said charge as against accused Nos.5 to 7.
15. Further case of the prosecution is that accused Nos.2 and 4 to 8 at the instigation of accused No.1, with an intention to commit the alleged offence, brought the deceased Nanjunda from his house at Prem Nagar, Kamakshipalya on 27.02.1993 at 08.00 p.m. to Mahalakshmi Layout Police Station and wrongfully confined him in the Police station till his death. So the burden is on the prosecution to establish the said fact.
16. Looking to the materials placed on record, it is the defence of the accused that the deceased Nanjunda was arrested on 22.03.1993 at about 03:00 p.m. in 48 connection with the theft case for the alleged offence under Sections 457 and 380 of IPC and he was kept in the Police lockup. A case was registered against him in crime No.43/1993 for the said offences and F.I.R was also issued. During the night at about 03.00 a.m in between 22/23.03.1993, the said Nanjunda was attempting to commit suicide. It was noticed by the lockup guard sentry, who in turn brought to the notice of accused No.4 (SHO) and then, they opened the lockup. The deceased was attempting to commit suicide by hanging with the help of a portion of the bed sheet tying it to his neck and putting it to the angle of the lockup gate. It is also the defence of the accused that they lifted Nanjunda and untied the bed sheet, took him to downward and he was taken to KCG hospital for treatment in an auto-rickshaw. But he died in the hospital. In this connection, one-Achyutha Rao lodged a complaint against deceased Nanjunda making an attempt to commit suicide which was also registered in Mahalakshmi Layout Police Station crime No.120/1993 for 49 the offence punishable under Section 309 of IPC as against the deceased. Therefore, it is their consistent defence that they have not at all arrested the deceased Nanjunda on 27.02.1993 nor kept in wrongful confinement in the Police Station and they have denied the entire case of the prosecution.
In this connection the evidence of P.W.1, the wife of deceased Nanjunda goes to show that on 27.02.1993, accused Nos.5 and 6 took her husband to the police station. Herself, her mother, her brother Natesh and her younger sister Parvathi were also present. It was seriously challenged by the defence that on 27.02.1993, they had not at all arrested the deceased Nanjunda nor brought him to the police station. Therefore, it is necessary to examine the materials to know exactly as to on which date the deceased Nanjunda was arrested by Mahalakshmi Layout Police Station and taken to their custody.
P.W.1 during the course of cross-examination has denied the suggestion that on 21.03.1993, herself, her 50 husband and her mother-in-law were talking in house at 10.30 p.m. and she had not stated so before the police as per Ex.D.6. She has denied the further suggestion that on 22.03.1993 at 04.00 a.m., the police came and took her husband to Mahalakshmi Layout Police Station and she has not stated so before the police in her statement as per Ex.D.7. She has deposed that on that day morning at 08.00 a.m., she went to the police station and she has not stated so in her statement as per Ex.D.8.
17. We have perused the private complaint in PCR No.461/1993 filed before the VII A.C.M.M Court, Bangalore. On page No. 3 of the said private complaint, it is stated by the complainant that on 13.02.1993 at about 08.30 p.m., Hanumaiah and Ravikumar (accused Nos.5 and 6) came to her house at Prem Nagar and forcibly took her husband (deceased Nanjunda) to Mahalakshmi Layout Police Station without assigning any reason. So the date of the alleged arrest of deceased Nanjunda by the 51 Mahalakshmi Police even according to the complainant was on 13.02.1993. But in her oral evidence before the Court when she was examined during the Course of trial and according to the charge framed, the deceased was taken to the Police Station (on 27.02.1993) and till his death, he was wrongfully confined in the said Police Station.
18. Looking to the documents at Exs. D.9 and D.13, they are the affidavits filed by P.Ws. 6 and 5 respectively before the VII A.C.M.M., Bengaluru. In the affidavit at Ex. D.9, it is stated by P.W.6 that Nanjunda and Kumar were accused in Crime No.43/1993 of Mahalakshmi Layout Police Station and they were arrested by Mr. Gopal, the Sub- Inspector of Police (crime) on the evening of 22.03.1993 at about 03:00 p.m. He has further deposed that after completion of investigation in the crime in which the accused were arrested, for the day, they were brought back to the police station and lodged in the lockup of the police station.
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In the affidavit at Ex.D.13 which was filed by P.W.5 herein, it is mentioned that, he then learnt that prisoners Nanjunda and Kumar were arrested as accused in Crime No.43/1993 of Mahalakshmi Police Station, Bangalore city and that they came to be arrested by Mr.Gopal, Sub- Inspector of Police (Crime) on the evening of 22.03.1993 at about 03.00 p.m. and that after completion of investigation in the crime in which they were arrested, for the day, they were brought back to the Police Station and lodged in the lockup of the Police Station. P.W.5, in the cross-examination by advocate for accused No.1, has voluntarily deposed that once, he appeared before II A.C.M.M. Court and informed before the said Court that as accused No.1 threatened him, he filed an affidavit (Ex.D.13) making false averments. He further deposed that he has not complained to his higher officers to the effect that accused No.1 had threatened him nor had he filed any complaint against accused No.1 before the Court or issued any lawyer notice to accused No.1. Till the date of he 53 giving the evidence before the Trial Court, he has not filed any complaint against accused No.1 that he had threatened him. On 12.04.1993, he gave his statement before the COD Police. He has not stated before the COD Police that himself and Eshwarappa both filed their affidavits through their advocates stating that the contents of the affidavits were true and that they have produced the copy of the affidavit. He has not stated so as per Ex.D.15. (Though in the deposition of P.W.5 initially the affidavit filed by the said witness was marked as per Ex.D.11, then it has been corrected by the Trial Court as Ex.D.13. A portion of the statement of the said witness though marked as Ex.D.13, the same has been corrected as Ex.D.15 and accordingly, the same were shown in the annexures by the defence side). Looking to the evidence of P.W.40, the contradiction as per Ex.D.15 has been confronted and the said witness has deposed that P.W.5 has stated as per Ex.D.15 before C.W.72 Rudraiah, who is dead. But on behalf of C.W.72 Rudraiah, P.W.40 has been examined by 54 the prosecution. This really goes to show that P.W.5 filed an affidavit before the VII A.C.M.M. Court, Bangalore wherein he has mentioned the date of arrest of the deceased Nanjunda as 22.03.1993.
19. Coming to the evidence of P.W.6 (K.S. Eswarapppa), he has also admitted that he had filed an affidavit before the VII ACMM Court, Bangalore as per Ex.D.9. He further deposed that when he was on duty, a note book was given to him. He has admitted as true that if an incident happens, the same will have to be mentioned in the said note book for that day and they have to inform the same to the SHO. He has also admitted that they have to produce the said note book before the SHO daily, weekly and monthly and obtain his signature. He has also admitted as true that if any matter pertains to the case, they have to put the case number and the matter in the said note book and thus they have to show it to the investigating officer. In his service, he has worked true to 55 his conscious. He has admitted as true that in his presence, if any incident had taken place, he would have mentioned the same in his note book. About the incident that took place during the intervening night of 22/23.3.1993, he has not mentioned about the same in his book. Even he has not mentioned as to what has happened on the morning of 23.3.1993 in the note book. He admitted as true that as the police constable, it is very necessary for him to mention about the incident in the note book and the said document is very very important document. In his further examination in chief, he has deposed that he filed affidavit (Ex.D.9) before the ACMM court because of pressure from his higher officer.
During the course of cross examination by advocate for accused No.1, he has admitted as true that in his three statements, he has not mentioned that because of pressure from is higher officers, he filed the affidavit as per Ex.D.9. He has denied the suggestion that he had a discussion with his advocate Sri. Sambhava Murthy at 56 Gandhi Nagar, Bengaluru, and then he filed Ex.D.9 before the VII ACMM Court. The said portion of the statement is marked as per Ex.D.10. He has further denied the suggestion that he stated before the COD police on 9.4.1993 that the contents of affidavit filed before the VII ACMM Court are true and he is telling the same thing before them. The said portion of the statement is marked as Ex.D.11. Exs.D.10 and D.11 were confronted to the investigating officer (P.W.40), who admitted and stated that P.W.6 has stated as per (Exs.D.10 and D.11) which he has stated before the VII ACMM Court.
20. Perusing the contents of the affidavits (Exs.D.9 and 13) and the contradictions at Exs.D.10, D.11 and D.15, which have been confronted to the investigating officer through the defence, so also looking to the oral evidence of P.Ws.5 and 6, which is given before the trial Court, it is contrary to what they have stated in their affidavits (Exs.D.9 and 13). Though it is stated in their 57 oral evidence that they have filed affidavits in such manner, on the pressure of higher officers but the same has not been established satisfactorily by the prosecution.
21. We have also perused the oral evidence of P.W.24 K.C. Ramachandraiah wherein he has deposed that 2-3 days earlier to 22.3.1993, he visited Bengaluru police station and no accused persons were kept in wrongful confinement. So this evidence of P.W.24 again is contrary to the evidence of other prosecution witnesses that the deceased Nanjunda was arrested and brought to the police station on 17.2.1993 and kept in police lock up till his death. The evidence of P.W.24 remains as it is because he was not treated as hostile witness nor cross examined by the public prosecutor with permission of the Court. So this evidence of P.W.24 will also to be taken into consideration while examining the materials to know about the exact date of arrest of deceased Nanjunda.
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22. We have also examined the evidence of other prosecution witnesses. Ex.P.15 is the statement got marked by the prosecution during the evidence of P.W.16. The said statement is of P.W.16 given before Dy. Sp., H & B, COD, Bangalore dated 05.04.1993. It is no doubt true that in this statement at page No.2, it is stated that on 16.03.1993 one Ravi and Hanumaiah (Accused 6 and 5) along with one Kumar and Nanjunda came to P.W.16 and the said accused 5 and 6 asked P.W.16 as to whether Kumar and Nanjunda have pledged any ornaments in their shop. For that, P.W.16 told that he will verify in the Pawn book and if it is mentioned, then he will come to them. When P.W.16 has been examined before the trial Court, he has turned hostile and not supported the case of prosecution. He has also denied that he has given such statement before the COD Police as per Ex.P.15. It is no doubt true that in Ex.P.15, there is a mention that those two police officers took Kumar and Nanjunda to the shop of P.W.16 on 16.03.1993. But since the witness has turned 59 hostile and the Dy.S.P. (COD) who is said to have recorded the statement under Ex.P.15 has not been examined before the court so as to prove the said aspect, Ex.P.15 cannot be considered as supporting material and accordingly, it is not proved by the prosecution. Except the above materials which we have discussed, there is no other material from the evidence of any of the prosecution witnesses to show that the deceased Nanjunda was brought from his house on 27.02.1993 and continuously he was kept in the Police Station till the date of incident i.e., 22.03.1993. On the contrary the evidence of P.Ws.35 and 36 goes to show that Cr.No.43/1993 was registered for the offences punishable under Sections 457 and 380 of IPC and Kumar and Nanjunda were arrested in the said Crime. Therefore these materials support the defence of the accused persons that Nanjunda was arrested on 22.03.1993 at about 03:00 p.m. in connection with Mahalakshmi Layout Police Station in Cr.No.43/1993 and not earlier to that. It is no doubt true that P.Ws.5 and 6 60 though have deposed that they came to know that 15 days earlier to the incident, Nanjunda was brought to the Police station and kept in the custody. But we have also discussed in detail about their oral evidence, the affidavits (Exs.D.9 and D.13) filed by them before the VIIth A.C.M.M. Court, Bengaluru so also the certified copy of the same produced by them before the COD Officers. Therefore the evidence of P.Ws.5 and 6 cannot be trusted as their evidence is not worth believable and are also not consistent.
23. Looking to the evidence of P.W.1, the wife of deceased Nanjunda, she has stated that Police Officers arrested her husband, took him to the Police Station and everyday they used to assault him, they used to tie his lower limbs, made him to hang and then they used to assault him with clubs on the entire body and by making such assaults the police officers/officials caused the death of Nanjunda and subsequently they created the false 61 documents that Nanjunda made an attempt to commit suicide in the lockup room. Perusing the private complaint P.C.R. No.461/1993 before the A.C.M.M. Court, Bengaluru. There are allegations on page No.8 of the said complaint that in view of the said facts and circumstances accused Nos. 1 to 6 have committed the offences of trespass, wrongful restraint, wrongful confinement to extract confession and property from deceased and complainant and causing simple and grievous injuries in committing the murder of deceased or instigating to commit suicide. So, accordingly even Section 302 of IPC was also inserted in the said complaint. In this connection, it is relevant to mention to the oral evidence of P.W.47 S.Dorairaju, Adv. who was examined on behalf of the prosecution. In the examination in chief, he has deposed that he knows the complainant Sowbhagya and her husband Nanjunda. On 23.03.1993 morning at 09:30 a.m. when he was in his office, some of the elders surrounding that locality, K. L. Nagaraj, a Social Worker and others came to him and 62 informed that in the Mahalakshmi Layout Police Station, in the early morning one dead body was taken out and as it is very serious matter, action has to be taken in that regard. At that time, the complainant Sowbhagya, her aunt and others also came to him. One - Narendra Babu, Councilor also came to him. So on 24.03.1993, he prepared a private complaint as per the say of P.W.1 and filed before VII A.C.M.M. Court which was numbered as PCR.NO.461/1993. The evidence of P.W.1 goes to show that Police Officers/Officials by assaulting Nanjunda caused his death in the Police Station which is fortified by the evidence of P.W.47.
24. On the contrary it is the case of defence that on the intervening night between 22/23.03.1993 at about 03:00 a.m., the deceased Nanjunda made an attempt to commit suicide with the help of bedsheet which was immediately noticed and he was taken downwards and as his body was still warm and as he was still alive, 63 immediately he was shifted to KCG Hospital. The deceased died while he was under treatment. In this connection, the evidence of P.W.44, Dr. K. Beerappa goes to show that on 23.03.1993 at around 03:30 a.m., one person by name Nanjunda was brought to causality with history of hanging in the Police Station around 03:00 a.m. on the same night. He was brought by ASI Chikkaboraiah (accused No.4) he examined him and found that the patient was gasping with only jaw movements and he was cyanosed (bluish). His pulse was very feeble and B.P. was not recordable. Breath sounds were not audible and heart sound was heard but muffled. His pupils were dilated and found a ligature mark around the neck. Though they tried to resuscitate but could not. He was declared as dead around 04:00 a.m. on the same early morning. He further deposed that he issued OPD slip zerox as per Ex.P.38 and accident register extract which is as per Ex.P.39. The evidence of P.W.42 (Dr.Thirunavakaru) who conducted P.M examination over the dead body of the deceased goes to show that there is a 64 corn over the heel of right foot with peeling of hard cuticule. He has also deposed about the ligature mark on the front and sides of the neck. He has issued post mortem report as per Ex.P.37. Looking to the said report, as well as the evidence of P.W.42, it goes to show that except the corn in the right foot and the ligature mark in the neck, there were no injuries found on the body of the deceased. The same is shown in the inquest mahazar (Ex.P.8). In the said mahazar also, there is no mention that there were any other injuries over the dead body of the deceased Nanjunda. It is no doubt true that P.W.45, who was the sub-Divisional Magistrate, has conducted inquest mahazar (Ex.P.8) over the dead body of the deceased. In his evidence, he has deposed that on 27.03.1993, Eshwarappa (P.W.6) gave a statement before him as per Ex.P.6. We have perused the document (Ex.P.6) and Ex.P.5 also. But in view of the detailed discussions in respect of the oral evidence of P.W.6 and his affidavit he has filed before the VII A.C.M.M. Court and produced the certified copy of the 65 said affidavit before the COD Police, the document Ex.P.6 and Ex.P.5 will not inspire the confidence of this Court. The materials on record both oral and documentary clearly show that the deceased Nanjunda made an attempt to commit suicide in the Police lockup during the intervening night on 22/23.03.1993 with the help of bed-sheet and immediately crime was registered against him in Mahalakshmi Layout Police Station Cr.No.120/1993 for the offence punishable under Section 309 of IPC and he was shifted to the hospital. While getting treatment in the hospital, he expired.
25. There is also a charge against the accused persons for the offence punishable under Section 306 of IPC that it is the accused persons by assaulting the deceased abetted commission of suicide by him. But as we have already observed above that regarding the assault made on the deceased Nanjunda and causing injuries to him, both simple and grievous, the medical records clearly 66 show that no such injuries were found on his body. The prosecution was not able to establish the said allegation of abetment to commit suicide by the deceased on the ground of ill-treatment both physical and mental given by the accused. As we have already come to the conclusion that the prosecution has utterly failed to establish the fact that the deceased Nanjunda was arrested and brought to the Police Station and kept in the Police Lockup from 27.02.1993 till the date of the incident, the question of alleged ill-treatment and harassment does not arise at all.
26. No doubt it is the case of the complainant- Sowbhagya (P.W.1) that, her husband was taken from the house on 27.02.1993 by accused Nos.5 and 6 and he was kept in Mahalakshmi Layout Police Station. Everyday she used to go to the Police Station to see her husband, the Police were harassing her husband both physically and mentally. She made request to the Police to release her husband otherwise she will consume poison. As the Police 67 have not released her husband, she consumed poison on 11.03.1993; she was taken to a private clinic, as the doctor in the said clinic told that she has to be shifted to some Government Hospital, then she was taken to the Government Hospital and got the treatment.
27. It is also true that looking to the evidence of P.W.41 Dr.B.Manjunath, Senior Specialist, General Hospital, Jayanagar, Bengaluru, who deposed in his examination-in-chief that, on 11.03.1993 at 11.50 p.m. one female by name Sowbhagya W/o Nanjunda was brought to the causality with a lady by name Gowramma said to be the mother of Sowbhagya with history of consumption of Baygon spray at around 12 noon of 11.03.1993. On examination she was found to be GOVS pulse rate 86 per minute. Pupils normal and re-active to light. Respiratory and cardiovascular systems are found to be clinically normal. He administered injection atropine and treated and accordingly informed the Police. She 68 required observation and there was no female beds vacant in the hospital in the emergency ward so patient was referred to Victoria Hospital, Bengaluru. He issued the accident register extract, which is marked as per Ex.P-36. In his cross-examination, P.W.41 has denied the suggestion that he has issued false certificate.
28. The evidence of P.W.41 and the document Ex.P- 36 show that P.W.1 consumed poison on 11.03.1993, but only on the basis of this evidence Court cannot presume the entire case of the prosecution that it is because of the harassment by the Police to her husband and as Police have not released her husband.
29. Apart from that, when the prosecution has utterly failed to prove the fact that deceased was arrested and taken to the custody of Mahalakshmi Layout Police Station on 27.02.1993 and kept in the said Police Station till the date of incident, the question of accepting the 69 version of P.W.1 that she consumed poison seeking release of her husband on 11.03.1993 does not arise at all. Hence, the said evidence of P.W.41 and Ex.P-36 will not help the case of the prosecution in any way.
30. It is also the contention of the prosecution that extract of sentry relief book has been produced as per Ex.P-4, which bears the signature of P.W.5 at page No.109, which is admitted by P.W.5 in his evidence and P.W.5 has also deposed that initially it was mentioned in the said column as nobody was there. Subsequently, it was corrected and written as two (2) in figure, in the place of "Nil", which was made earlier and this manipulation of record was made subsequent to the death of Nanjunda.
31. P.W.25 Achutharao has also admitted in his evidence in the examination-in-chief that, in Ex.P-4 it is mentioned that accused were kept in the lockup. He has also admitted that in Ex.P-4 for the dates 22.03.1993 and 23.03.1993, entry was made about how many persons are 70 there in the lockup, then it was scored and again there were corrections, but he deposed that he does not know, who has made such corrections.
32. We have perused the entries in Ex.P-4; there are corrections made as deposed by P.Ws.5 and 25.
Looking to the evidence of Officer from FSL, it also shows that the admitted writings and the disputed writings of deceased Nanjunda were examined and they are not from one and the same person.
33. P.W.29 C.Aswathappa, an officer from FSL, who has deposed in his evidence in the examination-in-chief that during the year 1993 he examined the documents, which were sent by COD Police, Bengaluru pertaining to Mahalakshmi Layout Police Station Crime No.120/1993. He examined the Mahalakshmi Layout Police Station prisoner's search register, which is a disputed document, and the signature on the said document is marked by him 71 as Q-1. In order to compare this disputed signature, standard signatures said to be of Nanjunda on prisoner's search register of Kamakshipalya Police Station, which is marked at Ex.P-28 subject to objection and he examined another standard signature of R.Nanjunda of Kamakshipalya Police Station prisoner's search register, said Xerox copy marked at Ex.P-29 subject to objection and the standard signatures of R.Nanjunda on Exs.P-28 and P-29 are marked by him as A1 and A2. After thorough and careful examination of questioned signature Q-1 and admitted signatures A1 and A2 and writings A3 to A5 with scientific instruments such as magnifiers, comparison microscope, Stereoscopic microscope, Video Spectral comparator, he arrived at one opinion that the person, who wrote red enclosed standard signatures and writing stamped and marked A1 to A5 did not write the red enclosed, questioned signatures. He has given his detailed reasons in two pages as per Ex.P-30. The reasons are enclosed with Ex.P-30 and it is marked as Ex.P-31. 72
But during the course of cross-examination by advocate for accused No.2, he admitted that the original records pertaining to Exs.P-27, 28 and 29 are not before the Court. He has also deposed and admitted that in the absence of such original documents, he cannot review and given his explanation that at that time i.e., while giving the evidence. So it shows that as the originals of Exs.P-27, P- 28 and P-29 are not before the Court the defence was also deprived of effective cross-examination of this witness.
34. Apart from that, when there is consistent and satisfactory material, which we have already discussed above that deceased Nanjunda was arrested and brought to Mahalakshmi Layout Police Station on 22.03.1993 in connection with Crime No.43/1993 for the alleged offences punishable under Sections 457 and 380 of IPC, even if some corrections are seen in Ex.P-4, it will not prove the case of the prosecution by itself unless there is cogent and corroborative material in proof of alleged offences. 73
35. Perusing the materials placed on record by the prosecution i.e., both oral and documentary, it also satisfactorily establishes that when deceased Nanjunda was arrested and brought before the Police Station in connection with Crime No.43/1993, he was kept in the police lockup during that night and on the intervening night of 22.03.1993 and 23.03.1993 at about 3.00 a.m. deceased made an attempt to commit suicide for which case was immediately registered against him in Mahalakshmi Layout Police Station Crime No.120/1993. When still he was alive he was taken to the hospital and while getting the treatment he expired in the hospital.
36. All these aspects were not properly looked into and appreciated by the Trial Court and it proceeded only on the basis of some corrections effected in Ex.P-4 ignoring all other important material in the case and wrongly proceeded to convict the accused. But the Trial Court is 74 justified in acquitting the appellants-accused Nos.3, 4, 7 and 8. Hence, we proceed to pass the following:
ORDER:
i. Crl.A.824/2011, Crl.A.825/2011, Crl.A.794/2011 preferred by appellants-accused Nos.1, 2, 5 and 6 respectively are allowed and the judgment and order of conviction dated 15.07.2011 passed by the Fast Track Court-VIII, Bengaluru City in S.C. No.437/2002 in respect of appellants-accused Nos.1, 2, 5 and 6 is hereby set-aside and said appellants are acquitted of the charges leveled against them.
ii. Crl.A.73/2012 and Crl.A.72/2012 preferred by the State seeking enhancement of sentence in respect of appellants-accused Nos.1, 2, 5 and 6 and also challenging the acquittal of accused Nos.3, 4, 7 and 8 are hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE Cs/bsr/-
Ct-sg/-