Bangalore District Court
The State Of Karnataka Through vs Keshavamurthy @ Keshava on 31 October, 2019
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IN THE COURT OF XXIV ADDL. CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
DATED THIS THE 31st DAY OF OCTOBER 2019
C.C.No.8834/17
Present: SRI. BALAGOPALAKRISHNA.
XXIV ADDL. C.M.M., BENGALURU.
COMPLAINANT : The State of Karnataka through
Chamarajpet Police Station
(State by Sr. A.P.P.)
V/s.
Accused 1. Keshavamurthy @ Keshava, 37yrs,
R/at.Rayapuram, J.J.Nagar, Bangalore.
2. Narasimha Murthy, s/o.Venkatanna, 30 yrs,
R/at.No.122, 5th main, I cross, V.S.Garden,
J.J.Nagar, Bangalore.
3. Gangadhara, 24 yrs,
R/at.176, 17th Main, 6th Cross, V.S.Garden,
J.J.Nagar, Bengaluru.
4.Raju
Aged about 21 years,
R/at.No.192, 13th Main, V.S.Garden,
J.J.Nagar, Bengaluru.
5. Venkatesh
Aged about 39 years
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R/at.No.127, 10th Cross, 15th Main,
V.S.Garden, J.J.Nagar, Bengaluru.
6. Ganesh
Aged about 40 years,
R/at.No.85, 4th Cross, 4th Main,
Rayapura, Bengaluru.
DATE OF COMMENCEMENT : 09-04-2016
OF OFFENCE
DATE OF ARREST OF THE : Accused are on bail.
ACCUSED
OFFENCES ALLEGED : U/s.332 r/w.149 of IPC
DATE OF COMMENCEMENT : 09-04-2018
OF EVIDENCE
DATE OF CLOSING OF : 22-08-2019
EVIDENCE
OPINION OF THE JUDGE : Accused No.1 to 6 found guilty
(Balagopalakrishna.)
XXIV A.C.M.M., BENGALURU.
: J U D G M E N T :
The PI of Chamarajpet Police Station has filed charge sheet
against accused for the offence punishable U/s.332 r/w.149 of IPC.
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2. The case of the prosecution in brief is as under:
It is the case of the prosecution that, on 09042016 at about 915
a.m. accused No.1 to 6 have formed unlawful assembly, with a common
object and in furtherance of the same trespassed into the BWSSB
Service Center, Chamrajpet questioned the CW.2 that no water is
supplied to ward No.137, Rayapura Area since 3 days saying so
assaulted the CW.2 on his face, chest, backside and on his leg with
hands and caused pain and also caused hindrance to discharge his
public duty and thereby accused has committed an offences punishable
U/s. 332 r/w.149 of IPC.
3. In pursuance of the complaint given by the complainant by
name Sri.Srinivas.R, AEE, the Police have registered crime in
Cr.No.82/2016 for the offence punishable U/s.332 r/w.Sec.149 of IPC.
After conclusion of the investigation, the Investigating Officer has filed
charge sheet against the accused for the offence punishable u/s.332
r/w.Sec.149 of IPC.
4. This court has taken cognizance for the offence punishable
U/s.332 r/w.Sec.149 of IPC and issued summons to the accused and
accused are on bail.
5. The copy of the charge sheet and other material documents
has been supplied to the accused as required U/s. 207 of Cr.P.C.
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6. Heard before framing charge and charge was framed for the
offence punishable U/s.332 r/w.Sec.149 of IPC and read over and
explained to the accused in the language known to them. Accused
persons pleaded not guilty and claimed for trial.
7. In order to prove the case of the prosecution, the prosecution
has got examined PW.1 to 7 and got marked Ex.P.1 to Ex.P.7 and
closed their side.
8. Statement of the accused as required U/s.313 of Cr.P.C. is
recorded. The accused have denied the incriminating evidence found in
the evidence of prosecution as false. No defense evidence on the side of
the Accused.
9. Heard both side.
10. The following point arises for my consideration:
1) Whether prosecution proves beyond reasonable
doubt that, on 09042016 at about 915 a.m.
accused No.1 to 6 have formed unlawful assembly,
with a common object and in furtherance of the
same tress passed into the BWSSB Service Center
Chamrajpet questioned the CW.2 that no water is
supplied to ward No.137, Rayapura Area since 3
days saying so assaulted the CW.2 on his face,
chest, backside and on his leg with hands and
caused pain and also caused hindrance to
discharge his public duty and thereby committed
an offence punishable u/s.332 r/w.Sec.149 of
IPC?
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2) What order?
11. My answer to the above points is as under;
Point No.1 In the Affirmative
Point No.2As per final order for the following;
REASONS
12. POINT NO.1 :
It is the case of the prosecution that on 09042016 at about 915
a.m. accused No.1 to 6 have formed unlawful assembly, with a common
object and in furtherance of the same tress passed into the BWSSB
Service Center, Chamrajpet questioned the CW.2 that no water is
supplied to ward No.137, Rayapura Area since 3 days saying so
assaulted the CW.2 on his face, chest, backside and on his leg with
hands and caused pain and also caused hindrance to discharge his
public duty. In order to prove the said aspect the victim himself
examined as PW.1 he has given his evidence on far with the averments
made in the EX.P2. He further deposed that as on the date of the
incident he was working as AEE SW1, sub division BWSSB along with
him CW.3, 4 and 6 are also working under him and CW.5 is the
contractor in the said department. He further deposed that on 0904
2016 at about 910 a.m. when he was discharging his duty in the
Chamrajpet Service Center the accused person came there and raised
quarrel in respect of non suppling water to ward No.137, Rayapura and
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in the quarrel all the accused joined together assaulted him on his left
head, ear, neck, cheek and left waist with hands and caused pain. He
further deposed that the CW.3 and 4 who were present there gone to
police station and brought the police, police were came there and pacify
the quarrel and took him and accused to the police station from there
he was taken to Victoria Hospital for treatment. He further deposed
that he was intimated to his higher officer about quarrel . He further
deposed that because of the act of the accused, they were prevented to
discharge his duty. In the crossexamination it is just denial of the chief
examination. It is specific suggestion that at the instance of concerned
MLA and his higher officers he has given false complaint. Same denied
by the witness.
13. PW.2 is the eye witness and he was present at the time of
incident. He has deposed that he is working as a Water Inspector in the
Chamrajpet Service Station. He furtherer deposed that on 09042016
he, CW.2 and 3 to 6 in the chamber of CW.2 at that time the accused
persons enter the office at about 9 to 915 a.m. and raised quarrel
about the supply of water and assaulted him. In the crossexamination
it is just denial.
14. PW.5 who is the AEE at V.V.Puram Sub Division. He has
deposed that CW.2 to 6 are working under him. On 09042016 till 8
15 a.m. he was discharged work in the Service Center and gone to
house, at about 9 to 915 a.m. he received the phone call from CW.2
that 4 to 5 persons enter the office and assaulted him and abused him
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in filthy word. So immediately he came to the Chamrajpet Service
Center at about 10 a.m. at that time except water man (Volve man) rest
of the his staffs were gone to Chamrajpet police so he went there and
received the report from CW.2 about the quarrel and given a complaint,
which is marked at Ex.P2 and signature at Ex.P2(a), report given by
CW.2 marked at Ex.P3 signature at Ex.P3(a). He further deposed that
on the same day in between 1130 to 1145 a.m. the police were came to
the spot and draw the mahazar which is marked at Ex.P1 and signature
at Ex.P1(b). In the crossexamination it is just denial of chief
examination. It is the specific suggestion that accused No.1 is a
president of the Rayapura Ward from BJP, witness claimed his
ignorance and admitted that sister of accused No.1 was represented by
Rayapura Ward from BJP.
15. PW.3 who is the spot mahazar witness and he has turned
hostile to the case of the prosecution deposing that about 1 year ago
when he had been to the police station the police were taken his
signature on one document which is found on the spot mahazar and
claimed his ignorance to say the contents. At request of learned senior
APP this witnesses have been treated as hostile witness and permission
was accorded to cross examine him. In the cross examination the
learned Sr.APP has suggested the case of the prosecution and same is
denied by the witnesses.
16. PW.6 who is the medical officer of the Victoria Hospital. She
has deposed that on 09042016 at about 935 a.m. one Hemanth
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Kumar the injured came to his hospital with the history of assault along
with PC.No.6042 of Chamrajpet Police. On examination she found
following injuries.
1. contusion on left face
2. contusion on left side of chest.
3. Pain in left ear.
On the requisition of IO she has given wound certificate which is
marked at EX.P4 and signature at Ex.P4(a) and opined that the injuries
mentioned therein are simple in nature and such injuries may caused if
any one assaulted to the another person. In the crossexamination it is
suggested that if any person fall down on the hard surface backing his
head such a injuries may be caused, same is admitted by the witness
and rest of the crossexamination is just denial.
17. PW.4 who is the head constable of Chamrajpet police he has
deposed that the IO has deputed him along with CW.11, 13 to 15 and
16 to trace the accused, accordingly they were doing patrolling duty in
their jurisdiction, at that time he received the information that the
accused persons were present at Venkataswamy Garden, accordingly
they were been there and held the accused persons and produced before
the CW.16 and accordingly this witness has identified
Narasimhamurthy, Gangadhar, Raju, Venkatesh and Ganesh as
accused. In the crossexamination this witness has admitted that
CW.16 has not given any photo to identify the accused but volunteers
that on the identification given by bathmee he identified the accused. It
is suggested that the CW.16 was called the accused same is denied by
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the witness.
18. PW.7 who is the IO of this case, he has deposed that he has
received the case papers for further investigation from CW.15 and he
has deposed various stages of investigation he has done during the
course of investigation i.e. arrested the accused, recorded the statement
of CW.3 to 6 and 10 to 14, he received the Ex.P5, received the Ex.P6 and
finally received the wound certificate and filed the charge sheet against
the accused. In the crossexamination it is just denial of chief
examination.
19. On the basis of the said evidence the learned Sr. APP has
argued that, the prosecution has proved the case beyond all reasonable
doubt and prayed to convict the accused. On the other hand, learned
defence counsel appearing for the accused vehemently argued that,
except the official witnesses no independent witnesses have been
examined by the prosecution, so on the basis of the evidence of BWSSB
officials and police personnels, it cannot be said that the prosecution
has proved the guilt against the accused, since, they are the interested
witnesses. Thus, the prosecution has utterly failed to prove the guilt
against the accused and prayed to acquit the accused.
20. Inview of the above arguments, submitted by counsels, the
court has to verify whether evidence available on record is suffice to say
that the prosecution has proved the guilt against the accused. Before
discussing the said aspect in order to attract sec.332 of IPC the
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prosecution has to prove the following ingredients:
1. The accused voluntarily caused hurt to public servant.
2. The hurt was caused:
(a) when the public servant discharging his duty as such ; or
(b) with an intention to deter him from discharging his duties; or
(c) in consequence of anything done or attempted to done in the
lawful discharge of his duties as such public servant.
From the evidence of prosecution it is obviously clear that when
Cw.2 was in his service center at Chamrajpet the accused persons have
formed unlawful assembly with a common object and in furtherance of
the same enter the chamber of CW.2 and raised quarrel in respect of
non supplying of water to ward no.137 of Rayapura. In the quarrel the
accused persons were assaulted the CW.2 with hands on his various
parts of the body, in this regard the CW.2 given report to CW.1 and
CW.1 has lodged the complaint as per Ex.P2 and subsequently drawing
of mahazar was done by the IO. In respect of the quarrel the PW.2 who
is the water man/ volveman has given evidence supporting the evidence
of PW.1. Thus, the evidence of PW 1 is corroborated with the evidence
of PW 2. On careful reading of the cross examination it is just elicited
that the accused No.1 is a leader belonged to BJP and on hearing the
words of the local MLA, such a false case has been registered by the
police. In this regard, no cogent evidence is produced by the accused
persons. Even if the version of the accused persons is accepted to be
true for the purpose of argument, there is no explanation from the
defence counsel that how the PW 1/CW 2 has sustained injuries as
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mentioned in Ex.P.4. If the version of the accused has been accepted
there should not be any injuries on the body of the PW 1/CW 2. As per
the Ex.P.4, the PW 1/CW 2 has sustained as many as three injuries
i.e., contusion on left face, contusion on left side of the chest and left ear
pain, so, the accused persons have to establish before this court how
the PW 1 has sustained the said injuries when he was in the office,
same has not been explained by the accused counsel. Even the counsel
has not put suggestion to the PW 2 in the cross examination, therefore,
the only inference can be drawn is when the PW 1/CW 2 was in the
Chamarajpet service center, the accused persons have formed unlawful
assembly entered the office, raised quarrel and assaulted the PW 1/CW
2 for non supplying of water to ward No.137 of Rayapura and in that
incident only the PW 1/CW 2 has sustained injuries mentioned in
Ex.P.4 and none else.
21. It is further case of the prosecution that apart from the
incident, assaulted the PW 1/Cw 2, the accused persons were also
prevented him to discharge of his official duty. On perusal of the
evidence of the PW 1 the only sentence stated by the PW 1 is that
because of the incident, he was prevented to discharge his official
duties. In fact for this the prosecution has to establish before the court
that how the act of the accused persons was prevented him to discharge
his official duty. For example if the Conductor was issuing a ticket to
the passengers, at that time, if anybody intervenes and prevented him to
issue the tickets, it can be termed as prevention of discharge the public
duty. Here, the PW1/CW 2 was in the office, at that time, the accused
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persons were entered the office and questioned why he has not supplied
water to ward No.137 of Rayapura village, in the heat of a moment the
accused persons were assaulted the PW 1/CW 2 but not caused any
hindrance to discharge his official duty, thus, the evidence of
prosecution is not satisfied the ingredients of Sec.332 of IPC, but, it
attracts sec.323 of IPC.
22. As discussed above, the evidence of PW 1 is corroborates with
PW2 who was working along with the PW 1 at the time of incident. The
role of PW 3 is very limited, he being a higher officer of PW 1, on the
basis of the report given by the PW 1 he has lodged the complaint,
therefore, his evidence is not helpful to the prosecution except to say
that he has lodged the complaint on the report of the PW 1. Further,
evidence of PW1 is corroborated with the evidence of PW 6 who is the
treated doctor of PW 1 along with the evidence of PW 2. The prosecution
in order to prove that on the date of the incident the PW 1 was on duty
has produced Ex.P.6 as per that the PW 1 was discharging his duty in
the servicer station, Chamarajpet. It further fortifies the evidence of PW
1 and 2. PW4 who is the HC of Chamarajpet Police Station, he and
other staffs were deputed by CW 16 to arrest the accused, accordingly,
PW 4 and his staffs attested the accused and produced before the CW
16 on the information given by the bathmi. The PW 7 who is the
Investigating officer, soon after receiving the record from CW 15, he
visited the spot, drawn the panchanama, deputed the CW 2 to 6 to trace
the accused and soon after production of accused he followed the arrest
procedure and produced before the court, recorded the statement of
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witnesses, received the attendance certificate as per Ex.P.6, the entry
therein in respect of PW 1 marked at Ex.P.6(a), received the wound
certificate of PW 1 as per Ex.P.4 and finally filed the chargesheet.
23. As stated above, the defence counsel has not made out any
ground to disbelieve the evidence of PW 1, 2 and 5, further their
evidence is corroborated with the evidence of PW 4, PW 6 Doctor and
Investigating officer. Merely the PW 3 who is the spot mahazar witness
has not supported the case of the prosecution, the rest of the evidence
cannot be brushed aside, because, drawing of spot mahazar is only a
formality. The learned counsel has argued that solely relying upon the
evidence of PW 1 and 2, it cannot be said that the accused persons were
committed the offences. It is pertinent to note that the accused No.1
and 2 are not the common people, PW 1 working as Asst.Engineer in
BWSSB and PW 2 who is the volveman working in the same
Department. If at all to disbelieve their evidence, the defence counsel
should have elicited something to disbelieve their evidence. Here, the
suggestion made to the PW 1 and 2 is not worthy and on that basis their
evidence cannot be disbelieved in respect of the incident. At that
juncture, learned Sr.APP relied upon the reported ruling of Hon'ble
Supreme Court reported in 2016 AIAR (Crl ) 731 in the matter of Indira
Devi and others v/s. State of Himachal Pradesh wherein it is pleased to
hold that
The proposition of law that an injured witness
is generally reliable is no doubt correct but even
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an injured witness must be subjected to scrutiny
if circumstances and materials available on record
suggested that he may have falsely implicated
some innocent persons also as an afterthought on
account of enmity and vendenta.
The said ruling is aptly applicable to the case on hand. Because,
here in the cross examination the enmity or vendenta among accused
and PW 1 has not been established by the defence counsel. Further, at
the time of happening of the event, the other staffs called the police , the
police were came there and pacified the situation and took the PW 1 and
accused to the Police Station and then other formalities were taken
place. Under such circumstances, how it can be termed as the
complaint given by the PW 1 afterthought. In this case, soon after the
incident, the PW 1 through the PW 5 given the complaint. No doubt
there are some discrepancies in the evidence of PW 1, 2 and 4, on that
basis if the accused persons are acquitted, the accused persons will
commit same offences against the public servant and thereby public
servants cannot discharge their official duty peacefully and in
accordance with law. Even if there is any grievance for non suppling of
water to ward No.137 of Rayapura village, same should be sort out in a
proper manner but, not assaulting the PW 1. Thus, the prosecution
has proved the guilt against the accused persons beyond all reasonable
doubt for the offence u/s.323 r/w.149 of IPC. Accordingly point under
reference answered in the Affirmative.
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24. POINT NO.2 :
For the aforesaid reason and discussion, I proceed to pass the
following:
ORDER
Acting under section 248(2) of Cr.P.C. Accused No.1 to 6 are hereby Convicted for the offences punishable U/s.323 r/w.149 of IPC. Bail bond and surety bond executed by the accused No.1 to 6 is stand cancelled. To hear regarding sentence by 4/11/19. (Dictated to the stenographer, script transcribed by her and then corrected directly on computer and then pronounced by me in open court on this the 31st of October 2019).
(Balagopalakrishna) XXIV A.C.M.M., BENGALURU.
ANNEXURE Witnesses examined for the Prosecution:
PW1 : Hemanthkumar PW2 : Natarajmurthy PW3 : Mukaramkhan PW4 : Ramesh PW5 : Srinivas PW 6 : Dr.Vishwanath PW 7 : Thanveer
Documents marked for the Prosecution:
16 Ex.P1 : Spot mahazar Ex.P1(a) : Signature Ex.P.2 : Complaint Ex.P2(a) : Signature Ex.P.3 : Report Ex.P.4 : Wound certificate Ex.P.5 : Requisition Ex.P.6 : Attendance certificate Ex.P.7 : FIR Materials marked for the Prosecution: NIL Witnesses examined for the accused: NIL Documents marked for the accused: NIL (Balagopalakrishna) XXIV A.C.M.M., BENGALURU.