Bangalore District Court
State By Ulsoor Gate Ps vs No.2 Had Issued Wound Certificate That on 27 June, 2015
IN THE COURT OF THE I ADDL.CMM: BANGALORE
Dated this the 27th day of June 2015.
Present: Sri Krishna Prasad Rao Kalmady,
B.A.,LL.B.,
I Addl.C.M.M.,Bangalore.
JUDGMENT U/s.355 Cr.P.C.
Case No. : CC No.5277/2009
Date of Offence : 16/07/2005
Name of complainant : State by Ulsoor Gate PS
(CID, FS )
Name of Accused : 1.C.Eswar,
S/o Chandrashekaraiah,
32 Yrs., R/o.I Cross,
3rd Main Road,
Basaveshwaranagar Layout,
Kyatasandra,
Tumkur.
2.Dr.C.S.Rosy,
w/o B.M.Balaji Singh,
40 Yrs., Medical Officer,
PHC Dabaspet,
Nelamangala Taluk,
Bengaluru .
Offence complained : U/s.465,468,471,420,511
r/w 34 of IPC.
2 CC NO.5277/2009
Plea of Accused : Pleaded not guilty
Final Order : As per final Order
Date of Order : 27/06/2015.
- - -
JUDGMENT
1. The Deputy Superintendent of Police, Fraud Squad COD, Bangalore has filed the charge sheet against the accused Nos.1 and 2 alleging that, they had committed the offences punishable under Sections 465, 468, 471, 420 and 511 r/w 34 of IPC.
2. The case of the prosecution in brief is that on 16/07/2005 at 06.30 am the driver of KSRTC bus bearing Registration No.KA-17/F-662 drove the same in a rash and negligent manner on Tumkur-Bengaluru road, below Thonachanakuppe Gate Biocom Factory, Nelamangala and dashed against lorry bearing Registration No.KA-05/220 and as a result 6 passengers in the bus sustained injuries and all 6 persons have taken treatment in Nelamangala 3 CC NO.5277/2009 Government Hospital. Out of the injured Sri C.Ishwar is one of the injured and he had also taken treatment in Nelamangala Government Hospital and Doctor while issuing Wound Certificate to Sri Ishwar has opined that he had sustained simple injuries.
Thereafter, the said injured Sri C.Ishwar on the same day went to Dabaspet and took treatment with accused No.2 Smt Dr.C.S.Rosy, who is the Doctor of Government Primary Health Centre and accused No.2 had issued Wound Certificate that injured C.Ishwar sustained 8 injuries and out of them 1st and 6th injuries are grievous injuries and both of them in collusion created the said Wound Certificate and thereafter accused No.1 C.Ishwar filed petition before MACT, Bengaluru in MVC No.6319/2005 for getting compensation and also filed created Wound Certificate and when the said case was pending enquiry in MACT accused No.1 4 CC NO.5277/2009 C.Ishwar on 09/02/2007 had withdrawn the petition claiming compensation.
During enquiry when C.Ishwar was produced and examined by Medical Board Examination, Bowring and Lady Curzon Hospital, Bengaluru, the Doctor of Bowring and Lady Curzon Hospital, Bengaluru, Medical Examination Board had issued Certificate that out of 2 grievous injuries sustained by C.Ishwar, only injury No.1 sustained on nose was grievous injury and there is no evidence that another injury No.6 is grievous injury.
Accused No.2 Smt.Dr.C.S.Rosy who is working as Doctor in Government Primary Health Centre, Dabaspet, Nelamangala, Bengaluru Rural District issued false Wound Certificate to accused No.1 C.Ishwar. Accused Nos.1 and 2 with common intention created false documents and used the said documents to cheat and submitted the same before MACT, Bengaluru in order to claim compensation filed false petition and tried to cheat KSRTC 5 CC NO.5277/2009 institution and the Court and thereby the accused persons had committed offences under Sections 465, 468, 471, 420, 511 r/w 34 of Indian Penal Code. Hence, the accusation.
3. Cognizance of the offence was taken and the presence of the accused was secured and subsequently they were released on bail.
4. Copies of the prosecution papers were furnished to the accused as contemplated under Section 207 of Cr.P.C. Charge was framed for the said offences, which was read over and explained to accused. Accused had denied the charge levelled against them and claimed to be tried.
5. To bring home the guilt of the accused No.2, the prosecution had examined eleven witnesses as Pws.1 to 11 and got marked documents Ex.P1 to Ex.P20 and closed its side. Thereafter, the statement of the accused under Section 313 of Cr.P.C. was recorded. On behalf of the accused no 6 CC NO.5277/2009 witness was examined and one document Ex.D1 was got marked.
6. I have heard the arguments of both sides and perused the records.
7. The following points arise for my consideration are:-
1. Whether the prosecution proves beyond all reasonable doubt that, the accused have committed the offences punishable under Sections 465,468,471,420,511 r/w 34 of IPC ?
2. What Order ?
8. My findings to the above Points are as follows:-
Point No.1:- In the Negative. Point No.2:- As per the final order:
for the following:-
REASONS Point No.1:-
9. In order to establish its case, the prosecution had in all examined 11 witnesses as Pws.1 to 11 and 7 CC NO.5277/2009 got marked Ex.P1 to Ex.P20 and on behalf of accused Ex.D1 was got marked.
10. Pw.1 is the 1st informant had deposed that he was working as Security and Vigilance Officer in KSRTC and he got suspicion about the claim made by accused No.1 and conducted enquiry and on 21/08/2007 gave complaint Ex.P1 against the accused before Ulsoorgate Police Station.
11. On 15/10/2014 Counsel for accused filed application under Section 311 of Cr.P.C. to recall Pw.1 and the said application came to be allowed on 11/11/2014 on payment cost of Rs. 2,000/- and thereafter summons was issued to Pw.1 and police had filed report stating that Pw.1 had voluntarily retired from the job and went to foreign country for job. In spite of taking coercive steps, the presence of Pw.1 could not be secured and hence the evidence of Pw.1 came to be discarded on 25/03/2015, as he has not subjected himself for further cross-examination.
8 CC NO.5277/2009
12. It is settled position of law that any amount of evidence tendered in examination-in-chief cannot be looked into unless same is subject to cross- examination.
13. In support of this settled position of law, I would like to rely upon the ruling reported in AIR 9 SUPREME COURT 1141 (Gopal Saran v/s Satyanarayan) wherein the Hon'ble Supreme Court of India, held the dictum thus:-
"(A) Evidence Act (1872), Ss.137 and 138 - Party not subjecting himself to cross-examination in spite of order of Court -
It is not safe to rely on
examination-in-chief".
14. The evidence would be complete after full
cross-examination and re-examination. If it is
incomplete, the evidence is no evidence at all. It
is crystal clear that the evidence of Pw.1 is no evidence at all and cannot be looked into.9 CC NO.5277/2009
Hence, the evidence of Pw.1 is of no value for the case of the prosecution.
15. Pw.2 Head Constable had deposed that on 16/07/2005 at 8.30 am when he was Station House Officer of Nelamangala Police Station, the driver of lorry bearing Registration No.KA-05/225 C.Dastagir Pir gave complaint against the driver of KSRTC bus bearing Registration No.KA-17/F-662 and on the basis of the said complaint, he registered the case in Cr.No.555/05 under Sections 279 and 337 of IPC.
16. Pw.3 Dr.N.Vasanth Kumar who was working as Administrative Medical Officer of the Government Hospital Nelamangala had deposed about the treatment given to injured in the accident on 16/04/2005 in his hospital.
It is elicited in the cross-examination of Pw.3 that "It may be true to suggest that in case of airline fracture contusion will be present on the said portion for some time. It is true to suggest 10 CC NO.5277/2009 that in case of fresh injuries no one can detect airline fracture on the bare perusal of the injury".
17. Pw.4 Sri Ashok Kumar Conductor of KSRTC had deposed that on 16/07/2005 at 6.30 am when he was working as Conductor of KSRTC bus bearing Registration No.KA-17/F-662, the said bus and lorry bearing Registration No.KA-05/225 met with accident near Biocom Factory Nelamangala and as a result himself and 4-5 passengers sustained injuries.
18. Pw.5 Dr.B.Rajeev Shetty Chairman Medical Board Examination, Bowring and Lady Curzon Hospital Bengaluru had deposed that he had re-examined injured C.Ishwar and submitted report giving his opinion that Medical Board, Bowring and Lady Curzon Hospital requested for production of old records. However, no records regarding the treatment is received and was not available. Hence, as per clinical and radiological examination there is no evidence of either recent or old 11 CC NO.5277/2009 fracture signs. ENT opinion: X-Ray report shows nasal bone dated 02/05/2008 fracture bilateral nasal bone noted.
19. Pw.6 Dr.G.Marula Siddappa Medical Board Examination, Bowring and Lady Curzon Hospital, Bengaluru had deposed that he had re-examined injured C.Ishwar and submitted report giving his opinion that Medical Board, Bowring and Lady Curzon Hospital requested for production of old records. However, no records regarding the treatment is received and was not available. Hence, as per clinical and radiological examination there is no evidence of either recent or old fracture signs. ENT opinion: X-Ray report shows nasal bone dated 02/05/2008 fracture bilateral nasal bone noted.
20. It is elicited in the cross-examination of Pw.6 that "In case of hairline fractures, it is not possible to trace it, after 3-4 years from the new 12 CC NO.5277/2009 X-ray. It is true that along with Ex.P17 we have not furnished the X-ray reports".
21. Pw.7 had deposed that on 16/07/2005 at 6.15 am when he was travelling in KSRTC bus bearing Registration No.KA-17/F-662 from Tumkur to Bengaluru accident took place and he took treatment in Government Hospital, Nelamangala.
22. Pw.8 Advocate had deposed that when C.Ishwar produced his Wound Certificate issued by Dabaspet Medical Officer, FIR registered in Cr.No.555/05 under Sections 279 and 337 of IPC of Nelamangala Police Station, he filed claim petition seeking compensation from KSRTC for injured C.Ishwar in MVC No.6319/2005 before MACT Bengaluru. Pw.8 had further deposed that one holiday accused C.Ishwar came to him and gave instructions to him to withdraw the petition expressing his inconvenience to pursue the case. Accordingly, he submitted withdrawal Memo before MACT and consequently the MVC petition was closed as withdrawn. 13 CC NO.5277/2009
23. Pw.9 ASI Ulsoorgate Police Station Bengaluru had deposed that Cw.1 Sri Satish Hegde who was working as Security and Vigilance Officer in KSRTC got suspicion about the claim made by C.Ishwar and made enquiry and thereafter on 21/08/2007 gave complaint against the accused in Ulsoorgate Police Station and he registered the case in Cr.No.301/2007 under Sections 465, 468, 471, 420, 209, 511 r/w 34 of IPC.
24. Pw.10 Dy.S.P. C.O.D. Bengaluru had deposed that he took the case file from Nelamangala Police Station and conducted further investigation of the case.
25. Pw.11 Dy.S.P. C.O.D. Bengaluru had deposed that he obtained the case file from Dy.S.P. and after completing the investigation filed the charge sheet against the accused.
26. The question that arises for consideration is whether the evidence on record is sufficient to bring home the guilt of the accused. The case of 14 CC NO.5277/2009 the prosecution suffers from incurable infirmities. The fact that accident took place between the vehicles is not disputed. In the accident accused No.1 had sustained injuries is an admitted fact. It is not in dispute that accused No.1 had filed claim petition before MACT Bengaluru claiming compensation. It is undisputed fact that accused No.1 had withdrawn the claim petition. The only question that arises for consideration is whether the accused had manipulated the documents before filing claim petition before MACT, Bengaluru.
27. It is the case of the prosecution that even though, no fracture was detected, Accused No.2, who was working as Medical Officer at Primary Health Centre, Dabaspet who is a gazetted officer had issued Medical Certificate disclosing fracture and accused No.1 had produced false Salary Certificate before MACT, Bengaluru in MVC No.6319/2005. Accused No.1 had produced 2 Medical Certificates. The 1st Medical Certificate is Ex.P14 15 CC NO.5277/2009 which was issued by Medical Officer, Government Hospital Nelamangala. The 2nd Medical Certificate Ex.P4 was issued by accused No.2, who was lady Medical Officer, Primary Health Centre, Dabaspet. The 1st Medical Certificate reveals that accused No.1 had sustained 2 injuries which are simple in nature. In the 2nd Medical Certificate issued by accused No.2, lady Medical Officer it is mentioned that accused No.1 had sustained other injuries also and he had sustained fracture injury of both nasal bones and fracture Right Patella.
28. The learned Counsel for accused No.1 has argued that in the MVC case, the petitioner was examined and the various documents were marked. However, Respondent/KSRTC not chosen to examine any Medical Officer in spite of 2-3 adjournments. Thereafter, the petitioner/claimant who was Engineer was transferred to Mysore and he was not getting leave and as such he was not able to attend the Court and Memo was filed to withdraw the claim 16 CC NO.5277/2009 petition and accordingly the claim petition was dismissed as withdrawn. While dismissing the claim petition in MVC No.6319/05, the Hon'ble MACT observed that "Hence keeping liberty to the respondent to proceed before other forum, this petition is dismissed as withdrawn".
29. When there is no evidence of complainant, what remains is the evidence of Doctors which is opinion evidence. The opinion evidence can be used for corroborating substantive evidence. Pw.5 is not an Orthopedic. Opinion of Pw.6 is no medical evidence. To detect a fracture in the bone, X-ray report is a must. Without X-ray report, it is medically impossible to detect the fracture by means of clinical examination of the patient. Merely looking one cannot say whether there is fracture or not. The naked eye cannot detect cut in the bone. The 1st Medical Certificate is not based on X-ray. 3 or 4 years after the incident X-ray was taken. The case of the prosecution is 17 CC NO.5277/2009 that accused No.1 has not sustained any fracture. One X-ray report shows there is fracture of nasal bone. No X-ray report regarding any other part is taken.
30. Medical evidence is only an evidence of opinion and is hardly decisive. It is not a substantive evidence as held in (1) Mani Ram Vs State AIR 1993 SC 2453, (2) 1993 Crl.L.J.2530, (3)(1993) 1 Crimes 1144. The medical opinion being an opinion, is advisory in nature and not binding upon the Court. When there is no substantive evidence, mere opinion evidence is not much value for the prosecution. The observations made by the Medical Officers in Ex.P17 are doubtful. From the trend of the evidence deposed by Pws.5 and 6, it appears that they do not to speak the whole truth. Their evidence is full of suspicion and the same cannot be accepted. It is difficult to believe the evidence of Pws.5 and 6. It is difficult to reconcile the inconsitancies in the case of the 18 CC NO.5277/2009 prosecution. There is no reliable evidence to prove that the accusations made against the accused. It is pertinent to observe that from the report Ex.P17, one cannot make out which part of accused No.1, Pws.5 and 6 had examined. Further the evidence is improbable and unbelievable. It is rather risky to rely upon the evidence of Doctors Pws.5 and 6 and hence the same cannot be accepted. The evidence of Medical Officers and police officials is insufficient to bring home the guilt of the accused. The finding of the Medical Officers appears to be vague, unfounded and unnatural. There is no uniformity in the evidence of Doctors. The evidence of Pws.5 and 6 has no legal legs to stand. From the evidence of Pws.5 and 6 it is difficult to conclude that the accused persons have committed the alleged offences. The evidence tendered by the prosecution witnesses is not cogent, consistant reliable and in tune with the probabilities of the case. Accused No.1 has 19 CC NO.5277/2009 not taken compensation MACT, Bengaluru has not awarded compensation to accused No.1 in MVC No.6319/2005. It cannot be presumed in the absence of any evidence that the accused persons had committed cheating and forgery. The allegation is not substantiated by the prosecution witnesses. A very much diluted version of the injuries is disclosed in the evidence. Consistancy is lacking in the version of prosecution witnesses. The evidence of prosecution witnesses therefore is not reliable and trustworthy. It is not safe to accept the case of the prosecution. The case put forwarded by the prosecution cannot be accepted. Pw.2 is a Gazetted Officer is not in dispute. The Investigating Officer had deposed that sanction is necessary to prosecute accused No.2. Counsel for accused No.2 argued that Section 197 of Cr.P.C. will come into picture as accused No.2 had acted in the capacity of government servant as Medical 20 CC NO.5277/2009 Officer and a trial without valid sanction would be a trial without jurisdiction.
31. There is no any legal evidence adduced by the prosecution to bring the case within the purview of Sections 465, 468, 471, 420, 511 r/w 34 of IPC. The prosecution has not established beyond all reasonable doubt that accused had committed the offences under Sections 465, 468, 471, 420, 511 r/w 34 of IPC. On the basis of doubtful evidence, accused cannot be found guilty of the alleged offences. Accordingly, Point No.1 is answered in the Negative.
32. Point No.2:-
In the result, I proceed to pass the following:
O R D E R Acting U/s.248(1) Cr.P.C. I hold that, accused Nos.1 and 2 are not found guilty of having committed the offences punishable under Sections 465, 468, 471, 420, 511 r/w 34 of IPC. 21 CC NO.5277/2009 Accused Nos.1 and 2 are hereby acquitted of the offences alleged against them and they are set at liberty forthwith.
The bail bonds executed by the accused Nos.1 and 2 and their surety stands cancelled. (Dictated to the stenographer, transcript thereof, computerized revised and then corrected by me and then pronounced in open court on this the 27th day of June 2015).
(Krishna Prasad Rao Kalmady) I Addl.CMM, Bangalore.
ANNEXURE List of witnesses on behalf of prosecution:
PW.1 Sathish Hegde
Pw.2 Veeregowda
Pw.3 Dr.N.Vasanth Kumar
Pw.4 Ashok Kumar
Pw.5 Dr.B.Rajeev Shetty
Pw.6 Dr.G.Marula Siddappa
Pw.7 Keshavamurthy
Pw.8 Sathish Kumar
Pw.9 Gangasalaiah
Pw.10 R.Shivarudraswamy
Pw.11 K.M.Arifulla.
22 CC NO.5277/2009
List of documents on behalf of prosecution:
Ex.P1 Complaint
Ex.P1(a) Signature of Pw.1
Ex.P2 FIR in Cr.No.555/05
Ex.P3 Certified copy of complaint
Ex.P4 Certified copy of charge sheet
Ex.P5 Certified copy of IMV Report
Ex.P6 Certified copy of Wound Certificate
Ex.P7 Certified copy of medical bills
Ex.P8 Prescription slips
Ex.P9 Certified copy of salary Certificate
Ex.P10 Certified copy of KSRTC Pass of A-1
Ex.P11 Certified copy of deposition
of A-1 before MACT
Ex.P12 Certified copy of order sheet in
MVC No.6319/05
Ex.P13 Original report
Ex.P13(a) Signature of Pw.1
Ex.P14 True copy of Wound Certificate
Ex.P15 MLC Report Extract
Ex.P15(a) Signature of Pw.3
Ex.P16 Covering letter to DGP
Ex.P16(a) Signature of Pw.5
Ex.P17 Report
Ex.P17(a) Signature of Pw.5
Ex.P18 Affidavit
Ex.P19 FIR
Ex.P20 Attendance Register of A-2.
Material Objects Produced:- NIL
Witnesses examined on behalf of the defence,
documents marked:-
Ex.D1 Portion of the Statement.
I Addl.CMM, Bangalore.
23 CC NO.5277/2009
(Judgment pronounced in the Open Court, vide separate order) O R D E R Acting U/s.248(1) Cr.P.C. I hold that, accused Nos.1 and 2 are not found guilty of having committed the offences punishable under Sections 465, 468, 471, 420, 511 r/w 34 of IPC. 24 CC NO.5277/2009 Accused Nos.1 and 2 are hereby acquitted of the offences alleged against them and they are set at liberty forthwith.
The bail bonds executed by the accused Nos.1 and 2 and their surety stands cancelled.
I Addl.CMM, Bangalore.25 CC NO.5277/2009
26 CC NO.5277/2009