Bangalore District Court
(Represented By The Learned App) vs No.1 Has Been Reported Dead on 8 December, 2021
1 CC 14668 of 2011
IN THE COURT OF XLI (41ST) ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
DATED THIS THE 08th DAY OF DECEMBER 2021
PRESENT
SRI S.S.BHARATH M.A. LL.M.,
ST
XLI (41 ) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BENGALURU
CRIMINAL CASE NUMBER 14668 OF 2011
BETWEEN
1. STATE represented by
Bengaluru City Railway Police. ....COMPLAINANT
(Represented by the learned APP)
AND
1. Jamedhar Singh S/o Pouzi Singh,
Aged about 56 years,
R/o Machmona Village,
Man Mona Post,
Kudarma District, Jharkand State.
Accused No.1 has been reported dead.
Hence case against A1 has already been abated.
2. Dinesh Kumar Singh S/o Raja Kumar Singh,
Aged about 28 years,
R/o Hardiya Village, Rajhuli Station,
Navadh District,
Bihar State.
2 CC 14668 of 2011
3. Birender Singh S/o Late Rameshwar Singh,
Aged about 37 years,
R/o Beharadi Village,
Puthandiya Post,
Kudharma District, Jharkand State.
All are presently residing at
No.10, P.V.N.Line,
Thiglarapete, Bengaluru.
....ACCUSED
(A2 and A3 Represented by Sri. Gopi., Advocate)
THE BENGALURU CITY RAILWAY POLICE HAVE
CHARGE SHEETED THE ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 353, 323
R/w Section 34 OF IPC.
AFTER COMPLETION OF ADJUDICATION, THIS CASE
COMING ON FOR JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING...
Offences alleged u/s : 353, 323 R/w Section
34 of IPC
Charge sheet filed on : 15042011
Trial commenced on : 23092019
Trial completed on : 24102021
Judgment date : 08122021
Total duration : DaysMonths Years
23 07 10
JUDGMENT
1. Case of the prosecution is as under; It is alleged that on 25/03/2011, at about 6.30 in the early morning when all these PW1 to 4 were present 3 CC 14668 of 2011 at the check post pertains to their Commercial Taxes Department located at Bengaluru City Railway Station, near good shed yard, these accused Nos.1 and 2 were present there with their Omni Four wheeler vehicle bearing its Reg.No.KA01MC2915. It consisted many parcel boxes then. PW1 to 4 enquired these accused Nos.1 and 2 regarding the bills and necessary documents regading those parcels as a matter of discharge of their duty. Accused No.3 had come to the spot in his two wheeler bearing its No.KA01EQ5889. All these accused together insisted all of them not to check any parcels. Further they assaulted them in their bare hands and pushed them. PW1 to 4 suffered pains at their instance. These accused did take all those parcel boxes and disappeared from the spot etc.
2. This court has taken the cognizance of the offences punishable under sections 353, 323 R/w Section 34 of IPC. As per the directions of the court, 4 CC 14668 of 2011 CC.No.14668 of 2011 came to be registered. In compliance of section 207 of Cr.P.C, the copies of the charge sheet and other prosecution papers came to be supplied to the accused.
3. The court, after being satisfied as to existence of materials against the accused to proceed further in this matter, framed the charge, read over the same to the accused in Kannada language in which they claim to be conversant with. But they did not plead guilty and they claimed then, to be tried. Therefore, this court issued summons to the witnesses.
4. As could be seen from the record, accused No.1 has been reported dead. Therefore, the case against A1 has already been abated. So far as the examination of witnesses is concerned, the prosecution has examined CW1 to 6 as PW1 to 6. In view of the death of CW 9, he could not be examined. CW7 has been examined as PW13. CW8 has been examined as 5 CC 14668 of 2011 PW10. As the prosecution failed to examine CW10 despite proclaimation, CW10 has been dropped. CW 11 has been examined as PW7. CW12 has been examined as PW8. CW13 has been examined as PW9. CW14 has been examined as PW11. CW15 has been examined as PW12. CW16 and 17 have been examined as PW14 and 15 respectively.
5. Prosecution further relies upon Ex.P1 to 6. Statement of these accused Nos.2 and 3 came to be recorded under section 313 of Cr.P.C. Accused No.2 and 3 denied incriminating circumstances explained to them. They did not choose to adduce evidence in support of their defence. Hence the matter came to be posted for arguments.
6. Heard the learned Sr.APP.
7. Heard the learned counsel for accused. 6 CC 14668 of 2011
8. Following points arise for determination;
1) Whether the prosecution proves beyond reasonable doubt that on the aforementioned date, time and place, all these PW1 to 4 indulged themselves in discharge of their official duties being the officials attached to Commercial Taxes Department in different capacities, these accused Nos.1 to 3 disturbed their duty by way of using criminal force and they declined to co operate with PW1 to 4 for inspection and they assaulted them in their barehands and they did take away the boxes present in the aforesaid Omni car and they did not allow them to check the boxes and they did not show any necessary documents to them and by way of using criminal force they did assualt them and disturbed them knowingly well that they are public servants and they did assault them only to deter them because of their acts, all PW1 to 4 could not discharge their offiiceal duty as public servants and therefore, these accused are liable to be punished for an offence punishabale under section 353 R/W Setion 34 of IPC ?
2) Whether the prosecution proves beyond reasonable doubt that on the aforementioned date, time and place, only to prevent PW1 to 4 from discharging their duty, these accused have assulated them using 7 CC 14668 of 2011 barehands and they were put to pains and therefore, all the accused are liable to be punished for an offence punishable under section 323 R/w Section 34 of IPC ?
3) what order ?
9. Above points have been answered as under; Point no.01: In the Affirmative Point no.02: In the Affirmative Point no.03: As per final orders for the following reasons...;
REASONS The prosecution is duty bound to prove the guilt alleged as above against accused No.1 to 3. The burden to prove the aspects stated herein above against the accused No.1 to 3, heavily lies upon the prosecution.
10. Point No.01; As could be seen from the record, PW1 (who is a CW1 as per record) has deposed before this court that he is a retired Assistant Commissioner of Commercial Taxes. When he was discharging his duty in the said capacity, during the year 2011, 8 CC 14668 of 2011 particularly on 25/03/2011 when he was at the aforementioned check post area he was accompanied by PW2 and PW5 as well. It was an early morning 5.00 a.m., and he had specific information from informants that many have been transacting by cheating his department without paying necessary taxes and he had an information that many consignments being taken inside the railway station without there being any valid bills etc. Therefore, he induldged himself in his duty. There were some 56 Maruti Omni cars. Partiularly at about 06.00 a.m., amongst those vehicles, one Omni vehicles, had come. It was being driven then by the accused No.1 herein. He insisted him to stop the vehicle and he did ask him for documents as to consignments which were present in the said car. But he did not furnish any documents and accused No.1 did not cooperate for their duty and he did push him. As the vehicle was locked, he did break the door of the vehicle and with force he did take boxes out from the said car. At that point of time 9 CC 14668 of 2011 another person had come in his Bajaj Discovery biketwo wheeler and all these accused pushed them and PW2 suffered serious injuries as to his left hand fingers and PW3 suffered an assualt at their instance on his back and PW4 suffered a slap at their instance. All these accused did take away the boxes by leaving their vehicles at the spot itself and they disappeared etc.
11. During his examination in chief, he has further deposed that, he did submit first information to the police and all of them did take treatment at K.C.General Hospital and accused have disturbed them during discharge of their duties and however the said witness has identified all the accused, who were present in the court during his examination and he did depose that the police did draw the mahazar at the spot as per Ex.P2 and he has affixed his signature on it.
10 CC 14668 of 2011
12. As could be seen from his cross examination which came to be conducted by the learned advocate appearing for the accused, he has answered many questions put to him regarding the timings and the categories of police persons, who would be present in the alleged premises etc. Learned advocate appearing for accused, although questioned many aspects regarding the categories of police persons including RPR, Railway force etc, who would be present in the alleged spot etc, he did not question him anything related to these accused. His questions mainly focus on the aspect as to rights of PW1 to 4 to conduct raid at the said premises. He further questioned him regarding the contents of FIS. However except bare denial as to his evidence no specific questions have been put on him.
13. Evidence adduced by PW1, remained intact, so far as the presene of all PW1 to 4 and of these accused persons, at the alleged spot at the alleged time. Be 11 CC 14668 of 2011 that as it may be, the PW2 being a Commercial Tax Officer has deposed similarly to what has been deposed by PW1. He did depose about the registration number of the car allegedly used by the accused and he specifically deposed regarding the case as to assault which has been alleged against accused. He deposed regarding the arrival of accused No.3 in his two wheeler to the spot. He further deposed about the identification of accused. Specifically he has deposed that he is able to identify all accused.
14. As could be seen from his cross examination as well, many questions which are similar to what have been put upon PW1 as well, came to be asked to him. He has answered regarding categories of police persons present at the said spot. He further answered regarding the recommendations of the Deputy Commissioner of his department stated to have given to the concerned to take action against one person 12 CC 14668 of 2011 namely Wagon. However though the said sort of question has been put, the learned advocate appearing for the accused did not clarify as to why the question regarding the said person namely 'Wagon' came to be asked.
15. As could be seen from his further cross examination, he has specifically answered that usually they do not seek help of concerned police. But during discharge of their duty, if any problems arise then only they take help. He has specifically answered that he did not enquire as to who booked those consignments which were allegedly present with these accued and also he did not enquire as to, to whom they did deliver those consignments. Further he explained regarding the said answer by deposing specifically that he does not have such powers. Further many questions regarding bills as to those consignments etc, also came to be put. He specifically answered regarding the injuries 13 CC 14668 of 2011 allegedly suffered by him on his hand. He further answered that he does not check as to, to whom does the said car belong to and even in his cross examination, he has specifically deposed that these accused at that particular point of time had disappeared together with the consignment boxes. However many questions regarding the number of boxes and the registration number of aforementioned two wheeler etc, came to be asked. He has answered that he could not answer those questions. Other questions regarding the place of delivery of his statement also came to be put. But nothing much has been questioned regarding the same. His evidence as to assualt came to be denied by way of suggestions. However a strange question has been put by the learned advocate appearing for the accused that, as they were 04 in numbers, they could able to stop these accused. However it came to be denied. Further other questions regarding the number of gates available in the said Railway Station and 14 CC 14668 of 2011 number of exit points available near check post also have been put and a question regarding availability of CC TV Cameras also has been put. Apart from a mere question regarding the installation of CC TV cameras in exclamatory way, nothing much has been questioned regarding the same to the concerned witness. Regarding the same no arguments have been addressed.
16. PW3 as aforesaid belongs to Commercial Taxes Department only. He supported the version of previous two witnesses and he deposed similarly to those two witnesses regarding nature of incident, backdrop of the incident and also regarding the totality of the alleged incident. His evidence is very specific regarding the arrival of 02 accused persons in a Maruti Omni Car with consignments and also of accused No.3 in a bike and also regarding the injuries suffered allegedly by PW2 on his hands. However he deposed in his examination in chief that 15 CC 14668 of 2011 he could not recollect those vehicles registrations numbers. He has been considered partly hostile to the case of the prosecution like the PW1.
17. Even during his cross examination, conducted by learned Senior APP, he has admitted the suggestions regarding the registrations numbers of those vehicles.
18. During his cross examination conducted by the learned advocate appearing for the accused, he also has been questioned regarding their departmental formalities to enter the registers whenever they would move from their office to discharge their official duties as the same has been questioned to previous two witnesses. Availability of entries regarding their moverments and furnishing of the same to the IO also have been questioned and he further answered that it is true to suggest that if any consignments are 16 CC 14668 of 2011 transported in a train, Railways Department would issue necessary receipts on the same.
19. As could be seen from his further cross examination, he has been questioned regarding the installation of CC camers in the alleged spot and he has pleaded ignorance on the said question together with another question whether the log books as to their department have been furnished to IO or not. Further he has been questioned regarding the contents of the first information and the registrations numbers of the vehicles allegedly involved in this matter. However he has pleaded ignorance regarding the contents of FIS specifically regarding the accusations as to the alleged injuries suffered by PW2.
20. As could be seen from his further cross examination, he has specifically answered regarding number of accused persons present at the spot and the attempts 17 CC 14668 of 2011 of PW1 to 4 to catch those accused. He deposed that he could not recollect whether prior to submitting FIS whether they have taken any treatment in the hospital or not. He has beenspecfically questioned by the learned advocate for the accused as to whether he is able to depose as to amongst those accused persons, who did take the consignments boxes away. Even in his cross examination, the learned advocate appearing for accused denied his evidence by way of suggestions. However those suggestions also have been denied by him as false.
21. As could be seen from the record, PW4 has deposed similarly to PW2. He has specifically deposed in his examination in chief as to in what way the alleged incident did take place. His evidence is very specific to the effect that all these PW1 to 4 were present with credible information against accused and the Omni vehicle bearing its registration No.KA50MO2953 was then being driven by accused and when they 18 CC 14668 of 2011 stopped it for the purpose of examination, they have learnt regarding the presence of consignments in the said vehicle, and also that the accused had no documents on them. Accused did start arguing with them and they did hold PW1 and dragged in the way they wanted. PW2 tried to pacify them but he suffered assaults at their instance and he also suffered assault at their instance and thereafter all of them did register the first information with the police. However he has identified them during his examination in chief as well.
22. As could be seen from his cross examination similar set of questions aforesaid has been put. Regarding the alleged incident timings, number of consignments boxes etc, have been questioned. He has answered that he cannot depose as to how many boxes were present inside the car then etc. 19 CC 14668 of 2011
23. As could be seen from his further cross examination, a strange suggestion has been put by the learned advocate appearing for the accused that if any consignment is transported in a train, it is a must to obtain receipts on the same. However a question regarding his nature of duty in the department also has been put. Names of accused also came to be questioned. Further he has answered that it is true that using the bare hands, it is not posible to separate the dooor of the vehicle from the vehicle. A question regarding the net weight as to those alleged boxes has been put. He has answered that they were of 2030 kilo each and he has admitted that beside their check post, there is a check post attached to Railway Department as well. He has been questioned regarding the availability of coolie workers near the spot. But he has elaborated his answers saying that his department, they were 05 in numbers and they did try to stop the persons, who indulged themselves in shifting of those boxes but public did not help 20 CC 14668 of 2011 them. These accused were 34 in numbers. He has answered strangely that at that particular point of time, few of them did leave the boxes at the spot and they did run away. But neither the railway police nor his department officials tried to seize those boxes.
24. He has been questioned regarding the availability of a hospital inside the Railway station. He has answered that there were no problems to obtain treatment in the said hospital itself. Apart from the questions to the said effect, no other questions which would dismantle his evidence in toto, came to be put. Except the bare denial as to his evidence, no suggestion also has been put by the advocate for accused.
25. PW5 has deposed in his examination in chief that he belongs to Maruti Car Show Room. He engaged himself in taxi service and did take PW1 to 4 in his 21 CC 14668 of 2011 vehicle near that good shed premises attached to Railway Station at Majestic. They indulged themselves in some checking activities on a Maruti omni Vehicle. Few disturbed their duty and there were some fights and PW2 suffered some injury on his back in the incident and he was taken to a hospital. However during the identification of accused inside the court, this witness has answered that 'mostly' the accused, who were present in the court only have quarreled with PW1 to 4.
26. As could be seen from his cross examination, he has been questioned regarding maintaining of Log Books regarding the trips they do in the car and also regarding he name of the police officer, who allegedly did take his statement. However he has answered that he has not furnished any log books extracts either to police or to Commercial Taxes Department. 22 CC 14668 of 2011
27. One thing is clear from his evidence that prosecution has examined this person to prove in this court that he is a man who did take PW1 to 4 to the spot in his car, for rent. He has specifically answered in his cross examination that, after ensuring the treatment to PW2, he had been to Commercial Tax Office at Kormangala. However he has strangely answered further that, together with PW2, other PW1, 3 and 4 also did come to the hospital. But he could not recollect whether they had taken treatment or not. However during his cross examination also, a bare suggestion denying his entire evidence has been put. It came to be denied.
28. PW6 is a Head Constable, who deposed that as on the date of the incident, he was deputed to Discharge his duty at Bengaluru City Railway Station. He was verifying the seals on the consignments as on the time of the alleged incident and there were some clashes near the gate of the premises and he rushed 23 CC 14668 of 2011 to the spot and there were some fights and exchanges of words. He insisted the persons indulged in exchanges of words to stay aside and not to disturb the free flow of traffic. Amongst the persons present in the said group, one person introduced himself to him as a Commercial Tax Officer and he was present there to discharge his duty. Strangely he has answered in his examination in chief that, as 11 years being elapsed, he could not identify the accused. Hence, he was considered partly hostile to the case of the prosecution and during his cross examiantion conducted by learned Senior APP, he denied the suggestions regarding the mistaken thought of Commercial Taxes Department officialsPW1 to 4 as to that he had helped the accused at the spot etc.
29. As could be seen from the record, PW7 and 8, have deposed that as on the date of incident, they had been deputed to discharge their duty at the said premises 24 CC 14668 of 2011 and when they were discharging their duty, their department higher ups insisted them to trace the accused persons and to produce them. They did find the accused persons at Chamrajpet and produced them before the higher ups etc.
30. During their cross examiantions, nothing much has been elicited by the learned advocate appearing for the accused and only their evidence came to be denied by way of suggestions.
31. PW9 deposed that he did take PW2 to 4 to K.C.General hospital for the purpose of treatment and during his cross examiantion, many questions regarding timings at which he ensured their alleged treatment and the timings at which he returned etc, also have been put on him. Apart from that nothing much has been questioned and his evidence came to be denied by way of suggestions.
25 CC 14668 of 2011
32. PW10 and 13 are the alleged witnesses for mahazar.
They did turn hostile to the case of the prosecution. However their cross examinations nothing much has been elicited by the learned Senior APP.
33. PW11 is the ASI, attached to SBC Railway Station.
He has deposed that on the said day, he did bring both CW7, 8 (PW10 and 13)the witnesses for mahazar and when he rushed to the spot he did see two vehicles the Maruti Omni car and a two wheeler Bajaj Discovery bike at the spot. During his cross examination, his evidence came to be denied by way of suggestions. Apart from that nothing much has been elicited etc.
34. PW12 is a Doctor, who allegedly treated PW1 to 4 on 25/03/2011. It has been deposed that they were brought before him with a history as to assault and he examined them and issued wound certificates as per Ex.P3 to 5 certifying the injuries present on them to 26 CC 14668 of 2011 be simple in nature. He deposed that he did see the swelling on the right cheek of PW4 and pains simplicitor on PW3's back, a fracture as to middle finger of the left hand of PW2 and he noticed on his thumb of his left hand the swelling and pain. However he has admitted a suggestion of the learned advocate for accused that there is a chance of suffering similar injuries as above if the persons fall on a rough surface. Apart from that, nothing much has been elicited by the learned advocate appearing for the accused.
35. PW14 is none other than the Retired PSI. He deposed before this court that he did discharge his duty as a PSI of Bengaluru City Railway station from 2009 till 2011. When he was in the police station as a SHO, PW1 did appear before him and submitted first information in writing. He registered it and forwarded the FIR to the court and forwarded the copies of the same to his higher ups. He did draw spot mahazar as 27 CC 14668 of 2011 well. He did seized the Maruti Omni Car and Bajaj Discovery two wheeler. Thereafter for the purpose of investigation he did handover the file to CW17 and as the PW1 suffered injury then he was asked to take treatment and he was sent to hospital.
36. As could be seen from his cross examiantion, his evidence came to be denied by way of suggestions by the learned advocate appearing for accused. He did admit that there are some overwritings in Ex.P1. When he had been to the spot alleged, he did not see any materials belong to these accused. He did not investigate the aspect as to from which place, the consignments were brought and to which place they have been sent. He did plead ignorance whether any CC TV Camera was installed near by the spot alleged and he denied the suggestion that despite installation of CC TV cameras he did not obtain any information on the same.
28 CC 14668 of 2011
37. As could be seen from the record, PW15 is the retired PSI. He deposed before this court that from the year 2007 to 2012, he did discharge his duty as a PSI of Bengaluru City Railway Station. He did take this file from PW14 for the purpose of investigation and he continued it. He did take necessary legal actions against accused and he did obtain wound certificates pertain to the injured persons stated in this matter and thereafter he completed investigation and submitted charge sheet against these accused.
38. As could be seen from his cross examination as well, learned advocate appearing for accused has denied his evidence by way of suggestions. Apart from that nothing much has been elicited at his instance.
39. Above are oral testimonies of above witnesses available on record, regarding the accusations leveled against accused. The prosecution's case is very 29 CC 14668 of 2011 specific that, showing the reluctance to give information regarding the consignments present with them, although PW1 to 4 belong to Commercial Tax Department in various capacities, the accused did put them under the fear and they disturbed them when they indulged themselves in discharge of their official duties etc.
40. Ex.P1 is the first information. Ex.P2 is the spot mahazar. Ex.P3 to 5 are the wound certificates belong to aforementioned alleged victims aforesaid.
41. How far the prosecution is succesful in establishing the case alleged against the accused is the question requires answer in this judgment. It is no doubt true that there are some differences with respect to the timings deposed as to their presence at the alleged spot in evidence adduced by PW1 to 4. But what is to be ascertained is, during early morning hours, whether PW1 to 4 were prresent as on the date and 30 CC 14668 of 2011 time of the alleged incident and whether they suffered the suffrages explained herein above at the instance of these accused.
42. In the cross examiantion of PW4 only, the defence of accused has been putforward by the counsel for accused by way of a suggestion that, the PW1 to 4 being officials in various capacities, attached to Commercial Taxes Department, did demand money from the accused and when they expressed their reluctance to give them money they have filed this case.
43. By virtue of above suggestion what is clear before this court is both PW1 to 4 and these accused Nos.1 to 3 were present at the spot, particularly at the time alleged by the prosecution. Though detailed cross examination has been done by the learned advcoate appearing for accused on all the witnesses PW1 to 4, his questions focus regarding the registers being 31 CC 14668 of 2011 required to be maintained by Commercial Taxes Department and Police Department only and his questions mainly focus upon the availability of two categories of police persons inside the premises of the goods shed. His questions further focus upon the information required to be given to police that too at the instance of Commercial Taxes Department, regarding their alleged raid etc.
44. The case of the prosecution regarding the presence of PW1 to 4 is that, they had some credible information that unaccounted and illegal consignments are being transported on day to day basis by many of the business men without any legal bills and without paying the commercial tax. Therefore to catch such persons with consignments, they were present at the spot aforementioned at aforementioned time. They further asserted that they had further information that many Maruti Omni Cars do take ingress and agress to the check post area and they do not pay 32 CC 14668 of 2011 commercial taxes and they do not keep accounts as to their consignments and they have been putting the state exhequer to finanical loss by way of avoiding the payment to commercial taxes.
45. As aforesaid by virtue of the above suggestion, the learned advocate appearing for the accused only has made it clear regarding the presence of these accused at the alleged time and also the presence of all PW1 to 4 at the alleged spot.
46. Though detailed cross examination has been done on all the prosecution witnesses, the questions which would ultimately put the case of the prosecution to dark or otherwise have not been put upon any of the witnesses. Further the learned advocate for accused has conducted the cross examination of PW1 to 4 in a way to show before this court that their presence at the spot itself is objectionable and also to show that 33 CC 14668 of 2011 they were present thereof without any valid right or otherwise.
47. It is needless to state that if these PW1 to 4 were present at the spot alleged without any valid right or otherwise, it is for their department higherups to take action in accordance with law. Further as aforesaid the defence of the accused is that PW1 to 4 demanded bribe and they refused to pay it, hence, the case has been filed.
48. At this juncture, it is appropriate to state that if at all the PW1 to 4 are guilty of demanding bribe money from accused, the law certainly permits to opt to have a recourse to the ombudsmen system. Though the above sort of defence has been putforward by accused, it has not been established in an appropriate and in a convincing way. Mere suggesting to the one of the alleged victims in the said way, does not by 34 CC 14668 of 2011 itself take away the strength of the evidence adduced by all PW1 to 4 regarding the acts of these accused.
49. It is no doubt true that 02 witnesses, out of PW1 to 4 have been considered partly hostile. But they have admitted in their respective cross examinations conducted by learned Senior APP regarding the identification particulars of the vehicles involved allegedly in this matter and also regarding the nature of suffrages allegedly faced by them etc.
50. In their respective cross examiantions conducted by learned advocate appearing for accused, many questions regarding timings as to their presence, information to their higher ups, information to the concerned jurisdictional police etc, only have been asked. But at the same time, no question has been put by learned advocate appearing for the accused regarding their presence at the spot at all. But as 35 CC 14668 of 2011 aforesaid he has putforward the said defence as to demand for bribe. Therefore, the said defence in the considered opinion of this court, is strongly nebulous and it certainly affects the defence of accused in this matter. Therefore there is no doubt regarding the presence of accused at the spot. Though the prosecution has alleged that accused nos.1 and 2 pushed PW1, when he was about to examine the consignments present in the vehicle aforesaid, no effective cross examination has been made regarding the same and regarding the entry of accused No.3 to the spot in his two wheeler. Further there is no dispute at all regarding the seizure of Maruti Omni Car and the two wheeler aforesaid. Accused persons do not contend anything about the seizure of those vehicles. Though the learned advocate appearing for the accused has questioned the PW4 regarding the weight of the consignments, said question has been satisfactorily answered by PW4 that they were of 20 30 kgs each. After eliciting answers to the said effect 36 CC 14668 of 2011 on consignments, nothing much has been questioned during cross examination of all the prosecution witnesses and nothing has been argued on it.
51. Therefore, what is clear before this court is, these accused were present at the alleged spot at alleged time. Whether accused had indulged themselves in any legal business etc, also has not been contended by the accused. The accused do not contend that they were absent at the spot at the alleged time. They only contend that they have not done any of the offences aforementioned. But they only contend that a fasle case has been filed against them. They conted that they questioned their demand for bribe. Mere suggestion only has been put upon prosecution witnesses that none of the accused has assaulted them etc, and none of the accused has committed any crime alleged. The said suggestions does not take away the strength attached to the evidence of PW1 to 37 CC 14668 of 2011
4. Because all PW1 to 4 are the victims and the eyewitness regarding the alleged assault. Therefore, their evidence cannot be brushed aside or disbelieved, considering the bare suggestions as to their innocence.
52. Cross examinations conducted upon all PW1 to 4 make it clear that these accused as well as PW1 to 4 both were present at the spot at the allged time. By adducing the evidence through an eyewitness the PW5, who is the driver of the car hired by PW1 to 4, in which the PW2 has been proved to have been taken to the hospital for treatment, the prosecution has made its case very strong. Entire evidence of PW5 makes it clear that, he is the person, who has been hired at the instance of Commercial Tax Department for the purpose of their field work duties to pick up and to drop the officials of the department. Regarding the role of PW5, entire cross 38 CC 14668 of 2011 examination conducted upon PW5 is silent. In his cross examination, he has answered that he does not know whether the officers other than PW2 did take treatment or not. As aforementioned he also has been questioned regarding the necessities of maintaining log books. But at the same time, as his role asserted in this matter, by the prosecution, as to their pick up of officers and drop being not questioned by the learned advocate appearing for the accused in his cross examination, his evidence remained intact and his presence at the spot appears to be very probable. No reason is forthcoming to doubt his presence.
53. Moreover his evidence adduced to the effect that he was present, thereof for the said reason, has not been shaken. Viewed from any angle, his presence at the spot cannot be doubted. His evidence is very specific that in the early morning of 06.30 of 25/03/2011, he did drop PW1 to 4 in his car to the aforesaid spot. 39 CC 14668 of 2011 Regarding the said evidence, no cross examination has been done by the learned advocate appearing for the accused except questioning him by way of a suggestion that he deposed false evidence.
54. Therefore, his entire evidence cannot be doubted though he has answered in his cross examination that he did not notice as to amongst these accused, who particularly assaulted, whom amongst these officials PW1 to 4. His entire evidence makes it clear regarding his presence at the alleged spot at that particular point of time stated herein above.
55. Therefore, his evidence plays a very pivotal role in deciding this case. Moreover he has deposed about both the vehicles belong to accused. Accused in this entire case, have not stated or whispered anything regarding the said Maruti Omni Car and also regarding the bike. It is not the case of the accused 40 CC 14668 of 2011 that those vehicles do not belong to them or otherwise. What has been alleged in this case is, these accused did break the door of the car and disappeared with boxes present in it. Prosecution has failed only to show before the court as to what was the necessity to break open the door.
56. But mere failure to establish the necessity to break open the door, that by itself, does not make the case doubtful. It is the suggestion being put upon PW1 to 4 by the learned advcoate appearing for the accused that using bare hands, the doors of the car cannot be opened by way of breaking. Even it appears logical. But as aforesaid, although the prosecution has failed to establsih before the court, the necessity to break open the door, it is clear before this court that the said car was present and it appears that the door was locked and the consignments were present in the 41 CC 14668 of 2011 vehilce and therefore, the accused might have broken the door.
57. Be that as it may be, what is clear is, the said car was very much present at the said spot, at the said time and accused No.1 did dirve it in the said premises keeping consignments inside it. Though prosecution has alleged that the consignments were taken away by these accused, learned advocate appearing for the accused, did not question the said evidence in any way throughout the case. It has not been the case of the accused that they did not carry away the consignments. But it is their case that the PW1 to 4 did demand bribe. Therefore, nebulously accused have admitted that consignments were present in the vehicle and they were present at the spot and indirectly they did admit in this adjudication regarding the presence of all PW1 to 4 at the spot as well.
42 CC 14668 of 2011
58. So far as the commission of alleged offence is concerned, this court opines that the evidence letin by the prosecution is sufficient to prove that these accused have committed the offence contemplated in section 353 of IPC. If at all PW1 to 4 have demanded bribe as aforesaid, these accused had every option to question their act in the manner known to law. Although the defence of the accused is that PW1 to 4 had demanded the bribe etc, accused do not contend that they did not transport the consignments. Although a detailed cross examinations as aforesaid have been done upon the witnesses of the prosecution, regarding the accusation as to disappearance of these accused with consignments, has not been touched by the learned advocate appearing for the accused.
59. Therefore, considering the nature of their defence and the line of defence aforesaid, it is clear that they were present at the spot and they were in a verge of 43 CC 14668 of 2011 transporting few consignments. If at all the consignments are illegal etc, it is for the concerned officers to take action in accordance with law. So far as the accusations as to assault on the officialsPW1 to 4 attached to the said department and putting them under the fear or to deter them etc, are concerned, certainly the case of the prosecution has been very strong in the light of the evidence of its witnesses.
60. It is no doubt true that the witnesses for mahazar did turn hostile to the case of the prosecution. But a mere failure to prove Mahazar, does not by itself a problem to the case. This is not the case based on some seizure to say that the mahazar should have been established properly etc. This is a case where the officers of aforementioned department have been detered, when they indulged in discharge of their official duty. Hence keeping in mind the above discussions, in the considered opinion of this court, 44 CC 14668 of 2011 although mahazar has not been proved by the prosecution, the entire incident cannot be doubted at all.
61. It is appropriate to state that the investigation officer has conducted the investigation of this matter very carelessly. Because although the first information does include an accusation regarding the non co opeartion of one of the constables attached to RPF Police Wing namely Shankar Narayan did not co operate with them by giving the contact number of the superior officers knowingly well that they belong to Commercial Tax Department, the entire investigation is silent regarding the said Shankar Narayan. Morevoer although he has been examined as a PW6 in this matter, although he has deposed that these PW1 to 4 have misconceived his act, in a case of present nature, the first priority shall be to extend the help to the needy at the spot irrespective of their cadre and status etc. Because this is a case as to out and 45 CC 14668 of 2011 out assault. If any person is being assaulted in the presence of a police person help shall be extended. Inspite of seeing the exchanges of words admittedly, being a head constable, he should have adviced these accused persons to stay aside. Therefore, it is clear that he had a knowledge that few people were in some trouble and it is the specific evidence of PW1 to 4 that, they did introduce themselves to him and knowingly well that they belong to said department, only for a reason that he was assigned with a duty to check the seals on the consignments, he did not help. Therefore said assignment that by itself doesnot absolve his duty, atleast to pacify. Moreover though he is a police person, taking into consideration the nature of his evidence, this court has considered him as one of the eyewitnesses to the case, as his evidence is specific that there were some exchanges of words between these accused and PW1 to 4 and as he has deposed that the PW1 to 4 have misconceived his act etc, and as he only has admitted that out of PW1 46 CC 14668 of 2011 to 4, one has introduced himself as an Officer of the Commercial Taxes Department and further as the evidence adduced by him to the said effect has not been disturbed, despite his cross examination by learned advocate for accused. Thus the entire case of the prosecution on the basis of his evidence shall be believed only.
62. The investigation of the IO is silent as to why PW6 was reluctant to deliver the phone number belongs to his higher ups at the time of incident to PW1 to 4. Whether those things did take place or not, should have been specifically investigated. But neither the investigation report nor the evidence of PW6 is speaking on the same. Only in the cross examination of PW6, he has answered that PW1 to 4 misconceived that he was also shifting the boxes etc. In what way he has come to know that these PW1 to 4 have misconceived his act, also has not been clarified by the prosecution. However careless 47 CC 14668 of 2011 investigation, faulty investigation shall not be the grounds to say that the accused are innocents etc.
63. Taking into consideration the entire discussion made as above, this court has no impediment to state that certainly these accused have troubled PW1 to 4, when they indulged themselves in discharge of their official duty. Considering the nature of the defence and the over all questions came to be put in the cross examiantions of PW1 to 4, what is clear is, certainly there were some exchange of words. What was the necessity to have the exchanges of words with PW1 to 4, also has not been clarified by the accused. Why they did not opt to complain regarding alleged demand for bribe by PW1 to 4, to the Lokayuktha or to other Forum also has not been clarified.
64. If at all the demand for bribe is true, it will be the special knowledge of accused only. The burden of 48 CC 14668 of 2011 proving such special fact which is in the knowledge of the accused, rests upon these accused only. To say as above, this court takes the shelter of Section 106 of Indian Evidence Act.
65. For the purpose of clarity Section 106 of Indian Evidence Act is hereby extracted below; Section 106 in The Indian Evidence Act, 1872
106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
66. Hence, in view of no explaination or evidence being putforward by the accused in this case as to why they did not opt to have recourse to the serives of Ombudsman, this court has no other option but to say that the exchanges of words being proved in the light of the evidence of the aforementioned witnesses, their act of exchanging words shall be construed as a 49 CC 14668 of 2011 mode of putting PW1 to 4 to a deterance and to a fear only.
67. Whether the consignments being proved to have been shifted by the accused was permitted or not also has not been stated by the accused. At the same time, they do not deny with force their indulgence in shifting of some consignments. They do not deny their presence at the spot. They do not deny the usage of said Maruti Omni Car and the said two wheeler as well that too within the premises aforementioned at the alleged time. What was the necessity to take those vehicles inside the said campus also has not been stated by him. They do not deny the presence of PW1 to 4 as well at the spot. Therefore, in view of all the above discussions, this court has no impediment to state that the accused are guilty of an offence aforesaid.
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68. Moreover Ex.P3 to 5 are being the wound certificates of the aforementioned witnesses cum victims, evidence of those PW1 to 4 get corroborated with the contents present in these Ex.P3 to 5. Dates present in Ex.P3 to 5 also corroborate with the evidence of PW1 to 4 as to treatment. No cross examination has been done on the doctor effectively except suggesting him that there is every chance of suffering such injuries if a person falls on the rough surface. Though the said suggestion has been admitted by the aforementioned witnesses, still the very admission by itself does not take away the importance attached to Ex.p3 to Ex.P5 for the said reason.
69. Hon'ble Supreme Court has held that the wound certificates or the Doctor evidence shall be used to check whether the injuries alleged to have been suffered by the victims, have been suffered in the way 51 CC 14668 of 2011 they explain. In the judgment quoted herein below the ratio to the said effect is present ;
In a case between Vijaypal V/s State of Delhi reported in 2015(3) KCCR SN299, It has been held that Medical evidence shall be used for the purpose of corroboration and to prove injuries could possibly have been caused in a manner alleged by the prosecution and the medical evidence can be used even by the defence to show that the injuries could not possibly caused in the manner alleged.
70. Hence, in view of the above discussions the sufferages alleged in this case, alleged to have been suffered by those witnesses can be believed. Merely for a reason that they belong to Government Department and merely, all of them belong to same wing, their testimonies for the above collective reasons, shall not be believed only.
71. Although there is some difference in the evidence of PW1 to 4 as to time of the incident, said difference 52 CC 14668 of 2011 in their evidence will not take away the strength of the case and of their evidence. Because by and large all of them have deposed that the incident did take place during early morning hours. Hence those minor differences in their evidence can be overlooked. Ultimately their evidence establish in the court their presence and the suffrage explained by them in their evidence.
72. Though many questions regarding non furnishing of log books and permissions extracts of the higher ups etc, came to be put to PW1 to 4, they do not put the case to a dark. It is apt to state that if any officer while discharging his duty towards the state, if he does not possess any written permission, it does not give rise to a right to a person, who is legally bound to cooperate with said duty, to assault the very officer. Absence of written permission is not a permission to put such officer to an assault. If at all any act of an officer is ultravirus, such person who feels that he 53 CC 14668 of 2011 has been put to victimization, shall have a recourse to the remedy available in law only and he shall not misbehave and shall not take the law to his hands. Therefore, considering the evidence being intact as to assault on PW1 to 4, and as PW5 and 6 are being the eyewitnesses to the incident, the case of the prosecution is completely strong and the suffrages being corroborated with Ex.P3 to 5 and for all the above collective reasons, this court is of the firm opinion to say that the prosecution has established the case. Hence, Point No.1 is hereby answered in the Affirmative.
73. Point No.2: For all the above collective reasons and keeping in mind the nature of Ex.P3 to Ex.P5 and the contents of the same, this court does not find any reason to disbelieve them and therefore as they are specific regarding the injuries suffered by PW1 to 4, considering the evidence of eyewitness and the 54 CC 14668 of 2011 victims, as their evidence is being intact for the above collective reasons, assault alleged against accused, which has been alleged to have been made on PW1 to 4, shall be believed. Hence, I answer Point No.2 aforementioned as well in the Affirmative.
74. Before going towards the sentencing part, this court is of the opinion to state that in view of the Officer of the reputed department of the state and his supporting men being proved to have been suffered the aforementioned incident at the instance of accused, if lenient view is taken by invoking the provisions of Probation of Offenders Act, it would send a wrong message to the society and it may become Problematic in future to such Officers of the Departments to discharge their duty freely and without fear as well. Hence, this court is not inclined to invoke the provisions of Probation of Offenders Act. It is made clear that, case against A1 has already 55 CC 14668 of 2011 been abated and for all the above reasons collectively, A2 and A3 deserve to be sentenced. Hence, both accused Nos.2 and 3 are held guilty for the offences punishable under section 353, 323 R/w Seciton 34 of IPC.
FINDINGS Accused Nos.2 and 3 are hereby held guilty for the offences punishable under sections 353, 323 R/w Section 34 of IPC. Hence call this case little later to hear on sentence. Before that, furnish a copy of the above judgment to both accused Nos.2 a nd 3 free of cost.
(Dictated to the stenographer, typed by him, corrected by me and then pronounced in the open court today, that is on 08122021) S.S.BHARATH XLI (41ST) ACMM, BENGALURU 56 CC 14668 of 2011 SENTENCE Learned Advcoate for accused No.2 and 3 has submitted that accused Nos.2 and 3 are poor men and they have no finanical capacity and if a strict view is taken on them, it would put them and their family members to untold misery and hardship. With the said statements he requested the court to take lenient view on them.
Learned Senior APP has argued that this is a serious case which has been proved against accused No.2 and 3 and if a lenient view is taken on A2 and 3, it may become Problematic in future to the Officers of the said department to discharge their duty freely and without fear as well. With the above submissions she requested the court to take strict view on accused Nos.2 and 3 and to impose maximum punishment.
57 CC 14668 of 2011 I have heard, the accused Nos.2 and 3 and the Senior APP and the learned advocate appearing for accused No.2 and 3.
Taking into consideration the aforementioned aspects, this court deems it appropriate to sentence the accused as below;
Accused No.2 and 3 are held guilty for said offences.
Invoking section 248(2) of Cr.P.C., the accused No.2 and 3 are hereby sentenced to undergo rigorous imprisonment for the period of 02 years and they shall pay a fine of Rs.8,000/ each with respect to an offence punishable under section 353 R/w Section 34 of IPC.
Accused No.2 and 3 are further sentenced to undergo rigorous imprisonment for the period of 58 CC 14668 of 2011 01 year and they shall pay a fine of Rs.1,000/each with respect to an offence punishable under section 323 R/w Section 34 of IPC.
Both the above sentences shall run
independently.
It is made clear that, both sentences have been ordered to run independently keeping in mind the gravity of the offences and the impact they make on the society and the time at which the assault has been proved to have been made on PW1 to 4, knowingly well that they are from Commercial Taxes Department.
Out of the above fine amount of Rs.18,000/, Rs.04,000/ shall be paid to PW1 to 4 collectively as a compensation and rest of Rs.14,000/ shall be paid to the state.
59 CC 14668 of 2011 ORDERS ON VICTIM COMPENSATION I have considered the societal status of PW1 to PW4. I have considered the compensation money ordered to be paid to them, out of fine amount imposed upon the accused. Therefore, this court is of the opinion that, the same is adequate keeping in mind the nature of the injuries proved to have been suffered by PW1 to 4. Keeping in mind their jobs attched to Commercial Taxes Department and the adequacy of compensation already ordered to be paid to them as above, I am not inclined to invoke sepearately the Victim Compensation Scheme enshrined under section 357A of Cr.P.C., Copy of the above judgment and copy of the above sentence shall be furnished to both accused Nos.2 and 3 free of cost forthwith.
S.S.BHARATH XLI (41ST) ACMM, BENGALURU 60 CC 14668 of 2011 ANNEXURES List of witnesses examined on behalf of prosecution: PW.1 : K.S.Rajshekar Murthy PW.2 : G.R.Srirangaraju PW.3 : D.B.Mahesh PW.4 : Nagaraj PW.5 : Charan Kumar Singh T PW.6 : S.Shankar Narayan PW.7 : P.Krishnamurthy PW.8 : Chikka Hanumegowda PW.9 : Srinivasaiah PW.10 : Ramanji PW.11 : S.N.Narayanappa PW.12 : Dr.Govindaraju PW.13 : Magi @ Mahendra PW.14 : Padmanabha PW.15 : L.Subbanna List of documents marked on behalf of the Prosecution: Ex.P.1 : Compaint Ex.P.1(a) : Signature of PW1 Ex.P.1(b) : Signature of PW14 Ex.P.2 : Mahazar Ex.P.2(a) : Signature of PW1 Ex.P.2(b) : Signature of PW10 Ex.P.2(c) : Signature of PW13 Ex.P.2(d) : Signature of PW14 Ex.P.3 to 5: Wound certificates Ex.P.3(a) : Signature of PW12 Ex.P.3(b) : Signature of PW15 Ex.P.4(a) : Signature of PW12 Ex.P.4(b) : Signature of PW15 Ex.P.5(a) : Signature of PW12 Ex.P.5(b) : Signature of PW15 Ex.P.6 : FIR Ex.P.6(a) : Signature of PW14 61 CC 14668 of 2011 List of witnesses examined on behalf of accused : NIL List of documents marked on behalf of the accused : NIL List of materials marked on behalf of the Prosecution: NIL S.S.BHARATH XLI (41ST) ACMM, BENGALURU;