Bangalore District Court
Muralidhar Psi vs Shashank on 6 April, 2024
KABC030133692017
Presented on : 21-02-2017
Registered on : 21-02-2017
Decided on : 06-04-2024
Duration : 7 years, 1 months, 13 days
IN THE COURT OF THE XXXII ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
PRESENT
SMT.LATHA .J, B.COM, LL.B.,
XXXII Addl.C.M.M, Bengaluru
Dated this the 06th day of April 2024
C.C.No.6109/2017
Complainant : The State through
Police Inspector,
Madivala Police Station,
Bengaluru.
(By Asst. Public Prosecutor)
--- V/s ---
Accused No: 1). Shashank,
Aged about 23 years,
2). Pallav Kumar.
Aged about 23 years,
Both are R/o.Tavarekere,
Bengaluru.
(By Sri.H.M.T...Adv.,)
2 C.C.6109/2017
Date of commencement of : 06.04.2015
offence
Date of report of offence : 06.04.2015
Arrest of the accused : ---
Name of the Informant : Muralidhar
Date of commencement of : 03.03.2020
recording evidence
Date of closing of evidence 13.10.2023
Offences complained of : U/Sec.504, 332, 353 of IPC
Opinion of the Judge : Accused No.1 and 2 are
found not guilty
Date of Judgment : 06.04.2024
XXXII Addl.C.M.M.,
Bengaluru.
JUDGMENT
The Police Inspector of Madivala P.S has submitted the Charge Sheet against the accused No.1 and 2 for the offences punishable U/Sec.504, 353 and 332 of IPC.
2. The brief facts of the Prosecution case are as follows:
That, on 05.04.2015 in between 11 P.M and 5.00A.M when the C.W.1 was on patrolling duty at Maruthi Nagar Main road, at 12.45 A.M on 06.04.2015 the Cheetha-88 police patrolling staff 3 C.C.6109/2017 informed him over walkie talkie that two persons were quarreling with each other at Maruthi Nagar Main road and called the C.W.1, when the C.W.1 went to the said place he found the accused persons abusing the police personnel in filthy language and shouting loudly and when the C.W.1 questioned the accused persons, the accused No.1 caught hold of the collar of C.W.1 and accused No.1 with his right hand fist punched on the stomach of C.W.1 and manhandled with him and made him to fall on the ground and caused bleeding injury and thereby the accused persons have committed the offences punishable U/Sec. 504, 353 and 332 of IPC.
3. On the basis of the Statement of CW1, the Madivala Police have registered a case under Crime No.629/2015 for the offences punishable U/Sec. 504, 353 and 332 of IPC against the accused No.1 and 2 and submitted the FIR before the Court. Thereafter the investigating officer visited the spot and drawn the spot mahazar and recorded the statement of witnesses on completion of the investigation, the Charge Sheet has been filed against the accused No.1 and 2 for the offences punishable U/Sec.504, 353 and 332 of 4 C.C.6109/2017 IPC. On the receipt of the police report, this court has taken cognizance for the said offences.
4. On the appearance of the accused No.1 and 2, the accused No.1 and 2 were enlarged on bail. The copies of prosecution papers were furnished to the accused No.1 and 2 as contemplated U/Sec.207 of Cr.P.C. After hearing both the parties, the charge was framed against the accused No.1 and 2 for the offences punishable U/Sec.504, 353 and 332 of IPC and read over to them. Accused No.1 and 2 pleaded not guilty and claimed to be tried. Hence, the matter was posted for evidence.
5. In order to bring home the guilt of the accused No.1 and 2, the prosecution has got examined 09 witnesses as PW1 to PW9, out of the total charge sheet witnesses as CW-1 to 11 and got marked six documents as Ex.P1 to P.6.
Learned Sr.APP given up the examination of C.W.6. Repeatedly proclamation was issued against the C.W.3. Inspite of giving sufficient opportunities Prosecution failed to secure C.W.3. With this view, prayer of Sr. Asst. Public Prosecutor to re-issue summons to C.W.3 is rejected and examination of C.W.3 dropped. 5 C.C.6109/2017
6. After closure of prosecution evidence the accused No.1 and 2 is examined U/s 313(1)(b) Cr.P.C and each and every circumstance found in the evidence is read over separately to the accused No.1 and 2. The accused No.1 and 2 denied all such incriminating circumstances as false. Accused No.1 and 2 did not choose to explain anything during their examination. The accused No.1 and 2 did not choose to adduce defence evidence and no documents are got marked on behalf of accused No.1 and 2.
7. I have heard the arguments addressed by the learned Assistant Public Prosecutor and learned advocate for the accused No.1 and 2. The counsel for accused No.1 and 2 submitted their written argument.
8. On going through the facts and circumstances of the prosecution case, the following points would arise for my consideration:
POINTS
1. Whether the prosecution proves beyond all reasonable doubt that at 12.45 A.M on 06.04.2015 the Cheetha-88 police patrolling 6 C.C.6109/2017 staff informed C.W.1 over walkie talkie that two persons were quarreling with each other at Maruthi Nagar Main road and called the C.W.1, when the C.W.1 went to the said place he found the accused No.1 and 2 abusing the C.W.5 and 7 in filthy language and when C.W.1 questioned the accused No.1 and 2, they abused C.W.1, 5 and 7 in filthy language knowingly that it would give provocation to C.W.1, 5 and 7 to breach public peace and thereby the accused No.1 and 2 have committed the offence of "intentional insult" punishable U/s 504 of IPC?
2. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, place and time, the accused No.1 and 2 with an intent to prevent C.W.1 from discharging his duty as public servant, manhandled and assaulted him with hands and thereby the accused No.1 and 2 have committed the offence of "Voluntarily causing hurt to deter public servant from his duty"
punishable U/Sec. 332 of IPC?
3. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, place and time, the accused No.1 obstructed C.W.1 from discharging his duty as 7 C.C.6109/2017 public servant and thereby the accused No.1 has committed the offence of "assault or criminal force to deter public servant from discharge of duty" punishable U/Sec. 353 of IPC?
4. What Order ?
9. My findings to the above Point is as under:
Point No.1 to 3 : In the Negative.
Point No.4 : As per final order,
For the following: -
REASONS
10. Point No.1 to 3 : As these points are inter linked with each other and also similar evidence is led on all these points, I have taken all these points together for common discussion in order to avoid repetition of facts and discussion.
11. It is the allegation that the accused No.1 and 2 have committed the offences punishable U/Sec.504, 353 and 332 of IPC.
12. In order to prove its case, the prosecution has got examined the C.W.7-Nanjappa.K.S-Retd ASI as P.W.1, C.W.1/Muralidhar.D as P.W.2, C.W.2/Vinayak as P.W.3, 8 C.C.6109/2017 C.W.4/Nissar Basha as P.W.4, C.W.12/Mallesh Bollethin-P.I as P.W.5, C.W.8/Gopal.P-Retd ASI as P.W.6, C.W.9/Lakshmi-
Doctor(Senior Professor) as P.W.7, C.W.5/Sharan Gowda Patil-H.C as P.W8 and C.W.11/Nagaraj.J-ACP as P.W.9.
The prosecution got marked the documents as Ex.P.1 is the complaint, Ex.P2 is the spot mahazar, Ex.P.4 is the wound certificate. Ex.P5 and 6 are wound Certificates of accused No.1 and
2.
13. The defence of the accused No.1 and 2 is total denial of the case of the prosecution.
14. C.W.7/P.W.1 Nanjappa.K.S- Retd ASI and C.W.5/P.W8- Sharanna Gowda Patil- Head constable in their evidence deposed that on 05.04.2015 they were deputed to do night patrolling duty on the cheetah vehicle and at about 12.00 A.M while they came near Pai showroom two persons were quarreling with each other and when they advised them to go home, the said persons abused them in filthy language and the said persons had consumed alcohol and then they informed C.W.1 and CW.1 came to the said place and advised those persons to go home, the said persons abused C.W.1 in filthy language and caught hold of C.W.1 by his uniform shirt collar, manhandled C.W.1 and made him to fall on 9 C.C.6109/2017 the ground, punched C.W.1 with hands and obstructed C.W.1 to discharge his duty and the shirt button on the uniform of C.W.1 had fallen off and C.W.1 had sustained abrasion injury of his body and near his neck and brought the said persons to the police station. Further P.W.1 and 8 deposed that C.W.1 lodged complaint and on enquiry those persons disclosed their names as Pallav Kumar and Shashank and himself and C.W.5 took the accused persons to Jayanagar hospital for medical examination and ascertaing whether the accused persons had consumed alcohol and after examination he produced the accused persons before the SHO and further deposed that the accused No.1 caught hold of the collar patti of C.W.1 and manhandled C.W1 and made him to fall on the ground and the accused No.1 and 2 assaulted C.W.1 with hands.
15. During cross examination made by the counsel for accused No.1 and 2, P.W.1 and 8 deposed that there is a distance of 1km from the place where they were patrolling and the police station and boundary for patrolling is about 4 to 4.5 kms. They were deputed to do 1st beat duty at Maruthi Nagar from 8 P.M to 8.00A.M. Further he deposed that C.W.1 was deputed to check all the beat/s coming under Madivala jurisdiction. He denied the 10 C.C.6109/2017 suggestion that there is a distance of 1.5 kms from the Pai showroom to where he was deputed to do duty. He deposed that he was at Maruthi nagar Main road at about 12.30A.M when C.W.1 came there to sign the beat book. He deposed that there are many routes which lead to Madivala P.S from Maruthi Nagar. He admitted that Pai showroom road is the main road which leads to Madivala P.S from Maruthi Nagar. He admitted the suggestion that there is a chocolate factory in front of Pai showroom and there are two ATM's on either sides of the Pai showroom and security guards will be there at the ATM. He admitted that there is Godavari Hotel at a distance of 100 mtrs from the Pai showroom and said hotel will be open till 1.00A.M and many people will be there at the hotel. He admitted that to reach M.G.road, Tavarekere and Madivala people have to go through Maruthi Nagar Main road. He deposed that C.W.1 came within 10 minutes to the alleged place of incident. He deposed that he does not know whether the house of accused No.2 is behind the Pai showroom. He denied the suggestion that they wrongfully restrained the accused No.1 and 2 when they were going out after having dinner at Godavari hotel. 11 C.C.6109/2017
16. He deposed that the accused No.1 did not tell him that he was working at a reputed company and they were talking loudly amongst them. He denied the suggestion that no incident took place as alleged and they wrongfully restrained the accused No.1 and 2. For the suggestion that the accused persons did not have the habit of consuming alcohol, he deposed that they got suspicion and sent the accused persons for the medical examination. He deposed that they took the accused persons to the police station first and later they were taken to the medical examination at 1.00 A.M. C.W.1 reached the place of incident at 12.45A.M and was at the place of incident for about 10 minutes. He denied the suggestion that the C.W.1 did not come to the alleged place of incident. He denied the suggestion that the accused persons did not obstruct the C.W.1 from discharging his duty as public servant and he is deposing false. He denied the suggestion that no incident took place as alleged in Ex.P.1. He deposed that he went to the police station at 1.00A.M, the distance from the alleged place of incident and the police station is 1 km. He deposed that he sent information through the Walkie Talkie to Hoysala patrolling police. He denied the suggestion that they did not take the accused persons for medical examination. He 12 C.C.6109/2017 denied the suggestion that they wrongfully restrained the accused persons when they were going on Pai showroom road after they had dinner at Godavari Hotel and they assaulted them and they came to know that the accused No.1 is the son of Police Commissioner. He denied the suggestion that they have foisted false case against the accused persons after knowing that the accused No.1 is the son of Police Commissioner.
17. C.W.1/P.W.2-Muralidhar.D-PSI in his evidence deposed that on 05.04.2015 at about 12.30A.M in the midnight he signed in the beat book at Maruthi Nagar and at 12.45P.M he received a message over the walkie talkie that near Pai showroom two persons were quarreling with each other and he went there and found the accused persons were abusing C.W.5 and C.W7 in filthy language and when he came and advised the accused persons to go home, the accused No.1 abused him in filthy language and caught hold of him by holding his uniform shirt collar, manhandled and made him to fall on the ground, and the accused persons punched him with hands and obstructed him to discharge his duty and he sustained abrasion injury on his body and near his neck and brought the said persons to the police station in a 13 C.C.6109/2017 hoysala vehicle. Further P.W.2 deposed that and on enquiry the accused persons disclosed their names as Pallav Kumar and Shashank and himself, C.W.7 and 8 took the accused persons to Jayanagar hospital and after medical examination he lodged complaint as per Ex.P.1 against the accused persons and on the same day the SHO drew spot mahazar at the spot as per Ex.P.2.
18. During cross examination by the counsel for accused No.1 and 2 the P.W.2 deposed that he was on patrolling duty in beat No.1 and the beat No.1 covers a radius of 3-4 kms. He deposed that he went to the place where C.W.5 and 7 were from Maruthi Nagar. He admitted that Pai showroom is located on Maruthinagar main road. He admitted that there is a chocolate factory to the left of Pai showroom and he deposed that he does not remember whether there are 3-4 ATMs near Pai Showroom. He deposed that he went to the place of incident in the department jeep in the afternoon in between 12.40 and 12.45 P.M and police staff, accused persons and public were present at the place of incident. He denied the suggestion that the police staff without enquiring the accused assaulted them when the accused persons were coming out after having lunch. He deposed that he enquired the accused persons after the galata and came to know that the 14 C.C.6109/2017 accused persons were B.E.graduates and were employed in reputed companies. He denied the suggestion that the accused persons were brought to the police station when the accused persons questioned the police staff as to why they were assaulted. He denied the suggestion that the accused persons did not have the habit of consuming alcohol. He deposed that he does not know why there was a galata between the accused persons and the police staff and when he went to the place of incident and advised the accused persons to leave from there, the accused persons manhandled him by holding his uniform and made him to fall down. He denied the suggestion that no incident took place as alleged and he did not go to the place of incident.
19. C.W.2/P.W3- Vinayak in his evidence deposed that on 06.04.2015 at about 9.00 A.M while he was going near Pai showroom, police called him and he signed on the mahazar which is at Ex.P.2, relating to the galata which took place between the public and police.
20. During cross examination made by the counsel for accused No.1 and 2 the P.W.3 deposed he is working as cab driver since 7-8 years and he admitted that some drivers drive the cab 15 C.C.6109/2017 during night and some drive the cab during day time. He admitted that he drives the cab at BTM layout. He deposed that the place where he signed is at a distance of 1km from BTM Layout. He admitted that he does not get down from his cab when there are passengers in the cab and usually cab is booked online and he will be in his car. He deposed that he had parked his car near Pai showroom and police were standing in a group and he also went there. He deposed that he does not know what the galata was. The contents of the mahazar were typed on the laptop and the printout was taken, he denied the suggestion that he signed on the mahazar at the police station. He deposed that he does not know who got prepared the mahazar and admitted that he does not know who signed on the mahazar.
21. C.W.4/P.W.4-Nissar Basha in his chief examination deposed that he does not know the accused persons and he has not witnessed any incident of galata.
The Learned Sr.APP treated this witness as hostile witness and cross examined him at length. Even in the cross examination this witness withstood to his version stated in the chief examination 16 C.C.6109/2017 and denied the suggestion that he is deposing false evidence to help the accused persons.
22. C.W.12/P.W5- Mallesh Ballothina- Police Inspector- in his evidence deposed that on 13.07.2016 he took the up entire case file from Police Inspector Nagaraj and completed investigaion and filed charge sheet against the accused Persons.
23. During cross examination by the counsel for accused No.1 and 2 he deposed that he deputed the police constables for patrolling duty. He deposed that he did not visit the place of incident. He admitted that at the place of incident police are always on patrolling duty. He deposed that he does not know the surroundings to the alleged place of incident and he has not enquired the complainant in this case and did not record the statement of the complainant. He denied the suggestion that he has filed false charge sheet against the accused persons without any information regarding the case.
24. C.W.8/P.W.6- Gopal.P- Retd.ASI in his evidence deposed that on 05.04.2015 himself along with C.W.6 were on patrolling duty and at about 12.55 A.M C.W.1 called them to come near Pai 17 C.C.6109/2017 showroom at Maruthi Nagar and found that the accused persons and C.W.1 at the spot and saw that C.W1 had sustained abrasion injury near his neck and left hand fingers and came to know about the alleged incident and they took the accused persons to the hospital for medical examination and after medical examination brought them to the police station.
25. During cross examination by the counsel for accused No.1 and 2 P.W.6 admitted that there is a Chocolate factory road in front of Pai showroom and the road on which Pai showroom is located leads to Tavarekere, Koramangala, Madivala. He admitted that there is heavy vehicular and people movement on the said road. He admitted that there is Godavari Hotel in front of Pai Showroom and there are ATM's and PG adajacent to the Pai Showroom. He deposed that about 12.55 A.M he was at Marutinagar and reached the alleged place of incident within 1 or 2 minutes. He deposed that when he reached the alleged place of incident he found a mob of people there and he saw C.W.1 and the accused persons there. Further he personally deposed that he does not know amongst whom the galata took place and he does not know how the incident took place. He deposed that he does not know any person by name Nissar Basha. He denied the 18 C.C.6109/2017 suggestion the IO has falsely shown said Nissar Basha as eye witness and on the basis of the same he is deposing falsely about said Nissar Basha. P.W.6 deposed that he has not lodged complaint, but gave statement regarding the alleged incident on the next day.
26. C.W.9/P.W.7- Dr.Lakshmi in her evidence deposed that on early morning of 06.04.2015 at about 1.33 A.M while she was at Jayanagar Hospital, CW.1 went to the said hospital with history of assault and she examined C.W.1 and found abrasion injury on the left hand thumb finger and C.W.1 complained of pain in his back and said injuries were simple in nature and she issued wound certificate as per Ex.P.4 and opined that if a person is assaulted with hands said injury could occur.
27. Further P.W.7 deposed that on the same day at about 1.40 A.M she examined accused No.1 with respect to consumption of alcohol and on examination of accused No.1 she found that the accused No.1 sustained scratch injury on the left thigh, abrasion injury on the left knee and elbow and she found that the accused No.1 had consumed alcohol, but the accused No.1 was not intoxicated and she issued wound certificate as per Ex.P.5 and 19 C.C.6109/2017 opined that the injuries were simple in nature and she issued a MLC report. Further P.W.7 deposed that on the same day at about 1.45 A.M she examined accused No.2 with respect to consumption of alcohol and on examination of accused No.2 she found that accused No.2 sustained injury on the left hand elbow and she found that accused No.2 had not consumed alcohol, and she issued wound certificate as per Ex.P.6 and opined that the injury sustained by accused No.2 was simple in nature and she issued a MLC report.
28. During the cross examination of P.W.7 by the counsel for accused persons, P.W.7 admitted that she has not mentioned whether the injury at Sl.No.1 in Ex.P.4 is a fresh injury or not and she has not mentioned the age of the injury. She further admitted that injuries mentioned in Ex.P.4 could be caused if a person comes in contact with a sharp edged object while working at the office and could be caused if a person comes in contact with a tag or pin such abrasion could be caused. Further P.W.7 admitted that injury No.2 at Ex.P.4 could be caused if a person comes in contact with a hard object. She admitted that the injury at Sl.No.1 in Ex.P.4 could be caused if a person is scratched with nails and she has not mentioned about this in Ex.P.4.
20 C.C.6109/2017
29. P.W.7 further deposed that the C.W.1 and accused went to the hospital within a gap of few minutes and accused No.1 and 2 were brought to the hospital with H.C.No.3945 and 4549. She deposed that a person can be identified if he has consumed alcohol or not by smell, looking at how the person talks and walks. She further deposed that the accused No.1 had consumed alcohol and accused No.2 had not consumed alcohol. She further deposed that there was no differnce in the walking, talking manner of accused No.1 and 2. She admitted that she has not mentioned in Ex.P.5 and 6- wound certificates as to how the accused persons sustained injuries. She admitted that the injuries mentioned in Ex.P.5 and 6 could be caused if a person is assaulted with hands and front portion of a stick. She denied the suggestion that the C.W.1 and the accused persons had not gone to the hospital for treatment and she has fabricated the said wound certificates.
30. C.W.11/P.W.9- Nagaraj.J- ACP in his evidence deposed that on 06.04.2015 he took up the case file from CW.10 and proceeded with the investigation. He further deposed that he conducted spot mahazar as per Ex.P.2 in the presence of one 21 C.C.6109/2017 Sudhakar and Subramani and recorded statements of C.W.4 to 8 and produced the accused persons before the court.
31. During the cross examination of P.W.9 by the counsel for accused persons, P.W.9 deposed that he has not issued notice to the panchas and the panchas were at the spot. He deposed that he called the persons present at the place of incident to act as panchas. He denied the suggestion that the said panchas were not localities to the place of incident. He admitted that the alleged place of incident is a busy place with people and vehicular movement and there are hotels, Pai showroom, ATM's. For the suggestion that he has not seized the CCTV footages and videos at the place of incident, he deposed that there was no facility of the CCTV at that time. He denied the suggestion that he has not been to the place of incident and has not obtained the wound certificates. He denied the suggestion that spot mahazar witnesses by name Sudhakar and Subramani were not present at the alleged place of incident while preparing mahazar. He denied the suggestion that the accused persons have not committed any crime as alleged in Ex.P.1 and the police personnel have assaulted the accused persons and to hide the said fact, they have foisted 22 C.C.6109/2017 false complaint against the accused persons. He denied the suggestion that though he has not investigated the case properly and with a view to help the police staff he is deposing false evidence against the accused persons.
32. Now the question which arises before the court is whether the evidence placed on record is sufficient to establish the case of prosecution.
33. The prosecution has mainly relied on the evidence of P.W.1 to 3, 5, 6, 7, 8 and 9.
34. The prime witness/informant of crime ie -C.W.1/P.W2 in his chief examination deposed that the accused persons abused him in filthy language and caught hold of him by holding his uniform shirt collar, manhandled and made him to fall on the ground, and the accused persons punched him with hands and obstructed him to discharge his duty and he sustained abrasion injury of his body and near his neck and deposed that he does not know for what reason quarrel took place between the police personnel and the accused persons.
23 C.C.6109/2017
35. It is worthy to note that in the wound certificate of C.W.1, which is at Ex.P.4- it clearly indicates the injuries ie scratch marks on the left thumb and tenderness over the back, which are all simple in nature. Further more it is pertinent to note that the alleged wound certificate is issued on 12.01.2016 ie 8 months after the alleged crime (06.04.2015).
36. Moreover the C.W.1 himself deposed that the accused punched him with hands and he sustained abrasion injury on his body and near his neck, whereas in the wound certificate the injuries mentioned are totally different. The doctor who treated C.W.1 i.e P.W.7 during the cross examination admitted that she has not mentioned whether the injury at Sl.No.1 in Ex.P.4 is a fresh injury or not and she has not mentioned the age of the injury and admitted that injuries mentioned in Ex.P.4 could be caused if a person comes in contact with a sharp edged object while working at the office and could be caused if a person comes in contact with a tag or pin such abrasion could be caused. Further P.W.7 admitted that injury No.2 at Ex.P.4 could be caused if a person comes in contact with a hard object. This aspect goes to the root of the prosection case and clearly reflects that the C.W.1/P.W.2 has 24 C.C.6109/2017 not come to the court with clean hands and said wound certificate is concocted to suit the fancy of the C.W.1.
37. The deposition of P.W.3/C.W.2-mahazar witness- reflects that he is a cab driver and on 06.04.2015 he was told to sign on the mahazar which is at Ex.P.2. The P.W.3 in his cross examination clearly deposed that he does not know who wrote the mahazar and he does not know what the galata was. He admitted that he does not know who signed on the mahazar. The evidence of P.W.3 is not of much use to the prosecution to prove the case, since the P.W.3 admits that he does not know the contents of the mahazar and he does not know what the galata/quarrel was.
38. C.W.4/P.W.4-Nissar Basha- who is an eye witness, completely turned hostile to the case of prosecution and deposed that he does not know the accused persons and he has not seen any quarrel and he has not given statement before police. The only eye witness cited and examined by the prosecution turned hostile to the case of prosecution and as such it is clear that there is no eye witness to the alleged incident.
25 C.C.6109/2017
39. Herein this case evidence of the independent witnesses ie the mahazar witness/P.W.3 and eye witness-P.W.4 is not helpful to the prosecution.
40. In the decision reported in: AIR 1980 SC 443( Babu VS- State of UP -it is held that "where the witnesses are interested, their evidence should be scrutinized with great caution". This decision is also aptly applicable to the case on hand.
41. On careful perusal of the evidence placed on record, it is evident to note that except the interested witnesses PW1, 2, 5, 6, 8 and 9 no public have been examined by the prosecution.
42. Further relying on the decision reported in 1999 Crl.L.J 19 (SC) (Sanspal Singh Vs State of Delhi)
-It is evident that public witnesses were available and could have been associated to witness the recovery. It would have been a different matter altogether, had there been No public witness available or none was willing to associate here as stated above, public witnesses were available but No explanation on these lines is forthcoming. Thus it would be unsafe to maintain conviction of the appellant for the offences charged"
26 C.C.6109/2017
The above said decision is aptly applicable to the case on hand.
43. All through the chief examination and cross examination it is elicited that the alleged place of incident is a busy place and there is Pai Showroom, several ATM's, P.G and hotel located at the place of incident. It is admitted that in the evidence of all the witnesses that there are 2-3 ATM's next/near to Pai showroom, so naturally CCTV's are installed at the ATM and also CCTV camera will be installed at the Pai showroom, then the alleged incident will be recorded in the CCTV. Herein this case the CCTV camera footages are not produced to prove the occurrence of the alleged incident. The IO or the prosecution have not made efforts to prove the case of the prosecution beyond all reasonable doubt.
44. P.W.7 -Dr.Lakshmi in her evidence deposed that she examined the accused persons and issued wound certificates as per Ex.P.5 and 6. She deposed that she examined accused No.1 and she found that the accused No.1 sustained scratch injury on the left thigh, abrasion injury on the left knee and elbow and she found that the accused No.1 had consumed alcohol, but the accused No.1 was not intoxicated and she issued wound certificate 27 C.C.6109/2017 as per Ex.P.5 and on the same day at about 1.45 A.M she examined accused No.2 with respect to consumption of alcohol and on examination of accused No.2 she found that accused No.2 sustained injury on the left hand elbow and she found that accused No.2 had not consumed alcohol, and she issued wound certificate as per Ex.P.6 and opined that the injury sustained by accused No.2 was simple in nature and she issued a MLC report. She admitted that she has not mentioned in Ex.P.5 and 6- wound certificates as to how the accused persons sustained injuries. She admitted that the injuries mentioned in Ex.P.5 and 6 could be caused if a person is assaulted with hands and front portion of a stick.
45. Herein this case the defence taken by the accused persons is that the accused persons after finishing dinner at Godavari Hotel in front of Pai showroom were heading towards their home and the police personnel have harassed and assaulted the accused persons and caused the above said injuries and to deliberately hide the truth, the police have created a false story and framed the accused persons in the alleged offence. 28 C.C.6109/2017
46. Furthermore the decision reported in (2017)11 SCC 195- Yogesh Singh Vs Mahabeer Singh and others.. At para 16 Hon'ble Supreme Court observed as under:
"16. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused no.1 and 2 and the other to his innocence, the view which is favourable to the accused no.1 and 2 should be adopted"
The above said decision is aptly applicable to the case on hand.
47. In the evidence of P.W.5 and P.W.6 both police officials have deposed that they do not know amongst whom the galata took place and they do not know how the incident took place. P.W.5 deposed that he did not visit the place of incident and deposed that he does not know the surroundings to the alleged place of incident and he has not enquired the complainant in this case and did not record the statement of the complainant.
48. The police Inspector ie. P.W.9 deposed that he conducted spot mahazar as per Ex.P.2 in the presence of one Sudhakar and Subramani. On going on through Ex.P.2 it clearly 29 C.C.6109/2017 reveals that said Sudhakar and Subramani have not signed on the mahazar and instead Vinayak and Kantharaj have signed on the mahazar. Moreover said Sudhakar and Subramani are not cited as charge sheet witnesses and their statement is also not recorded. P.W.9 is not even aware as to who signed on the mahazar, this aspect shows that the mahazar has been created for the purpose of the case.
49. Considering the facts and circumstances of the present case, it is clear that the prosecution has failed to prove the guilt of the accused No.1 and 2 beyond all reasonable doubts. For the reasons stated above, it is clear that number of serious doubts arises in the mind of the court as to the evidence and circumstances of the case on hand. Under these circumstances, no doubt the accused No.1 and 2 are entitled for benefit of doubt. Hence this court held that the evidence placed on record is not pointing out towards guilt of the accused No.1 and 2 only and accused No.1 and 2 as a matter of right are entitled for benefit of doubt and prosecution failed to prove the guilt of the accused No.1 and 2 beyond all reasonable doubt. Under these facts and 30 C.C.6109/2017 circumstances of the case, the above Point No.1 to 3 are answered in the 'NEGATIVE'.
50.Point No.4: - In view of the findings of point No.1 to 3, this court proceed to pass the following;
ORDER Acting U/Sec. 248(1) of Cr.P.C. accused No.1 and 2 are acquitted of the offences punishable U/Sec. 504, 332 and 353 of IPC.
Bail bonds of the accused No.1 and 2 shall stand canceled.
The bail bond executed u/s 437(A) of Cr.P.C shall be continued.
(Dictated to the Stenographer on-line and typed by her, judgment corrected and signed by me, then pronounced by me in the Open Court on this the 06th day of April 2024).
(Latha J.), XXXII Addl.C.M.M., Bengaluru.
/ ANNEXURE List of the Witnesses examined by the Prosecution:
PW-1 Nanjappa K.S. C.W.7 03-03-2020
PW2 Muralidhar D. C.W.1 03-03-2020
PW-3 Vinayak C.W.2 06-04-2021
PW4 Nissar Basha C.W.4 06-04-2022
PW5 Mallesh Bolethin C.W.5 13-07-2022
PW6 Gopal. P C.W.8 30-06-2023
PW7 Lakshmi C.W.9 13-10-2023
31 C.C.6109/2017
PW8 Sharana Gowda C.W.5 13-10-2023
Patil
PW9 Nagaraj. J C.W.11 13-10-2023
List of the Documents exhibited for the Prosecution:
Ex.P1 : Complaint Ex.P1(a) : Signature of Pw1 Ex.P2 : Spot Mahazar Ex.P2(a) : Signature of Pw2, 3 and 9 2(b)(c) Ex.P.4 : Wound certificate of CW1 Ex.P4(a)(b) : Signature of Pw7 and PW9 Ex.P.5 : Wound certificate of accused No.1 Ex.P5(a) : Signature of Pw7 Ex.P6 : Wound certificate of accused No.2 Ex.P6(a) : Signature of Pw7
List of the MOs marked on behalf of the Prosecution:
-Nil-
List of the Witnesses examined for defence:
--Nil--
List of the Documents exhibited for defence:
--Nil--
List of the MOs marked on behalf of Defence:
--Nil--
Digitally signed by LATHA LATHA Date:
J
J 2024.04.06
16:16:19
+0530
XXXII Addl.C.M.M,
Bengaluru.