Bangalore District Court
H Thimmarayappa vs Santosh on 24 April, 2024
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KABC030767682018
Digitally signed
by R MAHESHA
R Date:
MAHESHA 2024.04.25
11:13:05 +0530
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BANGALORE.
Dated this the 24 th day of April 2024
Present : Sri. R.Mahesha,
B.A.L.,LL.B.,
IX Addl.C.M.M. Bengaluru.
JUDGMENT UNDER SEC.355 OF CR.P.C.
1.C.C.No. 28250/2018
2.Date of offence 29/08/2018
3.Complainant State by RMC Yard
Police Station
4.Accused Santhosha
S/o.Late Rangappa,
Aged about 37 years,
R/o 5th Cross, Gopalaiah
House Road,
Vrushabhavathi Nagara,
Kamakshipalya,
Bengaluru.
5. Offences U/Sec.353 & 332 of IPC.
complained of
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6.Plea Accused pleaded not guilty.
7.Final Order Accused is acquitted.
8.Date of Order 24/04/2024.
The Police Sub-Inspector of RMC Yard Police Station,
Bangalore has filed charge sheet against the accused for the
offences punishable U/Sec.353 & 332 of IPC.
02. The brief facts of the prosecution case are that, on
29.08.2018 at about 2.15 am within the limits of RMC Yard
Traffic Police Station, CW.1 was deputed to manage the traffic at
RMC Yard and he noticed that, the accused without uniform he
drive the auto and he also consumed alcohol and when CW.1
asked about this behavior and he told that, left the vehicle and
took the documents, then the accused abused the CW.1 and on
the very same day at about 3.45 pm, when CW.1 stood near SBI
ATM Bank, Tumkur Main Road, the accused came and
assaulted on head portion of CW.1 through bottle, he fall down
and public have resque CW.1 and HC 9054 Nataraj came and
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admitted CW.1 in to KC General Hospital, Malleshwaram. The
accused has drive vehicle with alcoholic condition, CW.1
questioned about act of accused, the accused assaulted by beer
bottle and obstructed to discharge his official duty. Hence,
CW.1 lodged first information. The Station House Officer
registered a case in Cr.No.237/2018 for the offences punishable
U/Sec.353 & 332 of IPC and submitted First Information Report
to this Court. After investigation, Police Sub-Inspector of
Parappana Agrahara Police Station filed charge sheet for the
said offences punishable U/Sec. U/Sec.353 & 332 of IPC.
Hence, he has committed the alleged offences.
03. Accused is on bail. On receipt of charge sheet, this court
took the cognizance of the alleged offences and furnished copy of
the prosecution papers to the accused persons. After hearing on
charge, this Court has framed charge for the offences punishable
U/Sec.353 & 332 of IPC for which the accused pleaded not
guilty and claimed to be tried.
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04. The prosecution in order to prove its case, has examined 2
witnesses as PW.1 & 2 and documents got marked as Ex.P.1 to
Ex.P.5 and MO.1 and closed the side of the prosecution evidence
and Statements u/Sec.313 of Cr.P.C. recorded, read over and
explained in the vernacular language of the accused, wherein
accused has denied the incriminating circumstances appeared
against him as false and did not choose to lead defence evidence.
As such, the matter was posted for arguments.
05. I have heard the arguments on both sides. The learned
counsel for accused has filed written argument.
06. The points that arise for court consideration are as under:
(1) Whether the prosecution proves beyond
reasonable doubt that, 29.08.2018 at
about 2.15 am within the limits of RMC
Yard Traffic Police Station, CW.1, CW.1
was deputed to manage the traffic at
RMC Yard and he noticed that, the
accused without uniform he drive the
auto and he also consumed alcohol,
being public servant in the execution of
his duty while discharge his traffic
controlling duty, accused has came and
assaulted through bottle on his back
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side of the head and caused bleeding
injury and voluntarily causing hurt to
deter public servant from his duty,
thereby committed an offences
punishable U/Sec.353 & 332 of IPC. ?
2 ) What order ?
07. My findings to the above points are as under:
Point No.1 : In the Negative,
Point No.2 : As per final order, for the
following:
REASONS
08. Point No.1 :- It is well settled that in a criminal case the
entire burden of proof rests upon the prosecution and the
accused need to prove nothing. Suffice for the accused to create
doubt about the case of the prosecution and the reliability of the
witnesses for the prosecution.
09. The main allegation of the prosecution is that, on
29.08.2018 at about 2.15 am within the limits of RMC Yard
Traffic Police Station, CW.1 was deputed to manage the traffic at
RMC Yard and he noticed that, the accused without uniform he
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drive the auto and he also consumed alcohol and when CW.1
asked about this behavior and he told that, left the vehicle and
took the documents, then the accused abused the CW.1 and on
the very same day at about 3.45 pm, when CW.1 stood near SBI
ATM Bank, Tumkur Main Road, the accused came and assaulted
on head portion of CW.1 through bottle, he fall down and public
have resque CW.1 and HC 9054 Nataraj came and admitted
CW.1 in to KC General Hospital, Malleshwaram. The accused
has drive vehicle with alcoholic condition, CW.1 questioned about
act of accused, the accused assaulted by beer bottle and
obstructed to discharge his official duty. As already stated supra,
the prosecution has 2 witnesses as PW.1 & 2 and documents
got marked as Ex.P.1 to Ex.P.5 and MO.1.
10. The prosecution has been examined CW.1 as PW.1, he being
informant/Police Officer, he testified before the court that, on
29.08.2018, when he was on traffic controlling duty at MEI
Junction, the accused without uniform he drive the auto and he
also consumed alcohol and when CW.1 asked about this
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behavior and he told that, left the vehicle and took the
documents, then the accused abused the CW.1 and on the very
same day , he assaulted CW.1 on his head and caused bleeding
injury, by the time, the public have appeared and produced him
before RMC Yard Police Station. Further, CW.1 specifically stated
before this court that, he informed this alleged incident to the PI
of RMC Yard Police Station then he went Hospital to took
treatment with police officer at KC General Hospital. After that,
he lodged complaint before Police as per Ex.P.1. Further he
stated that, police came and drawn panchaname as per Ex.P.2
and seized bottle pieces as per MO.1. Further, he deposed before
the court that, due to the hurt caused by accused, he sustain
bleeding injury and he obstructed to discharge his public duty.
He identified his signatures found in Ex.P.1 and 2. Further, it is
relevant to note that, the counsel for accused sought further
time for conduct cross examination of PW.1, this court took
prayer of accused advocate rejected and cross of PW.1 taken as
nil on 17.01.2023. Further it is relevant to note that, the
counsel for accused has filed application under section 311
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Cr.P.C., to recall PW.1 and 2. The said application allowed and
issued fresh process against PW.1 and 2. In pursuance of
process issued by this court, PW.1 present before court on
13.03.3023. Again the counsel for accused seeking further time
for conduct cross examination of PW.1 and this court took
prayer of accused advocate rejected and again taken as cross
examination of PW.1 nil on 30.03.2023. Further it is relevant
to note that, again the counsel for accused has filed application
under section 311 Cr.P.C., to recall PW.1, the said application
allowed by imposing cost of Rs.1,500/- and this court issued
process of summons, bailable warrant, witness warrant and
proclamation against PW.1. Despite that, the prosecution has
failed to secure presence of PW.1. Therefore, this court took
prayer of Learned Senior APP rejected and evidence of PW.1
discarded as not tender for cross examination vide order dated
14.03.2024.
11. The prosecution has been examined CW.8 as PW.2, he
being Investigating Officer of this case. He specifically stated
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before the court that, on 29.08.2018 he received case file from
CW.7 for further investigation. Further, he deposed before the
court that, he reported seized articles to Hon'ble court and he
arrested accused and followed directions of Hon'ble Apex court
and he got proper surety and released accused. Further, he
deposed before the court that, he went to the alleged place of
incident and drawn panchaname as per Ex.P.2 in the presence of
panch witnesses i.e., CW.2 & 3 and seized glass bottle pieces.
Further he stated before this court that, on the very same day
he recorded statement of CW.2 to 5 and he identified Ex.P.1 to 5
and bear his signature. Further, PW. 2 has deposed before the
court that, on 04.9.2018 he received attendance register of CW.1
and on 26.09.2018 he received wound certificate from the
hospital from CW.6. Further he stated before this court that, he
identified accused and also MO.1. After completion of
investigation, PW.2 has filed charge sheet against accused.
Further, it is relevant to note that, the counsel for accused
sought further time for conduct cross examination of PW.2, this
court took prayer of accused advocate rejected and cross of
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PW.2 taken as nil on 17.01.2023. Further it is relevant to note
that, the counsel for accused has filed application under section
311 Cr.P.C., to recall PW.1 and 2. The said application allowed
and issued fresh process against PW.1 and 2. Further it is
relevant to note that, despite issued summons, bailable
warrant, witness warrant and proclamation against PW.2, the
prosecution has failed to secure presence of PW.2. Therefore,
this court took prayer of Learned Senior APP rejected and
evidence of PW.2 discarded as not tender for cross examination
vide order dated 08.12.2023.
12. On perusal of the oral on documentary evidence
adduced by the prosecution, it appears that, CW.1 being
traffic police and deputed to manage traffic at MEI junction,
within the limits of RMC Yard Police Station. on 29.08.2018
at about 2.15 am within the limits of RMC Yard Traffic Police
Station, CW.1 was deputed to manage the traffic at RMC Yard
and he noticed that, the accused without uniform he drive
the auto and he also consumed alcohol and when CW.1
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asked about this behavior and he told that, left the vehicle
and took the documents, then the accused abused the CW.1
and on the very same day at about 3.45 pm, when CW.1
stood near SBI ATM Bank, Tumkur Main Road, the accused
came and assaulted on head portion of CW.1 through bottle,
he fall down and public have resque CW.1 and HC 9054
Nataraj came and admitted CW.1 in to KC General Hospital,
Malleshwaram. The accused has drive vehicle with alcoholic
condition, CW.1 questioned about act of accused, the accused
assaulted by beer bottle and obstructed to discharge his
official duty. Therefore, CW.1 gave written complaint as per
Ex.P.1. After registered criminal case against accused, the
Investigation Officer of this case after through investigation he
charge sheeted against accused of the offence punishable
U/Sec.353 & 332 of IPC. and cited CW.1 to 8 witnesses in
charge sheet. In order to bring home the guilt of the accused,
the prosecution has able to examine PW. 1 & 2. Further, it is
relevant to note that, despite took coercive steps against
CW.2 to 6, the prosecution has failed to secure their
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presence. Therefore, they are dropped out vide order dated
17.01.2023. Further it is relevant to note that, process of
CW.7 returned as dead, Therefore, CW.7 given up as dead
on 22.11.2022. Further it is relevant to note that, again the
counsel for accused has filed application under section 311
Cr.P.C., to recall PW.1, the said application allowed by
imposing cost of Rs.1,500/- and this court issued process of
summons, bailable warrant, witness warrant and
proclamation against PW.1. Despite that, the prosecution
has failed to secure presence of PW.1. Therefore, this court
took prayer of Learned Senior APP rejected and evidence of
PW.1 discarded as not tender for cross examination vide
order dated 14.03.2024. Further, it is relevant to note that,
the counsel for accused sought further time for conduct
cross examination of PW.2, this court took prayer of accused
advocate rejected and cross of PW.2 taken as nil on
17.01.2023. Further it is relevant to note that, the counsel
for accused has filed application under section 311 Cr.P.C.,
to recall PW.1 and 2. The said application allowed and issued
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fresh process against PW.1 and 2. Further it is relevant to
note that, despite issued summons, bailable warrant,
witness warrant and proclamation against PW.2, the
prosecution has failed to secure presence of PW.2. Therefore,
this court took prayer of Learned Senior APP rejected and
evidence of PW.2 discarded as not tender for cross
examination vide order dated 08.12.2023. Further, it is
appropriate to discuss essential elements to made out offence
punishable under sections 353 and 332 of IPC.
The essential aspects are as follows;
1. the offence under section 353 and 332 requires the
presence of three elements.
(a). The act must constitute an assault or the use of criminal
force.
(b). The assault or use of criminal force must be directed
against a public servant.
(c). The purpose of such an assault or use of force should be
to prevent the public servant from discharging their duty.
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Further, intention is very important for a case to
fall under section 353 & 332 of IPC. The accused must
have the knowledge that, the person they are assaulting
or using force against is a public servant. The act must
be done with the intention of obstructing or deterring the
public servant from performing their duty.
In this back ground, this court meticulously perused facts
of this case, it appears that, the accused allegedly assaulted
the complainant by glass bottle and caused bleeding injuries.
The case papers of prosecution speaks that, the alleged
incident was taken place on 29.08.2018 between 3.45 pm,
after the said incident the complaint given by CW.1 before
RMC Yard Police Station, the spot mahazar was drawn by
PW.1 in the presence of complainant/ CW.1, panch witnesses
CW.2 & 3.
13. On reading the material on record, there is no cogent
evidence on record to fulfill the requirements to commit the
accused person before this court. Further, it is relevant to
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note that, the prosecution has cited CW. 1 to 8 in charge
sheet to prove the guilt of accused, out of which, the
prosecution has able to examine PW.1 & 2, rest of CW.2 to 6
are not stepped into witness box. PW.1 & 2 evidence
discarded as not tender for cross examination, CW.7 reported
as dead and CW.7 given up. So, there is no any incriminating
evidence appears against accused. Non examination of
material witnesses by the prosecution is also creates serious
doubt. From view in any angle, the prosecution has failed to
make out a case beyond all reasonable doubt and the
material on record does not fulfill the pre- requirements to
attract provisions under which the charge sheet is submitted
in this matter. Hence this court clearly came to conclusion
that, the prosecution has failed to prove the guilt of accused
beyond the reasonable doubt. Accordingly, I answer Point
No.1 in the Negative .
14. Point No.2 : For the aforesaid reasons, I proceed to
pass the following:
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ORDER
Acting under Section 248(1) of Cr.P.C., accused is hereby acquitted of the offences punishable U/Sec.353 & 332 of IPC.
The bail bonds and surety bonds executed by accused shall continue for a period of six months from the date of this order and thereafter same shall stands cancelled automatically.
CMO/ Office is hereby directed MO.1 shall be destroyed as worthless after the appeal period is over.
(Dictated to the stenographer directly on computer, corrected directly on computer and then pronounced by me in the open court on this the 24th day of April 2024).
(R.Mahesha) IX Addl.Chief Metropolitan Magistrate, Bengaluru.
17ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
PW.1 : Thimmarayappa PW.2 : Raghuprasad
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION:
Ex.P.1 : Complaint Ex.P.2 : Panchaname Ex.P.3 : Letter Ex.P.4 : Documents Ex.P.5 : Wound certificate
List of material objects marked on behalf of the prosecution:
MO.1 : Glass pieces List of witnesses examined on behalf of the defence:
-NIL-
List of documents and materials marked on behalf of the defence:
-NIL-.
IX ADDL.C.M.M. Bangalore.18
CC.28250/2018 24.04.2024 Judgment pronounced in Open Court (Vide separate order) ORDER Acting under Section 248(1) of Cr.P.C., accused is hereby acquitted of the offences punishable U/Sec.353 & 332 of IPC.
The bail bonds and surety bonds executed by accused shall continue for a period of six months from the date of this order and thereafter same shall stands cancelled automatically.
CMO/ Office is hereby directed MO.1 shall be destroyed as worthless after the appeal period is over.
IX ADDL.C.M.M. Bangalore.