Bangalore District Court
(Represented By The Learned Senior App) vs 4. The Court on 21 December, 2020
1 cc 10176 of 2016
IN THE COURT OF XLI (41ST) ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
DATED THIS THE 21st DAY OF DECEMBER 2020
PRESENT
Sri S.S.BHARATH M.A. LL.M.,
XLI (41 ) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
ST
BENGALURU
CRIMINAL CASE NUMBER 10176 OF 2016
BETWEEN
1. STATE,
Represented by
Kormangala Police. ....COMPLAINANT
(Represented by the learned Senior APP)
AND
1. SAIT IMRAN AHAMED NAJEER,
S/o. Najeer Ahamed,
Aged about 32 years,
R/o. No.5, 21st Cross,
Sampangi Ramaiah Road,
Eejipura, Bengaluru.
Permanent address
R/o. # NO.66,
Ashiyana Khan Mohalla,
Bagad Bar Jolla, Shrinagar,
Kashmir. ....ACCUSED
(Represented by Sri.K.Prakash, Advocate)
2 cc 10176 of 2016
THE KORMANGALA POLICE HAVE CHARGE SHEETED
THE ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 353, 332, 504 of IPC.
AFTER COMPLETION OF ADJUDICATION, THIS CASE
COMING ON FOR JUDGEMENT, THIS DAY, THE
COURT DELIVERED THE FOLLOWING...
Offences alleged u/s : 353, 332, 504 of IPC
Charge sheet filed on : 18012016
Trial commenced on : 19102016
Trial completed on : 06112020
Judgment date : 21122020
Total duration : DaysMonths Years
03 11 04
JUDGMENT
1. Case of the prosecution is as under; It is alleged that on 02/11/2015, at about 08.30 p.m, near Sony Signal Circle, within the limits of the Kormangala police, the PW.3 was discharging his duty being a Police Inspector. He was controlling road traffic therein despite heavy rains. Because of rain, vehicles were moving very slowly. DCP also visited the spot. At that point of time, exactly at about 08.30 p.m the accused did drive his Car 3 cc 10176 of 2016 bearing its registration number KA04ML3156 (HundaiI20) towards PW03 in violation of traffic signals from Jaipur Junction end. Both PW03 and the said DCP tried to stop his Car. But he did not stop. The PW03 took the help of CW02 to 04 and with a great struggle he was able to stop his Car. But the accused questioned their authority to stop the Car and asserted that, they have been paid salaries out of tax money. He has influence and can teach them a lesson. He did hold the hands of PW 03 and dragged him. He restrained him from discharging his duties and insulted him. He did scold PW03 using filthy language and assaulted him. He further scolded him using English language as well.
2. The investigation officer visited the spot, drew the mahazar and seized the articles and recorded the statements' of the witnesses. Upon completion of his 4 cc 10176 of 2016 investigation, he charge sheeted the accused for the offences aforementioned.
3. This court took the cognizance of the offences punishable under sections 353, 332, 504 of IPC. As per the directions of the court, CC.No.10176 of 2016 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.
4. 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 English language in which he claims to be conversant with. But he did not plead guilty and he claimed to be tried. Therefore, this court issued summons to the witnesses. 5 cc 10176 of 2016
5. As could be seen from the order sheet, during the course of trial CW02 to 04 did not come to the court. Considering the failure of the prosecution to avail the sufficient opportunities granted in its favour to keep them present, this court vide orders dated 22/05/2018 has dropped all CW02 to 04 by rejecting the prayer of the learned Sr.APP. Thereafter, proceeded further with trial. Totally, the prosecution has examined PW01 to 06 witnesses in support of the case and relied upon the documents Exs'.P01 to 04.
6. It is pertinent to note that the court has commenced the trial in this matter as the accused after framing of charge did not plead his guilt and as he claimed to be tried as aforesaid. A statement of the accused U/s.313 of Cr.P.C also has been recorded. But the accused did not choose to adduce evidence. 6 cc 10176 of 2016 Therefore this court has posted the matter for arguments.
7. Heard the arguments of the learned Sr.APP.
8. Heard the arguments of the learned counsel for the accused.
9. Following points arise for determination;
1) Whether the prosecution has proved beyond reasonable doubt that, on 02/11/2015, at about 08.30 p.m. in a place called Sony signal, within the limits of Kormangala PS, despite heavy rains, PW.3 was discharging his duties being a Police Inspector. At that point of time, to the said spot, the accused did drive his Car aforesaid in a very reckless way violating the traffic signals. When his act was questioned by both PW.3 and DCP together with CW.2 to 4 after stopping his Car, he did scold PW.3 in a filthy language and held his hand, dragged him and assaulted him. He did scold him using English language and asserted that they receive salary and other service benefits out of the tax paid by public including him and he is very influential and can teach them a lesson and thereby used some filthy language to scold and to insult PW.3 and disturbed him in discharging his duty by way of assault and insult 7 cc 10176 of 2016 and also by way of using criminal force as above and he used criminal force to deter him and also to prevent him from discharging his official duty, thereby he has committed an offence punishable under section 353 of IPC?
2) Whether the prosecution has further proved beyond reasonable doubt that, on aforementioned date, time and place the accused acted rudely with PW.3 despite knowledge as to that he is a Police Inspector public servant and when his act of violating traffic signals was questioned by the aforementioned police persons together with PW.3, the accused voluntarily caused hurt to PW.3 to deter him from discharging his duty by way of assault and by way of dragging him holding his hands, therefore, the accused is guilty of the offence punishable U/s.332 of IPC ?
3) Whether the prosecution has further proved beyond reasonable doubt that, on aforementioned date, time and place, when the PW.3 and his DCP together with other police men questioned the accused as to why he did violate the traffic signals while driving his said Car despite traffic jam and heavy rains, but the accused has intentionally insulted the PW.3 with an intention to provoke the breach of peace knowingly that his act would provoke him to break the public peace and to commit some offence, thereby, the accused has committed an offence punishable U/s.504 of IPC ?
4) What order?
8 cc 10176 of 2016
10. Above points are answered as under; Point' no.01: In Affirmative Point' no.02: In Negative Point' no.03: In Negative Point no.04: As per final orders for the following reasons...
REASONS The burden is upon the prosecution to prove the guilt alleged against the accused. Though the accused has not adduced any evidence in this matter, it does not mean that it will absolve the burden present on the prosecution to prove the case beyond reasonable doubt. The points aforementioned are hereby taken up one by one for discussion.
11. Prosecution is duty bound to prove the case alleged against the accused as above. It is appropriate at this juncture to examine as to how far the prosecution is successful in proving the case alleged against the accused.
9 cc 10176 of 2016
12. Point NO.1; The prosecution has alleged that the accused is guilty of the offence punishable U/s.353 of IPC. It is the specific case of the prosecution that the accused has assaulted PW.3 and dragged him, scolded him using filthy language although the PW 03 is being a Police Inspector who was discharging his duty at the aforementioned place at aforementioned time, on aforementioned date.
13. Prosecution is duty bound to prove beyond reasonable doubt that the accused assaulted him as above, used criminal force to disturb him knowingly that he is a public servant, from discharging his official duty and has asserted the aforementioned unwarranted aspects against him in a public plae despite it was raining heavily and in spite of traffic therein was at its peak then.
10 cc 10176 of 2016
14. The witnesses PW.01 to 07 have deposed supporting the case of the prosecution. It is appropriate at this juncture to say that, after recording of the statement of accused U/s.313 of Cr.P.C, the accused did not choose to adduce evidence and he has submitted that he has no evidence to adduce. Therefore this court went further to post the matter for arguments.
15. Learned Sr.APP has argued that the accused is guilty of the aforementioned offences specifically he shall be punished for the offence contemplated U/s.353 of IPC. The accused has assaulted the Police InspectorPW.3 when he was discharging his official duty in a highly populated road and the incident took place when it was raining very heavily at the junction called as Sony Signal Junction which is a prime place of the said area. The accused is not a citizen who domiciled in a Bengaluru. He 11 cc 10176 of 2016 belongs to Jammu and Kashmir. He did show his anger against the PW.3 asserting that he is a very influential man and he is acquainted with high rank officer of Police Department and he will teach him a lesson and other police men who helped both PW.3 and the DCP to stop his vehicle. Further it is argued by the learned Sr.APP that in the case of present nature, if the accused is given a benefit of acquittal, it would send a wrong message to the society and it will be very difficult to any police person to discharge the duties without fear and favour. The accused has deterred PW.3 and the DCP present at the spot from discharging their duties asserting that he will complain against them to their superior officer and they have been paid salaries out of the tax paid money of the public, therefore, he can say anything against public servants and they have to facilitate him although he violates traffic signals and the law etc. 12 cc 10176 of 2016
16. With the above arguments the learned Sr.APP has requested the court to take a very strict view of the matter against the accused and to punish him.
17. Learned advocate appearing for the accused has argued that the prosecution has failed to examine independent witnesses to prove the case against the accused. PW.3 did file this case against accused as above because he was under the pressure of the higher rank officials of the department as he was not present there when there was a traffic jam as on the date aforesaid. DCP had rushed to the spot and he noted the absence of PW.3 as the traffic was moving very slowly then. Therefore DCP was very furious against PW.3 and he did enquire him about his absence. To overcome his fault, he did assault the accused knowingly that he hails from Jammu and Kashmir and has booked him in this case. In a traffic jam situation, nobody can drive the Car with 13 cc 10176 of 2016 great speed. When 05 police men were present as on the alleged date and time, at the said spot, it is highly impossible for anybody to drag the police officer. PW.3 did not depose as to what words had been used during the alleged incident by the accused against him. But the evidence of the prosecution witnesses does not reveal cogent proof as to marks allegedly present over the uniform of the police persons which allegedly came to be made at the instance of the accused. The accused did use some words of respect and not the words of arrogance. He did not threaten any of the officials therein. He did not obstruct police men from discharging their duties. With the above arguments the learned advocate requested the court to acquit the accused of the offences to which he has been charge sheeted.
14 cc 10176 of 2016
18. In the course of evidence of PW.01 and PW.02, both being police constables have deposed that on 02/11/2015, at 08.00 p.m, when they were discharging their duties near the Sony Signal junction, there was a traffic jam due to heavy rains. They accompanied the DCP as well as PW.3 to clear the traffic. At that point of time, the accused came in his Car bearing its registration No.KA41ML 3153 negligently with great speed and he jumped the signal. When his Car was stopped, he picked up the quarrel with the police men including them asserting that he would pay tax and all of them have been paid salaries out of tax money, hence, they cannot stop his Car. He used filthy language to scold them and dragged PW03. His acts were informed to the control room. Hoysala squad arrived to the spot.
15 cc 10176 of 2016
19. PW.3 in his evidence has deposed that, as on the aforementioned time, date and place, he was wearing his uniform and was discharging his patrolling duty at the behest of Audugodi Police Station. He received the information about the acts of the accused. He and his driver rushed to the spot. DCP was also there. As it was raining, the water was stagnated there. The traffic flow towards Halsuru and Indiranagar was very much disturbed. At about 8.30 p.m, the accused being a driver of the aforementioned car, did drive his Car towards their direction in violation of traffic signal. In spite of directions to stop the vehicle, he did not stop. As they seriously insisted, he alighted from the Car and in the course of an enquiry, he used unhealthy way to speak to him and when it was questioned, the accused did question their authority to stop the car. He asserted that they have been paid salary out of the tax paid amount and he did hold the hands of 16 cc 10176 of 2016 the police men and dragged them. Despite efforts from police men to pacify him, he used filthy language and assaulted them as well and asserted that he is acquainted with superior officer of the department and would file a complaint against them etc. Because of his acts there was a traffic jam about 30 minutes. He further deposed that the act of the accused was informed to the control room and the case came to be registered agiasnt the accused. Mahazar was drawn at the spot in the presence of the witnesses concerned. PW.3 further deposed that he did take treatment at Acqura hospital on the very same day. The mahazar came to be drawn on the next day of the incident. During his evidence, he identified the mahazar.
20. In the course of trial, PW.4 deposed that he is acquainted with PW.01 to 03 and he deposed further that on 02/11/2015 when he was 17 cc 10176 of 2016 discharging his duty with the inspector at the said spot, he noticed traffic jam. At the directions of DCP, he together with the aforementioned PSI tried to control the traffic. The accused did drive the Car aforesaid from Jaipur Junction end in a negligent manner and he did violate the traffic signals. When police stopped the Car, the accused did scold DCP and threatened him stating that he is acquainted with high rank officers and he held the hands of PW.3 and dragged him.
21. Further, PW.5 during his evidence has deposed that in the presence of the concerned witnesses, mahazar came to be drawn and his Car was seized. PF was submitted to the court. He wrote the mahazar at the spot in the presence of witnesses, recorded the statements of the concerned witnesses PW01, 02 and 04.
18 cc 10176 of 2016
22. PW.6 also deposed that he received the wound certificate of PW.3 and he identified the same during his evidence. Above evidence of the said witnesses has been relied upon by the prosecution as aforesaid to prove the case.
23. Ex.P.1 is the first information submitted by PW.3 herein. Ex.P.2 is the seizure panchanama. Ex.P.3 is the spot panchanama. Ex.P4 and Ex.P5 are the photographs.
24. Now it is clear that this case is based upon the evidence of the police men who are stated to have discharged their duties in various capacities at the alleged spot as on the alleged date and time.
25. A careful reading of the crossexamination of PW.3 who is a prime witness in this case and who is alleged to have suffered the assault at the instance 19 cc 10176 of 2016 of the accused. In his crossexamination, at the instance of the learned counsel for the accused he has answered that the accused was driving his Car negligently and he came forward jumping a signal and his Car was stopped and accused was enquired. He has admitted that the accused does not know Kannada language. He has answered that he cannot reproduce as to what words had been used by accused to scold him in English language. He denied the suggestions of the learned counsel appearing for the accused regarding innocence of the accused and he has reiterated an answer in the crossexamination that he suffered assault at the instance of the accused. He answered further that his uniform was not damaged. However he answered that the accused has assaulted ASI also who was on duty therein. He answered that when the accused assaulted him at the said spot and when he was scolding him, members of the public 20 cc 10176 of 2016 were also present therein. None of them did try to pacify. He answered that he did not state in his compliant that he has suffered injury at the instance of the accused. However strangely he has answered that no case regarding violation of traffic rules has been registered against the accused. He has denied a suggestion that as on the date of alleged incident, since evening 06.00 p.m of the said day as there was a heavy rain, water was stagnated there and because of the said reason, the traffic was disturbed therein. He denied the suggestion that he was not present at the spot as on the date and time of the incident. He denied the suggestion that the members of public have complained regarding the traffic jam to DCP and for the said reason DCP rushed to the spot. A strange question has been put by the learned counsel appearing for the accused to him that he had rushed to the spot after the arrival of DCP only. He further denied the suggestions to 21 cc 10176 of 2016 the effect that the DCP was furious against him as he was not maintaining the traffic properly therein and apprehending an action from the department, present case has been filed. He further denied the suggestion that the wound certificate has been obtained from Acqura hospital in an illegal manner. However nothing much has been elicited during his crossexamination.
26. As could be seen from the crossexamination of PW.6, who is none other than another Police Inspector namely Ajay. In his crossexamination, he has answered that, to show that PW.3 was on duty as on alleged date and time. MLC report also has not been produced to the court. He has admitted that, accused does not know kannada language. However he denied the suggestion regarding the innocence of the accused and also regarding alleged procurement of wound certificate allegedly by illegal 22 cc 10176 of 2016 way. He further answered that DCP has not been made as a witness to the case.
27. As could be seen from the crossexamination of PW.5 who is none other than a PSI who discharged his duty as a PSI in Kormangala Police Station as on the date and time of alleged incident, has answered that PW.3 has not stated anything as to alleged wound alleged to have been suffered at the instance of accused, in his compliant. He further answered that the signature of PW.3 has not been obtained on the Fir and he did not send the PW.3 to hospital for treatment. He has stated that the accused belongs to other state and he was not aware that the accused does not know Kannada Language. He further answered that at the time of seizing the Car, documents pertaining to the Car have not been obtained and his identification particulars including the driving license etc also have not been obtained. 23 cc 10176 of 2016 He has admitted that he has not affixed his signature on the statements alleged to have been recorded from the concerned witnesses. However he denied the suggestion of the learned counsel appearing for the accused that the mahazar has not been drawn at the spot.
28. Further PW.1 being the Police Inspector has answered in his crossexamination that there was a heavy rain on 02/11/2015 at about 8.00 p.m and it continued for about halfanhour and rain water was stagnated on the said road. But he denied the suggestion that, said sort of traffic jam was due to stagnation of rain water.
29. He denied the suggestion that the Manager of Shopping Malls existing nearby the said spot have submitted information regarding the traffic jam to the office of police commissioner. He further denied 24 cc 10176 of 2016 one more suggestions that DCP after reaching the spot had called PW.3, therefore, PW.3 had rushed to the spot. He further denied the suggestion that at that point of time DCP was furious about him and he did scold him. He further denied the suggestion that DCP himself handled the traffic therein. To ensure that no departmental proceedings would be initiated, the PW.3 has booked a false case against the accused. He also has denied the suggestion regarding the innocence of the accused in respect of the present case and accusations present against him in this case. He further admitted that the accused does not know Kannada language. He has specifically answered in his crossexamination that the accused did hold him, dragged him. He further answered that the accused did hold PW.3 and dragged him, therefore his uniform was damaged and there was a mark on the shirt near the color portion.
25 cc 10176 of 2016
30. Further as could be seen from the cross examination of PW.2 the traffic police constable in his crossexamination has answered that he is a driver of the vehicle pertains to PW.3 and he has answered that on 02/11/2015 he accompanied the PW.3 for rounds and reached the spot at about 8.00 p.m. and he parked his vehicle to the left side of the said road. He also has denied the suggestion to the effect that the traffic jam was due to stagnation of water. He answered that he tried to control the traffic having accompanied with PW.3. He denied the suggestion that the stagnation of water was about 02 to 03 feet in height. He also has answered that as the accused did scold him in English language he does not know to reproduce those words. Further he answered specifically that the accused held the hands of PW.3, for about 06 to 10 minutes and he has dragged him and he has 26 cc 10176 of 2016 specifically answered that accused did not assault him but he did scold him in English language.
31. As could be seen from the record, the PW.4 in his crossexamination has answered that as on the date and time aforementioned, at the spot alleged, there was a traffic jam. He answered that he did furnish the information regarding the traffic jam to the control room and further, specifically answered that accused picked up the quarrel with the DCP at first. Members of public have witnessed it etc. However he has pleaded ignorance regarding the names of the members of the public. He answered further that he exchange of words continued for about one hour. He has answered that no documents have been furnished to the court to show that as on the date and time of the incident he was present at the alleged spot and he pleaded ignorance regarding a question, that whether the accused knows Kannada 27 cc 10176 of 2016 language or not. But he denied the suggestion that when the DCP reached the spot, PW.3 and he were not present at the spot and DCP spoke to PW.3 in a phone. He has admitted that no case has been registered against accused regarding the violation of traffic rules. He has answered strangely that in the alleged incident, the uniform of PW.3 was not damaged and he did not suffer any pains as well.
32. Taking into consideration the nature of the questions put forward by the learned counsel appearing for the accused to the above witnesses in their respective crossexaminations, it is clear that the defense of the accused is that he is an innocent man and he has not committed the offences alleged against him. As PW03 and 04 were not present at the spot as on the date and time of the arrival of DCP to the alleged spot, on the alleged date and time, DCP was furious against them and to avoid 28 cc 10176 of 2016 departmental enquiry, present case came to be filed against the accused. Further it is apt to note that above defense has been consistently put forward by way of suggestions upon all the witnesses of the prosecution during their respective cross examinations.
33. The thing which has to be noted that all the above witnesses have denied the above suggestion of the learned counsel appearing for the accused. It is very strange to see in the crossexamination of PW.4, that a suggestion has been put by learned counsel appearing for the accused on him that no case has been registered against the accused for violation of traffic rules and the uniform of PW.3 was not damaged and he did not suffer any pain. Although above suggestions have been admitted as true by PW.4 in his crossexamination, when it is compared with the defense put forward by the accused as 29 cc 10176 of 2016 above, this court is of the opinion to say that both are highly contrast. If at all the defense of the accused shall be believed to be true, then why the question regarding the damage as to the uniform and pain allegedly suffered by the PW.3 have been questioned. Although it can be believed that the above suggestions have been put by the learned counsel appearing for the accused to prove that no unpleasant incident alleged has taken place, still the above suggestion would ignite a doubt regard the defense of the accused. Because though the learned counsel appearing for the accused has put the suggestions as above, still nowhere in the entire trial, the presence of the accused at the alleged spot as on the date and time of alleged incident is disputed by the accused. Nature of the questions of the learned counsel appearing for the accused makes it clear that there is no dispute regarding the presence of the accused at the alleged spot as on 30 cc 10176 of 2016 the alleged date. Although the questions came to be put to prosecution witnesses in their cross examinations would specify the defense of accused that he has been falsely implicated in the case to avoid the departmental proceedings on account of absence of PW.03 and 04 at the spot etc, it has not been clarified by accused as to why the police men did choose him only to allege that he has committed the aforementioned offences. There is no explanation by the accused at all. Even at the time of recording of statement of accused under section 313 of Cr.P.C, although this court has specifically questioned the accused in English language as he claimed to be conversant with English language, he did submit that he has nothing to say. Therefore for the above reasons this court is of the opinion to say that the defense put forward by the accused in the said manner is incomplete and it does not disturb the case of the prosecution.
31 cc 10176 of 2016
34. The presence of the accused at the said spot as on the date and time alleged is not dispute. Further it is clear on the basis of above discussed evidence that it was a rainy day and it is not in dispute that it did rain heavily that day. Therefore the presence of the accused at the spot aforementioned as on aforementioned date and time can be believed as the fact to the said effect is not in dispute at all and as the accused did not dispute the rains and his presence at the said spot at the said time and date and the stagnation of rain water on road.
35. The prosecution has alleged that there was a heavy rain and therefore there was a traffic jam. The defense of the accused is that the traffic jam was due to stagnation of rain water on the road. Therefore, considering the case of prosecution and defense of the accused put forward in the said regard, one thing is clear that the traffic was not 32 cc 10176 of 2016 clear that day at the said road and there was a traffic jam and it rained heavily that day.
36. Hence, the presence of accused at the said spot as on said date and time as it is not in dispute at all and traffic jam for whatsoever reason at the alleged spot stand established. Be it as it may be, and let the traffic jam had taken place for whatsoever reason as on the alleged date and time at the said spot, but, the fact that is clear on the basis of the evidence is that there was a traffic jam.
37. Once again it is needless to say, the case of the prosecution is that PW.3 and DCP were clearing the traffic jam and the accused came to the spot ignoring the traffic signals therein. Hence taking in to consideration the foregoing reasons the aspect as to traffic jam at the spot aforementioned as on the 33 cc 10176 of 2016 alleged date and time is undoubtedly clear before this court.
38. Though the crossexaminations of all the witnesses aforementioned came to be done by the accused through his counsel may specify that the members of public and the managers of the shopping malls did complain the DCP regarding traffic jam, the DCP rushed to the spot etc, still it does not disturb the very frame of the case of the prosecution regarding the traffic jam. Therefore on the basis of the evidence of the prosecution, questions of the learned counsel for the accused put as suggestions on above witnesses during their cross examinations and the nature of defense of the accused put forward in this case collectively clarify that at the said junction, at the said time and date there was a traffic jam. 34 cc 10176 of 2016
39. Therefore, the presence of accused in traffic for the reasons foregoing stands proved before the court. Now the question is how far the prosecution is successful in proving the assault alleged against the accused to have been done on PW03. Although the frame of the case of the prosecution is that the PW.3 received assault at the instance of the accused, still, even if the evidence of prosecution is ignored or termed to be not convincing, the defense of the accused is being that the PW.3 and 4 rushed to the spot after the arrival of the DCP to the spot etc, the presence of both accused and PW03 at the alleged spot as on alleged date and time stands proved.
40. The case alleged is that when PW.3 together with his DCP was discharging his duty of clearing the traffic at the said junction the accused violated the traffic rules and proceeded further in negligent manner and he was stopped and the incident took place. 35 cc 10176 of 2016 Therefore considering the nature of the defense of the accused the presence of DCP and the presence of PW.3 both and the accused as aforesaid at the said spot as on the date and time alleged stands proved.
41. Though the counsel appearing for the accused has suggested above witnesses that PW.3 rushed to the spot at the instance of DCP, still the presence of PW.3 at the spot as on the said date and time can be believed and the nature of the defense of the accused would makes it clear that both DCP and PW.3 were present thereof. The presence of the accused is not disputed. The time of presence of accused at the alleged spot is also not disputed. Presence of DCP is also not disputed. Traffic jam also can be believed for the reasons foregoing. 36 cc 10176 of 2016
42. Though the learned counsel appearing for the accused has put a suggestion in crossexaminations of the said witnesses that using the police power and the departmental influence the wound certificate pertains to PW.3 has been received etc, still the wound certificate has not been challenged by the accused in accordance with law. Except the bare suggestions to the said effect as to the wound certificate, no convincing material has been placed before the court to discredit the evidence of PW03.
43. It is settled in law that failure to examine concerned doctor who has issued the wound certificate and failure to mark wound certificate in evidenced are not fatal to the case of the prosecution if the injury stated in the wound certificate is evident on record with the help of other evidence. The injury explained in such wound certificate can be believed in spite of Doctor being not examined and the certificate being 37 cc 10176 of 2016 not marked. Be that as it may, but the CW.5 as per the charge sheet is none other than a Doctor who allegedly had issued a wound certificate pertaining to PW.3 allegedly.
44. The order sheet of this case specifies that CW.5 has not been requested to be summoned by the prosecution. Entire order sheet does not specify any request of the prosecution in the said regard.
45. Though there was a request to summon CW.02 to 04, considering the number of chances extended in favour of the prosecution, failure of prosecution to secure them, said witnesses numbers CW.02 to 04 have been dropped. But in spite of posting this matter for recording of the statement of accused U/s.313 of Cr.P.C, till date, no request has been put forward by the prosecution seeking to summon them and CW.5 aforesaid.
38 cc 10176 of 2016
46. Now, in the absence of evidence of Doctor and for want of marking of wound certificate, the injuries alleged to have been suffered by PW.3 at the instance of accused can be disbelieved or not is the question requires an answer.
47. But this is not a case where the case is alleged as to out and out assault. But this is a case in which it is alleged as to an assault which allegedly was intended to deter the public servant from discharging his duties.
48. Even in the absence of the evidence of a Doctor as to injury, the court is duty bound to examine whether the prosecution has been successful to prove that the accused has deterred the PW.3 from discharging his duties or not?
39 cc 10176 of 2016
49. Based on the answer of PW04 given in his cross examination, it can be believed that the uniform of PW.3 was not damaged and he did not suffer any pains etc. Because the admission given by PW04 to the said effect would go to the root of the matter to the said effect and those admissions cannot be termed to be stray admissions keeping in mind the status of PW04 as he being one amongst the Police men. But still it cannot be said that if the injury is not proved the offence alleged is disproved. Even in the absence of the injury, it is possible to put threat with an assault upon the public servant to deter him from discharging his duties.
50. It is no doubt true that for want of marking of a wound certificate in evidence and for want of evidence of a doctor as to injury alleged to have been suffered by PW03, the case as to injury described in the wound certificate which is on 40 cc 10176 of 2016 record without being marked, can be disbelieved for want of a cogent proof.
51. But, what can be disbelieved in the absence of Doctor's evidence coupled with the absence of proper marking of a wound certificate is, firstly, the nature of the injury and secondly the gravity of the wound. But the very assault and use of criminal force altogether cannot be disbelieved. Assault does not end with injury always. There can be an assault without injury. Though the witnesses aforesaid might have failed to depose regarding the nature of injury alleged to have been suffered by PW.3 and although the prosecution might be unsuccessful in proving the injury alleged to have been suffered by PW.3 at the instance of accused, still it cannot be said that the prosecution has failed to prove the very assault itself.
41 cc 10176 of 2016
52. The witnesses aforementioned are very consistent in deposing with respect to the aspect which has been alleged against the accused that he did hold the hands of PW.3 at the alleged incident. There is no question in the cross examinations of above witnesses on the said aspect. At least, it is not even suggested anything as to it except a bare suggestion that it is a false deposition. Though the prosecution has not examined any of the independent witnesses to prove the case, for the said reason it cannot be said that the prosecution has failed to prove the case. For want of examination of independent witnesses it cannot be said that the accused is innocent of the charges leveled against him. The court is duty bound to examine whether the evidence available on record would prove the alleged incident beyond reasonable doubt.
42 cc 10176 of 2016
53. It is settled in law that the case cannot be disbelieved for the reason that the witnesses are official witness. As aforesaid, there is no dispute in this case regarding the presence of both PW.3 and DCP aforesaid and the accused and other police men as on the date and time of the alleged incident. Though the DCP has not been made as a witness in this case, it cannot be said that the accused is innocent of the charges leveled against him. It is a fault of the IO to show the proper witnesses in the charge sheet. Because of the mistakes of an IO it cannot be said that the accused is entitled for acquittal. It is settled in law that faulty investigation and flaws forthcoming from the investigation report shall not be the reasons to acquit the accused.
54. Hon'ble Supreme Court has held in the judgment quoted below that there is no legal position to say that evidence produced by police officials is 43 cc 10176 of 2016 unworthy of acceptance without the support of an independent witness. Hence, merely the witnesses are official witnesses; their evidence cannot be believed if their evidence would inspire the confidence of the court regarding the alleged incident.
Kripal Singh V/s The State Of Rajasthan There is no legal position to say that evidence produced by police officials is unworthy of acceptance without the support of an independent witness.
55. Further, in this case, there is no allegation of any enmity between police witnesses and the accused. No such defense has been put forward also. There is no law to the effect that the evidence of police officials unless supported by independent evidence, is to be discarded and/or unworthy of acceptance. For want of corroboration as to evidence of police/official witnesses from independent witness, 44 cc 10176 of 2016 the testimony of official witness cannot be disbelieved. Above position of law has been made clear in the judgment quoted below. Although the case quoted below has been delivered in respect of a crime contemplated in NDPS Act, the ratio regarding appreciation of evidence of official witness only has been considered......
Rizwan Khan V/S The State Of Chhattisgarh It has been held that.........
There is no allegation of any enmity between the police witnesses and the accused. No such defence has been taken in the statement under Section 313, Cr.P.C. There is no law that the evidence of police officials, unless supported by independent evidence, is to be discarded and/or unworthy of acceptance.
It is settled law that the testimony of the official witnesses cannot be rejected on the ground of noncorroboration by independent witness.
56. Therefore considering the ratios' laid down by the Hon'ble Supreme Court of INDIA in above cases, it is clear that there is no bar on this court to accept the 45 cc 10176 of 2016 evidence adduced by the witnesses who belong to police department.
57. Hence, if their evidence inspires the confidence as to truthfulness of evidence, in the opinion of this court in the light of above judgments, there is no bar to consider their evidence despite the prosecution being failed to examine independent witnesses. As aforesaid the witnesses aforementioned although belong to police department, their evidence is very consistent and specific regarding the act of holding of hand of PW.3 by the accused during the incident and said evidence has not been disturbed by accused in any manner in this case.
58. In respect of the evidence to the said effect no specific suggestions or answers is forthcoming which disturb the evidence. Hence in the absence of proper defense regarding the said aspect, 46 cc 10176 of 2016 considering the status of the witnesses aforementioned and the strength of their evidence and its nature it can be believed that the accused did hold the hands of PW.3 at the time alleged by the prosecution for the said reason.
59. Though the learned counsel for the accused has argued that in the presence of police men in many numbers, he cannot assault anybody who belong to police department etc, above arguments do not help the case of the accused. Because though the complaint reads that PW.3 only suffered assault and use of criminal force at the instance of the accused, still the witnesses aforementioned have deposed that some of the police men present over the spot at alleged date and time did suffer the same type of assault and at the instance of accused. Evidence adduced by those witnesses to the said effect too remained undisturbed for the reasons foregoing. 47 cc 10176 of 2016
60. As far as the accusations with respect to an offence punishable U/s.353 of IPC is concerned, at the outset for the reasons foregoing this court is of the opinion that prosecution is successful in proving the case alleged against the accused for the aforementioned offence.
61. Further, as opined herein above as the defense of the accused is being bald for the reason aforementioned, merely because the witnesses examined by the prosecution are police men, the case for the said reason alone cannot be disbelieved. Because the evidence adduced by the witnesses aforementioned is convincing.
62. Because in respect of the presence of the accused at the spot alleged, at alleged time and on date aforementioned is not in dispute at all. The presence of PW.3 on duty at the spot alleged as on the said 48 cc 10176 of 2016 date and time is also not in dispute. Presence of DCP at the alleged spot is also not in dispute as mentioned herein above.
63. Taking into consideration the nature of the defense of the accused and the evidence of the prosecution collectively to the effect that it was a rainy day etc, for the foregoing reasons and for the aspects foregoing, it is clear with the absence of blemish in evidence that the reason for traffic jam is only in dispute. Very aspect of slow moving traffic and traffic jam took place on the said date and times are also not in dispute at all.
64. It is contended as aforesaid that, after the arrival of DCP the PW.3 had come to the spot and booked this case against the accused to safeguard his career etc, although the said defense may be believed for the sake of arguments to be true, still, it proves the 49 cc 10176 of 2016 presence of both accused and PW.3 at the spot. Further the defense of the accused is very Nebulous in nature. Because it is the defense of the accused as aforesaid that to overcome the flaw and blemish and mistake in respect of the way in which he does his duty, to safe guard himself before DCP, the PW 03 has booked this present case against accused.
65. Hence, even if the above defense is believed for the sake of arguments, as it is not the case of the accused that there was a long standing or previous enmity between him and PW.3, further as it is not the case of the accused that having evil intention he has been arrayed as an accused herein or otherwise, further as it is clear as per the admissions of the prosecution witnesses that no case in respect of violation of the traffic rules is filed against the accused, for the above collective reasons the defense of the accused has become very bald and strength 50 cc 10176 of 2016 less and it does not overcome the evidence of the prosecution.
66. Even if it is believed that the accused has been implicated falsely to safeguard him before DCP and further the police would have requested the traffic police to register a case related to traffic rules violation etc, still, it is not possible in the backdrop of what has been discussed herein above to believe convincingly that this matter is registered against accused to safeguard his reputation before DCP and to avoid disciplinary proceedings etc. Because it is not the case of the accused herein that PW03 has implicated him out of previous animosity.
67. Taking into consideration the questions came to be put to prosecution witnesses who are police men and nature of the defense put forward by the accused against the present case, it is clear that, 51 cc 10176 of 2016 with the DCP together with PW03 and other police men mentioned herein above, the accused had fought on the aforementioned date and time at the aforementioned spot.
68. Hence as it being not in dispute that PW.3 is a P.I and further as it is clear on the above discussed evidence that he has been put to suffrage at the instance of the accused with his aforementioned acts at the said spot aforesaid during the discharge of his duties as on aforementioned date and time, the case of the prosecution shall certainly be believed.
69. Further the questions put upon above witnesses regarding the ignorance of the accused on Kannada language also make it clear that the accused does not know Kannada. Merely the PW.3 and other witnesses have deposed that they cannot depose as 52 cc 10176 of 2016 to what words exactly have been used in English language by the accused during the incident, it cannot be said that the accused did not deter them. It cannot be expected that the witnesses shall reproduce all the words of the accused in the case of present nature. What shall be looked into is whether the prosecution is able to prove with cogent evidence and beyond reasonable doubt that the PW.3 was put to a fear at the instance of accused at the spot aforementioned on aforementioned date and time. Though the PW.4 might have deposed that PW.3 did not suffer any injury and his uniform was not damaged etc, those answers do not take away the basic frame of this case proved by the prosecution for the aforementioned reasons regarding use of force on him by accused and assault proved to have been done by him on his body and his duty for all the collective reasons foregoing.
53 cc 10176 of 2016
70. Further it is not necessary to say that if at all there is an application of a criminal force on a police man, then his uniform shall be damaged or there shall be an injury. Therefore, considering the bald defense of the accused, considering the case alleged against the accused, at the outset considering the nature of the evidence placed on record by the prosecution, although the way in which the case has been conducted by the prosecution are not appreciable. They should have examined all the witnesses in this case and though there is some minor latches on the part of an investigation officer to narrate the exact happening and the specific reason for charge sheeting the accused for the aforementioned offences, still what is clear before this court is PW.3 as on the aforementioned date and time at the said spot was on duty. The arrival of the accused to the spot is also proved. Use of the aforementioned Car is also proved on the basis of the information available 54 cc 10176 of 2016 on record as evidence as well. Because, further it is clear that the very same Car only has been taken in release to the interim custody of the accused. Traffic offence related case is also not registered against the accused. If at all the accused has been targeted by the PW.3, it is not clearly stated by the accused as to what made him to keep silent against PW03 and what made him to suffer the case without working out his remedy in law. If at all the above defense is true, the accused should have worked out the remedy against the PW.3 in accordance with law.
71. Therefore usage of the car is also proved at the alleged spot as on the alleged date and time at the said spot. Further for all the above collective reasons foregoing, and as it being not the defense of the accused that he did stop the car when insisted by police or otherwise and further as it is not 55 cc 10176 of 2016 contended by the accused that he did not violate any signal and as it is not in dispute that his car was not stopped with struggle or otherwise, the use of criminal force can be believed and considering the law contemplated U/s.353 of IPC, the case alleged against the accused for the aforementioned offence in the considered opinion of this court, is proved.
72. For the purpose of clarity, section 353 of IPC is extracted hereunder;
Section 353 of The Indian Penal Code Assault or criminal force to deter public servant from discharge of his duty.--Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
56 cc 10176 of 2016
73. Therefore for all the above reasons, it can be believed that the accused has used criminal force, assaulted the PW03 and insulted him during his discharge of the official duty. Because all the witnesses mentioned herein above are consistent as aforesaid with respect to holding of hands of PW.3 for dragging him. But, strangely there is no convincing cross examination on those witnesses in the said regard and accused has not put any defense forward on it and the evidence adduced to the said effect remained undisturbed. Hence although holding of the collar of the shirt of PW03 by the accused is not satisfactorily proved, dragging of PW03 holding his hands tightly has been established by the prosecution. Hence the said act is certainly an assault and it amounts to use of criminal force as well which insults an officer certainly before public as the incident has been 57 cc 10176 of 2016 proved to have taken place at public road junction and it is also an assault on his duty.
74. Further the use of negative words in English language and ignorance of kannada language admittedly as per the suggestions of the learned counsel for accused which includes a suggestion that the accused does not know Kannada would nebulously prove that some words certainly have been uttered or spoken by the accused against the PW.3 who was being indulged in discharge of his official duty. Hence for all the above reasons, the case alleged against the accused for an offence punishable U/s.353 of IPC stands proved Hence point NO.1 is hereby answered in the Affirmative.
75. Point No.02; So far as an offence alleged against the accused which is punishable U/s.332 of IPC is 58 cc 10176 of 2016 considered, in view of failure of the prosecution to examine the Doctor and to prove the wound certificate present on record in accordance with law, this court has no material to believe that the PW03 did suffer hurt at the instance of accused herein. Further the evidence of PW04 makes it clear in terms of answers given by him in his cross examination that PW.3 did not suffer any external injury or any pains and his uniform was also not damaged; above answers given by PW04 are not stray words/answers or stray admissions. They go to the root of accusation against the accused with respect to an offence punishable U/s.332 of IPC.
76. Therefore, although the use of criminal force and assault to the said effect on the body of PW03 can be believed to have been made in a public place by accused while he was indulged in discharge of his official duty, still it cannot be said that the accused 59 cc 10176 of 2016 had voluntarily caused hurt with an intention. Because what has been proved before this court as per the reasons stated while answering the previous point herein that there was a provocation and that provocation emerged therein amongst both of them and the incident did happen.
77. Therefore though the case to the above effect can be believed, still the case in respect of an accusation as to an offence punishable U/s.332 of IPC against the accused cannot be believed. However hurt has been defined in section 319 of IPC. Hurt means (as per section 319) whoever causes bodily pain, disease or infirmity to any person, is a hurt. In the present case considering the answers of PW.4 which have been given in his cross examination, case to the above effect cannot be believed, but, use of criminal force and assault can only be believed for the above reasons collectively. Hence for all the above 60 cc 10176 of 2016 collective reasons, point no02 is answered in the Negative. For the purpose of clarity, sections 319 and 332 of IPC are extracted hereunder; Section 319 in The Indian Penal Code Hurt; Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
Section 332 in The Indian Penal Code Voluntarily causing hurt to deter public servant from his duty; Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
78. As far as an offence alleged against the accused which is punishable U/s.504 of IPC is concerned, the prosecution should have proved that the 61 cc 10176 of 2016 accused intentionally insulted PW03 with an intention to provoke breach of peace.
79. Taking into consideration the case alleged against the accused and the defense of the accused it is clear for the above collective reasons that an unpleasant incident took place at aforementioned spot on aforementioned date only because of an ego of accused herein. The intention to provoke public peace cannot be believed. Though it amounts to an insult if some person would prevent some officer who is in the rank of an Inspector of police that too in a public road, it would certainly amount to an insult. Though it may be an intentional insult, it has to be proved to have been done with an intention to provoke the breach of peace. But, only to feed the ego of the accused the incident proved to have been taken place and the same is clear on the basis of the evidence herein.
62 cc 10176 of 2016
80. Therefore in view of absence of evidence to the said effect, case alleged against the accused which is punishable U/s.504 of IPC also cannot be believed. Point NO.3 is therefore answered in the Negative.
81. Section 504 of IPC is extracted for the purpose of clarity;
Section 504 in The Indian Penal Code Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
82. For all the above collective reasons, this court has no impediment to say that, the accused is proved to have been guilty for the offence punishable U/s.353 of IPC only. In so far as the offences alleged against the accused which are punishable U/s.504, 332 of IPC are concerned, the accused is not proved guilty. 63 cc 10176 of 2016
83. Hence the conclusion of this court is as under;
CONCLUSION Accused is hereby acquitted of the offences punishable U/s.504 and 332 of IPC.
Accused is hereby held guilty for the offence punishable U/s.353 of IPC.
But, taking into consideration the nature of the case being proved in terms of above reasons against the accused as it has been proved before the court that a public servant, who, as on the date of incident was in the rank of an Inspector of police, had been put to suffrage in a public road in a peak hour that too when it was raining heavily, it would be difficult for any officer to discharge the duty in whatsoever capacity in a highly populated road that too when there would be heavy rains as well. Therefore in the 64 cc 10176 of 2016 case of present nature, if the provisions of THE PROBATION OF OFFENDERS ACT are invoked, certainly it does not meet the ends of justice and it may send wrong message to the society as well. Therefore this court is not inclined to invoke the provisions of said Act. Hence call on to hear on sentence, little later. Office is directed to furnish a copy of the above judgment free of cost to the accused forthwith.
S.S.BHARATH XLI ACMM, BENGALURU 65 cc 10176 of 2016 ORDERS ON SENTENCE This court has heard the submissions of accused. This court has heard the learned counsel appearing for accused.
This court has heard the learned Sr.APP as well. The counsel for the accused and the accused both have requested the court to impose minimum sentence and submitted further that they are willing to question the present judgment before higher court. The prosecution has dragged the accused to the court as he belongs to Jammu and Kashmir and if the accused is punished with maximum sentence he will be put to injustice and he will be put to hardship.
Learned Sr.APP has argued that this is a case in which the incident has been proved to have taken 66 cc 10176 of 2016 place at the instance of accused in a densely populated road. In the present case it is proved that a public servant who is in the rank of an inspector has been deterred while he was discharging his official duty. In the present case, if the court takes lenient view it would send wrong message to the society. Accordingly learned Sr.APP requested the court to impose maximum punishment. Considering the nature of the case being proved against the accused, all the foregoing aspects and the law being present in section 353 of IPC, this court is of the considered opinion to pass the sentence as below.
ORDERS ON SENTENCE Accused is hereby sentenced to undergo rigorous imprisonment for the period of 02 years and he is sentenced further to pay a fine of Rs.10,000/ with respect to an offence punishable U/s.353 of IPC. 67 cc 10176 of 2016 Bail bonds and surety bonds if any will be in force till expiry of the appeal period and thereafter they shall stand cancelled. The interim order which has been passed previously by this court in respect of a Car aforementioned in favour of the RC holder is hereby made absolute. Above sentence is passed invoking section 248(2) of Cr.P.C. after hearing the accused, his advocate and learned Sr.APP on sentence. Further the accused is acquitted of the offences punishable U/s.332, 504 of IPC invoking section 248(1) of Cr.P.C. as the court has held that the accused is not guilty of said offences.
S.S.BHARATH
XLI ACMM, BENGALURU
68 cc 10176 of 2016
ORDERS ON VICTIM COMPENSATION
Considering the nature of the case being proved against the accused, societal background of the accused and of PW.3, it is appropriate to invoke the provision of Cr.P.C. the section 357. PW.3 is a Police Inspector, it is no doubt true that he does get salary every month. But considering the nature of the case being proved against the accused, nature of sufferage which has been proved to have been undergone by PW.3, this court is of the considered opinion to invoke the said provision. This court is satisfied to order for payment of compensation out of the above fine amount imposed on accused, to PW.3. This court hereby invokes section 357 of Cr.P.C. Hence this court for the above collective reasons, is satisfied to order that the compensation shall be paid U/s.357 to PW.3. The accused out of the above imposed fine amount of Rs.10,000/ shall pay Rs.5,000/ to PW.3 and rest of Rs.10,000/ 69 cc 10176 of 2016 shall be paid to the State. In view of the above collective reasons this court is of the opinion not to invoke section 357A specifically. Because this court is of the view that the above compensation ordered to be paid to PW.3 is adequate. Though it is the duty of the court to order for compensating the victim, although there is a separate scheme to compensate the victim under the said provisions, in view of societal status of PW.3, nature of sufferage to which he has been put to, the court has ordered as above, that it is of the opinion not to invoke separately the scheme called victim compensation scheme (357A). Hence with the above orders the court has directed to compensate the victimPW.3.
S.S.BHARATH XLI ACMM, BENGALURU 70 cc 10176 of 2016 ANNEXURES List of witnesses examined on behalf of prosecution: PW.1 : L.Borayya PW.2 : Chikkaboregouda PW.3 : Rameshkumar.H.B. PW.4 : Borejogayya PW.5 : D.N.Nataraj PW.6 : R.M.Ajay List of documents marked on behalf of the Prosecution: Ex.P.1 : Complaint Ex.P.2 : Panchanama Ex.P.3 : Spot Panchanama Ex.P.4 and 5 : Photographs List of witnesses examined on behalf of accused : MO1 : Bottle List of documents marked on behalf of the accused : 71 cc 10176 of 2016 NIL S.S.BHARATH XLI (41ST) ACMM, BENGALURU