Bangalore District Court
State By Kp Agrahara vs Pradeep on 2 March, 2022
IN THE COURT OF THE 30TH ADDL.CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
Dated: This the 2nd day of March, 2022
:Present: Sri. I.P.Naik, B.A., LL.B.(Spl),
30th ACMM, Bengaluru
Judgment U/s.355 of Cr.P.C.
C.C.No. 14377/2019
Date of Offence 28.01.2019
Complainant State by KP Agrahara, Police Station
V/s.
Accused 1. Pradeep,
S/o.S.Mani,
Aged about 27 years,
R/at.No.74, Sudarshan Makan,
Police Quarters Road,
Ranasing Pete,
Bengaluru-53
2. Mani,
S/o.Late Sabhapathi,
Aged about 72 years,
R/at.No.74, Sudarshan Makan,
Police Quarters Road,
Ranasing Pete,
Bengaluru-53
Offences U/s.341, 504, 332 of IPC
Plea Recorded on:19.09.2019 and accused
persons Pleaded not guilty.
2 C.C.No.14377/2019
313 Statement recorded on: On 23.02.2022
Final Order Accused No.1 & 2 are Convicted
Date of Order 02/03/2022
*****
JUDGMENT
The PI of KP Agrahara, Police Station has filed charge sheet against accused for the alleged offences punishable U/s.341, 504, 332 r/w. 34 of IPC.
2. The factual matrix of the case is that:
It is alleged that, CW1 Ramiraiah being the driver cum conductor of BMTC(Badge No.2885) Depo No.16, Deepanjanli nagar, CW2- Manjunath (Badge No.18689) driver of BMTC Depot No.16, Deepanjali Nagar, Bengaluru. These two drivers were deputed as driver and conductor on the bus bg.No.KA-57-F-
1457 flying at route No.55-B/1 on 28.01.2019. The said bus was at about 3.55pm flying from K.R.Market to KP Agrahara Via Mysore Circle, Balekaayi Mandi, Binnipete, 2 nd Railway Gate, 16th Cross. While CW2 was driving bus had stopped near Railway Gate at about 4.15pm as the Railway Gate was closed.3 C.C.No.14377/2019
Due to closing of the Railway Gate there was heavy traffic jam.
At that time, accused No.1 & 2 came on the two wheeler vehicle bearing No.KA-02-HY-6945 and asked the CW2 stated that in front of bus to driver safety at that time, one person started abusing the CW1 in filthy language as conductor " ಏಯ್ ನೋಡಿಕೊಂಡು ಬಾರೋ Immediately CW1 got down and rushed in front of the bus as what happened. At that time, accused again abused in filthy language "ಸೂಳೆ ಮಾಗ ಎಲ್ಲಿದ್ದಾನೋ ಸೈಡಿ ನೋಡಿಕೊಂಡು ಬರೊದಲ್ಲಾ . Another person voluntarily forcibly fisted on the left eye of the CW1 and stamped on his left thigh. At that time, he has fell on the two wheeler and sustained injury. Again CW1 requested them to wait until police came to the spot, at that time, again he stated ಏಯ್ ಗಾಂಡೂ ಏನ್ ಮಾಡುತ್ತಿದ್ದೀಯ Thereafter, CW1 and CW2 immediately informed to their higher officials and taken treatment at Padma Devaiah Hospital.
3. Thereafter, CW1 lodged first information statement complaint before the CW12 PSI Krishnappa who was in charge of KP Agrahara Police Station at about 7.00pm on 28.01.2019. Based on said first information statement, CW12 registered the 4 C.C.No.14377/2019 case in Cr.No.21/2019 and forwarded FIR to this court. On 29.01.2019 CW12 rushed to the spot and conducted the mahazar in the presence of witnesses and drawn the mahazar. On 29.01.2019, CW12 collected the information regarding duty of the CW1 and CW2 from CW10. On 9.2.2019 he has received the information regarding duty of the CW1 and CW2 on 28.1.2019.
4. Accused No.1 & 2 got anticipatory bail and appeared before the CW12 on 27.12.2019. After arrested interrogated and release on bail. Meanwhile, CW12 interrogated the witnesses and recorded their statement U/s.161 Cr.P.C. On 02.03.2019 CW12 collected the wound certificate and after completing other formalities, submitted charge sheet against the accused person.
4. By considering the charge sheet and materials this court has taken cognizance and registered the case in register III and issued summons against the accused No.1 & 2. The accused No1. & 2 appeared through their counsel and got released on 5 C.C.No.14377/2019 regular bail. Thereafter charge has been framed and readover to them. Both the accused pleaded guilty and claims to be tried. Hence, case is posted for evidence.
5. In order to prove the guilt of the accused person, prosecution has examined 3 witnesses as PW1 to PW.3 and got marked 7 documents as Ex.P.1. to P.7.Inspite of that witnesses did not turned up. Finally this court opined tht, there is no meaning in reissuing Summons, NBW, Proclamation. Accordingly, prayer of the learned APP is rejected and CW3 to 11 are dropped. Thereafter, statement of the accused is recorded U/s.313 of Cr.P.C., accused denied the incriminating evidence and not chosen to lead evidence and no documents are produced on behalf of the accused.
6. Heard arguments.
7. The following points would arise for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that, CW1 Raviraiah being the driver cum conductor of 6 C.C.No.14377/2019 BMTC(Badge No.2885) Depo No.16, Deepanjanli nagar, CW2- Manjunath (Badge No.18689) driver of BMTC Depot No.16, Deepanjali Nagar, Bengaluru. These two drivers were deputed as driver and conductor on the bus bg.No.KA-57-F-1457 on the route No.55-B/1 on 28.01.2019. The said bus was mocing from K.R.Market to KP Agrahara Via Mysore Circle, Balekaayi Mandi, Binnipete, 2nd Railway Gate, 16th Cross. While they were moving bus had stopped near Railway Gate at about 4.15pm as the Railway Gate was closed. Due to closing of the Railway Gate there was heavy traffic jam. At that time, accused No.1 & 2 came on the two wheeler vehicle bg.No.KA-
02-HY-6945 and was fallen outside the said bus and thereby accused committed the offence punishable U/s.341 r/w. 34 of IPC., within my cognizance. ?
2. Whether the prosecution proves beyond reasonable doubt that, on the above said date, time, place, in furtherance of the common intention, accused persons have abused PW1 in filthy language so as to cause breach of public peace and to insult 7 C.C.No.14377/2019 CW1 and thereby accused committed the offence punishable U/s.504 r/w. 34 of IPC, within my cognizance. ?
3. Whether the prosecution proves beyond reasonable doubt that, on the above said date, time, place accused has picked up quarrel, abused and voluntarily caused hurt to deter public servant from performing his public duty and thereby accused committed the offence punishable U/s.332 r/w. 34 of IPC, within my cognizance. ?
4. What order.?
8. By considering oral, documentary evidence and hearing of the parties, my answer to the above points are as under:
Point No.1 : IN THE NEGATIVE
Point No.2 : IN THE AFFIRMATIVE
Point No.3 : IN THE AFFIRMATIVE
Point No.4 : As per final order,
........................for the following, 8 C.C.No.14377/2019 REASONS
9. Point Nos.1 to 3 :-In this case, the learned Sr.APP urged that, in this prosecution proved the examining the IO injured witnesses. Hence, prays to convict the accused No.1 & 2 in accordance with law.
10. In the course or arguments the learned counsel for the accused urged that, in this case, Ex.P.1 not discloses the name of the accused persons. In order to get leave CW1 has lodged false complaint against the accused No.1 & 2. In Ex.P.1 they have not specifically mentioned the special structure of the culprit his height, color and their body shape and police have not conducted the test of identification parade. All these clearly shows that, prosecution has utterly failed to prove the guilt of the accused persons beyond reasonable doubt.
11. According to the prosecution case, PW1 Ramiveraiah is first informant as well as the victim in the alleged incident. PW2 is also eye witnesses and victim in the alleged incident. Both have categorically stated that, on 28.01.2019, they were on 9 C.C.No.14377/2019 duty on BMTC bg.No.KA-57/F-1475 said bus was moving in route No.55-B/1 from K.R.Market to KP Agrahara Via Mysore Circle, Balekaayi Mandi, Binnipet, Railway Gate 16 th Cross, at about 3.30 pm they left the K.R.Market and were moving towards Railway Gate at about 4.15pm, Railway Gate was closed they have stopped their bus at that time, there was heavy busy traffic. The said road was two way due to heavy traffic jam PW2 slowly moved the bus. At that time, two unknown persons came on two wheeler bg.No.KA-02/HY-6945 and abused the PW2 in filthy language. Further, they have abused PW1 who was conductor of the said bus, stating in following terms:
"ಕೆಂಡಕ್ಟ ರ್ ಸೂಳೆ ಮಗ ಏನೋ ಮಾಡುತ್ತಿದ್ದಾನೆ ಸೈಡ್ನೋಡುವುದಿಲ:"
12. Immediately PW1 got down from the bus, at that time, they have abused him in filthy language and forcibly fisted on his left eye and also stamped on his thigh. Immediately PW1 fell on the two wheeler. At that time, he sustained injury on his leg. PW1 requested both of them to wait until police came to the spot. At that time, they have abused in following terms:-
"ಪೋಲಿಸರು ಬಂದು ನನ್ನ ಶ್ಯಾಟ ಕಿತ್ತು ಕೊಳ್ಳು ತ್ತಾರಾ ಎಂದು ದೂರು ಕೊಡುವಂತೆ ಹೇಳಿ ಹೊರಟು ಹೋದರು."10 C.C.No.14377/2019
13. When PW2 requested the PW1 at that time, he stated that, do what ever you can do. Immediately, public gathered to resolve the quarrel. Thereafter, PW1 lodged the complaint Ex.P.1 before the PW3 IO/PSI Krishnappa.
14. PW-3-IO stated that, on 28.01.2019 at about 7.00pm he has received Ex.P.1 complaint and registered case in Cr.No.21/2019 and forwarded the FIR Ex.P.3 to this court. ON 29.01.2019, he rushed to the spot and conducted SO mahazar in the presence of witnesses. Thereafter, he has collected the information regarding the duty of PW1 and PW2 from Cw10 which is got marked at Ex.P.5. Thereafter, he has arrested the accused and appeared before the court with anticipatory bail and got released them after interrogation. Further, he has stated after collecting wound certificate he has submitted charge sheet against the accused No.1 & 2.
15. The learned counsel for the accused rightly argued that the name of the persons, their facial structure, color of their 11 C.C.No.14377/2019 body, height are not cited in Ex.P.1 complaint. PW1 stated that on 28.01.2019 police have conducted the SO mahazar. Contrary to this, PW3 IO stated that, he has drawn the SO mahazar on 29.01.2019. This version is not supported by the recitals of Ex.P.2. The learned counsel for the accused rightly argued that the IO PW3 has not seized the bike bg.No.KA-02/HY-6945. In Ex.P.3 PW2 specifically mentioned the vehicle number.
16. In this case, Exp.5 discloses that, PW1 & PW2 were deputed on the BMTC bus bg.No.KA-57/F-1457 on 28.01.2019 which was flying in route No.55-B/1. In this regard, they have enclosed the abstract of master role. This is reflected from the Master role. By considering entire oral evidence of PW1 and PW2 accused never denied in respect of PW1 and PW2 deputes his bike and driver on BMTC bg.No.KA-02/F-1457.So this is undisputed oral testimony of PW1 and PW2 it clearly discloses that, on 28.01.2019 both were on public duty on BMTC bus which is belonged to Depot No.16, Deepanjali Nagar, Bengaluru. 12 C.C.No.14377/2019
17. Admittedly, in this case IO not at all caught hold the accused persons. The order sheet pertaining to Cr.Miss.No.1223/2019 is produced by the IO which is collected during the investigation it clearly shows that, on 9.2.2019 Hon'ble 55th Additional City Civil and Sessions Judge ordered for not to arrest both the accused after that, on 16.02.2019 anticipatory bail is granted infavour of accused No.1 & 2. So IO is unable to arrest accused No.1 & 2 in custodial investigation for the purpose of identification parade.
18. In this case, PW2 categorically stated the name of accused Pradeep who is accused NO.1 in this case. Further, he stated that, he does not remember the name of another person who was moving on the two wheeler bike on 28.01.2019.
19. In this case, both accused are not disputed the PW1 and PW2 are employees of BMTC Department at Depo No.16, Deepanjali Nagar. Further, they have not disputed both PW1 and PW2 are on duty on the bus bg.No.KA-52-F/14527 which was flying on 55-B/1 from KR Market to KP Agrahara on 28.01.2019 13 C.C.No.14377/2019
20. In this case, the learned counsel for the accused categorically argued in respect of test of identification of the accused No1.& 2 and non seizure of the vehicle bg.No.KA02/HY- 6945 which was used for commission of the alleged offence. This fact is admitted by the PW3 IO in his cross-examination. So it is defect on the part of the IO.
21. At this stage, this court has relied on the following Judgment of Hon'ble Apex Court as under:-
2010) 9 SCC 567 Sripati Singh (since deceased) through his son Gaurav Singh Vs. State of Jarkhand.
para 55: There may be highly defective investigation in a case, it is to be examined as to whether there is any lapse by the iO and whether due to such lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issued is well settled that the defective in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent or to the ommission or lapses by perfunctory investigation the faith and confident of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigation agency or omissions etc., which resulted in defective investigation, there is a legal 14 C.C.No.14377/2019 obligation on part of the court to examine the prosecution evidence detors such lapses carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object to finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the case cannot be allowed to depend solely on the probity of investigation."
22. By following this principles laid down by their lordship in respect of the effective investigation I have carefully scrunised the oral testimony of PW1 and PW2 and recitals of Ex.P.1 In Ex.P.1 this is against apprehension of the evidentiary value in criminal law set into motion, it clearly discloses the vehicle number which is used by the accused No.1 & 2. At the time of commission of the alleged offences. In Ex.P.1 PW1 clearly mentioned the vehicle bearing number and IO has not seized the vehicle this fact will not affect on the core of the prosecution case.
23. PW1 and PW2 has specifically identified the accused No.1 & 2 in the course of trial, admittedly accused No1. & 2 are unknown to PW1 and PW2 before the alleged incident. Further, there is clearly cut case of the defence is that, Pw1 has not 15 C.C.No.14377/2019 described the name of the driver of the vehicle and the riders of the two wheeler bg.No.KA-02/HY-6943.
24. In the course of trial, PW1 and PW2 clearly identified these accused before court. So non holding of test of identification will also not affect on this case. A report of test of identification parade is not substantiative piece of evidence, it is corroborative in nature. The incident has not occurred in a very short time, the accused have assaulted them and this fact is clearly mentioned by the PW1 in his first information statement Ex.P.1 PW1 and PW2 deposed categorically in respect of assault, words of criminal intimidation. This facts of this case, not diluted from the oral testimony of Pw1 and PW2. By considering oral evidence of these witnesses the prosecution successfully these two incident ie., accused assaulted on PW1 with hands and caused injury on left eye and stamped on his right lower limb. This witnesses have not stated in respect of wrongfully restrained. By considering all these aspect, that court held that prosecution has successfully proved the guilt of the accused persons for the offence punishable U/s.504, 332 r/w. 34 of IPC at the same time, prosecution utterly 16 C.C.No.14377/2019 failed to prove the guilt of the accused persons for the offence punishable U/s.341 r/w. Sec. 34 of IPC. Accordingly, Point Nos.1 is answer in the Negative and Point No.2 & 3 is answered in the Affirmative.
25. Point No.4: In view of the above findings on the above point Nos.1 to 3, I proceed to pass the following:-
ORDER The Powers confirmed upon me U/s.255(1) of Cr.P.C. accused No.1 & 2 are acquitted of the alleged offences punishable U/s.341 r/w. 34 of IPC.
The Powers confirmed upon me U/s.255(2) accused No.1 & 2 are found guilty for the offences punishable U/s.504, 332 r/w. 34 of IPC. The quantum of punishment for the offence punishable U/s.504, 332 of IPC, is imprisonment which may extend to 3 years or fine or both.
Hence, case is posted for hearing on sentence or applicability of P.O Act.
(Dictated to the Stenographer, transcribed by her, same was corrected by me and then pronounced by me in the Open Court on this the 02nd day of March, 2022).
( I.P NAIK) th 30 A.C.M.M., Bangalore.
17 C.C.No.14377/2019Hear on Sentence:
The learned counsel for the accused urged that, in this cae, accused No.1 is young age and accused No.2 is very old person. If they are convicted for imprisonment, it will effect on the future of the accused No.1 and health condition of the accused No.2. The accused are reputed and law binding citizens. The accused is found guilty for the first time. Hence, prays to extend benefit of PO Act, in favour of the accused No.1 and 2.
I have carefully considered the entire charge sheet and proved fact against the accused No.1 & 2. Admittedly, at the time of filing of the charge sheet accused No.1 was 27 years and accused No.2 was 72 years in the year 2019.
Further, there is no allegations that, accused are already convicted or they are from criminal activities. By considering the nature of the offence, age of both the accused and their occupation and livelihood of their family, I am of the opinion that, accused No1. & 2 re entitled to get the benefit under P.O Act. At the same time, it is fit case to award compensation infavour of PW1 and PW2. Therefore, proceed to pass the following..., ORDER The benefit of PO act is extended infavour of accused No1. & 2.18 C.C.No.14377/2019
The accused No.1 & 2 is hereby directed to pay compensation of Rs.5,000/- each infavor of PW1-Ramiraiah and PW2-Manjunth.
Office is directed to call for P.O Act. Further, office is directed to furnish free copy to Accused No1. & 2.
( I.P NAIK) th 30 A.C.M.M., Bangalore.
ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE PROSECUTION:
P.W. 1 : Rameraiah
P.W. 2 : D.K.Manjunath
P.W. 3 : Krishnappa
2. LIST OF THE DOCUMENTS MARKED FOR THE
PROSECUTION:
Ex.P.1 : Complaint
Ex.P.2 : Spot Mahazar
Ex.P.3 : FIR
Ex.P.4 : General Dairy
Ex.P.5 : Requisition
Ex.P.6 : Daily Requisition
Ex.P.7 : Wound Certificate
19 C.C.No.14377/2019
3. LIST OF THE WITNESS EXAMINED AND DOCUMENTS MARKED FOR THE DEFENCE NIL
4. LIST OF THE METERIAL OBJECTS MARKED FOR THE PROSECUTION NIL ( I.P NAIK) 30th A.C.M.M., Bangalore.
20 C.C.No.14377/2019Judgment pronounced in Open Court vide separate:-
ORDER The Powers confirmed upon me U/s.255(1) of Cr.P.C. accused No.1 & 2 are acquitted of the alleged offences punishable U/s.341 r/w. 34 of IPC.
The Powers confirmed upon me U/s.255(2) accused No.1 & 2 are found guilty for the offences punishable U/s.504, 332 r/w. 34 of IPC. The quantum of punishment for the offence punishable U/s.504, 332 of IPC, is imprisonment which may extend to 3 years or fine or both.
Hence, case is posted for hearing on sentence or applicability of P.O Act.
(Dictated to the Stenographer, transcribed by her, same was corrected by me and then pronounced by me in the Open Court on this the 02nd day of March, 2022).
( I.P NAIK) th 30 A.C.M.M., Bangalore.
21 C.C.No.14377/2019Hear on Sentence:
The learned counsel for the accused urged that, in this cae, accused No.1 is young age and accused No.2 is very old person. If they are convicted for imprisonment, it will effect on the future of the accused No.1 and health condition of the accused No.2. The accused are reputed and law binding citizens. The accused is found guilty for the first time. Hence, prays to extend benefit of PO Act, in favour of the accused No.1 and 2.
I have carefully considered the entire charge sheet and proved fact against the accused No.1 & 2. Admittedly, at the time of filing of the charge sheet accused No.1 was 27 years and accused No.2 was 72 years in the year 2019.
Further, there is no allegations that, accused are already convicted or they are from criminal activities. By considering the nature of the offence, age of both the accused and their occupation and livelihood of their family, I am of the opinion that, accused No1. & 2 re entitled to get the benefit under P.O Act. At the same time, it is fit case to award compensation infavour of PW1 and PW2. Therefore, proceed to pass the following..., 22 C.C.No.14377/2019 ORDER The benefit of PO act is extended infavour of accused No.1. & 2.
The accused No.1 & 2 is hereby directed to pay compensation of Rs.5,000/- each infavor of PW1-Ramiraiah and PW2-Manjunth.
Office is directed to call for P.O Act. Further, office is directed to furnish free copy to Accused No1. & 2.
( I.P NAIK) th 30 A.C.M.M., Bangalore.23 C.C.No.14377/2019