Bangalore District Court
The State By Jalahalli Ps vs A1. J.S.Vinay on 15 March, 2022
THE COURT OF XXXIX ADDL. ACMM, BENGALURU
Present : Sandesh Prabhu.B. BA(LAW), LL.B.
XXXIX ACMM, Bengaluru,
C.C.No.9662/2019
Dated : On this the 15th March, 2022
Complainant: The State by Jalahalli PS
Police Station, Bengaluru
(By Assistant Public Prosecutor).
V/s
Accused: A1. J.S.Vinay,
S/o Srinivas @ Subbanna,
r/at # 35/2, 1st main,
5th cross, Jalahalli village,
Bengaluru
A2. S.Srinivas,
S/o Subbanna,
r/at # 35/2, 1st main,
5th cross, A.K.colony, Jalahalli village,
Bengaluru
(Shri.B.V.Sarvesh advocate)
Date of Report of Offence : 25112018
Name of the Complainant : Sri.Vijay.H.S
Date of Commencement of
recording of Evidence : 22022021
Date of Closing of evidence : 09122021
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Offences complained are : u/secs 353, 504 &
506 r/w 34 of IPC
Opinion of the Judge : Accused found
guilty
(Sandesh Prabhu B.)
XXXIX ACMM,
Bengaluru
:: JUDGEMENT ::
The PI of Jalahalli PS has filed charge sheet
against the accused no.1 & 2 for the offences
punishable u/s 353, 504 & 506 r/w 34 of IPC.
2. The case of the prosecution in nutshell is as
follows :
That on 24112018 the PSI of Jalahalli PS had
appointed the complainant and CW6 for the patrolling
duty during night hours in 3rd and 4th beat of Jalahalli
village. Accordingly when the complainant and CW6
were on night patrolling duty and at about 10.30 PM
when they came near to Jalahalli village, the Orchestra
was conducted by blocking the main road. When the
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complainant asked that who blocked the road which
caused obstruction to the public, at that time the
accused no.1 picked up quarrel with the complainant
by saying that he himself had organized the said
orchestra and abused the complainant and CW6 in
filthy language and thereafter he pulled the uniform of
the complainant and thereby obstructed to the public
duty of the complainant and CW6. It is further
allegation against the accused that the complainant
after stopping the said orchestra at 10.30 PM, they
sent the public from the said place and went near to
police station. After few minutes, the accused no.1
along with his father who is accused no.2 came near to
the police station and abused the police official in filthy
language by saying that the police official are not
allowing them to sell the tea near BEL bridge after
10.00 PM and further abused that the police got no
authority to question their act and if they obstruct to
their act, they will conduct protest in front of police
station by beating drums and will file the complaint
4 CC9662/2019
under SC/ST Atrocity act. It is the also allegation
against the accused that thereafter the accused had
made call to the mobile phone of CW8 who is the police
inspector and also gave life threat by saying that the
police are not performing their duty properly and they
will teach a lesson.
3. Based on the complaint given by the
complainant the Jalahalli police have registered a case
against the accused in Cr.No.142/2018 for the offences
punishable u/s 353, 504 & 506 r/w 34 of IPC. After
completion of the investigation, the Investigating Officer
has filed the charge sheet against the accused for the
afore said offences.
4. During the crime stage itself the accused no.1 &
2 were voluntarily appeared before the court along with
anticipatory bail order and later they were enlarged on
bail. After filing the charge sheet, cognizance was taken
for the offences punishable u/s 353, 504 & 506 r/w 34
5 CC9662/2019
of IPC against the accused no.1 & 2 only. Thereafter
charge sheet copies were furnished to the accused no.1
& 2 as contemplated u/s 207 of Cr.P.C. Thereafter
heard about framing of charge and since there were
sufficient materials to frame charge against the
accused, this court had framed charge against the
accused no.1 & 2 for the offences punishable u/s 353,
504 & 506 r/w 34 of IPC. The sum and substance of the
accusation was read over to the accused and their
answers to the said accusation was denial and they
claim to be tried. Hence the prosecution was given an
opportunity to establish the guilt of the accused.
5. The prosecution to establish the guilt of the
accused it got examined only 7 witnesses as PW1 to 7
and got marked documentary evidence as per Ex.P1 to
P5. The prosecution has failed to examine CW5 & his
evidence was dropped by this court. The PW10 was
unable to appear before the court due to his ill health
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and PW4 had deposed the duty performed by said
CW10 relating to the present case.
6. Thereafter statement of the accused recorded
u/s 313 of Cr.P.C and their answer to incriminating
circumstances arised in the evidence was denial and
not chosen to lead any defence evidence.
7. Heard the arguments of learned prosecution
and counsel for accused persons.
8. The points that arise for consideration of this
Court are as under :
:: POINTS ::
1. Whether the prosecution proves beyond
all reasonable doubt that, on 24112018
at about 8.00 PM when CW1 & CW6
were performing duty in Jalahalli village,
accused had organized orchestra by
blocking the road, when CW1 & 6 had
questioned the act of the accused,for that
reason the accused with common
intention had abused in filthy language
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as "ನನನ ಇದನನ
ನ ಅರರನನಸ ಮಡರನವದನ
ನನನನವನನನ ಕನಳನನಕ ಬನನಳಮರನನ ಜಸಸ
ಮತನಡದದ ತಮಟ ಹನಡಸ ಪ ದತಭಟನ ಮಡಸನತಸನನ"
intentionally insulted CW1 and 6,
provoked them and such provocation
would cause them to break the public
peace and thereby committed an offence
punishable u/s 504 r/w 34 of IPC?
2. Whether the prosecution further proves
beyond all reasonable doubt that on the
same date, time and during the same
transaction, accused no.1 with common
intention by holding uniform of the CW1
dragged him and thereby obstructed to
do the duty as public servant and thereby
committed an offence p/u/s 353 r/w 34
of IPC?
3. Whether the prosecution further proves
beyond all reasonable doubt that on the
same date, time and during the same
transaction, accused no.1 and 2 with
common intention came to police station,
picked up quarrel and phone called to
CW8 and gave life threat by putting him
in fear with dire consequences and by
way of committing an act of criminal
intimidation so as to cause alarm in his
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mind and thereby committed an offence
p/u/s 506 r/w 34 of IPC?
4. What Order?
9. The findings of this court on above points are
as under:
Point No.1 : In Negative
Point No.2 : In Affirmative
Point No.3 : In Affirmative
Point No.4 : As per the final order
for the following:
REASONS
10. POINT No.1 to 3 `: All these points are
connected each other and in order to avoid the
repetition of the facts and appreciation of the evidence,
all these points are taken up together for common
consideration.
11. It is the specific case of the prosecution is that
on 24112018 the PSI of Jalahalli PS had appointed
the complainant and CW6 for the patrolling duty during
night hours in 3rd and 4th beat of Jalahalli village.
Accordingly when the complainant and CW6 were on
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night patrolling duty and at about 10.30 PM when they
came near to Jalahalli village, the Orchestra was
conducted by blocking the main road. When the
complainant asked that who blocked the road which
caused obstruction to the public, at that time the
accused no.1 picked up quarrel with the complainant
by saying that he himself had organized the said
orchestra and abused the complainant and CW6 in
filthy language and thereafter he pulled the uniform of
the complainant and thereby obstructed to the public
duty of the complainant and CW6. It is further
allegation against the accused that the complainant
after stopping the said orchestra at 10.30 PM, they
sent the public from the said place and went near to
police station. After few minutes, the accused no.1
along with his father who is accused no.2 came near to
the police station and abused the police official in filthy
language by saying that the police official are not
allowing them to sell the tea near BEL bridge after
10.00 PM and further abused that the police got no
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authority to question their act and if they obstruct to
their act, they will conduct protest in front of police
station by beating drums and will file the complaint
under SC/ST Atrocity act. It is the also allegation
against the accused that thereafter the accused had
made call to the mobile phone of CW8 who is the police
inspector and also gave life threat by saying that the
police are not performing their duty properly and they
will teach a lesson.
12. The prosecution to establish the afore alleged
guilt of the accused, it got examined 7 witnesses as
PW1 to 7. The PW1 is the complainant and victim. PW2
is the ASI who is also eye witness to the incident when
the accused alleged to have gave life threat near to the
police station. PW3 is the independent eye witness to
the incident. PW4 is the PI who registered the FIR and
partly investigated the case. PW5 is the witness to the
spot mahazar. PW6 is the victim who also on duty along
with the complainant and PW7 is the PSI to whom the
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accused made phone call and gave life threat. Along
with the oral evidence the prosecution produced and got
marked the documentary evidence as per Ex.P1 to P5
which includes complaint, spot mahazar, FIR, copy of
station dairy and copy of call register.
13. Now it is necessary to analyse the oral
evidence of prosecution witnesses. The PW1 & 6 are the
complainant and victims in the alleged incident. Both
these witnesses in their examination in chief deposed
that on 24112018 when they came to the police
station for night duty at 8.00 PM, the PSI had
appointed them for patrolling duty in 3 rd and 4th beat of
Jalahalli. The witness further deposed that when they
were patrolling duty, at about 10.30 PM they came near
to Jalahalli village where the Orchestra was going on
and the public road was blocked. At that time when the
complainant asked that who blocked the said road, at
that time accused picked up quarrel with the
complainant, abused him in filthy language and pushed
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him and pulled his uniform. The witnesses further
deposed that thereafter they told to the public to go to
their house and when public dispersed from the said
place, they came near to police station, at that time the
accused no.1 along with his father who is the accused
no.2 came near to the police station and picked up
quarrel with the police official by saying that they are
conducting the orchestra in their area and police
officials got no right to question their act and if the
police officials try to stop them, they will conduct
protest in front of the police station by beating drums
and they will also file complaint under SC/ST Atrocity
Act. The witnesses further deposed that due to the said
act of the accused there was obstruction to their public
duty. The PW1 further during his oral evidence deposed
that the accused no.2 had also made phone call to Head
Constable by name Lingaraju and also abused to the
said police constable in filthy language. The witness
further deposed about lodging of complaint as per Ex.P1
and thereafter the Investigating Officer had conducted
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spot mahazar in the place of incident as per Ex.P2. The
accused counsel subjected both this witnesses for
elaborate cross examination.
14. The prosecution further got examined PW2
who is the ASI who witnessed the incident which was
took place in front of police station. The said witness in
his oral evidence deposed that on 24112018 he was
appointed as station house officer during night hours
and the CW1 and 6 were appointed for patrolling duty
in 3rd and 4th beat of Jalahalli. The witness further
deposed that the CW1 & 6 had informed to him that
when they were doing patrolling duty, at about 10.30
PM the accused by blocking the public road had
conducted orchestra in Jalahalli village and when CW1
and 6 had asked with the accused about their said act,
they abused them in filthy language and pulled their
uniform. The witness further deposed that thereafter
the accused had also came near to the police station
and abused the police official in filthy language by
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saying that the police official got no right to stop them
from conducting orchestra and the accused no.2 had
also made phone call to CW8 and gave threat. The
witness has identified the accused before the court. The
accused counsel subjected this witness for cross
examination.
15. The prosecution further got examined PW3
who is the independent eye witness to the incident. The
said witness in his oral evidence deposed that on at
about 10.30 Pm there was orchestra programme in
Jalahalli village and he came to said place to watch
orchestra. The witness further deposed that the accused
no.1 who conducted the orchestra had blocked the road
and when the police came to the said place and asked
who blocked the road, at that time accused no.1 picked
up quarrel with said police and abused him and
assaulted to him and gave threat by saying that they
will make protest against the police officials. The
witness further deposed that along with the accused
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no.1 there were 2 other persons were present in the
said place and the witness had identified the accused
no.1 & 2 before the court. The accused counsel
subjected this witness for cross examination.
16. The prosecution got examined PW4 who is the
police inspector who registered the FIR against the
accused and partly investigated the case. The said
witness in his oral evidence deposed that on
25112018 the CW1 had given a written complaint
against the accused and he by receiving the same had
registered a FIR as per Ex.P3. The witness further
deposed that on same day in between 9.30 AM to 10.15
AM he conducted punchanama in the place of incident
before the presence of punch witnesses as per Ex.P2.
The witness further deposed that thereafter he recorded
the statement of PW4 to 8 and he also received a copy of
station dairy as per Ex.P4 and thereafter handed over
the case file to CW10 for further investigation. Since
CW10 was suffering from ill health and since he was
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unable to appear before the court, the PW4 himself
deposed about the duty performed by the said CW10
relating to the present case. The accused counsel
subjected the PW4 for elaborate cross examination.
17. The prosecution further got examined PW5
who is the witness to the spot mahazar. The said
witness in his oral evidence deposed that on
25112018 the police had conducted a punchanama
near to the government hospital of Jalahalli with reason
of causing obstruction to the public duty of the police
official and the police had drawn the punchanama as
per Ex.P2. The accused counsel subjected this witness
for cross examination.
18. Lastly prosecution got examined PW7 who is
the PSI of said police station who deposed that on
24112018 at about 10.13 PM when he was in his
house the accused no.2 made phone call to his mobile
phone and gave threat by saying that police officials are
17 CC9662/2019
not performing their duty properly and told that they
will make protest in front of the police station and also
will lodge Atrocity case against the police officials and
thereafter immediately disconnected the phone call. The
witness further deposed that on same day at about
10.26 PM again the accused no.2 made phone call to
him and talked in filthy words against the police and
thereafter disconnected the phone call. The witness
further deposed that since he received the phone call
during night hours he did not make any return phone
call to the said mobile number and on next day when he
came to the police station at about 8.30 AM, he came
to know about the alleged act of the accused from the
complainant. The witness further deposed that
thereafter the complainant had lodged the complaint
against the accused. The accused counsel subjected
this witness for cross examination.
19. Before adverting to discuss about the
proving of the alleged act by the accused, it is necessary
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to consider the ingredients which should be proved by
the prosecution to establish the act of the accused. The
allegation against the accused is that they used
criminal force to deter the public servant from discharge
of his duty and thereafter gave life threat to the public
servants who are PW1 & 6. The public servants are
appointed to help, protest and guide the public on
various queries, request and complaint. They are duty
bound to serve the public and the police official being
the public officer are in risk when they are doing their
duty. Their actions are for the greater benefit of large
public and therefore whoever tries to stop them from
executing the lawful duty is bound to face punitive
action against them. Section 353 of IPC deals with the
use of assault or criminal force to deter public servant
or to discharge the duty. On careful perusal of the said
section, the following are essential ingredients of said
offence which should be proved by the prosecution.
1. Only the public servant can be the victim.
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2. At the time of assault or use of criminal force, the
public servant was on duty and was executing his
official duty.
3. Intention of assault or use of criminal force is to deter
the public servant from discharging his official duty.
4. Using of such criminal force or assault results in
obstruction of public duty.
On careful perusal of section 353 of IPC the
prosecution to establish the aforesaid essential
ingredients to establish the guilt of the accused.
20. The Hon'ble Supreme Court of India in a
recent judgement reported in (2015)7 SCC 423Manki
Tanija and another Vs.State of Karnataka and
another, it has been categorically held that the essential
ingredients of offence u/s 353 of IPC is that the accused
of offence should have assaulted the public servant or
used criminal force with the intention to prevent or
deter the said public servant from discharging his duty
as public servant and due to use of said such criminal
20 CC9662/2019
force or assault, there was obstruction in discharge of
public duty. The same principle has been reiterated by
the Hon'ble High Court of Karnataka in several reported
decisions.
21. Now under the said back drop, it is necessary
to conclude whether the prosecution has established all
the ingredients of said section 353 of IPC and thereby
proved the guilt of the accused. The first and foremost
ingredient to be established by the prosecution is that
the victim should be the public servant and at the time
of use of criminal force said public servant was on
executing his offical duty. On perusal of the entire
materials produced by the prosecution, there is no
dispute that the PW1 and 6 are the police constable of
Jalahalli police station when the alleged incident was
took place. Further fact to be proved by the prosecution
is that when the alleged incident was took place the
PW1 & 6 were on executing their official duties. The
PW1 & 6 in their oral evidence has categorically
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deposed that on 24062018, when they reported to
their duty at 8.00 PM the PSI had deputed them for
patrolling duty in 3rd and 4th beat of Jalahalli village.
The accused counsel during cross examination of PW1
& 6 has suggested that they were not on duty on the
said date in the said place of incident but mere
suggestion and denial of the said suggestion by the
witness is not enough to conclude that the PW1 & 6
who are victims were not on said duty on said date in
the said place of incident. As it is discussed above the
prosecution got examined PW3 who is the independent
eye witness to the said incident. The said witness also
categorically deposed that the PW1 & 6 were came near
to the said place wherein the accused had conducted
orchestra and when PW1 & 6 had questioned about the
conducting of orchestra by blocking the road, the said
incident was took place. Even though the accused
counsel subjected the said independent witness who is
PW3 for cross examination nothing worth has been
elicited which establishes that he was not present when
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the alleged incident was took place and he had not
witnessed the said incident. The evidence of PW3 also
establishes that PW1 and 6 being the public servants
were on discharging their official duty along with the
oral evidence of PW1, 3 & 6, the prosecution to
establish that the victims were on official duty in the
said place of incident, it has produced the copy of
station dairy dated 24062018 as per Ex.P4 and got
marked relevant entry that PW1 & 6 were on 3 rd and 4th
beat on said date as per Ex.P4(a). On careful perusal of
said Ex.P4(a) it is clear that when the PW1 & 6
reported for night duty at 8.30 PM on said date, the ASI
had deputed them for 3rd and 4th beat in Jalahalli
village. Hence based on the oral evidence of PW1, 3 and
6 coupled with documentary evidence which is marked
as Ex.P4, the prosecution has successfully established
that PW1 & 6 who are the victims in the alleged incident
were on public duty when the alleged incident was took
place.
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22. The next ingredient to be proved by the
prosecution is that the use of criminal force or assault
to deter the public servant from discharging his duty
and further to establish that in consequence of using of
such criminal force or assault, there was obstruction in
performing the public duty of said public servant. The
words used in section 353 of IPC is using of criminal
force or causing assault on a public servant. Now it is
necessary to conclude whether prosecution has
established that the accused used such criminal force
on PW1 & 2 and thereby obstructed to do their public
duty. The prosecution to establish the said fact it relied
upon the evidence of victims who are PW1 and PW6 and
also the evidence of independent witness who is PW3
and also the evidence of PW2 & 7 who are also deposed
about the alleged act of accused which took place in
front of Jalahalli PS and also the phone call made by
accused no.2 and giving threat to the police official. As
it is discussed above the PW1 and 6 who are the
victims, in their examination in chief deposed about the
24 CC9662/2019
alleged act of the accused and they categorically
deposed that since the orchestra was conducted by
blocking the road and when they asked about the
blocking of said road, suddenly the accused no.1 picked
up quarrel with them, abused them in filthy language
and thereafter pushed the PW1 and also pulled the
uniform of the complainant. The PW6 who was also on
the duty along with the complainant also deposed about
alleged act of the accused. The accused counsel
subjected the PW1 & 6 for elaborate cross examination.
On careful perusal of entire cross examination of PW1
the accused counsel has entirely denied the act of the
accused and there is no specific defence taken up by
the accused. On perusal of the cross examination of
PW1, the accused counsel made an attempt to elicit
that there was permission from the police station to
conduct Kannada Rajyothsava but the PW1 has
deposed his ignorance about the said fact and it is
further deposed that the orchestra was going on in the
said place. Further on perusal of the cross examination
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of PW1, he deposed that about 150 to 250 public had
gathered in the said place but there is no any complaint
from the public against the accused. Further on perusal
of the cross examination of the PW1, the accused
counsel has suggested that the accused no.2 is an
electrician and he was often coming to the police station
for electricity repair but PW1 was deposed his ignorance
about the said fact. On careful evaluation of entire cross
examination of Pw1 no admission has been elicited from
the said witness that there was no occurrence of said
incident on the said date. The accused counsel except
posing the suggestion by denying the entire incident, he
has not elicited any admission from the mouth of PW1
that there was no such act done by the accused as
deposed by the victims. Therefore on careful evaluation
of the oral evidence of PW1 he categorically deposed
that the accused no.1 by using criminal force had
pushed him and pulled his uniform. The said oral
evidence of Pw1 is unshaken and there is nothing in
26 CC9662/2019
the cross examination of said witness to disbelieve the
said version of the victim.
23. The other victim in the said incident is PW6
who also deposed that when they asked with the
accused about the blocking of road, at that time the
accused no.1 & 2 abused them in filthy language and
thereafter pulled the uniform of the PW1. The accused
counsel subjected the PW6 for cross examination and
on perusal of cross examination, the accused counsel
except suggesting that there was no such incident in
said place, nothing worth has been elicited in order to
disbelieve the version of said witness.
24. The counsel for accused during argument has
pointed out that the Pw6 has deposed that the accused
had pulled uniform of the complainant but complainant
himself never deposed that the accused has pulled his
uniform which is a contradictory evidence which creates
doubt about the alleged incident. No doubt the PW1 in
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his examination in chief has not specifically deposed
that the accused pulled his uniform but he deposed
that the accused pushed him. The said evidence of PW1
itself indicates that there was using of criminal force by
the accused on the complainant. No doubt there is
minor contradiction in the oral evidence of PW6 and but
that does not shake the entire version of the
prosecution case itself.
25. The Hon'ble Supreme Court in (2013)12
Supreme Court Cases 187 Bhakshish Singh Vs. State
of Punjab and another, it has been categorically held
that minor omissions/contradictions embellishment in
deposition of witness, do not necessarily demolish the
entire prosecution story, if it is otherwise found to be
credit worthy. It is also held that such minor
discrepancy is not significant in order to discard the
entire version of the witnesses. It is also held in (2012)
4 Supreme Court Cases 124 Sampath Kumar Vs.
Inspector of police Krishnagiri, the Hon'ble Supreme
28 CC9662/2019
Court has categorically held that minor contradiction
are bound to appear in statement of truthful witnesses
as memory sometimes prays false and sense of
observations defers from person to person. It is further
held in (2010) 13 Supreme Court Cases Sunil
Kumar Sambhudayal Gupta Vs. State of Maharashtra
it has been held by Hon'ble Supreme Court that while
appreciating the evidence, court has to take into
consideration whether the contradiction/omission had
been of such magnitude that they may materially affect
the trial. Minor contradictions, inconsistencies,
embellishments or improvement on trivial matters
without affecting the core of the prosecution case
should not made a ground to reject the evidence in its
entirely. The same principle was also reiterated by
Hon'ble Supreme Court in 2004(9) Supreme Court
Cases 186 Biharinath gowsawmi Vs.Shivakumar
Singh and also in 2008(15) SCC 590 Arumugam
Vs.State that mere marginal variation in the statements
which does not go to the route of case or materially
29 CC9662/2019
effect the core of the prosecution case, then the
testimony of such witness cannot be completely
discarded. The principle laid down in the aforesaid
rulings are aptly applicable to the facts and
circumstances of the present case. As it is discussed
above there is some minor contradictions in the oral
evidence of PW1 & 6 but that does not defect the entire
case of the prosecution and therefore the evidence of
PW1 & 6 cannot be completely discarded in order to
conclude about the alleged act of the accused. Therefore
on careful perusal of oral evidence of victim who are the
Pw1 & 6 they have categorically deposed about the
using of criminal force against the complainant by the
accused and thereby obstructed to their public duty.
26. On perusal of the case of the prosecution,
since there was blocking of the public road by
conducting the orchestra and when the Pw1 & 6 asked
about the said act of blocking the road, then the said
incident was took place. The PW1 & 6 by questioning
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about the said act of blocking the road had performed
their public duty and when they performed their duty,
the alleged incident was took place.
27. The prosecution has also relied upon the
vidence of independent eye witness in order to establish
about the use of criminal force by the accused against
the victims and thereby obstructed the victims from
performing them from public duty. As it is discussed
above the prosecution got examined PW3 who is one of
the independent eye witness and the said witness also
categorically deposed that he went to watch the
orchestra and since public road was blocked, the police
came to the said place and asked about blocking the
road, at that time the accused no.1 & 2 took up quarrel
with the said police, assaulted to them and gave threat
by saying that they will make protest by beating
drums. The accused counsel subjected the said
independent witness for elaborate cross examination
and on careful perusal of the cross examination of said
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witness, he deposed that he is working in a bar and
restaurant at Jalahalli but on said date he took leave to
his work. The accused counsel suggested that he was in
the said bar itself till 12.30 AM on said date but the
witness has denied the said suggestion put by the
prosecution. Further on perusal of the cross
examination of PW3, the accused counsel made an
attempt to elicit that there was cordial relationship
between the police and staff of the said bar since the
staff of the bar were often giving complaint if any
quarrel took place inside the said bar between the
customers but the witness has denied the said
suggestion put by the accused counsel. Further on
perusal of the cross examination of Pw3, the accused
counsel has suggested that police had seized his two
wheeler and when he went to the police station to get
release the said vehicle, the Investigating Officer had
obtained the statement relating to the present case and
thereafter released the said seized vehicle but the
witness had denied the said suggestion posed by the
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accused counsel. When the accused counsel has took
such a defence that the police had seized the two
wheeler of present witness and when he went to the
police station, the IO had took his statement relating to
the present case then burden lies upon the accused to
establish the said fact. The accused counsel except
posing the said suggestion has not established that the
police had seized the two wheeler of the present witness
and when he went to police station to get release said
two wheeler, the police had obtained the statement of
said witness relating to the present case. On careful
appreciation of entire oral evidence of Pw3 nothing has
been elicited that he was not present when the alleged
incident was took place and he had not witnessd the
said incident. Therefore there is no hurdle to accept the
evidence of said witness in order to conclude about the
alleged act of accused. No doubt there is some minor
discrepancy in his oral evidence but that does not lead
to disbelieve the entire version of said independent
33 CC9662/2019
witness. Therefore the evidence of PW3 also supports
case of the prosecution.
28. It is also allegation against the accused that
they not only abused the victim in filthy language and
also used the criminal force in the said place wherein
the orchestra was conducted but subsequently they
also came near to Jalahalli police station and abused
the police official in filthy language by saying that the
police have not allowing the accused no.2 to sell tea
near BEL bridge after 10.00 Pm and if the police would
obstruct to their act they will make protest by beating
drums and also will foist false case under Atrocity Act.
Further it is also the allegation against the accused that
the accused no.2 had made phone call to CW8 and gave
threat by saying that the police officials are not
performing their duty and gave threat by saying that
they will foist Atrocity case against the police and will
also conduct official enquiry. The burden lies upon the
34 CC9662/2019
prosecution to establish the said allegation made
against the accused.
29. The PW1 and PW 6 who are the victims in the
present case in their oral evidence has also deposed
about the alleged act of the accused which took place in
front of police station on said date. As it is discussed
above even though the accused counsel cross examined
CW1 & 6 in length but nothing has been elicited to
discard their evidence and to establish that there was
no such incident took place not only in the place
wherein the accused had conducted orchestra but also
in front of the police station. Further PW2 who is the
station house officer on said date also in his oral
evidence categorically deposed that the accused came
near to the police station and abused in filthy language
and thereafter the accused no.2 had made phone call to
CW8 and gave threat to the police officials. On perusal
of cross examination of this witness, the accused
counsel has elicited that the said incident which took
35 CC9662/2019
place in front of police station was not video graphed.
Even though the accused counsel is successful in
eliciting that the said incident was not video graphed
but that itself does not falsify the case of the
prosecution that the accused never came near to police
station and not committed the alleged act. Therefore the
evidence of PW2 also supports the case of the
prosecution that the accused came near to the police
station, abused the police officials in filthy language
and gave threat that they will foist false atrocity case
against the police officials and they will also conduct
protest by beating drums.
30. As it is discussed above it is the case of the
prosecution that the accused not only came near to the
police station and gave threat to the police officials but
the accused no.2 had made phone call to PW7(CW8)
and gave threat by saying that the police officials are
not performing their duty and he will file Atrocity case
against the police and will conduct protest in front of
36 CC9662/2019
police station. The PW7 who is the PSI in his oral
evidence has categorically deposed that on 24112018
at about 10.13 PM the accused no.2 made a phone call
from his mobile number 9742559912 and gave threat
by saying that they will file false Atrocity case against
the police officials. Again on same day at 10.20 PM the
accused no.2 again made phone call and talked in filthy
language against the police officials. The accused
counsel subjected the PW7 for cross examination and
made an attempt to elicit that the personal contact
number of the police officials will not be disclosed to
public but the witness has denied the said suggestion
and further deposed that they will give their personal
contact number to the public. Further the accused
counsel is successful in eliciting from PW7 that even
though the accused made phone call two times but the
PW7 had not informed the said fact to his higher
officials but the said admission itself not enough to
conclude that there was no such phone call made by
the accused. Further on perusal of the entire cross
37 CC9662/2019
examination of this witness, the accused counsel has
not denied that the said contact number stated by this
witness in his examination in chief does not belong to
accused no.2. In order to establish that the accused
no.2 made phone call to Cw7, the prosecution has also
produced the call details register obtained from DCP,
Bengaluru as per Ex.P5 and the relevant call entry in
the said Ex.P5 is mentioned as Ex.P5(a). On careful
perusal of the said Ex.P5(a), the PW7 had received 2
phone calls from aforesaid numbers at 10.30 PM and
10.26 Pm on said date of incident. The accused counsel
merely denied that the accused no.2 never made phone
call to Pw7 but mere denial is not enough to conclude
that the accused no.2 did not make any phone call to
PW7, when the Ex.P5 itself shows about the phone call
made by present accused no.2. As it is stated above the
accused never denied that the said contact number
does not belonged to him. The Ex.P5 coupled with the
oral evidence of the police officials establishes the
incident took place on said date and further establishes
38 CC9662/2019
that the accused not only obstructed the public duty of
the PW1 & 6 in the said place where the orchestra was
conducted and also gave criminal intimidation by
coming near to the police station by saying that they
will foist false Atrocity case against the police official
and will conduct protest by beating drums.
31. As it is discussed not only the police official
but the independent witness who is PW3 has also
deposed about the said act of the accused. There is no
any reason to file false case against the accused. Even
though the accused counsel has suggested to all the
official witnesses that the accused no.2 was doing
electric work in the police station but there is no
specific suggestion that why the case has been lodged
against the accused no.2 if he is an electrician and was
doing electric work in the police station. Mere
suggestion to the police officials that the accused no.2
is an electrician and he was doing electricity repair in
39 CC9662/2019
the police station that itself not enough to conclude that
the false case has been lodged against the accused.
32. As it is discussed above not only the police
officials have deposed the said act of the accused but
the independent witness also supported the case of the
prosecution. Therefore the said defence of the accused
that the accused no.2 was doing electricity repair works
in the police station and therefore false case has been
lodged against him is not sustainable mere suggestion
by the accused counsel is not enough to conclude that
the false case has been lodged against the accused no.2
when the material available on record otherwise
establishes the alleged act of the accused.
33. The counsel for accused has appointed out
there is delay in lodging the FIR and if there was such
an incident took place, the complainant who is PW1
might have lodged the complaint immediately but he
gave complaint at 6.00 AM on next day of alleged
40 CC9662/2019
incident and the said delay itself indicates that false
complaint has been lodged against the accused. On
perusal of Ex.P3 the complaint was lodged by the
complainant at 6.00 AM on the next day of said
incident. The accused counsel has cross examined the
complainant for delay in giving the complaint but the
PW1 has deposed that he went to the patrolling duty in
4th beat at 12.00 AM after alleged incident and therefore
he lodged complaint on next day of incident. He further
deposed that since PSI was not present in the station on
the said date during the incident, he could not lodge the
complaint. There is proper explanation by the victim
that he went to patrolling duty in 4th beat after the
alleged incident and therefore he could lodge the
complaint on said date of incident. When there is
explanation from the victim for delay in lodging the
complaint, entire case of the prosecution cannot be
doubted. Moreover there is no much delay in lodging
the complaint and after 8 hours of alleged incident the
complainant had lodged the complaint and there is
41 CC9662/2019
proper explanation by the victim to lodge the complaint
on next day of incident.
34. The Hon'ble Supreme Court of India in (2016)
4 Supreme Court Cases 604 Gajanana Dasarath
Kharate Vs.State of Maharashtra, it has been
categorically held that the prosecution case cannot be
doubted due to small delay between time of occurrence
and in registration of FIR when there is proper
explanation by the prosecution for such delay. It is also
held in (2020) 16 Supreme Court Cases 401 Palani
Vs.State of Tamilnadu held that short delay in lodging
the complaint and registration of FIR is not fatal to the
case of the prosecution when there is proper
explanation for such delay. The same principle has been
reiterated by Hon'ble Supreme Court in (2009)13
Supreme Court cases 34 Gurunath Donkappa Keri
and others Vs. State of Karnataka that when there is
adequate reasons for delay then the same cannot effect
the case of the prosecution. The principle laid down in
42 CC9662/2019
aforesaid rulings is aptly applicable to the facts and
circumstances of the present case and the PW1 has
properly explained short delay in lodging the complaint
and such delay does not falsify the entire case of the
prosecution. Therefore the said argument of counsel for
accused is not sustainable.
35. On careful evaluation of entire materials
available on record, the prosecution has successfully
established that the accused had used criminal force
against PW1 & 2 when they were doing their public duty
and due to the said act of the accused, there was
obstruction to the public duty of the said victims.
Further the prosecution has also established that the
accused gave criminal intimidation not only to the PW1
& 6 but they also gave threat by coming near to the
police station by saying that they will lodge false
Atrocity case against the police officials and will
conduct protest in front of police station by beating
drums. Therefore this court comes to the conclusion
43 CC9662/2019
that the prosecution has successfully proved all the
ingredients of section 353 & 506 of IPC beyond all
reasonable doubt. Even though the accused has denied
the entire case of the prosecution but nothing has been
elicited from the mouth of either the victims, eye
witnesses in order to conclude that there was no
occurrence of such incident and the false case has been
lodged against the accused. At the time of recording of
313 statement of the accused they barely denied all the
incriminating circumstances arised against them and
not offered any explanation that on which circumstance
the said incident was took place. Therefore this court
firmly comes to the conclusion that the prosecution has
successfully established that the accused have
committed the offence punishable u/s 353 & 506 r/w
34 of IPC beyond all reasonable doubt.
36. It is also the allegation against the accused
that they abused in filthy language to PW1 & 6 wherein
the accused conducted archestra and thereafter the
44 CC9662/2019
accused also came near to police station and further
abused the police officials in filthy language and thereby
committed the offence punishable u/s 504 of IPC. The
PW1 and 6 who are the victims and other police officials
who are the eye witnesses to the incident took place in
front of police station have deposed about the filthy
language used by the accused but in order to establish
the offence U/Sec 504 of IPC, there must be not only
intentional insult to a person but such intentional
insult caused provocation to the victim to break the
public peace or to commit any other offence. In the
present case the victims and other police officials have
deposed that the accused abused them in filthy
language but the said version of the victim does not
fulfill the other part of section 504 of IPC which speaks
about provocation to the victim to break the public
peace or to commit any other offence. Therefore the
prosecution has failed to establish that the accused
have committed the offence punishable u/s 504 of IPC.
45 CC9662/2019
Hence for the said reason this court answers point no.1
in Negative and Point no.2 & 3 in affirmative.
37. POINT No.4: In view of discussion held on
above points, this court proceeds to pass the following:
:: ORDER ::
In Exercise of powers conferred u/s
248(2) of Cr.P.C, the accused no.1 & 2 are
found guilty for the offence punishable u/s
353, 506 r/w 34 of IPC.
In Exercise of powers conferred u/s
248(1) of Cr.P.C the accused no.1 & 2 are
acquitted for the offence u/s 504 of IPC.
The bail bond of the accused and their
surety shall stand canceled
(Dictated to the stenographer, transcribed and typed by her
and corrected by me and then pronounced in open Court on
this the 15th day of March, 2022)
(Sandesh Prabhu B.)
XXXIX ACMM, Bengaluru
46 CC9662/2019
HEAR ON SENTENCE
The convicts by name Vinay and Srinivas and their
counsel present.
Heard the arguments of counsel for convicts and
learned prosecution about sentence. Perused records.
The learned counsel for convicts has submitted
that they are innocent of the alleged offence and they
are only the bread earner of their family. It is further
submitted that the accused had no antecedents of
commission of any offence. It is further submitted that
the accused may be released on Probation of Offenders
Act.
Per contra the learned prosecution has opposed
the aforesaid submission of the counsel for convicts and
submitted that the accused had committed the said act
against the public servants and therefore maximum
punishment to be awarded to the convicts, so that the
deterrent message to be sent to the society and like
minded people to be discouraged from entering into
criminal activities.
This court has considered the applicability of
section 3 & 4 of Probation of Offenders Act and also
section 360 of IPC to the convict by keeping in mind of
47 CC9662/2019
object and purpose of said act. The accused are
committed the act against public servants who got the
responsibility of maintaining law and order in the
society. The accused had committed the said act
against the police officials itself. If the accused are
released on provision of Offender Act, the wrong
message will go to society and by considering the nature
of the act committed by the accused, this court is not
inclined to extend the benefit of section 3 & 4 of
Provision of Offenders Act to the convicts.
The aggravating circumstance of the case is that
the accused no.1 & 2 had committed the act against the
public servants who got great responsibility to maintain
law and order in the society. By considering the nature
of the offence and act committed by the accused, the
punishment must be just in all circumstances having
regard to the fact that convicted must be sentenced
according to law and the need to deter others who might
be like minded for committing similar offences. The
primary sentencing consideration is punishment,
deterrence both personal and general, denunciation of
the conduct and promotion of respect for the rule of
law.
The convicts are found guilty for the offences
punishable u/s 353 of IPC. The punishment for the
offence punishable u/s 353 of IPC is imprisonment of
48 CC9662/2019
either description for term which may extend to 2 years
or with fine or with both. By considering the present
age of the accused no.1 & 2 and they being the first
offender to the said offence, considering the nature of
the offence and circumstances of the case, it is proper
to impose 6 months simple imprisonment and with fine
of Rs.2,500/ each.
Similarly the accused are also found guilty for the
offence punishable u/s 506 of IPC which is punishable
with imprisonment for either description for a term
which may extend to 2 years or with fine or with both.
The accused in the present case not only used criminal
force against public servant and also gave criminal
intimidation of foisting false case against police officials.
By considering the facts and circumstances of the case,
it is proper to impose 6 months simple imprisonment
and with fine of Rs.2,500/ each for the offence
punishable u/s 506 of IPC. Considering all the pros and
cons, lenient sentence of simple imprisonment as
stated above with fine will suffice the ends of justice.
Hence this court proceed to pass the following
ORDER
By exercising powers u/s 248(2) of Cr.P.C convicts no.1 & 2 are hereby sentenced as follows.
For the offence punishable u/s 353 of IPC convicts no.1 & 2 are sentenced to undergo simple imprisonment 49 CC9662/2019 for 6 months and with fine of Rs.2,500/ each. In default to pay the fine amount, the convicts shall undergo simple imprisonment for 1 month.
For the offence punishable u/s 506 of IPC the convicts no.1 & 2 are sentenced to undergo simple imprisonment for 6 months and with fine of Rs.2,500/ each. In default to pay the fine amount the convicts shall undergo simple imprisonment for 1 month.
The total fine amount of Rs.10,000/ shall be remitted to the State Exchequer after recovery from the convicts.
The substantial sentence of imprisonment of convicts shall run concurrently.
Let a copy of judgement to be given to the convicts immediately free of cost as per sec. 363(1) of Cr.P.C. The convicted persons are also informed about their right of appeal against judgement.
(Sandesh Prabhu B.) XXXIX ACMM, Bengaluru 50 CC9662/2019 ANNEXURE
1. Witnesses examined on behalf of Prosecution PW1 : Vijay.H.S, S/o Purushotham PW2 : Ramesh, S/o late Siddegowda Pw3 : Manjegowda, S/o Appanngegowda Pw4 : Swaminath, S/o Krishnamurthy PW5 : Selvam Prabhu, S/o Ramesh Babu PW6 : Gangaraju, S/o Ramanna PW7 : Lepakshamurthy, S/o Gangaswami
2. Documents exhibited on behalf of Prosecution Ex.P.1 : Requisition Ex.P1(a) : Signature of PW1 Ex.P2 : Spot Mahazar Ex.P2(a) : Signature of PW1 Ex.P2b : Signature of PW7 Ex.P2(c) : Signature of PW5 Ex.P3 : FIR Ex.P3(a) : Signature of PW7 Ex.P4 : Station dairy Ex.P4(a) : Portion of duty report Ex.P5 : Call register Ex.P5(a) : Portion of call register
3. Material objects exhibited on behalf of prosecution Nil 51 CC9662/2019
4. List of witnesses and documents on Defense side Nil (Sandesh Prabhu B.) XXXIX ACMM, Bengaluru