Bangalore District Court
State By Police Sub-Inspector vs Govindraju on 14 June, 2017
IN THE COURT OF LVI ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE
PRESENT: SRI.HATTIKAL PRABHU.S.
M.A.,LL.B(Spl) LL.M.,
DATED THIS THE 14th DAY OF JUNE, 2017
C.C.No. 42337/2010
Complainant State by Police Sub-Inspector,
R.T.Nagar police station.
-Vs-
Accused Govindraju,
S/o.Late.Narayanappa,
Aged about 52 years,
R/At.No.101, 1st floor, Divyashree
Apartments, Devegowda road,
R.T.Nagar, Bangalore.
(Accused no.1 to 5 & 7 pleaded guilty
and are convicted.
Name and address of accused no.6
not mentioned)
Date of commission of
offence 28.03.2010
Name of the informant C.W.Poovaiah
of crime
Offence complained of U/Sec.171(E) IPC r/w.
Sec. 123 of R.P.Act
Date of arrest of
accused -
Date of release of
accused -
2 C.C. No.42337/2010
Commencement of
recording of evidence 29.05.2017
Closure of recording of 29.05.2017
evidence
State represented by Sr.Asst.Public Prosecutor
Accused represented by Sri.Narayanaswamy-Adv.,
Plea of the accused and Pleaded not guilty
his examination
Final Order/Opinion of Acquitted for the offence
the Judge U/Sec. 171(E) IPC r/w.
Sec. 123 of R.P.Act
JUDGMENT
(U/Sec.355 of Cr.P.C) This is a charge sheet submitted by the Police Sub- Inspector of R.T.Nagar Police station for the offence punishable U/Sec. 171(E) IPC r/w. Sec. 123 of R.P.Act against the accused no.8 in Cr.No.135/2010.
2. The brief facts of the case of the prosecution runs thus:
2(a). Accused no.8 being the Congress Party candidate of BBMP election to the area of Chamrajendra Nagar, Ward No.46, on 28.03.2010 along with accused 3 C.C. No.42337/2010 no.6 and 7 offered sarees to the ladies in order to obtain votes and accused no.8 sent accused no.1 to distribute the sarees to the house of C.W.1 and on that day at about 10.30 P.M, when C.W.12 to 13 conducted raid, accused no.1 to 5 were found in possession of 62 sarees worth Rs.18,600 and they were distributing sarees by violating the conduct rules and thereby committed an offence punishable U/Sec.171(E) of IPC r/w 123 of R.P.Act.
3. After submitting charge sheet, cognizance of the alleged offence is taken and criminal case against accused no.8 came to be registered. Accused no.8 is on bail and he is represented by his counsel.
4. Charge sheet copy furnished to the accused by complying with Sec.207 Cr.P.C. After hearing before charge, since there are good and sufficient grounds to proceed further charge was framed for the offences punishable U/Sec.171(E) of IPC r/w 123 of R.P.Act and read over to the accused. Accused pleaded not guilty. 4 C.C. No.42337/2010 Hence matter is posted for recording evidence on behalf of prosecution.
5. On behalf of prosecution, evidence of P.W. 1 to 3 is adduced and documents Ex.P.1 and 2 are got marked. Prosecution evidence is closed.
6. After closure of prosecution evidence, statement of accused as contemplated U/Sec. 313 of Cr.P.C is recorded. All the incriminating circumstances found against accused in the evidence is read over and explained to the accused, the accused denied the same as false. Accused did not choose to adduce evidence on his behalf.
7. Heard the arguments.
8. Now the point that would arise for the determination of the Court is:
1. Whether the prosecution proves the alleged guilt of the accused U/Sec.171(E) of IPC r/w 123 of R.P.Act beyond all reasonable doubt?
My finding on the above point is in the Negative for the following.....
5 C.C. No.42337/2010
REASONS
9. Point No.1: On behalf of prosecution in order to establish its case, C.W.2 one Sridhar Prasad examined as P.W.1 claiming to be eye witness as well as mahazar witness. This witness deposed that about 7 years back the accused no.8 was contesting in the Corporation Elections and during the elections on one day in Mothi Nagar main road accused no.8 was distributing sarees to the women in that area. Further he deposed that police conducted mahazar and he put his signature, the mahazar is marked as Ex.P.1 and his signature is marked as Ex.P.1(a).
10. C.W.3 one Mahesh Kumar is examined as P.W.2 and this witness also deposed that about 6 years back on behalf of accused no.8, who was contesting for the BBMP elections , distributing saree to the neighbors and further he deposed that after receiving information he rushed to the said place at Mothi Nagar and thereafter police entered into the house in the presence of 2-3 mahazar witnesses, including himself. Further he 6 C.C. No.42337/2010 deposed that police recorded video and they found 2000- 3000 sarees inside the house. Further he deposed that police seized the said sarees under Ex.P.1-Mahazar. Further he deposed that he cannot identify the sarees since time is elapsed.
11. C.W.5 one Chandrashekar examined as P.W.3 claiming to be eye witness to the distribution of sarees by accused no.8. This witness turned hostile to the case of prosecution. In the lengthy cross examination made by Sr.Asst.Public Prosecutor, nothing has been elicited from his mouth to support the case of prosecution.
12. The prosecution failed to secure other witnesses, repeatedly NBW was issued against said witnesses. NBW and proclamation was issued against C.W.1 and 4. After giving sufficient opportunities and considering the period of pendency, as per order dated 30.05.2017 this court recorded that the prosecution evidence is closed. Prayer of Learned Sr.Asst.Public Prosecutor to reissue process to other witnesses came to be rejected. 7 C.C. No.42337/2010
13. In the decision reported in ILR 2000 Kar 900 (State of Kar v/s Lakshmappa & Others) Double bench of Hon'ble High Court of Karnataka held as under:-
"Prosecution not producing injured witnesses even though non-bailable warrants had been issued- case ended in acquittal. In appeal by the State the High Court refused to reopen the case observing that opportunity to lead evidence will be given to the prosecution only once".
The law laid down in the said decision is aptly applicable to the present case on hand.
14. During course of arguments, learned Sr.Asst.Public Prosecutor submitted that the evidence of P.W.1 and 2 is sufficient to establish that accused no.8 was contesting in the BBMP elections and accused no.8 was distributing sarees to the voters and thereby committed the alleged offences.
15. On the other hand, Learned Counsel for accused vehemently argued that accused not at all distributed 8 C.C. No.42337/2010 sarees to the voters as alleged by the prosecution and the evidence available on record is not sufficient to establish the guilt of the accused. Further he vehemently argued that opposite political party instigated the concerned police to lodge false case against accused no.8 by creating the false witness who are interested witness.
16 . In the background of the defence of accused the material question which arises before this court is whether the evidence placed on record is sufficient and satisfactory to establish the guilt of the accused no.8. In this background I carefully scrutinized the material available on record.
17. The P.W.1 and 2 deposed supporting the case of prosecution, in the chief examination both the witnesses explained the occurrence of incident in the cross examination, absolutely contrary to the say of each other. According to P.W.1 the accused no.8 himself was distributing sarees to women in that area. According to 9 C.C. No.42337/2010 the say of P.W.2 on behalf of the accused no.8 some other persons were distributing sarees. According to P.W.2 they entered the house and found 2000-3000 sarees and same are seized by police under Ex.P.1 mahazar. But according to the case of prosecution, 62 sarees were recovered from the possession of the accused no.1 to 5. This material fact is not deposed/explained by P.W.1 and 2. Apart from that the court observed that the P.W.1 is the member of BJP political party and accused no.8 belongs to Congress political party. P.W.1 explained that police recovered the sarees from one lady in MothiNagar, but he deposed that he does not know her name. Further he deposed that when the lady was downloading the sarees from the car, the police seized the sarees. Further he deposed that accused no.8 was in the said car.
18. It is the case of the prosecution that P.W.1 and 2 received information about distributing sarees by accused no.8 and thereafter they rushed to the spot. It is also the case of the prosecution that after receiving 10 C.C. No.42337/2010 information police rushed to the spot. But as per the say of P.W.2 when a lady was downloading the sarees from the car, police seized the sarees.
19. Further it is explained that C.W.4 one Ganesh Rao was also contesting in the same elections and in the same ward i.e, against accused no.8. P.W.2 in the cross examination deposed that accused no.8 was present on the spot and they did not see accused no.8 on the spot.
20. As I have above mentioned, the P.W.3 turned hostile to the case of the prosecution and his evidence is not helpful to the case of prosecution.
21. As I have above mentioned the evidence available on record is not free from material contradictions. The prosecution failed to secure other prime witnesses like informant of crime and Investigating Officer etc.,
22. For the reasons discussed above, this court comes to the conclusion it is not safe and proper to rely on the 11 C.C. No.42337/2010 evidence of P.W.1 and 2. Since same is not trustworthy to act upon. With these observations, this court held that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt. Accordingly I answer point no.1 in the Negative and I proceed to pass the following....
ORDER
Acting U/Sec.248(1) of Cr.P.C., I
hereby acquit accused no.8 for the
offences punishable U/Sec.171(E) IPC r/w. Sec. 123 of R.P.Act .
Accused is set at liberty forthwith. The bail bond of accused and surety bond stands cancelled.
The sarees seized in this case are ordered to be confiscated to the State, after lapse of appeal period.
.
12 C.C. No.42337/2010
The accused is directed to execute personal bond for sum of Rs.10,000/-, for his appearance before appellate Court, if necessary.
(Dictated to the Stenographer, transcribed and typed by her on computer and after corrections made by me and then pronounced by me in the Open Court on this the 14th day of June 2017.
(HATTIKAL PRABHU.S) LVI ADDL. C.M.M,BANGALORE ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE PROSECUTION P.W.1: Sridhar Prasad P.W.2: Mahesh Kumar P.W.3: Chandrashekar
2. LIST OF THE DOCUMENTS MARKED FOR THE PROSECUTION Ex.P.1 : Mahazar Ex.P.1(a) : Signature of P.W.1 Ex.P.1(b) : Signature of P.W.2 Ex.P. 2 : statement of PW.3
3. LIST OF THE WITNESS EXAMINED AND DOCUMENTS MARKED FOR THE DEFENCE-
NIL
4. LIST OF THE MATERIAL OBJECTS MARKED FOR THE PROSECUTION-
(HATTIKAL PRABHU.S) LVI ADDL. C.M.M,BANGALORE 13 C.C. No.42337/2010