Bangalore District Court
Parappana Agrahara Police Station vs Harish Kulal on 2 February, 2024
1
KABC030655292022
Digitally signed
by R MAHESHA
R Date:
MAHESHA 2024.02.06
17:28:32 +0530
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU.
Dated this the 2 nd day of February 2024
Present : Sri.R.Mahesha.
B.A.L., LL.B.,
IX Addl.C.M.M., Bengaluru.
JUDGMENT
1.C.C.No. 26275/2022
2.Date of offence 22.02.2022
3.Complainant State by Parappana
Agrahara Police Station
4.Accused 1. Harish Kulal
S/o Raj mulya,
Aged about 30 years,
Kattadabailu House,
Maladi Mane
Padukonaj Grama & post,
2
Mangaluru Taluk,
Dakshina kannada District. (in JC)
2. Dinesh Kulal
S/o Raj mulya,
Aged about 35 years,
Malle's compund house,
Modabidare,
Alengar post,
Mangaluru.
5. Offences U/Sec. 224-225 of IPC and Sec.58 of
complained of Karnataka Prisons Act - 2022.
6.Plea Accused No. 1 & 2 pleaded not
guilty.
7.Final Order Accused No.1 & 2 acquitted.
8.Date of Order 02-02-2023.
The Police Sub-Inspector of Parappana Agrahara Police
Station, Bengaluru has filed this charge sheet against the accused No.1 to 5 for the offences punishable U/Sec. 224-225 of IPC and Sec.58 of Karnataka Prisons Act - 2022. 3
2. The brief facts of the prosecution case are that, the accused No.1 convicted accused in CTP NO.8541 and he served sentence in Central Prison, Parappana agrahara, Bengaluru. That on 22.02.2022 the accused No.1 got released on parole leave upon the surety of accused No.2 for a period of 30 days. After completion of 30 days parole leave, the accused NO.1 Further, extended 60 days parole leave on the ground of ill health of his father. The accused No.1 should needs to surrender before Jail officers on 08.07.2022. After that, accused No.1 has not surrender before prison officers and he became absconding Therefore, CW.1 being chief superintendent of Central Prison, Parappana Agrahara has lodged this FIS. The Station House Officer registered a case in Cr No.248/2022 for the offences punishable U/Sec. 224-225 of IPC and Sec.58 of Karnataka Prisons Act - 2022 and submitted First Information Report to this Court. After investigation, Police Inspector of Parappana Agrahara Police 4 Station filed charge sheet for the said offences punishable U/Sec. 224-225 of IPC and Sec.58 of Karnataka Prisons Act - 2022 against the accused No.1& 2. Hence, they have committed the alleged offences.
3. Accused No.1 is in judicial custody. On receipt of charge sheet, this court took the cognizance of the alleged offences and furnished copy of the prosecution papers to the accused person. After hearing on charge, this Court has framed charge for the offences punishable U/Sec. 224-225 of IPC and Sec.58 of Karnataka Prisons Act - 2022 for which accused No.2 pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove its case, has examined 10 witnesses as PW.1 to PW.5 and got documents marked documents at Ex.P.1 to Ex.P.6 and closed the side of the prosecution evidence, and Statements u/Sec.313 of 5 Cr.P.C. recorded, read over and explained in the vernacular language of the accused No.2, wherein accused person has denied the incriminating circumstances appeared against him as false and did not choose to lead defence evidence. As such, the matter was posted for arguments.
5. I have heard the arguments on both sides.
6. The points that arise for my consideration are as under:
(1) Whether the prosecution proves beyond reasonable doubt that on the accused No.1 convicted accused in CTP NO.8541 and he served sentence in Central Prison, Parappana Agrahara, Bengaluru. That on 22.02.2022 the accused No.1 got released on parole leave upon the surety of accused No.2 for a period of 30 days. After completion of 30 days parole leave, the accused NO.1 Further, extended 60 days parole leave on the ground of ill health of his father and he is not returned within 90 days, thereby committed an offences punishable U/Sec.
224-225 of IPC and Sec.58 of Karnataka Prisons Act ? (2) What order ?
6
7. My findings to the above points are as under:
Point No.1 : In the Negative, Point No.2 : As per final order, for the following :
REASONS
8. Point No.1 :- It is well settled that in a criminal case the entire burden of proof rests upon the prosecution and the accused need to prove nothing. Suffice for the accused to create doubt about the case of the prosecution and the reliability of the witnesses for the prosecution.
9. The main allegation of the prosecution is that, the prosecution has been examined CW.1 as PW.1, he being chief superintendent Central Prison Parappana Agrahara, is specifically testified before this court that, that on 22.02.2022 the accused No.1 being convicted prisoner bearing CTP NO.8541 he filed parole leave application due to unwell of his father for a period of 30 days. The said 7 application sent to police commissioner Mangalore for scrutiny and report. Further, testified that, on 21.03.2022, the police Commissioner, Mangalore has made recommendation to grant parole leave to accused No.1. accordingly , the prison authority took surety i.e., brother of accused No.1 i.e., accused No.2 and got released accused No.1 on parole leave for a period of 30 days and same has reported to director general prison, Bengaluru. Further, he testified before this court that, on 08.04.2022, accused No.1released from prison after completion of legal formalities. Further, he testified that, the accused No.1 filed request letter and extended parole leave for a period of 90 days. The accused No.1 needs to surrender before prison officer s on or before 08.07.2022, but accused No.1not surrender before prison authority. Therefore, he lodged FIS against accused No.1 & 2. he identified Ex.P.1 and he bears signature. Further, he testified before this court he provided all 8 relevant documents pertains to accused No.1 and2 before Police Officers. He identified Ex.P.2 and accused No.1 & 2. He has been subjected cross examination by accused. It is elicited that, the accused No.1 should return to prison on or before 08.07.2022. But, he expressed his inability to say the suggestion made by accused that, the accused No.1 intimated in writing and over phone he will be returned to prison before 08.07.022. Further, he denied suggestion of accused on 09.07.2022 at about 10.am accused No1 & 2 have appeared before prison officers and he denied other material suggestion made by accused counsel during course of cross examination.
10. The prosecution has been examined CW.2 as PW.2. He being chief warden in central prison Parappana Agrahara , He specifically deposed on oath before this Court that, on 09.07.2022, as per the oral order passed by CW.1 9 he went to Parappana Agrahara Police Station and gave written complaint which is given by CW.1 to Police Officers and he identified Ex.P.1. he has been subjected cross examination in the cross examination he clearly admitted that, Ex.P.1 gave by CW.1 at about 1 p.,m and he went to Police Station at about 1.15 p.m., the Police Officers have registered his FIS at about 1.30 p.m., Further, he admitted that, at the time of giving Ex.P.1 accused No.1 is in Police Station and he denied suggestion of accused at the time of giving Ex.P.1 accused No.2 is also in Police Station of Parappanga Agrahara Police Station. Further, he admitted that, he took FIR at about 2 p.m.,
11. the prosecution has been examined CW.6 as PW.3 he being Police Officer and Investigation Officer of this case he testified before this court that, that on 09.07.022 when was station house duty CW.2 came and gave written 10 complaint given by CW.2 verified registered criminal case against accused persons. He prepared fir and Original copy of fir submitted before jurisdictional trial court and copy of fir forwarded to his Senior Police Officers and same day, he recorded statement of CW.2 Further, he deposed before the court that, on same day, he deputed CW.3 to trace accused No.2. after that, CW.3 produced accused no.2 and he arrested accused No.2 and followed directions of Hon'ble Apex Court and he received report from CW.3. Further, he testified before this court that, he deputed CW.4 & 5 and issued memo to trace accused No.1. Further, he deposed before the court that, he produced accused No.2 before this court through his staff. Further, he handed over this case to CW.7 for Further, investigation. He identified accused No.2 he has been subjected cross examination . In the cross examination he clearly admitted that, the accused No.2 caught by CW.3 at Parappana 11 Agrahara. The accused No.2 native place is Moodabidare, Dakshina Kannada District and he denied other suggestions made by accused.
12. The prosecution has been examined Cw.4 as PW.4, CW.5 as PW.5. They being Police Officers they specifically deposed on oath before this Court that,on 09.07.022, CW.6 has issued memo and directed to trace accused No.1. accordingly the both witnesses are leave Bengaluru to Mangalore. Further, they testified that, on 10.07.022, they esquired about accused No.1 in his native place and they got credible information the accused No.1 stood near venur bus stop Therefore, they proceeded and caught accused No.1 and produce before CW.6 and gave report as per Ex.P.6 , both have been subjected cross examination by accused in their cross examination , it is elicited CW.6 has not furnished accused No.1 identifications they mention in 12 station house dairy regarding going to Mangalore after caught accused No.1 they informed Venur Police Station the arrest of accused No.1 informed to his father and both have denied other material suggestions made by accused counsel.
13. On perusal of oral and documentary evidence it appears that the accused No.1 convicted in SC No.99/2011 by Hon'ble District and Sessions Judge, DK District. In view of the order passed by Hon'ble 6th Addl. District and Sessions court Dakshina Kannada District, Mangalore, the accused No.1 has been served sentence in central prison Parappana Agrahara, Bengaluru. Admittedly, accused No.1 has made request before CW.1 for 30 days parole leave . On 08.04.2022 after recommendation and report submitted by commissioner of police Mangalore city, DK district, Mangalore. The accused No.1 got parole leave of 30 days Further, it can seen from 13 prosecution papers it appears that, the accused No.2 stood as surety for accused No.1 for said parole leave. The accused No.2 executed bond on deposited security bond of Rs. 1,000/- on 25.03.2022. both accused No.1 & 2 have gave responsible statement to before chief superintendent central prison Parappana Agrahara on 25.03.2022. Further, it appears from prosecution papers from 07.04.2022 till 07.07.2022 i.e., on 07.05.2022 and 07.06.2022, 60 days parole leave extended by director of police presence and reforming service, Karnataka State. So as per above stated order, accused No.1 got parole leave of 90 days from 07.04.2022 till 07.07.2022. So, as per prosecution papers, accused no.1 and 2 are not surrender voluntarily after expire of parole leave. The accused No.1 should surrender on 08.07.2022. But, accused No.1 not yet surrender before prison authority on 08.07.2022. Further, it is the case of prosecution that, on 09.07.2022 CW.1 lodged Ex.P.1 14 through CW.2 and case has been registered against accused No.1 & 2 in crime no.248/2022 for the offence punishable under section 224,, 225 of ipc and section 58 of Karnataka prisons (Amendment Act 2022 ). Further, it is case of prosecution is that, after case registered against accused No.1 & 2 . CW.6 has deputed CW.3 to trace accused No.1 and CW.6 deputed CW.4 & 5 for trace accused No.1 and CW.2 to 4 traced accused NO.1 & 2 and produced before CW.6 . Further, it is specific case of prosecution CW.3 caught accused No.2 at Parappana Agrahara and CW.4 & 5 caught accused No.3 at Venur bus stop, DK District, Mangalore. In order to bring on the guilt of the accused, the prosecution has examined CW.1, 2, 4 to 6 are examined as PW.1 to 5 and documents are marked as Ex.P.1 to Ex.P.6, this court meticulously appreciate the oral evidence of prosecution witnesses it appears that, PW.3 clearly admitted in his cross examination accused No.2 caught by 15 CW.3 at Parappana Agrahara. Further, it is reveals from record that, accused No.2 is a permanent resident of Mudabidare DK District, Mandgalore. PW.3 denied the suggestion of accused No.2 came to Bengaluru for surrender before prison officers on 08.07.2022 , but CW.1 lodged this FIS due to mistake of fact. Further, it is relevant to note that, CW.2 is the jail official and FIS has been forwarded through this witness to CW.6 he specifically admitted in his cross examination at the time of registered case i.e., at about 1.30 p.m., on 09.07.2022 the accused No.2 kept in police lockup. So from this admission of PW.2 and suggestion made by accused to PW.3 it clears that, the accused No.2 came for Bengaluru for surrender before prison authority after completion of 90 days parole leave of accused No.1 i.e., on 08.07.2022 though, CW.1 accused 2 kept in Police Station and lodged this FIS against accused No.1 & 2. Further, it is relevant to note that, before lodging FIS accused No.2 is in 16 custody of police officers Parappana Agrahara Police. So from the version of PW.3 and CW.3 is appears that, it is a created story by the police officers accused No.2 arrested after lodging fir and CW.3 arrested accused No.2 at Parappana Agrahara. Further, it is relevant to note that, CW. 6 deputed CW. 4 & 5 for trace of accused no.1 accordingly they went to Mangalore and collected information about accused No.1 and finally they got information accused No.1 stood near Venur bus stand and caught and produced before CW.6. Further, it is relevant to note that, in the cross examination of PW.4 & 5, they specifically admitted that, they have not get photo of accused No.1 and any identifications from CW.6 and they have not produced any documents to show they went to Mangalore. If Police Officer leave is Police Station jurisdiction for investigation purpose he should be obtained passport from his higher officers but in the instant case the prosecution has not produced any document s to show the 17 CW.4 & 5 are went to Mangalore and caught accused No.1 at Venur bus stand and produced before CW.6. so from this admissions of PW.4 & 5 it clears that, it is the clear case of creation by the police as well as prison officers. Further, it is relevant to note that, CW.3 and 7 are material witnesses to the case of prosecution but they are not stepped into witness box. Despite issued summons , witness warrant and proclamation against CW.3 & 7 they are not turned before this court. Therefore, they are dropped out on 13.03.2023. so non examination of above witnesses are not fatal to the case of prosecution . Further, the evidence of PW.1 to 5 has many contradictions improvements and its creates serious doubt regarding the case of prosecution. Therefore, this court clearly came to conclusion that, the prosecution has failed to prove guilt of accused n.1 & 2 beyond all reasonable doubts. Therefore, I am of the opinion that the prosecution has failed to prove charges leveled against the 18 accused No.2 beyond reasonable doubt. Accordingly, I answer Point No.1 in the negative.
14. Point No.2: For the aforesaid reasons, I proceed to pass the following:
ORDER Acting under Section 248(1) of Cr.P.C. accused No.1 & No.2 are hereby acquitted of the offences punishable U/Sec. 224-225 of IPC and Sec.58 of Karnataka Prisons Act - 2022.
The bail bond and surety bond executed by accused No.1 & 2 shall continue for a period of two months from the date of this order and thereafter same shall stands canceled automatically.
(Dictated to the stenographer directly on computer, corrected directly on computer and then pronounced by me in open court on this the 2 nd day of February 2024).
(R.Mahesha) IX Addl.Chief Metropolitan Magistrate, Bengaluru.19
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
PW.1 : P.S.Ramesh PW.2 : Rajesh.T PW.3 : Mehaboob Guddalli PW.4 : Jayaram PW.5 : Keshavamurthy LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION: Ex.P.1 : Complaint Ex.P.2 : Panchanama Ex.P.3 : FIR Ex.P.4 & 6 : Reports Ex.P.5 : Memo Ex.P.7 to 9 : Documents.
List of witnesses examined on behalf of the defence:
NIL List of documents marked on behalf of the defence:
NIL List of materials marked on behalf of the defence:
NIL.
IX ADDL.C.M.M. Bengaluru.20
Judgment pronounced in the open court (Vide separate order) ORDER Acting under Section 248(1) of Cr.P.C. accused No.1 & No.2 are hereby acquitted of the offences punishable U/Sec. 224-225 of IPC and Sec.58 of Karnataka Prisons Act - 2022. The bail bond and surety bond executed by accused No.1 & 2 shall continue for a period of two months from the date of this order and thereafter same shall stands canceled automatically.
IX ADDL.C.M.M. Bengaluru.