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2011 DIGILAW 134 (KAR)

Mohanchandra v. P. Mohammed

2011-02-02

B.V.PINTO

body2011
JUDGMENT B.V. PINTO, J.—This appeal is filed by the complainant, before the Trial Court challenging the judgment dated 5-7-2004 passed by the Prl. Sessions Judge D.K. Mangalore in S.C. No. 94/97 acquitting the accused of the offences under Sections 443, 452, 323, 364A, 307 and 508 read with 34 IPC. 2. It is the ease of the complainant that himself and his brother Subhash Chandra are the residents of Panjigar in Kalanga village, Sullia Taluk. P.W. 3 Sarojini is their mother. They are living alongwith their family. A5 is the younger brother of the father of the complainant. There was division of the property between the father of the complainant and A5. However, there was dispute regarding 1.32 acres of land in Survey No. 112/4 between two brothers in respect of water channel. On 10.11.1994, A5 filed the complaint before Bellare Police Out Post Sulia, alleging that the complainant and his family members were obstructed pathway on 9.11.1994 at about 5 p.m. and had put stones on the water channel and when they went to enquire about it, the complainant and his family members abused and threatened A5 and his family members. On the basis of the said complaint, Accused No. 1 ASI and A2 to A4 being police constables went near the house of the complainant and they were summoned to the Police Station In the Police Station, it is the case of the complainant that they were beaten by the police and were ill-treated by them and were assaulted with lathis causing grievous hurt; and ultimately subjected them to torture in Bellare Police Out Post and thereby they are alleged to have committed an offence under Sections 448, 323, 367, 307, 506 read with 34 IPC. 3. The learned Sessions Judge has further framed charge for offence under Sections 452 and 366A read with 34 IPC alleging that the accused had made preparations to commit house trespass by entering into the dwelling house and thereafter they were kept in the Police Station and were tortured both physically and mentally, thereby they are alleged to have committed an offence under Section 452 and 366A read with 34 IPC. 4. The local police having failed to accept the complaint of the appellant herein, he filed a private complaint before the Trial Court at Sullia on 21.6.1995 alleging the aforesaid offences against the accused persons. 4. The local police having failed to accept the complaint of the appellant herein, he filed a private complaint before the Trial Court at Sullia on 21.6.1995 alleging the aforesaid offences against the accused persons. Subsequently, the learned Magistrate was pleased to take cognizance of the offences mentioned above and since the offence under Section 307 IPC was exclusively triable by the Court of Sessions, the entire case was committed to the Court of Sessions. Dakshina Kannada, Mangalore for trial in accordance with law. After receipt of records by the Sessions Court, the case in S.C. No. 94/1997 was registered whereafter the accused were secured before the Sessions Court. After hearing on the charges, the aforesaid charges were framed against the accused and when they pleaded not guilty, the complainant got examined himself as P.W. 1 and also examined P.Ws. 2 to 4. The defence of the accused was one of total denial. However, after hearing the prosecution, the complainant and the defence, the learned Sessions Judge held that though one cannot deny that there was some illegality by the officials, in the present case, the Police officials have acted under colour of duty and were protected under Section 170 of the Karnataka Police Act and, therefore, sanction to prosecute the Police officers was necessary for taking any action against the accused. In the absence of sanction to prosecute the Police officers, the trial Court has passed the order of acquittal. The complainant challenging the order of acquittal has filed this appeal. 5. Heard Sri Arun Sham, for M/s. Dharmashree Assts. the learned counsel for the appellant and Sri Nishii Shetty, for Sri S. Vishwajith shetty, the learned counsel for the respondents-accused. 6. The learned counsel for the appellant submits that in this case, the learned Sessions Judge has found that the accused have assaulted the complainant and his brother and also have caused injuries on their person. The accused being police officers, it is not part of their duty to commit an offence and, therefore, any action under which the offence is committed cannot be held to be a duty and the accused cannot take the protection of sanction as provided under Section 170 of the Karnataka Police Act. So far as the evidence of P.W. 4 Dr. M.R. Mallya and the wound certificate Ex. So far as the evidence of P.W. 4 Dr. M.R. Mallya and the wound certificate Ex. P3 produced in this case clearly indicates that the complainant has sustained injuries on his person and the evidence of P.Ws. 1 to 3 clearly establish that the accused are cause of such injuries. There was no case registered against the complainant or his brother which could legalise the act of the accused of dragging the complainant and his brother to the Police Station subjecting them to ill-treatment and assaulting, insulting and threatening them. He, therefore, submits that the accused may be convicted of the offence for which they are charged. 7. The learned counsel for the respondents/accused submits that there is age old enmity between the complainant and A5 regarding the property dispute and that the complainant has been successful in dragging the accused to the Court by means of private complaint for the last 16 years. He further submits that there are no independent witnesses examined by the complainant to support his case and that in order to harass the accused who are police officers and to discourage them to perform their duties, the complainant has resorted to this complaint. Since there is no material to hold that the appellants have committed the offence, he submits that the order of acquittal may be sustained and the appeal may be dismissed. 8. The proceedings in this was commenced on 20.6.1995 when the complainant, filed a private complaint before the Munsiff and JMFC, Sullia, alleging that, the criminal act against, the accused persons. A1 is the ASI, Bellare Police Station, A2 to A4 are constables at the said police station. A5 is paternal uncle of the complainant. It is stated in the complaint that, on 10.11.1984 at about 1 p.m., when the complainant and his brother were making preparations for their respective examination, being at home, A1 to A3 came inside the house armed with weapons. A1 suddenly assaulted the complainant and his brother. They have also used abusive language and A2 tied the hands of the complainant by means of towel which was worn by the complainant and thereafter, they dragged to the Police Station in the police jeep. He has stated that in the police station they were subjected to torture and thereafter the accused threatened that they will break their limbs. They have also used abusive language and A2 tied the hands of the complainant by means of towel which was worn by the complainant and thereafter, they dragged to the Police Station in the police jeep. He has stated that in the police station they were subjected to torture and thereafter the accused threatened that they will break their limbs. It is further stated in the complaint that they were subjected to third degree methods in the police station. Further they suffered injuries on their person. Thereafter, the complainant and his brother were released from the police station at about 8.30 p.m., on the same day. 9. The complainant has stated in his complaint that thereafter he went to the hospital and got examined himself through the doctor and on 22.11.1994 he has filed the complaint, to the higher police officials but no action has been taken. 10. The complainant has examined himself as P.W. 1 and has reiterated the version in the Court. In the cross-examination, he has stated that he cannot state the direction to which, the police station is facing in relation to East or West or North or South. He has denied the suggestion that the office of the village accountant is behind the police station. He has also denied the suggestion that he was not assaulted by the accused and others. It is elicited in his cross-examination that there is case in O.S. 172/74 pending on the file of Civil Judge (Jr. Dn.) Sullia, in respect, of property. P.W. 2 Subhash Chandra is the brother of P.W. 1. He also stated regarding the overt, acts of A1 to A4 and that A1, A2 and A3 trespassed into their house and came to the room where he and his brother were studying. At that time A3 was not in uniform, but Al and A2 were in uniforms. The accused started assaulting himself and his brother with lotties and hands and were abusing them. The accused further tied their hands. It is in the evidence of P.W. 2 that A5 has come to the spot in the same jeep. Thereafter, the accused had dragged them out of the house and they were tied by the cloth worn by them and were dragged to the police station. The accused further tied their hands. It is in the evidence of P.W. 2 that A5 has come to the spot in the same jeep. Thereafter, the accused had dragged them out of the house and they were tied by the cloth worn by them and were dragged to the police station. Their father and brother came out of the house and asked A1 what they are doing for which A1 told that he will come to know only when he reaches the police station. A3 was driving the jeep A1, A2 and A4 put them into the jeep and took them to the police station. Even inside the jeep A2 and A3 were beating them. It is in the evidence of P.W. 2, in the police station also, the accused had beaten them and were put into cell. At about 2.15 p.m., their mother came to the police station, the ASI threatened their mother also. At about 8.30 p.m., on the same night they were released by removing hand cuffs put on them and then the accused took their signature and left to go. Thereafter, they were treated in the Government Hospital, Bellare. Subsequently, in the Government Hospital at Puttur. In the cross-examination, he has denied the suggestion that he was not taken to the police station and was not ill-treated by the police. P.W. 3 Sarojini is the mother of P.Ws. 1 and 2. She has corroborated the version of P.Ws. 1 and 2 regarding the accused coming to the house on 10.11.1994 and assaulted her two sons. She has further stated that she has gone to the police station when her sons were taken to the police station by the accused alongwith A5. She has stated that the accused have not released her sons till 8.30 p.m., and thereafter only the accused have released her sons. P.W. 4 Dr. Mallya was the Asst. Surgeon at Wenlock Hospital, Mangalore. He has stated that on 11.11.1994 at about 3.55 p.m., he examined one Mohan Chandra of Kalanja village with the history of assault by ASI P. Mohammad and three other constables. He has observed two simple injuries on the person of P.W. 1. 11. P.W. 4 Dr. Mallya was the Asst. Surgeon at Wenlock Hospital, Mangalore. He has stated that on 11.11.1994 at about 3.55 p.m., he examined one Mohan Chandra of Kalanja village with the history of assault by ASI P. Mohammad and three other constables. He has observed two simple injuries on the person of P.W. 1. 11. It is from the evidence of these witnesses that the learned Sessions Judge has observed in para 5 of the judgment that the accused have trespassed into the house of the complainant and dragged them and later on they had beaten them by lathies and humiliated and ill-treated them. However, the learned Sessions Judge has held that on the basis of the evidence of the witnesses the incriminating facts in the complaint are not proved beyond reasonable doubt. I have gone through the judgment of the learned Sessions Judge and the reasons given for the order of acquittal. 12. Though the police have not: produced any material to show that they were acting in the colour of duty, from the evidence of the witnesses. I am of the opinion that the complainant has not examined any independent witnesses from the locality to hold that the accused have come to the scene of occurrence and have assaulted the complainant and his brother. In criminal cases, the offences might appear to have been done but to hold the accused guilty, the prosecution has to prove that the accused have in fact committed the offences. In view of the fact that there is mis-understanding between the father of P.W. 1 and P.W. 2 and A5 regarding property, I am of the opinion that it is not safe to rely on uncorroborated evidence of the family members of P.W. 1 and, therefore, I am of the opinion that the complainant has not proved the case against the accused beyond reasonable doubt. If is to be observed that no sanction is required to prosecute a public servant for an act which is not part of his duty and which is a criminal act. On considering the material on record and the judgment as a whole, I find that, the reasoning given by the learned Sessions Judge are neither capricious nor illegal. If is to be observed that no sanction is required to prosecute a public servant for an act which is not part of his duty and which is a criminal act. On considering the material on record and the judgment as a whole, I find that, the reasoning given by the learned Sessions Judge are neither capricious nor illegal. Under the circumstances, I hold that there are no compelling circumstances to upset the well considered judgment of acquittal passed by the Trial Court and, therefore, I am of the opinion that this appeal is liable to be dismissed. 13. Accordingly, the appeal is dismissed.