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2011 DIGILAW 256 (KAR)

H. D. Manjunath v. State of Karnataka

2011-03-03

B.V.PINTO

body2011
JUDGMENT B.V. PINTO, J.—This appeal is filed by the accused challenging the judgment, date 30.11.2004 passed by the II Addl. District and Sessions Judge, Tumkur in S.C. No. 42/2003 convicting him for the offence punishable under Section 333 of IPC and sentencing him to R.I. for three years and to pay a fine of Rs. 500/- with default clause. 2. The case of the prosecution is that on 1.7.1996 at about 8 p.m. at Mandipet, Tumkur when the complainant Shivanna, a constable of Tumkur Town Police Station was performing his duty as a traffic police by wearing uniform, accused is alleged is to have driven his scooter bearing No. KA 06 J 2883 by violating the traffic rules and when the complainant stopped the vehicle, accused alleged is to have caused grievous injuries to the complainant, who is a public servant, thereby he is alleged to have committed an offence punishable under Section 333 of IPC. The accused was originally charged for offence under Section 332 IPC and the charge was framed on 20.8.1997 for the said offence along with Section 326 IPC. A revised charge was framed on 5.7.2004 for the aforesaid two offences and on 29.11.2004 after the conclusion of evidence and before passing Judgment, an altered charge for offence under Section 333 IPC was framed against the accused. In order to prove the case the prosecution has examined in all 10 witnesses and got marked Exhibits P1 to P10 and produced M.Os. 1 to 3. The defence of the accused was one of total denial. However, by judgment impugned in this appeal, the trial Court convicted the accused and sentenced as herein before mentioned. The convicted accused has preferred this appeal. 3. Heard Sri A.H. Bhagwan, learned counsel for the appellant and Sri Vijayakumar Majage, learned HCGP. 4. Learned counsel for the appellant submits that prosecution has not clearly established the identity of the accused in this case since there was no material for the complainant to inform the police regarding the number of the vehicle and also the parentage of the accused at the time when the complaint was recorded by the police in the hospital. The accused was not at all arrested in this case and therefore, the finding of the father’s name and address of the accused was not possible for the police and therefore, wrong person has been charge-sheeted in this case. The accused was not at all arrested in this case and therefore, the finding of the father’s name and address of the accused was not possible for the police and therefore, wrong person has been charge-sheeted in this case. He further submits that the weapon used by the accused is a lathi of the police and by the very nature of the weapon, there could not have been incised injuries caused on the complainant and the doctor, P.W. 8, certifies that the complainant has sustained incised injury of 1½? depth. He further submits that the weapon, lathi was not seized by the prosecution. Insofar the probabilities of the case of the police is concerned, he submits that though a traffic police was required to wear a white shirt and white cap, P.W. 2 was found to be wearing khakhi uniform and therefore, either he was not on traffic duty or the case of the police is improbable. He further submits that the very explanation of P.W. 2 that he came along with the accused by pushing the scooter till the ‘no entry’ road was over and thereafter instead of going to the police station which is just 200 metres away from the end of the ‘no entry’ road, the accused had taken him to the place where incident happened is unnatural and against the probabilities of the case. He, therefore, submits that the prosecution is shrouded with suspicion and a wrong person has been charge-sheeted in this case and the conviction has ensued against a wrong person. Hence the learned counsel submits that the appeal may be allowed. 5. Sri Vijayakumar Majage, learned HCGP submits that the complainant- P.W. 2 mentions the scooter number and on the basis of the said scooter number, which was driven, by the assailant, on the date of offence, the accused was traced and therefore, the identity of the assailant by P.W. 2 has been established. In the circumstances, he submits that in view of the evidence of P.W. 2 and 9 put together, the accused has committed an offence of causing grievous head injury to P.W. 2, a public servant and therefore, the conviction does not call for interference. Ex. P6 further indicates that P.W. 2 was on traffic duty on the date of offence in Tumkur town. Hence he submits that the appeal may be dismissed. 6. Ex. P6 further indicates that P.W. 2 was on traffic duty on the date of offence in Tumkur town. Hence he submits that the appeal may be dismissed. 6. The prosecution in this case commenced with the recording of the statement of P.W. 2 Shivanna, in the Government Hospital, Tumkur on 1.7.1996 at about 1.45 a.m. In the said complaint, P.W. 2 has stated that he was on duty on 1.7.1996 being a constable of Tumkur Town Police Station and when he was performing such duty, at about 8 p.m. in front of Prabhanna and Sons, one person was coming in a scooter against the one way rule and when he stopped the said person, he disclosed his name as Manjunath, Shetty, Halli Gate. The said person was made to alight from the scooter and he accompanied the said Manjunath to the station by pushing the vehicle in the one way road and after the completion of one way road, he sat on the scooter of the said rider and asked him to take him to the police station. Near the Ashoka road instead of turning towards the police station, the accused took the vehicle towards the railway station and when they went near one Raghavendraswamy Temple in the street, the complainant made the accused stop the vehicle. The complainant questioned the accused as to why he took the vehicle to the lonely place, at that time the accused started fighting with him and he snatched the lathi from the hands of the complainant and assaulted him on his head, left leg and left hand which caused injuries. He started bleeding. Thereafter he sat down at the place where he received injuries. The accused ran away with the vehicle. After sometime since he was in uniform, some person came near him and shifted him to the hospital on their scooter. He was first taken to Chaitanya Nursing Home where he was refused first-aid, whereafter he was taken to the Government Hospital where he was being treated. He has stated that in order to prevent him from performing his public duty the accused has caused grievous injuries to him. The police on recording the said statement, registered a case in Crime No. 117/96 Tumkur Town Police Station for offences under Sections 332 and 307 IPC. After completion of investigation, charge-sheet has been filed showing that the accused is absconding. The police on recording the said statement, registered a case in Crime No. 117/96 Tumkur Town Police Station for offences under Sections 332 and 307 IPC. After completion of investigation, charge-sheet has been filed showing that the accused is absconding. It is seen from the prosecution papers that the accused had surrendered before trial Court and has been released on bail on 25.1.1997. 7. P.Ws. 1, 5 and 10 have turned hostile to the case of the prosecution. P.W. 2 is the complainant-Shivanna, who has virtually reiterated the statement made by him before the police and has identified the accused before the Court as the one who had assaulted him on the night of offence. In the cross-examination it is suggested to him that after the date of the incident he is seeing the accused for the first time in Court and that no test of identification parade was conducted to identify him. He has described the length of lathi used for the offence. However, the said lathi was not produced before the Court. It is suggested to him that no such incident has happened as alleged by him and that the accused has never assaulted him nor found on the date of offence at the place alleged by P.W. 2. P.W. 3 is the Inspector of Police, who was the Police Sub-Inspector during the relevant time. He has conducted the spot mahazar Ex. P4 and recorded statement of certain witnesses. He has also seized the clothes worn by P.W. 2 as per Ex. P3. Clothes are marked as M.Os. 1 to 3; P.W. 4 is Inspector of Police who issued a certificate Ex. P7 showing that P.W. 2 was on duty on the date of offence; P.W. 6 is the Police Sub-Inspector of Tumkur Police Station who has supplied documents to show that P.W. 2 was working as a police constable on the date of offence; P.W. 7 B.K. Hugar is a Head Constable, who, on receipt of intimation Ex. P9 went to the hospital to record the statement of Shivanna, which is marked as Ex. P2; P.W. 8 Gopalachar is the Head Constable who has registered the case and forwarded the FIR to the Court. FIR is marked as Ex. P10; and P.W. 9 Dr. P9 went to the hospital to record the statement of Shivanna, which is marked as Ex. P2; P.W. 8 Gopalachar is the Head Constable who has registered the case and forwarded the FIR to the Court. FIR is marked as Ex. P10; and P.W. 9 Dr. Harnpanna has examined P.W. 2 on the night of the incident and has certified that P.W. 2 has sustained six injuries on his person out of which two are grievous in nature. It is from the evidence of these witnesses, that the learned Sessions Judge has found the accused guilty and has sentenced him as herein before mentioned. 8. On a careful examination of the entire material on record, I find that there is an important link missing in the chain of prosecution case. The very fact that P.W. 2 would have noticed the number of the scooter on the night of the offence and that he would have remembered it is an improbability, particularly having regard to the incident that occurred thereafter and that he was on duty on a busy road like Mandipet in Tumkur. Even though it is admitted that he has noted the scooter number there is no evidence at all to prove that the accused was riding that scooter on that night. Neither the owner of the scooter was examined by the police nor any other person is examined to show that it was the accused and accused himself who was riding the scooter on that night. It is further seen that accused has not surrendered before the police to make himself available for identification by P.W. 2 in the police station before filing the charge-sheet since he has directly appeared before the Court after filing of the charge-sheet. It is not the case of P.W. 2 or any other person that P.W. 2 and accused were knowing each other prior to the incident. There is no material to show that a test identification parade has been held to identify the accused. P.W. 2 has been examined in Court on 25.9.2004, i.e., after a lapse of eight years and therefore, the power of P.W. 2 to identify the accused after lapse of eight years is doubtful. There is no material to show that a test identification parade has been held to identify the accused. P.W. 2 has been examined in Court on 25.9.2004, i.e., after a lapse of eight years and therefore, the power of P.W. 2 to identify the accused after lapse of eight years is doubtful. Further it is seen that the weapon used is not seized by the police nor the prosecution has explained the discrepancy in the nature of injuries caused, viz., incised wounds which could not have been ordinarily caused by a round shaped weapon used by police. The wound certificate indicates that the incised injury is 1½ deep and therefore, there is glaring discrepancy between the evidence of P.W. 2 and the medical evidence. It is seen from the prosecution papers that the FIR has reached at 11 a.m. on 2.7.1996 whereas the distance between the police station to the scene of occurrence is only 2 kms. and Government Hospital is within 1 km in Tumkur from the Court and from the police station. Therefore, even if it is believed that the complaint was recorded at 1.45 in the night, there is an inordinate delay in sending the FIR to Court, which necessarily causes a cloud of suspicion on the very case of the prosecution. The totality of the entire discussion made above would lead to an inference that the prosecution has not proved the case against the accused beyond reasonable doubt. Therefore, the accused is entitled for an order of acquittal. The impugned judgment is set-aside. The accused is acquitted of the offence punishable under Section 333 IPC charged against him. 9. The appeal is allowed. The bail bond, if any, executed by him is cancelled. Fine amount shall be refunded to the accused.