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2011 DIGILAW 806 (KAR)

Ayyappa v. State of Karnataka

2011-08-10

A.S.PACHHAPURE

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JUDGMENT A.S. PACHHAPURE, J.—The appellants have challenged their conviction and sentence for the offence punishable under Section 353 read with 34 of IPC on a trial held by the Sessions Judge, Bangalore City. 2. The facts relevant for the purpose of these appeals are as under: Cubbon Park Police, Bangalore registered Crime No. 330/2002 for the offence punishable under Section 302 read with 34 of IPC. Accused Nos. 1 to 4 and one Linga were involved in the said crime and, therefore, the police were searching for them. P.W. 13 the Police Sub-Inspector was entrusted with the duty alongwith other police constables to apprehend the accused and to produce them, for the purpose of investigation. P.W. 13, who was accompanied by the other police constables, was in search of the said accused and he received an information from P.W. 15 B. Shivaram, the Police Inspector, that the said accused were travelling in Tata Sumo vehicle bearing No. KA-05 M-8588 and were proceeding from Hosur Road via. St. Marks Road, Grant. Road., Siddalingaiah Circle, Cubhon park, Immediately, P.W. 13 along with the staff came to Mallya Circle, and as the accused were said to be dangerous persons, he secured the police officers from, other police Stations and was waiting at St. Joseph’s circle gate and within few minutes other police officers joined them and also Police Inspector B. Shivaram. While they were waiting for the accused, as expected, the vehicle Tata Sumo came through Grant Circle and was proceeding towards Siddalingaiah Circle. They identified accused No. 1 Ayyappa sitting in the front seat of Tata Sumo, They gave a signal to stop the vehicle but the said driver increased the speed, as if, that they would pass the vehicle on the police officials. After escaping from the vehicle, they chased the Tata Sumo at Siddalingaiah Circle and as there was road signal, the Tata Sumo was stopped. The accused were not in a position, to run away form the spot, as there were many vehicles and all the accused including Jagadeesh, Peter Prasad, etc., got down from. the vehicle and they were armed with sword, chopper, etc., and made an effort to cause assault on the police officials. The accused were not in a position, to run away form the spot, as there were many vehicles and all the accused including Jagadeesh, Peter Prasad, etc., got down from. the vehicle and they were armed with sword, chopper, etc., and made an effort to cause assault on the police officials. Thereafter, they assaulted one of the police officer and some others sustained injuries in their attempt to apprehend the accused and then the police threatened them by showing the revolver, and surrounded the accused and apprehended them at about 12.45 pm. A complaint on these facts came to be registered in Cubbon Park Police Station in Crime No. 333/2002 for the offences punishable under Section 353, 279 and 307 read with 34 of IPC. During the investigation, the spot Mahazar was held, the statement of the witnesses were recorded. The weapons were seized, the injured was taken to the hospital for treatment and on completion of investigation, a charge-sheet came to be filed against the accused for the aforesaid offences. During the trial, the prosecution examined 17 witnesses, got marked Exs.Pl to P14 and MOs 1 to 6. The statement of the accused were recorded under Section 313 Cr.P.C. They have taken the defence of total denial and have not led. any defence evidence. The trial Court alter hearing the parties and on appreciation of the material on record convicted the accused-appellants herein for the offence under Section 358 read with 34 of IPC and ordered them to undergo simple Imprisonment for 18 months. Aggrieved by the conviction and sentence, the present appeals have been filed. 3. I have heard the learned counsel for appellants, learned High Court Government Pleader and the Amicus Curiae. It is the contention of the learned counsel for the appellants that except the police official, no independent witness has supported the case of the prosecution and the allegation that, there was an attack by the accused on the police is most unnatural and improbable. He submits, at the most, the accused would try to escape from the clutches of the police from the spot, instead of fighting with them. It is also his contention that the injury certificates have been fabricated and they were obtained in. the evening, to suit the purpose of the prosecution. He submits, at the most, the accused would try to escape from the clutches of the police from the spot, instead of fighting with them. It is also his contention that the injury certificates have been fabricated and they were obtained in. the evening, to suit the purpose of the prosecution. The learned counsel also submits that there were as many as 11 police officials and attacking the 11 police by 7 accused is an improbable thing. He further contends that, a false complaint has been filed implicating the appellants in the crime. On all these grounds, he has sought for acquittal of the appellants. 4. Per contra, the learned High Court Government Pleader supported the judgment and order of the Court below. 5. P.Ws. 1, 4, 6, 7, 11, 12 and 14 are the independent witnesses examined during the course of the trial, and none of these witnesses have supported the case of the prosecution. P.Ws. 5 and 9 are the two Doctors who treated the Injured and P.Ws. 8, 10, 13, 15, 16 are the police officials on the basis of whose evidence, the trial Court has convicted the appellants for the offence punishable under Section 356 of IPC. 6. So far as the contention, regarding the independent witnesses, having not supported the case of the prosecution, it is relevant, to note that the accused No. 1 Ayyappa and the other accused Linga were rowdy sheeters. When the accused go to the extent of causing an assault on. the police officers, rather it is difficult to expect any independent man in this country to support such accused and they do not do so solely because they do not have the security of their life, after the evidence is recorded. It is this tendency amongst the public, which makes them not to support the case of the prosecution. It is not the law, that the evidence of the official witnesses must be corroborated by the evidence of independent witnesses. What is the duty of the Court, is, to scrutinize the evidence of such official witnesses with caution and care and in case if it is possible to repose confidence in the evidence of these witnesses, there is no prohibition as such in accepting the evidence of official witnesses also. 7. What is the duty of the Court, is, to scrutinize the evidence of such official witnesses with caution and care and in case if it is possible to repose confidence in the evidence of these witnesses, there is no prohibition as such in accepting the evidence of official witnesses also. 7. In case, if the accused persons had immediately surrendered themselves before the police officers, there was no question of the police threatening with the revolvers. It is in the evidence of P.W. 10 the Police Sub Inspector M. Kalaiah, that the accused after alighting from the vehicle tried to escape and when they were surrounded by the police, accused No. 4 caused assault with a club on the right shoulders of P.W. 10 and he sustained an injury. Some of the police officers were pushed by the accused. Due to the pushing of the police officers, P.W. 13 Venkatashetty and P.W. 16 Krishnamurthy sustained injuries by fall. The injury certificate of P.W. 13 Venkatashetty has been produced at Ex.P6 and M. Kalaiah P.W. 10 is produced at Ex.P7 and the extract of the accident register to prove the injuries of P.W. 16 has produced at Ex. P10. So these three persons who have sustained injuries in the incident, consistently state in their evidence, the manner in which they sustained injuries. They state that the accused after alighting from the vehicle at Siddalingaiah Circle made an effort to escape and when, they were surrounded by the police, accused. No. 4 caused the assault on P.W. 10 M. Kalaiah with the club and some of the police officers were pushed. They fell down and sustained injuries and even at. the place where they were waiting for the arrival of the vehicle, despite the signal to stop the Tata sumo, the speed of the vehicle was increased and police officials had to escape from danger to their lives, suddenly withdrawing themselves from the road. 8. It is well-established principle of law that the evidence of injured witnesses, stand on the higher footing. An injured generally does not implicate an innocent and does not leave a person who has really caused the harm. In this context, if the evidence of P.Ws. 8. It is well-established principle of law that the evidence of injured witnesses, stand on the higher footing. An injured generally does not implicate an innocent and does not leave a person who has really caused the harm. In this context, if the evidence of P.Ws. 8, 10, 13, 15, 16 is looked into, there is consistent version in their evidence about increasing the speed of vehicle, when they were asked to stop the vehicle and thereafter trying to escape after alighting from the vehicle at; Siddalingaiah circle and causing assault on P.W. 10 M. Kalaiah by the accused No. 4, pushing the other officers stated supra and this amounts to use of criminal force as against the public servant, i.e., the police officer or official, in the execution, of his duty to apprehend the accused in Crime No. 330/2002 registered for the offence punishable under Section 302 read with 34 of IPC. The accused prevented the police officers from discharging their duty, as public servants, that is by arresting in the crime registered against them and merely because that, they had to appear before the Magistrate cannot be a ground to exempt them from the purview of Section 353 of IPC, as it was the duty of the police officer to arrest these persons at any place and at any time earlier to their surrender before the Magistrate. 9. It is borne out from the evidence of P.W. 15 Police Inspector B. Shivaram, that accused No. 1’s name was shown in the rowdy-sheet. So the possibility of the said accused even using criminal force against the police officers cannot, be overruled, as after the arrest, the police have to use reasonable force for collecting the evidence, they must have thought it proper to appear before the Magistrate and, therefore, it, can be said that they had an intention to surrender before the police. The assault or criminal force used by the accused cannot be said either unnatural or improbable, as the criminal background of the accused reveals that the name of the first accused was shown in the charge-sheet as well. 10. So far as the delay in approaching the Doctor for the treatment is concerned, it is relevant to note that all are the police officers who had sustained minor injuries. 10. So far as the delay in approaching the Doctor for the treatment is concerned, it is relevant to note that all are the police officers who had sustained minor injuries. The medical evidence also supports the oral version of the prosecution, merely because they went in the evening hours for taking treatment cannot he a ground to reject their evidence. When they had sustained minor injuries, they were not in hurry to go to the Doctor and therefore, they might have gone to the Doctor in the evening hours. Furthermore, it is not the law that the persons who sustained injuries, in the hands of the accused had to give the details of the accused before the Doctor. In the circumstances, the absence of the name of the accused in the injury certificate is not sufficient to discard the ample material made available on record. 11. So far as the sentence is concerned, the offence is punishable with imprisonment which may extend up to 2 years or with fine. The trial Court has awarded imprisonment for 18 months. 12. Taking into consideration the seriousness of the crime, I am of the opinion, that the sentence at the most can be reduced to one year. In that view of the matter, I proceed to pass the following: ORDER The appeals are allowed in part, affirming the conviction of the appellants for the offence punishable under Section 353 read with 34 of IPC. The sentence is modified and the appellants are ordered to undergo simple imprisonment for one year. The bail bonds of the appellants/accused are cancelled. The trial Court is directed to secure the presence of the accused to undergo the sentence, The fees of Amicus Curiae is fixed at Rs. 5,000/- and the State shall pay the same.