Philips Mascarin and Others vs State of Karnataka

G. Narendra, J.—Heard the learned counsel Sri Hashmath Pasha, appearing for the petitioners and learned Addl. SPP Mr. M. Keshava Murthy, appearing for respondent - State.

These two Criminal Revision Petitions are taken up and heard together for the reason that they arise out of the same FIR and are preferred by accused No. 1 and 2. The matters are listed for Admission and with the consent of the learned counsel on both sides they are taken up for final disposal.

The case of the prosecution in brief is:

"That on the intervening night of 19.01.2006 at about 1.30 AM the accused were in a drunken state with common intention to commit the offence, came to the Police Station and are stated to have abused C.W. 4, who was incharge of the Station House at that time. Without any rhyme or reason are said to have abused C.W. 4, who is examined as PW6, in filthy language for having brought some persons belonging to them and that when C.W. 1 and 2 intervened the accused No. 1 kicked to the vital part and left hand little finger and right hand. Thereafter, they attacked him by holding his uniform and removed the name plate. Further, the accused No. 2 assaulted C.W. 2 with his hands and thereby obstructed them from performing their public duties. They have caused damage worth about Rs. 600/- (Six Hundred only) to the computer monitor. They also gave life threat to them by showing glass pieces to them and thereby they committed the offences punishable under Sections 353, 332, 427 and 506-B r/w Sec. 34 of IPC." 4. On the above allegations the trial Court framed relevant charges and after consideration of the oral and documentary evidence on record had proceeded to give a finding holding the petitioners guilty of the offences alleged and proceeded to convict them for the offences punishable under Sections 353, 332 and 427 r/w Sec. 34 of IPC while it acquitted them of the charges under Section 506B r/w Sec. 34 of IPC. Upon conviction the trial Court was pleased to sentence the accused No. 1 and 2 to undergo SI for one year and to pay fine of Rs. 500/- each for the offence punishable under Section 353 r/w Sec. 34 of IPC; petitioners were further sentenced to undergo SI for six months for the offence punishable under Section 332 r/w Sec. 34 of IPC and to pay fine of Rs. 1,000/- each for the offence punishable under Section 427 r/w Sec. 34 of IPC with default sentence to undergo SI for a period of two months in respect of each of the sentence.

The petitioners aggrieved by the said judgment and order of conviction and sentence preferred separate appeals and Appellate Court has been pleased to reject the appeals and confirmed the judgment and conviction and sentence passed in C.C. No. 30808 of 2006 dated 26.11.2009. Aggrieved by the judgment and order of the Appellate Court the petitioners are before this Court by way of these two revision petitions.

The prosecution in all examined four witnesses as P.W. 1 to 4 and has marked Ex. P1 to P5 and has also marked MO 1 to 3.

The Complainant is P.W. 1 - Police Constable, who was on duty on 19.01.2006 and states that at about 1.30AM both the accused came to the Police Station in an inebriated state and shouted at Station House Officer PW6 - Krishnegowda and that the SHO was in uniform. He tried to pacify them, but accused No. 1 assaulted him on his private part and also on his right hand using damaged antiglare glass of the computer monitor and also gave life threat. It is the case of the petitioners that they came in search of some one who are alleged to have been illegally brought to the Police Station by PW4. Thereafter, Police Sub-Inspector came to the spot and took them to the General Hospital at Jayanagar for treatment. In the course of his cross examination he has admitted that C.W. 5 and 6 are mahazar witnesses and are known to him as they visit the Police Station quite often and he has denied the suggestions.

The other injured is PW4, again a police constable, who was on general duty at lock up. PW4 has deposed that the accused assaulted him when he was taking down their addresses. But PW4 asserted that no public persons were present when the incident occurred. But in the cross examination he admits that three persons were in side the lock up, but they have not seen the incident. It is his assertion that the lock-up inmates have not seen the incident. He further admits in the course of cross examination that the computer is installed in the lock up room. He would further clarify that the inmates in the lock up could read the computer monitor, but they could not have witnessed the incident as it occurred out side the room. Further it is interesting, his testimony that he was trying to give water to the accused and that the accused assaulted him with the plastic water bottle and broke it.

PW5, another police constable, who claims to be on Sentry duty, has admitted in the cross examination that the computer is fixed out side the SHO room and he further testifies that if the door of the SHO room is open then the computer is visible from the SHO room and that the incident occurred in the chambers of the SHO. He further testifies that he cannot name the persons who are inside the lock up.

The Station House Officer - Mr. B.M. Krishnegowda, who is examined as PW6, has deposed that the accused came to the Police Station and shouted that all those who failed in SSLC have joined the Department and when C.W. 1 and 2 were pacifying them they suddenly started using abusive language and assaulted them with hands and fisted him on his face. Further, accused No. 1 has torn his shirt. He further testifies that the accused broke the computer monitor glass with the water bottle and they took it in their hands and threatened to kill them with the broken glass pieces. The prosecution has relied upon the Station House Diary - Ex. P5 to prove the presence of the Complainant and P.W. 1, 3 and 4.

The learned counsel for petitioners has assailed the judgment and order of the trial Court and Appellate Court. He would point out that the incident as described in the complaint is improbable and is to be disbelieved for the reason that the petitioners are not rowdy elements, but they are law abiding citizens with no criminal antecedents. He would also assert that prior to this incident they have not been involved in any criminal activity or in any criminal case. He would also point out to the glaring inconsistency and contractions in the testimonies of the witnesses, which goes to the very root of the matter, which does not probablize the case of the prosecution. He would also state that no law abiding citizen or any prudent person could be expected to behave in the manner as described in the complaint. The complaint describes an unbelievable story and the same has been accepted by the courts below without even examining the point if any prudent person could act in such a manner.

The learned counsel for petitioners would further point out that primarily all the witnesses are interested witness and though independent persons were available in the Police Station (as admitted by PW4), they have not been examined. He would point out the improvements by each of the witnesses in their testimony and the contradictions and prevarications by the witnesses. If the words of the P.W. 1 are to be believed then the incident could not have occurred in the chambers of the Station House Officer - PW6. PW4 admits that the computer was in the lock up room and it was out side the SHO''s room. If that is so, it is not explained as to how the computer, which was out side the room of the SHO got damaged. PW6 - SHO, says that C.W. 1 and 2 pacified the accused. But the accused suddenly started abusing him in vulgar language (Boli maga and Sule maga) and damaged the computer monitor glass with the water bottle. But PW4 has testified that he was assaulted with the water bottle when he was trying to give water to the accused for drinking.

The learned counsel for petitioners would also point out that what is very critical is that PW6, who is the central figure, has not tendered himself for cross examination. In view of the above contradictions pointed out by the learned counsel for petitioners, it becomes difficult for the court to accept the version of the prosecution without any doubt.

The learned counsel for the petitioners would further submit that the most critical question which arises, is that the police have not given details or even the names of the persons in search of whom the accused had come. The learned counsel for petitioners would assert that none of the family members of the petitioners have any criminal antecedents or criminal record or are they involved in criminal activities or is any criminal case pending against any of the members of the accused family. That being the fact the learned counsel for petitioners would ask a question as to why would accused go to the Police Station for a non-existent reason. On a query from the court to the learned Addl. SPP as to whether the assertion made by the learned counsel for petitioners is correct, he would admit that there is no information of any of the family persons being involved in the criminal cases.

Viewed from this angle the prosecution version becomes highly improbable. If there are no persons who could be picked up by the police for any reason whatsoever, then the question that arises is why that the accused visited the Police Station or did they visit the Police Station at all. These are issues which have not been considered by the Courts below. The Courts below have brushed aside the arguments of the accused that the version of the prosecution has to be disbelieved by holding that just by imagination the alleged fact cannot be disbelieved.

The trial Court while considering the testimony of PW3, who is doctor, has relied upon Ex. P3 and P4, which are wound certificates issued by the General Hospital, Jayanagar. The injured are supposed to have been examined at 2.45 a.m. it has been reported to the medical authorities that the injured were assaulted by one Philip Mascernahas. Assuming that the name refers to the accused No. 1 (though not correctly described) there is no mention of the name of the accused No. 2 - Romlyo Mascarin. The Doctor, PW3, who tendered evidence in her cross examination, testifies that the injuries have been inflicted between 12.15a.m. and 12.45a.m. (midnight) This time is critical for the simple reason that it is the admitted case of the prosecution and the Complainant that the accused came to the Police Station only by 1.30am. That being so the trial Court having recorded the admission of PW3 that the injuries have been inflicted between 12.15am and 12.45am it could not have relied upon Ex. P3 and P4 (wound certificates) to convict the accused No. 1 more so accused No. 2, whose name is not even furnished by the alleged injured. The wound certificate, which is prepared on the basis of the information provided by the injured does not reveal the name of the accused No. 2 and the name of one Philip Mascernahas is described in it.

The learned counsel for petitioners would point out another glaring omission in the consideration by the Court below. He would point out that the case of the prosecution is that the accused entered Police Station in a drunken or inebriated state. If that be so he would pose the question as to what prevented the policemen from subjecting the accused to a blood test. He would further state that the omission by the police, who are none other than the case witnesses and who have testified against the accused, cannot be brushed aside as it goes to the very root of the matter and forms basis of the complaint. It is not the case of the prosecution that they did not visit the hospital. Within less than an hour of the incident; they were traveled from Madivala Police Station to Government Hospital, Jayanagar. If that is to be believed then the question that arises is that what prevented the policemen to get the petitioners tested with regard to alcohol contents in the blood.

The learned SPP is unable to explain this incongruity or rebut the said assertion. He would also admit that the complaint, having been based on the premise that the accused committed the offences in a drunken state, it was required by the police and investigating authority (who are none other than the Complainant and case witnesses) to have got the petitioners tested for consumption of alcohol. The trial Court also opined that in the cross examination of the case witnesses, it has been brought out that there is no enmity or grudge between the case witnesses, Complainant and SHO on the one hand and the accused on the other hand. If that is so, then no motive could be attributed to the accused.

Per contra, the learned Addl. SPP would strive to support the judgment and order of the Courts below based on the findings given by the said courts.

On examination of the above witnesses and after perusal of the testimony and the evidence on record this court is constrained to arrive at a conclusion that the prosecution has not proved the guilt of the accused beyond reasonable doubt for the following reasons:

"It is an admitted case that there is no previous enmity between the accused on the one hand and Complainant and other witnesses (who are all police officials) on the other. That being so, the question that arise in the mind of this court is why the accused, who are ordinary citizens should go to the Police Station in the middle of the night and attempt to assault the policemen who are on public duty. This question is not at all answered by the facts and circumstances obtaining in the case. The version of the prosecution is disbelievable and highly improbable. It is not the case that the Police Station is situated in a remote place but it is in the heart of the city and sufficiently staffed. It is also not the case of the prosecution that the accused are rowdy elements or anti social elements or that any of their family members have indulged in any criminal or anti social activity. This being so, it is no where forthcoming as to in search of whom the petitioners came to the Police Station. If this aspect sows the seed of doubt in the minds of the court the next aspect which confirms the doubt about the incident is the fact that though the prosecution has claimed [and in fact, is the allegation in the complaint] that the accused came to the Police Station in a drunken state, they have not been subjected to medical test to confirm the consumption of alcohol, which could have been done by a simple blood test. It cannot be the prosecution theory that they were prevented from going to the hospital or that the omission is unintended, but the fact remains that the policemen have all gone to the hospital within an hour of the alleged incident. It is the case that their superior officer came there and took them to the hospital. If that is so then they ought to have explained as to why and what prevented them from subjecting the accused to blood test to confirm the consumption of alcohol." 21. The Courts below have extensively relied upon the Ex. P3 and P4 for arriving at a conclusion of guilt and have fastened the accused with the sentence of simple imprisonment of one year. Even as per the Medical Officer - PW3 the alleged injuries are said to have been inflicted between 12.15a.m. and 12.45a.m. (midnight), but it is the specific case of the Complainant and the prosecution that the accused visited Police Station only at 1.30am, that is nearly 45 minutes after the injuries are said to have been caused. In view of the admission by PW3, the Courts below have gravely erred in relying upon Ex. P3 and P4 to convict and sentence the accused for various offences. Even the description of the incident varies from witness to witness. The absence of third party/independent witness also throws a doubt on the veracity of the prosecution version. In view of the above this court is of the conclusion that the prosecution version is highly improbable and for the above stated reasons this court concludes that the prosecution has not proved the guilt of the accused beyond reasonable doubt. Hence the following:

ORDER

The revision petitions filed by the petitioners are accepted and allowed. The judgment and order of conviction rendered by the III Addl. CMM, Bangalore City in C.C. No. 30808/2006 dated 26.11.2009 and the order of the Appellate Court dated 27.07.2010 in Crl. A. No. 985/2009, are hereby set aside. Petitioners - Accused are acquitted. In view of the above order the surety stands discharged. Bail bonds are cancelled.