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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31st DAY OF JULY, 2018
BEFORE
THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.1187 OF 2011
BETWEEN:
UMESH ISWAR NAIK
S/O ISWAR NAIK
AGED ABOUT 45 YEARS
CIRCLE INSPECTOR OF POLICE
CHITHRADURGA RURAL STATION
CHITRADURGA DISTRICT …PETITIONER
(BY SRI SANDESH T.B., ADV., FOR
SRI PRUTHVI WODEYAR, ADV.,)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS
PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE
2. INSPECTOR GENERAL OF POLICE
EAST RANGE
DAVANAGERE
DAVANAGERE DISTRICT
3. SUPERINDENT OF POLICE
CHITRADURGA
CHITRADURGA DISTRICT …RESPONDENTS
(BY SMT.NAMITHA MAHESH B.G., HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO SET ASIDE THE PART OF THE IMPUGNED
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ORDER DATED 10.12.2010 VIDE DOCUMENT NO.1, PASSED BY THE
DISTRICT AND S.J., AT CHITRADURGA IN S.C.NO.90/10.
THIS CRIMINAL PETITION COMING ON FOR HEARING THIS
DAY, THE COURT PASSED THE FOLLOWING:
ORDER
Petitioner was the Investigating Officer in Crime
No.260/2010. After investigation, he laid a charge sheet
against one Suresh, son of Chandrappa for the offence
punishable under Section 376 of IPC. In the course of the
trial, the prosecutrix/victim wholly resiled from the case of
prosecution and deposed on oath that she did not lodge any
complaint against the accused therein viz., the aforesaid
Suresh, son of Chandrappa, alleging commission of offence
under Section 376 of IPC. The other witnesses examined by
the prosecution also failed to support the prosecution. The
Doctor, who examined the accused, led his evidence as PW-9.
The certificate issued by him came to be marked as Ex.P9. In
his evidence, PW-9 deposed that he examined the accused on
16.8.2010. But the records revealed that the accused was
arrested on 4.8.2010. In view of this discrepancy, the
Sessions Court was of the opinion that the Investigating
Officer has fabricated false evidence against the accused as
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PW-9 could not have examined the accused on 16.8.2010 and
accordingly, recording the said finding, the learned Sessions
Judge issued a direction to the Inspector General of Police,
Davangere to initiate departmental enquiry against the
Investigating Officer/PW-13 (petitioner herein).
2. The petitioner has questioned the directions
issued by the learned Sessions judge and has sought to quash
the same on the ground that the learned Sessions Judge has
misconstrued the evidence of PW-9. It is submitted that the
accused was examined on the very date of his arrest i.e., on
4.8.2010. The certificate was issued on 16.8.2010 and hence,
there was no discrepancy whatsoever either in the evidence of
PW-9 or in the document/Medical Certificate produced before
the Court. It is contented that the direction issued by the
learned Sessions Judge being contrary to the material on
record and has resulted in gross miscarriage of justice, the
petitioner has sought to quash the said direction.
3. Heard the learned Counsel for the petitioner and the
learned High Court Government Pleader.
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4. Learned Counsel appearing for the petitioner has
reiterated the above submissions and has drawn my attention
to the portion of the cross-examination of PW-9 wherein it is
elicited that much before the issuance of Ex.P9, some other
doctors had examined the accused. The learned Counsel
submits that the said evidence is given by PW-9 based on the
documents relating to the examination of another accused of
the same name. To buttress this point, he has referred to the
documents produced by him, which reveal that one Suresh,
son of Basavarajappa was prosecuted in Crime No.180/2010.
The said Suresh, son of Basavarajappa was subjected to
medical examination on 10.6.2010 in the very same Hospital.
Looking into the said document, PW-9 appears to have
deposed before the Court that the accused in this case was
examined by some other Doctors in the same Hospital.
Learned Counsel would submit that this misconception of facts
has led to the erroneous order by the learned Sessions Judge.
Further, learned Counsel has also drawn my attention to
‘Annexure-5’ viz., the letter issued by the Senior Medical
Officer, District Hospital, Chitradurga, pursuant to the
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direction issued by the Sessions Judge. The said letter reads
as under:
“UÉ:
f¯Áè ±À¸ÀÛç aQvÀìPÀgÀÄ,
f¯Áè D¸ÀàvÉæ,
avÀæzÀÄUÀð.
ªÀiÁ£ÀågÉÃ,
«µÀAiÀÄ: ¸ÉµÀ£ïì PÉÆÃnð£À°è ºÉýPÉ PÉÆnÖgÀĪÀ §UÉÎ-
– – –
ªÉÄîÌAqÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ qÁ: ¦. a£ÀßPÉñÀªÀªÀÄÆwð, DzÀ
£Á£ÀÄ ¢£ÁAPÀ 30-11-2010 gÀAzÀÄ ¸ÉµÀ£ïì PÉÆÃnð£À°è ºÉýPÉAiÀÄÄ ¤ÃrgÀĪÀ
§UÉÎ ¸ÀÄgÉñÀ ©£ï ZÀAzÀæ¥Àà, PÀPÉ̺ÀgÀªÀÅ EªÀgÀ£ÀÄß £Á£ÀÄ ¢£ÁAPÀ 4-8-10 gÀAzÀÄ
¥ÀjÃPÉë ªÀiÁr ¢£ÁAPÀ 16-8-10 gÀAzÀÄ ¸Ànð¦üPÉÃmï ¤ÃrgÀÄvÉÛãÉ. £Á£ÀÄ ºÉýPÉ
¤ÃqÀĪÀ ¸ÀAzÀ¨sÀðzÀ°è vÀ¥ÁàV 16-8-10 gÀAzÀÄ ¥ÀjÃPÉë £Àqɹ ¸Ànð¦üPÉÃmï
¤ÃrgÀÄvÉÛãÉAzÀÄ ºÉýPÉ ¤ÃrgÀÄvÉÛãÉ. C®èzÉ ¸ÀÄgÉÃ±ï ©£ï ZÀAzÀæ¥Àà EªÀgÀ ¥ÀjÃPÉë
ªÀgÀ¢AiÀÄ£ÀÄß CQìqÉAmï jf¸ÀÖgï£À°è £ÀªÀÄÆ¢¹gÀÄvÉÛãÉ. EzÀ£ÀÄß gÉÃ¥ï jf¸ÀÖgï£À°è
£ÀªÀÄÆ¢¹gÀĪÀÅ¢®èªÉAzÀÄ vÀªÀÄä CªÀUÁºÀ£ÉUÉ vÀgÀ®Ä EaÒ¸ÀÄvÉÛãÉ.
ªÀAzÀ£ÉUÀ¼ÉÆA¢UÉ,
Ew «zsÉÃAiÀÄ
¢£ÁAPÀ:29-12-10 (¸À») »jAiÀÄ vÀYÕgÀÄ,
f¯Áè D¸ÀàvÉæ, avÀæzÀÄUÀð.
(¸À») f¯Áè ±À¸ÀÛç aQvÀìPÀgÀÄ,
f¯Áè D¸ÀàvÉæ, avÀæzÀÄUÀð.”
5. Learned High Court Government Pleader does not
dispute the fact that one Suresh, son of Basavarajappa was
arrayed as accused in Crime No.180/2010 and he was
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subjected to medical examination in District Hospital,
Chitradurga, on 10.6.2010. Learned Government Pleader
further submits that the State has not preferred any appeal
challenging the acquittal of the accused in S.C.No.90/2010.
6. Considered the submissions made by the learned
Counsel appearing for both parties and carefully perused the
above documents.
7. Learned Sessions Judge has issued the above
direction solely on the basis of the evidence of PW-9. A
reading of the evidence of PW-9 indicates that he issued the
Medical Certificate at Ex.P9 on 16.8.2010. In the cross-
examination, he has unequivocally stated that Ex.P9 does not
bear the date of examination of the accused. Undisputedly,
PW-9 has given his evidence based on documents. It has
been clarified in Annexure-5 that the accused was subjected
to medical examination on 4.8.2010. In the course of the
trial, neither the accused nor the prosecution has taken up a
plea that the accused was subjected to medical examination
on 16.8.2010. The learned Sessions Judge appears to have
proceeded on the assumption that the date of issuance of the
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certificate is the date of examination of the accused. It is
solely on the basis of this assumption, the learned Sessions
Judge has drawn the conclusion that the accused was
subjected to medical examination on 16.8.2010. But the
surrounding facts depict otherwise. Viewed from another
angle, it for any reason, there was no clarity in the evidence
of PW-9 with regard to actual date of the examination of the
accused, the learned Sessions Judge could have got the
matter clarified by calling for necessary documents from the
Hospital. That having not been done and without giving any
opportunity to the Investigating Officer to explain the
discrepancies, in my view, it was not proper on the part of the
learned Sessions Judge to record a finding that petitioner
(PW-13) has fabricated EX.P9. Even otherwise, the
documents discussed above do not lead to the conclusion that
the accused was subjected to medical examination on
16.8.2010 as recorded by the learned Sessions Judge.
In view of the aforesaid, the finding recorded by the
learned Sessions Judge as well as the direction issued to the
Inspector General of Police to hold departmental enquiry
against the petitioner/I.O., in my view, being contrary to the
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material on record and opposed to the principles of natural
justice cannot be sustained.
Accordingly, the petition is allowed. The direction
issued by the learned District and Sessions Judge,
Chitradurga, in S.C.No.90/2010, directing the Inspector
General of Police, Davangere, to initiate departmental enquiry
against the petitioner, is hereby set aside.
Sd/-
JUDGE
KNM/-