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Judgments of Supreme Court of India and High Courts

Umesh Iswar Naik vs State Of Karnataka on 31 July, 2018

1

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/-

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