Bangalore District Court
S.Devendra Rao vs State Of Karnataka on 19 September, 2022
KABC010279262019
Presented on : 06-09-2019
Registered on : 06-09-2019
Decided on : 19-09-2022
Duration : 3 years, 0 months, 13 days
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH67)
DATED: This the 19th day of September, 2022
PRESENT
Sri.S.Nataraj, BAL.,LL.B.,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
Crl.A.No.1925/2019
Appellant : S.Devendra Rao,
S/o late A.Subba Rao,
Aged about 60 years,
R/at No.36, 6th Main Road,
Venkataswamappa Layout,
Kavalbyrasandra,
LR Bande, AC Post,
Bengaluru 560 045.
(By Sri.C.M.Kempegowda, Advocate.)
/Vs/
Respondents : 1. State of karnataka
by RT Nagara Police Station,
Bengaluru.
(By Public Prosecutor.)
2
Crl.A.No.1925/2019
2. Lakshmi Devi,
W/o K.G.Shirish,
Aged about 56 years.
3. Smitha,
D/o K.G.Shirish,
Aged about 33 years.
4. Renukumar,
S/o K.G.Shirish,
Aged about 31 years.
Respondent No.2 to 4 are
R/at No.50, Ground Floor,
4th Cross, Vasanthappa Block,
Ganganagar, RT Nagar,
Bengaluru 560 032.
5. S.Krishnoji Rao,
S/o late Subba Rao,
Aged about 64 years,
R/at No.166, 5th Main,
6th Cross, Sharadanagar,
Yelahanka Upanagar,
Bengaluru 560 064.
(By Sri.TG, Advocate.)
JUDGMENT
This is a complainant appeal under Section 272 of CrPC challenging the judgment in CC.No.1544/2013 passed by LVI ACMM, Bengaluru (herein after referred to as 'trial court') wherein respondent Nos.2 to 5 herein are 3 Crl.A.No.1925/2019 acquitted for the offences punishable under Section 447, 448, 506 IPC.
2. The appellant is the complainant, respondent Nos.2 to 5 are accused Nos.1 to 4 before the trial court. Respondent No.1 is the prosecution before the trial Court. For the sake of convenience the parties herein are referred as per their ranks held in the trial court.
3. The brief facts of the case leading to filing of this appeal are as under:
The complainant had filed a private complaint PCR.No.10009/2013 before the trial court under Section 200 CrPC. The same was referred to 1 st respondent for investigation under Section 156(3) of CrPC. ON receipt of complaint the 1st respondent police registered the case and submitted FIR to the Court.
4. PW4/Mahesh.M. the then PSI of RT Nagar police station has submitted charge sheet against the accused Nos.1 to 4 after investigation before the trial Court. In the charge sheet it is alleged that PW1 complainant is residing in 1st Floor of the building situated at No.50, 4 th Cross, 4 Crl.A.No.1925/2019 Vasanthappa Block, Ganganagar, RT Nagar, Bengaluru and residing therein and he locked 2 nd floor of the building, accused Nos.1 to 3 are residing in ground floor, due to harassment by accused Nos.1 to 3 complainant left the building and residing at different place and he was often visiting the disputed building, on 12.4.2013 accused Nos.1 to 3 in furtherance of common intention break open the lock of 2nd floor, tress passed into the house and illegally given on rent to others, on 29.4.2013 tress passed into 1 st floor break open the lock caused damaged to fridge, cylinder, cycle, beeru, when he questioned the accused they criminally intimidated at the instigation of accused No.4 accused Nos.1 to 3 they cut of electricity, water and telephone connection and locked the gate thereby committed the offences.
5. After taking cognizance of the offences, the trial court secured the presence of accused Nos.1 to 4 after complying 207 CrPC the accused were released on bail. They are represented through counsel. The charges were framed against the accused, they pleaded not guilty, 5 Crl.A.No.1925/2019 claimed to be tried. The prosecution in proof of his case examined Pws 1 to 4 and Ex.P1 to 13 documents and MO.1 are marked and closed their side of evidence. 313 Statement of accused recorded they denied incriminating material evidence appeared against them.
6. The accused not chosen to lead defence evidence, however cross examination of prosecution witnesses Ex.D 1 to 11 documents are marked. After hearing arguments of both sides considering the material on record the trial court passed impugned judgment on 22.6.2019 wherein the accused Nos.1 to 4 are acquitted of the offences alleged holding that the prosecution failed to prove that the complainant was in possession of disputed building that the accused tress passed by breaking open the lock and damaged furniture of the complainant.
7. Being aggrieved by the impugned judgment PW 1/complainant preferred the appeal on various grounds that the judgment of the trial court is opposed to law, facts and circumstances of the case. The trial court erred in acquitting the accused though there is sufficient evidence 6 Crl.A.No.1925/2019 on record. PW1 to 3 are eye witnesses to the incident and they deposed before the court, the trial court erred in not considering their evidence. The trial court failed to consider that the prosecution proved its case beyond all reasonable doubts and failed to consider that the appellant/complainant was residing in the property and prayed to set aside the judgment and convict he accused.
8. Along with appeal memo application is filed under Section 5 of Limitation Act praying to condone the delay of 22 days. The respondents No.1 is represented by public prosecutor 2 to 5 are represented by their counsel.
The respondents not filed objections to IA.No.1
9. Trial court records are secured. Heard arguments of both sides.
10. Out of above said facts and circumstances of the case, the points that arose for the due consideration of this Court are;
Point No.1: Whether 2. Whether appellant made out sufficient cause for delay of 22 days in filing the appeal?
7
Crl.A.No.1925/2019 Point No.2: Whether the finding of the trial court that the prosecution failed to prove beyond all reasonable doubts that accused Nos.1 to 3 with common intention at the instigation of accused No.4 on 12.4.2013 committed house tress pass into house break open the lock of 2nd floor of the house situated at No.50, Vasanthappa Block, Ganganagar thereby committed the offences under Section 447 IPC is justified?
Point No.3: Whether the finding of trial court that the prosecution failed to prove beyond all reasonable doubts to establish that on 29.4.2013 accused Nos.1 to 3 in furtherance of common intention at the instance of accused No.4 break open lock of 1st floor committed house tress pass and damaged refrigerator, Almerah, cylinder and cycle and caused loss of Rs.3,00,000/ there by committed the offence under Section 448 read with Section 34 of IPC is justified?
Point No.4: Whether the finding of trial court that the prosecution failed to establish beyond all reasonable doubts that on 12.4.2013 accused Nos.1 to 3 in furtherance of common intention at the instance of accused No.4 caused life threat there by committed the offence under Section 506 read with Section 34 of IPC is justified?
8
Crl.A.No.1925/2019 Point No.5: Whether impugned judgment of the trial court call for interference? Point No.6: What order?
[
11. The answer of this Court to the above points are;
Point No.1 : In Affirmative
Point No.2 to 4 : Justified
Point No.5 : Negative
Point No.6 : As per the final order for the
following reasons.
REASONS
12. POINT No.1 : The appellant has filed
application under Section 5 of limitation act to condone the delay of 22 days in filing the appeal. In his affidavit it has stated that after passing of judgment of acquittal by the trial court he was waiting for the State to file an appeal, the state has not filed any appeal, therefore he filed appeal, there is delay in filing the appeal. The respondents have not filed any objections to the application. It is settled principle of law that there is no presumption that the delay is deliberate. There is no negligence or in action on part of the appellant in filing the appeal belatedly. The meritorious appeal cannot be dismissed on technical 9 Crl.A.No.1925/2019 ground of delay. Therefore, by considering the reasons stated in the affidavit, it is sufficient to condone the delay, accordingly, answer point No.1 in Affirmative.
13. POINT Nos.2 to 5: Since these points are interlinked with each other, they are taken up together for discussion in order to avoid repetition.
It is the specific case of the prosecution that the complainant PW1 is the owner of house, he had constructed the building by taking loan, he has discharged the loan. He was residing in 1st floor of House No.50 situated at Vasanthappa Block, Ganganagar, he had kept 2nd floor locked, accused Nos.1 to 3 are residing in the ground floor of the said building, due to harassment by the accused he had shifted his residence. That on 12.4.2013 accused Nos.1 to 3 criminally tress passed into the house of 2nd floor and illegally given on rent to the tenants, that on 29.4.2013 the accused house tress passed into the 1 st floor, damaged fridge, cylinder, cycle and caused loss to Rs.3,00,000/ and threatened at the instigation of accused No.4.
10
Crl.A.No.1925/2019
14. The accused denied the entire case of the prosecution, it is for the prosecution to prove case beyond all reasonable doubts. Admittedly the PW1 is the brother of accused No.1 and 4. Accused Nos.2 and 3 are the children of accused No.1. The prosecution to prove charges against the accused examined PW1 complainant in his evidence he deposed that in the year 1978 the site was purchased in the name of his mother, constructed a house, in the year 1992 they demolished sheet house and constructed building, that he and his mother were residing in the 1st floor and rented the ground floor and 2nd floor. It is further evidence of PW1 on 29.4.2013 when he visited the house he came to know the 2nd floor was rented to somebody by the accused No.1 on 12.4.2013. He further noticed that on 29.4.2013 the accused Nos.1 to 3 break opened the lock of his house on 1 st floor entered the house, damaged the furniture worth Rs.3,00,000/ and gave life threat at the instigation of accused No.4. He has been partly turned hostile, in the crossexamination by the 11 Crl.A.No.1925/2019 prosecution he denied drawing of mahazar at Ex.P2 and seizure of key by the police.
15. In the crossexamination he has stated that he has signed mahazar at Ex.P2(a) in the police station, in his presence no mahazar was conducted. He admits his mother is not residing with him since 8 years. The disputed property is standing in the name of accused No.1 and admits Gift Deed at Ex.D1. He has not filed any suit challenging the Ex.D1 Gift Deed dated 31.8.2007 executed by his mother in favour of accused No.1. It is elicited that he has produced documents before the police to show he was residing in the disputed property, in fact there is no such documents are produced by the Investigation Officer along with charge sheet. He admits he had filed a complaint against his mother in CC.No.3392/2008, he also admits criminal case filed against him for criminal tress pass. Ex.D2 and 3 are the documents standing in the name of PW1 in respect of other properties and he resides in the said property. In para 3 of the cross examination he has not answered that he has produced any documents to 12 Crl.A.No.1925/2019 show that his belongings are in the disputed house. Ex.D 4 to 6 katha and tax paid receipts standing in the name of accused No.1 he also admits since 2012 accused No.1 is paying tax at Ex.D7 to 11. He admits in Ex.D3 property he is residing but not answered how long he is residing therein. In para 12 of crossexamination PW1 admits from the date of Gift Deed in the year 2008 accused Nos.1 and her children are residing in the house as absolute owners. The said admission goes against the case of prosecution. It falsifies that PW1 and his family members were residing in the 1st floor of the disputed house.
16. PW1 in his evidence has not stated that he has witnessed the accused criminally tress passed into the house by braking the lock. The time of tress pass is not stated. In the complaint filed before the trial court it has not stated on what date and time the accused criminally house tress passed and damaged the properties. The complaint was filed before the trial court by way of private complaint one month after the alleged incident. Ex.P2 is the mahazar, PW1 ruled out drawing of mahazar in his 13 Crl.A.No.1925/2019 presence in the house. Ex.P3 to 11 are photographs of the house and furniture wherein PW1 claims the said furniture belongs to him. First of all the photographs are electronic evidence in the nature of secondary evidence. It is not supported with certificate under Section 65B of Evidence Act. Even then PW1 has not produced any material that before alleged incident he was residing in the 1st floor of the building and 2nd floor was kept under lock. PW1 admits that he is residing in Ex.D2 property. He is unable to give answer how long he is residing in the said house. Not answering the question the adverse inference is to be drawn that he was not residing in the disputed 1 st or 2nd floor of the house.
17. He admits he also filed another complaint against his mother and accused Nos.1 to 3, he also admits against him a criminal tress pass case has been filed. He admits accused No.1 is the owner of the disputed house from 2008 on execution of Gift Deed by his mother at Ex.D1 in favour of accused No.1. Since 2008 accused No.1 and her children are residing in the disputed house. This part of 14 Crl.A.No.1925/2019 the evidence would falsify the case of the complainant that he resides in the house as a owner. As per Ex.D1 the Gift Deed the site was purchased by mother of PW1 on 10.8.1978. She had executed a Gift Deed in favour of her daughter accused No.1. PW1 admits he has not questioned the said Gift Deed by challenging the same by filing suit. Under the circumstances, the evidence of PW1 that he is the owner residing in 1 st and 2nd floor the accused Nos.1 to 3 at the instigation of accused No.4 tress passed by breaking lock and damaged articles cannot be acceptable.
18. PW2 Srinivasa the brother of PW1, he speaks regarding PW1 residing in the disputed house and accused Nos.1 to 3 tress passed and threatened. In the cross examination PW2 admits he is residing in Cholanayakana Halli since 18 years, he filed a suit for partition in OS.No.8154/2007 against accused No.1. He admits accused No.1 is in possession of disputed property and it stands in her name. Therefore it is quite natural that he filed a suit for partition and deposed against accused 15 Crl.A.No.1925/2019 No.1. It is not his case that he has witnessed the incident of criminal tress pass by the accused. Therefore, there is no basis to accept his version that the accused committed the offence at the instigation of accused No.4.
19. PW3 Shankar Rao is another brother of accused No.1 he turned hostile not supported the prosecution. He also admits in the cross examination PW1 is not residing in the disputed house, he admits disputed property is standing in the name of accused No.1. The evidence of PW3 is goes against prosecution.
20. PW4 Mahesh.M the investigation officer who received the complaint and submitted charge sheet. He admits that on the date of incident accused No.1 was the owner of disputed property. The documents are standing in her name. He admits he had locked the disputed house. It is elicited that he has not mentioned in the charge sheet the basis for his conclusion that PW1 was in possession of disputed property. He has not verified any documents to show that the articles belongs to PW1. He do not know accused are residing in 1st and 2nd floor. 16
Crl.A.No.1925/2019
21. After appreciating the evidence on record, it is evident that there is a civil dispute between the parties. Accused No.1 by virtue of gift deed she is in occupation of disputed building. There is no material that earlier to incident PW1 was in possession of disputed 1 st and 2nd floor. There are no eye witness that the accused have tress passed. PW2 who has filed a partition suit has given evidence against accused. PW3 turned hostile. There are glaring nonresistance evidence on record. There is no cogent evidence that the accused Nos.1 to 3 in furtherance of common intention at the instigation of accused No.4 criminal tress passed and house tress passed by breaking lock of disputed house damaged the properties to attract sections 447, 448, 506 IPC read with 34.
22. In a appeal filed against acquittal the general principles regarding powers of appellate court has been considered by Hon'ble Apex Court in case of Rajesh Prasad Vs State of Bihar and another in (2022) 3 SCC 471. Para 28 and 29 reads as follows:
17
Crl.A.No.1925/2019 " 28. The Court in Chandrappa Vs. State of Karnataka highlighted that there is one significant difference in exercising power while hearing an appeal against acquittal by the appellate court. The appellate court would not interfere where the judgment impugned is based on evidence and the view taken was reasonable and plausible. This is because the appellate court will determine the fact that there is presumption in favour of the accused and the accused is entitled to get the benefit of doubt but if it decides to interfere it should assign reasons for differing with the decision of acquittal.
29. After referring to a catena of judgments, this Court culted out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words:
" 42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, re appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition 18 Crl.A.No.1925/2019 on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) As appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."19
Crl.A.No.1925/2019
23. In view of above said principles on re appreciation of evidence on record, absolutely there is no material to interfere in the judgment of the trial court. The trial court after appreciating the evidence of witnesses has rightly come to the conclusion that the prosecution failed to prove its case beyond all reasonable grounds and acquitted. The grounds urged by the appellant is not sustainable. Hence, appeal is to be dismissed as devoid of merits. The judgment of the trial court is justified. Accordingly answer point Nos. 2 to 4 as justified point No.5 in Negative.
24. POINT No.6: In view of findings given on point Nos.1 to 5, this Court pass the following order.
ORDER The application filed by the appellant under Section 5 of Limitation Act is allowed. Delay of 22 days in filing the appeal is condoned.
Appeal filed by The appeal filed by the appellant/Complainant S.Devendra Rao under Section 372 CrPC is Dismissed.
Consequently, the judgment in CC.No.1544/2014 dated 22.06.2019 passed by 20 Crl.A.No.1925/2019 LVI ACMM, Bengaluru acquitting the accused Nos.1 to 4 under Sections 447, 448, 506 read with Section 34 IPC is confirmed.
Send back the trial court records with a copy of this judgment.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 19th day of September, 2022).
(S.NATARAJ), LXVI Addl.CC & SJ, Bengaluru.
21
Crl.A.No.1925/2019 12.09.2022:
For Judgment Judgment pronounced in open court vide separate judgment with following operative portion:
ORDER The application filed by the appellant under Section 5 of Limitation Act is allowed. Delay of 22 days in filing the appeal is condoned.
Appeal filed by the
appellant/Complainant
S.Devendra Rao under Section
372 CrPC is Dismissed.
Consequently, the
judgment in CC.No.1544/2014
dated 22.06.2019 passed by LVI
ACMM, Bengaluru acquitting
the accused Nos.1 to 4 under
Sections 447, 448, 506 read
with Section 34 IPC is
confirmed.
Send back the trial court
records with a copy of this
judgment.
LXVI ACC & SJ,
Bengaluru.
22
Crl.A.No.1925/2019