Bangalore District Court
State By vs Mahesh P.M on 16 May, 2018
1 CC.No.22246/2013
IN THE COURT OF THE XLIII ADDL.C.M.M
MAYO HALL UNIT, BENGALURU
Dated: This the 16th day of May 2018
PRESENT: Sri. PRAKASH NAYAK,
B.A.(LAW)., LL.B.,
XLIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
CC.No.22246/2013
Complainant: State by, M.D.Pura P.S. Police Station
(By Sr.APP)
Accused: 1. Mahesh P.M.
S/o.Manohar .P.S.
Aged about 34 years
R/at.No.18, Near Panchayath
Office, Horamavu Main Road,
Horamavu, Bengaluru
2. Mohan Nayar
S/o.K.K.R.Nayar
Aged about 57 years
R/at.No.129, Ashraya,
4th B Cross, Muniyappa Layout,
Chikkabanasavadi, Bengaluru
3. Subash.V @ Subbarao
S/o.Viswanathan
Aged about 35 years
R/at.No.43, Krishnappa
Compound, B Channasandra,
Banasavadi, Bengaluru
4. Anuradha Nayak
W/o.Manjunath Nayak
2 CC.No.22246/2013
Aged about 59 years
R/at.No.728, 2nd A Main,
O.M.B.R.Layout, Banasavadi,
Bengaluru
(A-1 & 3 By Sri. N.C.S. & Amar Correa
Associates Advocates)
JUDGMENT
The PI of M.D.Pura P.S filed the instant charge sheet against the accused No.1 to 4 for offence punishable u/s. 337, 338, 304(A) of IPC r/w.sec.320, 321 of Karnataka Municipal Corporation Act. During the pendency of the case accused No.2 died and accused No.4 pleaded guilty.
2. The gist of the prosecution case is that the accused No.1 to 3 are entrusted with construction of a building in Khata No.129, Site No.14 situated at 4th Cross, Garudacharpalya, Bengaluru and on 04- 07-2012 at about 11-45 a.m. due to the rash and negligent act of said accused by using sub standard iron, cement and sand which resulted into collapse of the building due to which Cw.7 and Cw.9 sustained simple and grievious injuries and it causes death of accused No.2 and one Sabanna and thereby the accused are responsible for the untimely death of said persons. It is further alleged that the accused No.1 to 4 have undertaken the said construction of the building without obtaining valid sanction of the plan from BBMP without obtaining necessary consent from the concerned authorities and thereby they have violated the Provsions 3 CC.No.22246/2013 of Karnataka Municipal Corporation Act and thereby the accused have committed aforesaid offence. Concerned police registered Cr.No.396/2008.
3. The accused No.1 & 3 n response to the summons appeared before the Court through their counsel and they are on bail. As contemplated U/s.207 of Cr.P.C., the copy of charge sheet furnished to the accused No.1 & 3. Subsequently, charge is framed and read over to the accused, who pleaded not guilty and claims to be tried.
4. The prosecution in order to prove its case has examined Pw.1 to Pw.4, Ex.P1 to Ex.P5 got exhibited. After closure of the prosecution evidence the accused No.1 & 3 are examined U/s.313 Cr.P.C wherein the accused No.1 & 3 have denied the incriminating evidence appears against them and they have not chosen to adduce any evidence.
5. Heard. The learned Sr.APP for prosecution and learned counsel for accused and perused the records.
6. The following points arise for consideration of the Court.
1. Whether the prosecution beyond reasonable doubt Proves that the accused No.1 & 3 committed offence punishable U/s. 337, 338, 304(A) of IPC r/w.sec.320, 321 of Karnataka Municipal Corporation Act?
2. What order?
4 CC.No.22246/20137. My answer of the aforesaid points.
Point No.1 - In the Negative
Point No.2 - As per final order for the following
REASONS
8. Point No.1: In order to substantiate its case the prosecution has initially examined Cw.1 Dayanand as Pw.1, who in his examination in chief has deposed that on 04-07-2012 he received information from the office of BBMP Commissioner that under construction building at Garudacharpalya which is situated at opposite to VST lane was collapsed and immediately he rushed to the said place and found that building was leaned and basement was collapsed and some persons were found sustaining grievious injuries and two persons died. He further stated that he submitted Ex.P1 FIS to the police alleging that due to the faulty design and substandard quality materials used for construction for the building which led to collapse of the building. He has also stated that in his presence the police have conducted Ex.P2 mahazar. Pw.1 is not cross-examined by the accused. Further the prosecution has examined Cw.2 Manjunath as Pw.2, who in his examination in chief has deposed that he has given contract for construction of the house to accused No.1 to 3 and accused No.1 was given the responsibility to complete the construction work and on 04-07-2012 the entire building was collapsed and the said incident took place due to the faulty design and using of substandard quality materials for construction of the work. Even Pw.2 is also not cross-examined by the accused. Further 5 CC.No.22246/2013 the prosecution has examined Cw.5 Beerappa as Pw.3, who in his examination in chief has deposed that at about 3 years back along with 12 to 13 persons they were carrying out molding work under supervision of one Subhas, who is accused No.3 and one Sabanna went inside the building to drink water and then sound came and suddenly building collapsed and some children were struck inside and some persons sustained injuries and two persons died in the said incident. Since Pw.3 not fully supported the case of the prosecution he was subjected to cross-examination by Lr.Sr.APP. In his cross- examination he denied the fact of submission of statement to police as per Ex.P4. Further the prosecution has examined Cw.23 Sujith as Pw.4, who said good bye the to the case of the prosecution and in his cross-examination made by Lr.Sr.APP he denied the fact of submission of statement to police as per Ex.P5. The materials on record reveals that in spite of availing sufficient opportunities the prosecution has failed to secure remaining witnesses. The proclamation issued to Cw.7 to Cw.10, Cw.11 to Cw.19, Cw.21, 22, 26, Cw.9, Cw.25 to Cw.27 duly executed and since they were not secured, they were dropped. Even is spite of availing sufficient opportunities the prosecution failed to secure the remaining witnesses and considering the failure of the prosecution to secure these witnesses in spite of availing more than a year time the court has constrained to reject the prayer of Lr.Sr.APP and closed the prosecution evidence.
6 CC.No.22246/20139. The overall analysis of the evidence on record clearly reveals that in this case the prosecution has miserably failed to prove guilt of the accused No.1 and 3. The specific allegation made by the prosecution that the said incident i.e. collapse of the building took place due to the faulty design and use of substandard materials for construction of the building. To substantiate these allegation the prosecution is bound to produce relevant documents in this regard. It is true that the prosecution has examined 4 witnesses and Pw.1 to 3 were not cross-examined by the accused. However it is relevant to note that Pw.1 to 3 have stated that the said incident took place due to the faulty design and use of substandard materials for construction of the work. As mentioned above to substantiate these allegation the prosecution ought to have produced relevant documents. The prosecution has not taken any steps to secure the relevant documents in this regard. Therefore, under the said existing circumstances of the case the court opines that the fact of non cross- examination of Pw.1 to 3 is not fatal to the accused No.1 and 3. Further Pw.3 and 4 not fully supported the case of the prosecution and hence the prosecution cannot rely upon their evidence. As mentioned above the prosecution has failed to secure the presence of IO and other material witnesses in spite of availing sufficient opportunities. The fact of non examination of IO and other material witnesses is fatal to the case of the prosecution. The careful perusal of the materials on record reveals that the prosecution in this case has miserably failed to prove guilt of accused No.1 and 3 beyond 7 CC.No.22246/2013 reasonable doubt. Apart from this the court opines that the prosecution has unable to establish the existence of mandatory ingredients which attracts the offence as alleged against the accused. Hence taking into consideration all the aspect the court opines that this is fit case to give benefit of doubt to accused No.1 and 3.
, 10 The aforesaid oral and documentary evidence on record clearly reveal that the prosecution has not adduced any cogent evidence to prove the guilt of the accused beyond reasonable doubt. The evidence of Pw.1 to 4 is not sufficient to accept the case of the prosecution. There is no incriminating evidence against the accused persons which establishes the guilt of the accused persons. In view of the aforesaid materials on record, the Court is of the opinion that the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. Further it is settled law that on assumptions and presumptions the case of the prosecution cannot be proved and accepted. Further it is settled law that when two views are possible the view which is favourable to the accused has to be accepted. In view of the aforesaid discussions and for the aforesaid reasons the Court proceed to answer Point No.1 in the Negative.
11. Point No.2 : For the aforesaid reasons, the Court proceed to pass the following 8 CC.No.22246/2013 ORDER Acting U/s.255(1) of Cr.P.C accused No.1 & 3 are hereby acquitted for the offence punishable U/s. 337, 338, 304(A) of IPC r/w.sec.320, 321 of Karnataka Municipal Corporation Act.
The bail bond of the accused No.1 & 3 shall stand in force for a period of 6 months as contemplates u/s.437(A) of Cr.P.C.
(Dictated to the steno, transcribed by her, same was corrected by me and then pronounced in open Court on this the 16th day of May 2018) (Prakash Nayak) XLIII ACMM, BENGALURU ANNEXURE LIST OF WITNESSES EXAMINED:
Pw.1 - Dayanand Pw.2 - Manjunath Pw.3 - Beerappa Pw.4 - Sujith LIST OF EXHIBITS MARKED: Ex.P.1 - Compliant Ex.P.1(a) - Signature of Pw.1 Ex.P.2 - Mahazar Ex.P.2(a) - Signature of Pw.1 Ex.P.3 - Agreement 9 CC.No.22246/2013 Ex.P.4 & 5 - Statement of Pw.3 & 4 LIST OF MATERIAL OBJECTS GOT MARKED: Nil (Prakash Nayak) XLIII ACMM, BENGALURU 10 CC.No.22246/2013 11 CC.No.22246/2013