Bangalore District Court
The State By Police Sub-Inspector vs K.Venkatesh S/O Late Karuppan on 4 March, 2023
KABC030053792017
Presented on : 21-01-2017
Registered on : 21-01-2017
Decided on : 04-03-2023
Duration : 6 years, 1 months, 14 days
IN THE COURT OF THE CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Present:
Sri.Patil Veeranagouda S.
B.Com. LL.M.
Chief Metropolitan Magistrate,
Bengaluru.
Dated this the 04 th day of March, 2023
C.C. No.2464/2017
Complainant:
The State by Police Sub-Inspector
B.M.T.F. Police Station,
Bengaluru.
(By Sr. Assistant Public Prosecutor)
Versus
2 C.C.No.2464/2017
Accused:
K.Venkatesh s/o Late Karuppan,
Age: 46 years, R/at No.11, 1st Block,
Ragi Gudda Slum, J.P.Nagar 2 nd Stage,
Bengaluru.
(By Sri B.K.Ramesh, Advocate)
PARTICULARS U/S 355 OF THE Cr.P.C. 1973.
1. Sl. No. of the Case 2464/2017
2. The date of commission Prior to 17-06-2015
of the offence
3. Name of the complainant H.P.Sudhir
4. Name of the accused Venkatesh
5. The offence complained of U/s.5(B) of The Karnataka
or proved Slum Area (Improvement &
Clearance) Act, 1973 and
Sec.448, 427 and 188 IPC
6. Plea of the accused and Pleaded not guilty
his/her examination
3 C.C.No.2464/2017
7. Final Order Accused acquitted of the
offences punishable U/s.5(B)
of The Karnataka Slum Area
(Improvement & Clearance)
Act, 1973 & Sec.188 IPC and
convicted of the offences
punishable under Sec.427
and 448 IPC
8. Date of such order 04-03-2023
JU DG MEN T
The Police Sub-Inspector of B.M.T.F. Police Station
has filed final report against accused for the offences
punishable U/s.5 (B) of The Karnataka Slum Area
(Improvement & Clearance) Act, 1973 and Sec.448, 427
and 188 of IPC.
2. The prosecution case is that under NURM B.S.U.P.
Project of Karnataka Slum Development Board, house
No.11 was allotted to accused in Block No.1, Ragi Gudda
4 C.C.No.2464/2017
Slum Quarters, Ward No.77 of B.B.M.P. The house No.15
situated adjacent to house No.11 and having common wall
was vacant. That being so, the accused by not obtaining
any permission has demolished the common wall in
between the said two houses, got converted the said
houses into one house and caused loss to the Board.
Accordingly, CW1 being the Executive Engineer of the
Board lodged first information before the B.M.T.F. Police.
The said police have registered the case and issued FIR.
The accused moved bail application and obtained bail from
this court. After investigation, the I.O. has filed final report
against accused for the above said offences.
3. This Court took cognizance against accused for the
alleged offences. In pursuance of summons, the accused
appeared before this court. The prosecution papers
furnished to him in compliance of sec.207 of Cr.P.C.
5 C.C.No.2464/2017
4. After hearing both the sides, my predecessor in office
has framed Charges, read over and explained to accused,
where he pleaded not guilty and claimed to be tried.
5. To substantiate its case, the prosecution has
examined in all three witnesses as PW.1 to 3 and got
marked four documents as per Ex.P.1 to 4. CW2 is
reported to be dead. CW5 is given up by the prosecution.
Despite taking coercive steps, the prosecution has failed to
secure CW3, so the prosecution side evidence taken as
closed.
6. Thereafter, accused was examined U/Sec.313 Cr.P.C.
to enable him to explain the incriminating evidence
appeared against him in the evidence of prosecution. He
denied the same and did not choose to lead any defence
6 C.C.No.2464/2017
evidence. Thus the defence of accused is one of total denial
of prosecution story.
7. Heard both sides and perused the material available
on record, the points that arise for my determination are:
1. Whether the prosecution proved beyond all
reasonable doubt that the accused without
obtaining permission from the Karnataka
Slum Development Board has demolished the
common wall in between house No.11 which
was allotted to him under NURM B.S.U.P.
Project of the Board in Block No.1, Ragi
Gudda Slum Quarters, Ward No.77 of
B.B.M.P. and house No.15 situated adjacent
to the said house and thereby committed the
offence punishable U/sec.5(B) of Karnataka
Slum Area (Improvement and Clearance) Act,
1973?
2. Whether the prosecution further proved
beyond all reasonable doubt that the accused
7 C.C.No.2464/2017
trespassed into house No.15 belonging to
Karnataka Slum Development Board and
thereby committed the offence punishable
U/sec.448 of IPC?
3. Whether the prosecution further proved
beyond all reasonable doubt that the accused
demolished the common wall in between
house No.11 and 15 and caused loss to the
Karnataka Slum Development Board and
thereby committed the offence punishable
U/sec.427 of IPC?
4. Whether the prosecution further proved
beyond all reasonable doubt that the accused
by way of trespass demolished the common
wall in between house No.11 and 15 and
converted them as single house, which is in
disobedience to the order duly promulgated
by the public servant and thereby committed
the offence punishable U/sec.188 of IPC?
5. What order?
8 C.C.No.2464/2017
8. My findings on the above points are as under:
Point No.1 : In the negative
Point No.2 : In the affirmative
Point No.3 : In the affirmative
Point No.4 : In the negative
Point No.5 : As per final order for the following:
REA S ON S
9. Point No.2 and 3: In order to avoid repetition of facts
and discussion, I have taken both the points together for
common consideration for the sake of brevity.
10. To prove its case, the prosecution has examined in all
three witnesses as PW1 to 3 and got marked four
documents as per Ex.P1 to 4.
9 C.C.No.2464/2017
11. PW1/H.P.Sudhir being the then Executive Engineer of
Slum Development Board, Sheshadripuram has stated that
as per the complaint given by their Commissioner, on
17-06-2015 they along with BMTF police have inspected
house No.11 of Ragi Gudda, wherein the residents
Venkatesh and Kavitha have demolished the common wall
in between house No.11 and 15 and caused loss to the
tune of ₹60,000/- to ₹70,000/- to the Board. In this
regard, he lodged first information as per Ex.P1, thereafter
the police visited to spot and conducted Ex.P2 mahazar.
12. PW2/B.S.Chandrappa being the then Assistant
Executive Engineer of Slum Development Board,
Sheshadripuram has stated that on 17-06-2015, himself
and PW1 visited the Ragi Gudda Slum Quarters to inspect
about the unauthorized residents, wherein the residents
Venkatesh and Kavitha of house No.11 have demolished
10 C.C.No.2464/2017
the common wall in between house No.11 and 15 and
caused loss to the tune of ₹60,000/- to ₹70,000/- to the
Board. In this regard, PW1 lodged first information as per
Ex.P1.
13. During cross-examination, PW1 and 2 have answered
that the middle wall of house No.11 and 15 was
demolished, to the question that which wall of house No.15
was demolished. They have denied all other suggestions
put to them and nothing worth was elicited, so as to dis-
believe their evidence.
14. PW3 Krishnakumar being the I.O. has deposed that
on 18-06-2015 on the basis of Ex.P1 first information
lodged by PW1, he registered FIR as per Ex.P3. On the
same day, he arrested the accused and produced before
the Court. Thereafter he visited the spot and conducted
11 C.C.No.2464/2017
mahazar as per Ex.P2. He recorded the statements of
witnesses, collected Ex.P4 from the concerned department
completed investigation and final report against accused.
15. During cross-examination of PW3, to the suggestion
that house No.11 and 15 in Block No.1 were allotted to
accused and his wife, he has stated that only house No.11
was allotted. Further he stated that in order to show the
demolition of wall, he has taken photograph through his
mobile and after taking its print out he has submitted to
his S.P. He admitted that he has not mentioned about the
photograph in Ex.P2 as well as in charge sheet, but he
stated that he has mentioned in his internal report. He
has denied all other suggestions put to him. Nothing worth
was elicited, so as to dis-believe his evidence.
12 C.C.No.2464/2017
16. Here in this case, the allotment of house No.11 to the
accused is not in dispute. So also house No.15 situated
adjacent to the house No.11 which is kept vacant is also
not in dispute.
17. Ex.P4 is letter dated 29/30-09-2015 through which
information has been furnished by the Karnataka Slum
Development Board along with enclosures. The copy of
Intimation Letter dated 17-07-2013 clearly goes to show
that house No.11 in Block No.1, Bio-metric Card No.198
has been allotted to the accused and his wife Kavitha. The
sketches annexed to Ex.P4 shows the middle wall existing
between house No.11 and 15 in Yellow colour, which has
been demolished.
18. The learned counsel for accused contended that
Ex.P2 mahazar was not proved because none of the panch
13 C.C.No.2464/2017
witnesses have been examined. Of course, in this case PW1
being the first informant has stated about conducting of
Ex.P2 in his presence and the prosecution has failed to
adduce the evidence of mahazar witnesses. The I.O. PW3
has also deposed about drawing of mahazar as per Ex.P2.
Therefore, there is no doubt with regard to drawing of
mahazar as per Ex.P2.
19. It is settled principle of law that the evidence of
mahazar witnesses if not available then evidence of
Investigating Officer who has conducted mahazar can be
relied upon. This proposition of law has been laid down by
our own Hon'ble High Court in the decision reported in
2015 (1) KCCR 513 High Court of Karnataka V/s Syed
Mohammed Ibrahim. This ratio is squarely applicable to
the instant case.
14 C.C.No.2464/2017
20. The accused has failed to explain anything while
recording his statement under section 313 of Cr.P.C., he
has also not chosen to lead any defence evidence. It is
significant to note here that the accused is best witness to
explain as to how the wall of his house was demolished, as
he is having personal knowledge and has to explain it in
view of section 106 of the Indian Evidence Act. For better
understanding, it is proper to culled out Sec.106 of the
Indian Evidence Act, which reads as under;
106. Burden of proving fact especially
within knowledge - When any fact is
especially within the knowledge of any
person, the burden of proving that fact is
upon him.
21. After going through the above provision, which lays
down that where the subject matter of allegation lies
15 C.C.No.2464/2017
peculiarly within the knowledge of one of the parties, that
party must prove it whether it may be affirmative or
negative character. The true object to be achieved by a
court of justice can only be furthered with propriety by the
testimony of the party, who personally knowing the whole
circumstances of the case can dispel the suspense
attached to it. It is no doubt a golden rule that in criminal
jurisprudence the accused is presumed to be innocent
unless and until he is found guilty of the charged offence.
The burden to prove guilt of the accused is on the
prosecution to prove facts beyond all reasonable doubt.
But this rule is provided with exception in Sec.106 of the
Indian Evidence Act.
22. Here in this case, the accused remained silent and he
has failed to explain the demolition of wall existing in his
house. Admittedly the wall which was demolished is
16 C.C.No.2464/2017
situated inside the house allotted to accused. Under such
circumstances, expecting the evidence from eyewitnesses
and independent witnesses to prove the case of
prosecution is quite impossible. The prosecution by placing
material on record has proved that house No.11 was
allotted to the accused and house No.15 was not been
allotted to anybody and kept vacant. The prosecution has
proved the above facts by way of initial burden, then onus
shifts on the accused to state that who has demolished the
said wall existing in between house No.11 and 15.
23. On perusal of the entire oral as well as documentary
evidence placed on record by the prosecution, it clearly
goes to show that by demolishing the common wall, the
accused has converted house No.11 and 15 into one house,
trespassed into house No.15 and caused loss to the Board.
Admittedly the house No.15 has not been allotted to
17 C.C.No.2464/2017
anybody and it is vacant. So the chances of demolishing
the said common wall by the other occupants of house
No.15 does not arise. Therefore the contention of learned
advocate for accused that the prosecution has not
examined the independent or eyewitnesses will not serve
any purpose.
24. The prosecution through cogent and convincing
evidence has established that the accused by demolishing
the common wall existed in between house No.11 and 15
trespassed into house No.15. PW1 to 3 have categorically
stated before this court that the accused has committed
the said offences. Though they were cross-examined at
length but nothing worth was elicited from their mouth so
as to disbelieve their version. The accused has also not
given any proper explanation as required under section
106 of Evidence Act. In that event, I have no hesitation to
18 C.C.No.2464/2017
hold that the prosecution has proved the offences
punishable under Sec.427 and 448 of IPC. Hence, I answer
the above points in the affirmative.
25. Point No.1 and 4: In order to avoid repetition of facts
and discussion, I have taken both the points together for
common consideration for the sake of brevity.
26. Section 5(B) of The Karnataka Slum Area
(Improvement & Clearance) Act, 1973 deals with
prohibition of construction of buildings without previous
permission. But here in this case, no case is made out by
the prosecution that the accused has made any
construction in the buildings of said Board without any
previous permission. On the other hand the prosecution
has proved that the accused without obtaining permission
from the Karnataka Slum Development Board has
19 C.C.No.2464/2017
demolished the common wall. Therefore viewed from any
angle, the act of accused will not attract the offence
punishable under Section 5(B) of the said Act.
27. The another allegation of prosecution is that the
accused in disobedience to the order duly promulgated by
public servant has demolished the said wall. However the
prosecution has not placed any such order, which
constitute an offence punishable under Sec.188 of IPC, for
its violation. So, the prosecution has miserably failed to
prove that the accused has committed the above offences.
Hence I answer the above points in the negative.
28. Point No.5:- For the foregoing discussion and my
findings to the above points, I proceed to pass the
following:
20 C.C.No.2464/2017
ORDER
Accused is hereby acquitted of the offences punishable U/s.5(B) of The Karnataka Slum Area (Improvement & Clearance) Act, 1973 and Sec.188 of IPC by acting under Section 248 (1) of Cr.P.C.
However, he is convicted of the offences punishable U/s.448 and 427 of IPC by acting under Section 248 (2) of Cr.P.C.
To hear regarding sentence, call later. (Dictated to the stenographer directly on the computer, typed by him, verified and corrected by me, then the judgment pronounced by me in the open court, on this the 04th day of March 2023) (Patil Veeranagouda S.) Chief Metropolitan Magistrate, Bengaluru.
21 C.C.No.2464/2017ORDER ON SENTENCE Heard on sentence.
The learned Sr. A.P.P. submitted that the prosecution has proved that the accused by way of demolishing the common wall between house No.11 allotted to him by the Karnataka Slum Development Board and house No.15 has trespassed into house No.15 and caused loss to the Board. Hence he prayed this Court to impose maximum sentence provided for the offences proved.
On the other hand, learned counsel for accused submitted that the accused is having no criminal antecedents and is the first time offender. Further submitted that the accused is having responsibility to look after his family members and hence prayed for lenient view while imposing sentence. The learned counsel also prayed to 22 C.C.No.2464/2017 extend the benefits of Probation of Offenders Act to the accused.
Having regard to the submission of both the sides, admittedly the offences committed by accused is against the State, who has demolished the wall of house belonging to Karnataka Slum Development Board and trespassed into it. So in my considered opinion, the accused is not entitled for the benefit under Probation of Offenders Act.
Section 448 of IPC is punishable with imprisonment for one year, or fine of ₹ 1,000/- or both. Section 427 IPC is punishable with imprisonment for 2 years, or fine, or both.
It is settled principle of law that sentence imposed shall respond to the cry of society. Here in this case as already noted, the accused has committed offences against the State.
At this juncture it is pertinent to mention decision of the Hon'ble Apex Court reported in 2018 SCC OnLine SC 23 C.C.No.2464/2017 773 State of Rajasthan V/s Mohan Lal wherein it is held at paragraph No.13 which is as under:
"13. From the aforementioned observations, it is clear that the principle governing the imposition of punishment will depend upon the facts and circumstances of each case. However, the sentence should be appropriate, adequate, just, proportionate and commensurate with the nature and gravity of the crime and the manner in which the crime is committed. The gravity of the crime, motive for the crime, nature of the crime and all other attending circumstances, have to be borne in mind while imposing the sentence. The Court cannot afford to be casual while imposing the sentence, in as much as both the crime and criminal are equally important in the sentencing process. The Courts must see that the public does not loose confidence in the judicial system. Imposing inadequate sentences will do harm to the justice system and may lead to a state where the victim loses confidence in the judicial system and resorts to private vengeance."
Keeping in mind the mitigating factors against the accused and considering the above ratio, I proceed to pass the following:
24 C.C.No.2464/2017
ORDER The accused is liable to pay fine of ₹1,000/- for the offence punishable U/s 448 IPC. In default of payment of fine, he shall undergo SI for 15 days.
The accused is liable to pay fine of ₹9,000/- for the offence punishable U/s 427 IPC. In default of payment of fine, he shall undergo SI for two months.
His bail bond stands cancelled.
Office to supply free copy of this Judgment to the accused.
(Dictated to the stenographer directly on the computer, typed by him, verified and corrected by me, then the judgment pronounced by me in the open court, on this the 04th day of March, 2023) (Patil Veeranagouda S.), Chief Metropolitan Magistrate, Bengaluru.25 C.C.No.2464/2017
ANNEXURE Witnesses examined for the prosecution :
PW1 : H.P.Sudhir s/o Palaksha PW2 : B.S.Chandrappa s/o Shankrappa.B. PW3 : Krishna Kumar s/o Sridharan Documents marked on behalf of the prosecution :
Ex.P1 : First Information Statement
Ex.P1(a) : Signature of PW1
Ex.P1(b) : Signature of PW2
Ex.P1(c) : Signature of PW3
Ex.P2 : Spot Mahazar
Ex.P2(a) : Signature of PW1
Ex.P2(b) : Signature of PW3
Ex.P3 : First Information Report
Ex.P3(a) : Signature of PW3
Ex.P4 : Letter of KSDB
Ex.P4(a) : Signature of PW3
Witnesses examined for the defence:
None Documents marked on behalf of the defence:
Nil Chief Metropolitan Magistrate, Bengaluru.26 C.C.No.2464/2017
04-03-2023 Accused present.
Judgment pronounced in the open court vide separately ORDER Accused is hereby acquitted of the offences punishable U/s.5(B) of The Karnataka Slum Area (Improvement & Clearance) Act, 1973 and Sec.188 of IPC by acting under Section 248 (1) of Cr.P.C.
However, he is convicted of the offences punishable U/s.448 and 427 of IPC by acting under Section 248 (2) of Cr.P.C.
To hear regarding sentence, call later.
Chief Metropolitan Magistrate, Bengaluru.27 C.C.No.2464/2017
Orders on Sentence pronounced in the open court vide separately ORDER The accused is liable to pay fine of ₹1,000/- for the offence punishable U/s 448 IPC. In default of payment of fine, he shall undergo SI for 15 days.
The accused is liable to pay fine of ₹9,000/- for the offence punishable U/s 427 IPC. In default of payment of fine, he shall undergo SI for two months.
His bail bond stands cancelled. Office to supply free copy of this Judgment to the accused.
Chief Metropolitan Magistrate, Bengaluru.28 C.C.No.2464/2017