Bangalore District Court
The State Of Karnataka Through vs Rajesh Kumar Jain on 30 November, 2021
1 CC.No.29600/17
IN THE COURT OF XXIV ADDL. CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
DATED THIS THE 30th DAY OF NOVEMBER 2021
C.C. No.29600/17
Present: SRI. B.C.CHANDRASHEKAR
B.A., LL.B.,
XXIV ADDL. C.M.M., BENGALURU.
COMPLAINANT : The State of Karnataka through
VV Puram Police Station
V/s.
Accused 1.Rajesh Kumar Jain,
s/o.Bhavarlal Bansali, 40 yrs,
R/at.No.17/1,New High school
road, VV Puram, Bengaluru.
2. Kanthi Jain, s/o.Bhavarlal, 50
yrs, R/at.No.17/1,New High school
road, VV Puram, Bengaluru.
DATE OF COMMENCEMENT : 14/05/2017
OF OFFENCE
DATE OF ARREST OF THE : Accused No.1 and 2 are on bail.
ACCUSED
OFFENCES ALLEGED : U/s.288, 504, 506 r/w.34 of IPC.
2 CC.No.29600/17
DATE OF COMMENCEMENT : 10/04/2019
OF EVIDENCE
DATE OF CLOSING OF : 12/02/2020
EVIDENCE
OPINION OF THE JUDGE : Found not guilty
(B.C.CHANDRASHEKAR)
XXIV A.C.M.M., BENGALURU.
: J U D G M E N T :
The PI of VV Puram Police station has filed chargesheet
against accused persons for the offences punishable u/s.288,
504, 506 r/w.34 of IPC.
2. The brief facts of the case of the prosecution are
that the accused No.1 and 2 are the owners of the house
bearing No.17/1, situated at N.H.S.Road, VV Puram, they
have obtained the temporary order from BBMP for the
construction of stilt ground floor, 1st floor and 2nd floor. But
they were constructing the 3rd floor illegally. However at the
time of construction, they have not taken any safety measures
and they have laid the saarve poll from basement till the
constructing floor and on 14/5/17 at about 4.00 pm., it has
fallen down on the road which was pathway of the public.
When CW 1 told them that because they are not tied the
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saarve polls properly, they would have been fallen on her
house and if they fallen on the publics, so many problem
would be caused to the human life, at that time, the accused
No.1 with the support of accused No.2 abused the CW 1 in a
filthy language and put the life threat and thereby committed
the offences u/s. 288, 504, 506 r/w.34 of IPC.
3. On the basis of the complaint of the CW 1, the NCR
has been registered and after taking permission from the
court, the crime has been registered against the accused
persons for the said offences. After investigation, the
Investigating officer has submitted the chargesheet. The
cognizance for the said offences are taken and on issuance of
notice, the accused persons have appeared before the court
through their counsel and filed the bail application.
Accordingly, they have released on bail.
4. The copies of the prosecution papers have furnished
to the accused No.1 and 2 as contemplated u/s.207 of
Cr.P.C., Charge for the offences u/s.288, 504, 506 r/w.34 of
IPC have been framed & read over, explained to the Accused
No.1 and 2 in the language best known to them. The Accused
No.1 and 2 have not pleaded guilty and claims to be tried.
Hence, the case taken up for trial.
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5. In order to prove the guilt of the accused persons, the
prosecution has examined 2 witnesses as PW 1 and 2 out of 8
witnesses as cited in the chargesheet. 7 documents have
been marked as Ex.P.1 to 7. After prosecution evidence, the
accused No.1 and 2 have been examined u/s.313 of Cr.P.C.,
& they have denied the prosecution evidence. The accused
No.1 and 2 have not chosen to submit the defence evidence.
However, during the course of cross examination of PW 1 the
accused persons have got marked 4 photos as Ex.D.1 to D.4.
6. Heard the arguments of learned APP and counsel for
accused persons. Perused, On the basis of the above, the
following points have arises for my consideration :
1) Whether prosecution proves beyond
reasonable doubt that, the accused No.1
and 2 were constructing the 3rd floor
illegally at house bearing No.17/1,
situated at N.H.S.Road, VV Puram, at
the time of construction, they have not
taken any safety measures and they
have laid the saarve poll from basement
till the constructing floor and on
14/5/17 at about 4.00 pm., it has fallen
down on the road which was pathway
of the public and thereby committed the
offences u/s.288 r/w.34 of IPC ?
2) Whether prosecution further proves
beyond reasonable doubt that on the
5 CC.No.29600/17
above said date, time and place,
accused persons abused CW 1 in filthy
language and thereby gave provocation
to CW 1 knowing it to be likely that such
provocation will break the public peace
of CW 1 and thereby committed the
offences u/s.504 r/w.34 of IPC ?
3) Whether prosecution further proves
beyond reasonable doubt that on the
above said date, time and place,
accused persons threatened CW1 to
do away her life with dire consequences
and thereby committed the offences
u/s.506 r/w.34 of IPC
4) What order?
7. My answer to the above points is as under;
Point No.1 to 3 In the Negative.
Point No.4As per final order for the following;
REASONS
8. According to the prosecution accused No.1 & 2 have
committed the offences u/s.288, 504, 506 r/w.34 of IPC. In
order to prove the said guilt of the accused persons the
prosecution has examined the complainant as PW 1.
According to her evidence she is the owner of two house
situated at N.H.S.School road. The accused persons are also
6 CC.No.29600/17
having the house bearing No.17/1, in between these two
houses there is a road. The accused No.1 and 2 have
constructed the 3rd floor illegally, hence, in the year 2008 she
has lodged the complaint to the BBMP. Inspite of that they
have completed the constructed of 3 rd floor. Again accused
persons have started the construction of 4 th floor illegally and
once again she lodged the complaint in the year 2017. On
14/5/17 when the accused persons were constructing the 4 th
floor, they have installed the saarve poll but due to heavy rain
they have broken and fallen down towards western side on
electrical line. Similarly the saarve polls laid towards northern
side would appears to be broken and fallen on her house.
Hence, she asked the accused persons to remove the same.
At that time, accused persons have put the life threat and
abused her in a filthy wordings in between 4.30 to 5.00 pm.,
Hence, she lodged the complaint before the police as per
Ex.P.1. On 30/5/17 the police have visited the spot and drew
up mahazar in between 11.00 to 12.00 pm., and it is marked
at Ex.P.2. At the time of mahazar she has given the photos to
the police and she has identified the same and they are
marked as Ex.P.3 to 5. Further, she has also given a
certificate about the said photos that she herself has took the
same and it has marked as Ex.P.6.
7 CC.No.29600/17
9. The prosecution further examined one of the eye
witness to the incident as PW 2 and he has deposed that he
does not know the accused persons as well as CW 1 and he
has not seen any incident and he has not given any statement
before the police. Thus, he has totally turned hostile to the
case of the prosecution. Apart from the oral evidence Ex.P.1
is the complainant lodged by CW1, Ex.P.2 is the spot
mahazar, Ex.P.3 to 5 are the photos, Ex.P.6 is the certificate,
Ex.P.7 is the statement of PW 2. During the course of cross
examination of PW 1 the accused persons have got marked 4
photos as Ex.D.1 to 4.
10. It is an allegation of the prosecution as well as PW 1
that the accused persons were constructing the 4 th floor
illegally and they have laid some saarve poll for the
construction and due to rain some of the saarve pools have
broken towards western side and some of the polls would be
broken towards her house, that is the reason she has asked
the accused persons to remove the same. But the accused
persons have put the life threat and also abused her in filthy
language and committed the offences u/s.504, 506 of IPC.
Though the PW 1 has deposed that they have abused her in a
filthy wordings, she has not spelt what was the exact filthy
wordings used by the accused persons. Merely because PW 1
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has deposed that the accused persons have abused in a filthy
wordings itself is not sufficient to hold that they have
committed the offences u/s.504 of IPC. Ex.P.1 is the
complaint lodged by CW 1, on perusal of the same she makes
an allegation that on 14/5/17 she spoke with Rajeshkumar
who is the accused No.1, but he spoke rudely and threatened
to her life. Though PW 1 has makes an allegation of threaten
as well as rude speaking by the accused No.1, during the
course of her evidence she makes an allegation against the
accused No.1 and 2 that they have abused her in a filthy
wordings and also put life threat. Thus she has improved her
version at the time of evidence before the court rather than
the allegation in the complaint. As per the complaint the
accused No.1 Rajeshkumar alone has threatened her but PW1
has deposed both the accused persons have put the life
threat. Thus she has also improved the version so far as the
allegation u/s.506 of IPC also by making an allegation against
the accused No.2. Thus the evidence of PW 1 is having some
slight contrary rather than her allegation in the complaint
and because of this her evidence appears little bit doubtful.
11. Further on careful verification of her complaint as
well as her evidence she has not shown where exactly the
accused persons have abused her or put the life threat. But
9 CC.No.29600/17
her only allegation in the complaint that she has called the
accused No.1 on 14/5/17, but he spoke rudely and
threatened to her life. On the other hand, in the evidence she
has deposed that she asked the accused persons to remove
the saarve poll but the both accused persons have abused her
in a filthy wordings and put the life threat. Thus the evidence
of PW 1 is having contradictions between her evidence as well
as her complaint itself. Under such circumstances, the slight
doubt would accrued in the mind of the court about credit
worthiness of the evidence of PW 1. PW 1 has deposed the
evidence in a contradictory manner and it creates doubt.
Hence, it is just and necessary to look over the other evidence
to corroborates the case of the prosecution, since unless the
corroborative piece of evidence the sole testimony of PW 1 is
not sufficient to accept the offence u/s.504 as well as u/s.506
of IPC.
12. The prosecution has examined one of the eye witness
to the incident as PW 2 but he has totally turned hostile not
deposed any thing about the case of the prosecution and
there is no corroboration to the evidence of PW 1. As
discussed above, in the absence of corroborative piece of
evidence the sole testimony of PW 1 itself is not sufficient to
accept the guilt of the accused persons u/s.504 and 506 of
10 CC.No.29600/17
IPC. It is significant to note here that in order to secure the
other material witnesses, this court has issued number of
summons and NBWs along with proclamation to other
witnesses but the concerned Investigating officer has failed to
execute the same and keep present them before the court.
Accordingly, remaining witnesses are dropped. Thus, the only
evidence remained with the prosecution is the evidence of PW
1. But the evidence of PW 1 itself is not sufficient to hold that
the accused persons have abused CW 1 in a filthy wordings
as well as threatened her. The prosecution has not examined
any other supportive independent evidence to strengthen the
evidence of PW 1. Hence, the sole testimony of PW 1 itself is
not sufficient to warrants the conviction against the accused
persons for the offences u/s.504, 506 of IPC.
13. So far as the allegation of the prosecution u/s.288 of
IPC is concerned the prosecution has contended that the
accused persons have shown their negligent act at the time of
construction of 4th floor by not properly tieing the saarve polls
and it has fallen down in a manner of causing harmful to the
human life. Thus, it is an offence u/s.288 of IPC. At this
juncture, it is benefit to refer the provision of sec.288 of IPC
which reads as hereunder :
Sec.288 of IPC : Negligent conduct
11 CC.No.29600/17
with respect to pulling down or repairing
buildings.--Whoever, in pulling down or
repairing any building, knowingly or
negligently omits to take such order with
that building as is sufficient to guard
against any probable danger to human life
from the fall of that building, or of any part
thereof, shall be punished with
imprisonment of either description for a
term which may extend to six months, or
with fine which may extend to one
thousand rupees, or with both.
As per the above provision, whoever pulling down or
repairing any building knowingly or negligently omits to take
sufficient guard against any probable danger to a human life
from falling of that building or any part of the building shall
be punished u/s.288 of IPC. Thus, if at all the accused
persons have shown any negligent act in taking sufficient
safeguard against the probable danger to human life from
falling the building or falling the part of the building is
amounts to an offence u/s.288 of IPC. Admittedly as per the
prosecution as well as allegation of CW 1 the building has not
fallen down or any part of the building has not fallen down.
However, according to the prosecution the accused persons
have laid some saarve poll from the basement to construction
portion of 3rd floor and it has tied through the rope but it has
not properly tied it has been fallen down and it is dangers to
12 CC.No.29600/17
human life. However, the PW 1 herself has makes an
allegation in her complaint that on 14/5/17 at 4.00 pm., the
entire structure build with saarve on the western side of the
building has collapsed due to the wind and fell on the road.
Similarly, PW 1 has deposed in her evidence that :
ದಿನನಾಂಕ 14517 ರನಾಂದದು ಆರರರೋಪಿಗಳದು ನಲಲನರೋ ಅನಾಂತಸಸನನ ದು ನಿರರ್ಮಿಸದುವ
ಸಲದುವಾಗಿ ಕಟಟ್ಟಿದದ ಸರರ್ಮಿ ಕನಾಂಬಗಳದು ಗಾಳಿಗೆ ಪಶಶ್ಚಿಮದ ಕಡೆ ಮದುರಿದದುಹರರೋಗಿ ವಿದದು
ದ ತ್
ತನಾಂತಿಗಳ ಮರೋಲೆ ಬಿತದುಸ. ಅದರೋ ಸಮಯದಲ್ಲಿ ಉತಸರ ದಿಕಲನ ಸರರ್ಮಿ ಕನಾಂಬಗಳದು ಸಹ ನಮಮ
ದ
ಮನ ಕಡೆ ಅನಾಂದನಾಂತೆ ಇದದು ಅವು ಸಹ ಮದುರಿದದುಹರರೋಗದುವ ಸಸ್ಥಿತಿಯಲ್ಲಿದದ ಕಾರಣ
ನ ತೆಗೆದದುಹಾಕದುವನಾಂತೆ ಇಬಬರದು ಆರರರೋಪಿತರನದು
ಅವುಗಳನದು ನ ಕರೋಳಿದ.
When the PW 1 herself admitting that the sarve polls
have been fallen down because of the wind, there is no
negligent on the part of the accused persons in falling down of
the saarve polls as alleged by the prosecution. Hence,
whatever the saarve polls have been fallen down they are not
because of the negligent act of the accused persons but it is
the act of god as they have been fallen down due to wind.
Under such circumstances, without further discussion it
could be concluded that there is no negligence on the part of
the accused persons as enumerated u/s.288 of IPC. Hence, it
13 CC.No.29600/17
could be safely acquit the accused persons under the above
provision.
14. As per the detailed discussion made above, though
the PW 1 alone makes an allegation that both accused
persons have abused her in a filthy wordings and put the life
threat her allegation in the complaint is totally different from
her evidence. As per Ex.P.1, the accused No.1 alone has put
life threat and abused in a filthy wordings. Thus slight doubt
is accrued in the mind of the court about the credit
worthiness of the testimony of PW 1. More particularly PW 1
has not makes what was the filthy wordings used by the
accused persons or accused No.1. Under such
circumstances, the only evidence of PW 1 is not sufficient to
accept that the accused persons have committed the offences
u/s.504, 506 of IPC. Similarly as discussed above, the saarve
polls laid by the accused persons would have been fallen
down but it is not because of the negligent act of the accused
persons and it has happened because of the wind and the
said allegation is not attracts the penal provision of sec.288 of
IPC. Hence, the strong doubt would accrues in the mind of
the court about the case of the prosecution. In a criminal
justice system, if a tiny doubt arises in the mind of the court,
benefit of doubt shall be extended to the accused persons. In
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this case, not only tiny doubt but the strong doubt arise in
the mind of the court, because the prosecution has not
produced sufficient material witnesses to accept the guilt of
the accused persons and the evidence of PW 1 is lacking and
it is not sufficient to believe the case of the prosecution.
Hence, the prosecution has utterly failed to prove the guilt of
the accused persons beyond all reasonable doubt. Hence, in
my opinion it is a fit case to extend benefit of doubt to the
accused persons. Accordingly point under reference
answered in the Negative.
15. POINT NO.4 :
For the aforesaid reason and discussion, I proceed to
pass the following:
ORDER
Acting under section 248(1) of Cr.P.C. Accused No.1 and 2 are hereby acquitted for the offences punishable U/s.288, 504, 506 r/w.34 of IPC.
The bail bond executed by the accused No.1 and 2 is stands cancelled. However, Accused No.1 and 2 shall execute personal bond of Rs.50,000/ each by undertaking to appear before the appellate Court, if any appeal is 15 CC.No.29600/17 filed.
It is not a fit case to award victim compensation as provided U/s.357(1) of Cr.P.C.
(Dictated to the stenographer, script transcribed by her and then corrected directly on computer and then pronounced by me in open court on this the 30 th day of November 2021).
(B.C.Chandrashekara) XXIV A.C.M.M., BENGALURU.
ANNEXURE Witnesses examined for the Prosecution:
PW1 : Prameela PW2 : Gaddeppa
Documents marked for the Prosecution:
Ex.P1 : Complaint Ex.P1(a) : Signature Ex.P2 : Spot mahazar Ex.P.35 : Photos Ex.P.6 : Certificate Ex.P.7 : Statement of PW 2
Witnesses examined for the accused: NIL 16 CC.No.29600/17 Documents marked for the accused:
Ex.D.14 : Photos (B.C.Chandrashekara) XXIV A.C.M.M., BENGALURU.