Bangalore District Court
R K Batha vs Gopal @ Gopal Krishna on 13 November, 2024
KABC030419372017
Presented on : 20-06-2017
Registered on : 20-06-2017
Decided on : 13-11-2024
Duration : 7 years, 4 months, 23 days
IN THE COURT OF THE VIII ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
Present: Smt. Deepa.V., B.A.L. LL B.
VIII ACJM, Bengaluru City.
Date: this the 13th day of November, 2024
C.C. No.16531/2017
State by Vyalikaval Police Station,
Bengaluru. ... Complainant
(Represented by Sri Vishwanath, Senior APP)
Versus
Sri Gopala @ Gopala Krishna,
Aged about 40 years,
S/o Sri Late Munibylappa,
R/at No.28/6, Jodi Ranganatha
Pura, Vyalikaval, Malleshwaram,
Bengaluru City. ... Accused
(Represented By Sri N.K.Ganesh, Advocate)
KABC030419372017 CC No.16531/2017
1. Date of commission of 29-05-2015 to
offence 05-07-2015
2. Name of Complainant Sri R.K.Batha
3. Offences complained of Under Section 448,
427, 295 of IPC
4. Charge Pleaded not guilty
5. Final Order Accused is acquitted
6. Date of order 13-11-2024
JUDGMENT
The Police Sub-Inspector of Vyalikaval Police Station submitted charge sheet against accused for the offence punishable under Section 448, 427, 295 of IPC.
2. Prosecution Case: The accused was working as a care taker cum Mali at Gathic Zoroastrian Anjuman Bangalore situated at No.28-6, Parsi Cemetery, 11th Cross, Malleshwaram, Vyalikaval, Near Munishwara Temple, Bengaluru. In between 29-05-2015 to 05-07-2015, the accused has 2 KABC030419372017 CC No.16531/2017 committed criminal trespass into the prayer hall of said church without taking any proir permission from CW1 Sri R. K. Batha and damaged the prayer hall by removing its foundation stone and caused loss of Rs.10,000/- and also removed all the religious and leaders photographs with an intention to insult the Parsi religion.
3. First Information Report: On receipt of information from CW1 Sri R K Batha as per Ex.P1, CW10/PW4 Sri L.R.Masaguppi, the PSI of Vyalikaval Police Station registered the case, prepared FIR as per Ex.P12 and sent to the court and to his superior. Thereafter he conducted spot mahazar on 06-07- 2015 in presence of CW2 and CW3 from 3 p.m. to 5.30 pm as per Ex.P2.
4. Investigation: Thereafter, he recorded the voluntary statement of accused as per Ex.P14. On 07-07-2015 he seized one foundation stone and 7 photographs under seizure mahazar as per Ex.P3 in the presence of CW1 and CW4, recorded the statement of CW5 to CW8, collected the documents from concerned department through Ex.P13-letter and submitted charge sheet against the accused for the alleged offences.
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5. At the pre-summoning stage, accused was enlarged on bail by the order dated 09-07-2015.
6. On receipt of charge sheet, this Court took cognizance of offence alleged against the accused.
7. Copies of prosecution papers as required U/Sec.207 of Cr.P.C have been furnished to the accused.
8. Charge: After hearing learned Sr.APP and counsel for accused, charge for the offence punishable U/Sec.448, 427, 295 of Indian Penal Code has been framed, read over and explained to the accused in the language known to him, who, in turn, pleaded not guilty and claimed to be tried
9. Prosecution Evidence: The prosecution in order to establish its case cited 10 witnesses however examined 4 witnesses and exhibited 18 documents and MO1 to MO8 and closed their side. On behalf of accused, the learned counsel for defence got exhibited one document at Ex.D1 during the cross-examination of PW1. Despite due execution of NBW, the presence of CW2, CW5 to CW7 could not be secured thereby the examination of these witnesses were dropped out by the order dated 18-03-2023. CW6, CW8 and CW9 were dropped out by examination by the order dated 4 KABC030419372017 CC No.16531/2017 07-10-2023 as they left the address without any intimation.
10. Statement of accused as per section 313 of CrPC: After completion of evidence of prosecution, the accused was examined as per section 313 statement of Cr.P.C, wherein they denied all incriminating evidence appearing in the statement of prosecution witnesses and did not lead any rebuttal evidence.
11. Heard the arguments. Perused materials on the record.
12. The following point are arises for consideration is as follows;
1. Whether the prosecution proved beyond all reasonable doubt that in between 29-05-
2015 to 05-07-2015, the accused being care taker cum Mali criminally trespassed into the prayer hall at Gathic Zoroastrian Anjuman Bangalore situated at No.28-6, Parsi Cemetery, 11th Cross, Malleshwaram, Vyalikaval, Near Munishwara Temple, 5 KABC030419372017 CC No.16531/2017 within the limits of Vyalikaval PS thereby resulted in commission of an offence punishable u/Sec.448 of IPC?
2. Whether the prosecution proved beyond all reasonable doubt that on above said period, the accused damaged the foundation stone and prayer hall and caused loss of Rs.10,000/- thereby resulted in commission of an offence punishable u/Sec.427 of IPC?
3. Whether the prosecution proved beyond all reasonable doubt that on above said period, accused removed all the religious and elders photographs with an intend to insult the Parsi religion thereby resulted in commission of an offence punishable u/Sec.295 of IPC?
4. What order?
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13. The court's findings on the above points are as under:
Point No.1-3 : In the Negative Point No.4 : As per final order REASONS
14. Point No.1-3: These points are taken up together for the purpose of common discussion in order to avoid repetition of facts as they form the same part of transaction. In support of prosecution case as narrated in paragraph 2 and the point for consideration in paragraph 12 of this judgment, the prosecution has examined the following witnesses, which are as follows i. CW1 Sri R.K.Batha, being informant examined as PW1 deposed that he is the President of Gathic Zoroastrian Anjuman Bangalore Trust, the Parsi Cemetery at 11th Avenue, Vyalikaval is being built by the Trust. The accused is working as care take and trust was paying the salary to him. Every year in the month of August, they conduct their community prayer and hence for the preparation, CW5 and he visited there on 05-07-2015 and found that, foundation stone of prayer hall was broken, accused was not present . When he inquired the accused's brother about the case, he said that the place belongs 7 KABC030419372017 CC No.16531/2017 to them, so he went to the police station and lodged a complaint. Thereafter, the police came to the spot and enquired with the accused about the removal of the lock. They went inside and saw that the accused kept household items there and the photos of saints and elders of their community were missing. The accused kept puppies in the prayer hall and was using the furniture for his purpose. He lodged complaint as per Ex.P1. On the next day, police conducted spot mahazar as per Ex.P2, made Videography and took photos. The accused has also build a shed near to prayer hall. On 07-07-2015 the police seized 7 photographs belonging to the Parsi community and foundation stone from the shed under the seizure mahazar as per Ex.P3. Further he deposed that, Rs.70,000/- would be a loss due to the act of the accused. He identified the 7 photographs and foundation stone as MO1 to MO8 and Ex.P4 to 11 and his signatures as Ex.P1(a) and 2(a).
ii. CW3 Sri Dilara Damania examined as PW2 deposed that he signed on Ex.P2 spot mahazar at police station as per the request of Vyalaikaval police. He pleaded ignorance about the contents of Ex.P2 and not seized any objects in his presence. In this regard, the learned Sr.APP has cross examined him by treating as hostile witness however no favorable 8 KABC030419372017 CC No.16531/2017 answer has been elicited from him to support the Ex.P2-spot mahazar.
iii. CW4 Smt Dil Nawaz pattawala examined as PW3 and deposed that she signed on Ex.P3 seizure mahazar at police station as per the request of Vyalaikaval police. She does not know about the contents of Ex.P3. The police seized 7 photographs and foundation stone in her presence. In this regard, the learned Sr.APP has cross examined her by treating as hostile witness however no favorable answer has been elicited from her to support the Ex.P3-seizure mahazar.
iv. CW10 Sri L.R.Masaguppi, the then PSI of Vyalikaval PS examined as PW4 and deposed that on 05-07-2015 he received the complaint from CW1 as per Ex.P1 and registered the case, prepared FIR as per Ex.P12 and send to the court. On 06-07-2015 from 3 pm to 5.30 pm, conducted spot mahazar in presence of CW2 and CW3 as per Ex.P2 and videographed and took photographs. On the same day, the accused was taken into custody and recorded his voluntary statement as per Ex.P14. On 07-07-2015 at 11 a.m. to 12 a.m., on the basis of the voluntary statement of accused, seized foundation stone and 7 photographs from newly constructed room at the scene of occurrence as shown by the 9 KABC030419372017 CC No.16531/2017 accused and the statements of the witnesses were recorded. He submitted a request to Bengaluru City Survey Office and Sub-Registrar, Malleswaram to provide the documents related to the spot and submitted charge sheet against the accused.
15. This court had gone Ex. P.14 through the order dated 08/07/2020 in Writ Petition No. 31312/2015 wherein the Gathic Zoroastrian Anjuman, Bangalore preferred the aforesaid petition against the Deputy Commissioner,Bangalore, Commissioner of Police, Teh Station House Officer, Vyalikaval Police Station, Bangalore and Mr. Gopal ( accused) before the Hon'ble High Court of Karnataka, Bangalore wherein the court has observed as under
1. The Petitioner is permitted to make necessary representation to respondent No.1 within four weeks from the receipt of this order.
2. The respondent No.1 is directed to initiate appropriate action to implement the various government orders applicable to Parsee Aramgah (Cemetery) at Vyalaikaval, Bengaluru in 10 KABC030419372017 CC No.16531/2017 accordance with the law within eight weeks thereafter.
3. The respondent No.1 to 3 are directed to give necessary protection for the burial/cremation activities of the Parsee Community and the prayers associated with it conducted in Parsee Aramgah (Cemetery) at VyaliKaval Bengaluru in aacoradance with the law.
4. If it is found that the respondent No. 4 has encroached upon any portion of cemetery, the petitioner is entitled to seek his eviction in the manner known to law.
No orders as to costs Accordingly, the writ petition is disposed of.
Thus, the order of writ petition makes it very clear that accused should be evicted through due of procedure of law if it is found that the accused used 11 KABC030419372017 CC No.16531/2017 any portion of law cemetery and the same is subject matter of trial. There is a lot of difference between the trespass and encroachment. In trespass, it is the unauthorized interference of a person in the property. It is an unlawful entry into the property of another person. Construction of a structure etc. is not essential. On the other hand, property encroachment is not just an illegal entry but also changing the structure/status of the property. So such being the case, this criminal court cannot decide on the aspect of encroachment in this case and added to which, PW4 (IO) did not produce any material before this court that he has put up the shed near the prayer hall. When the Hon'ble High Court had given a specific direction to the PW1 to approach the competent authority ( Government of Karnataka) to decide on the aspect of encroachment as per Ex.P.15 and only if it is found that then they could remove the encroachment in accordance with the law. The Ex.P.15 order dated 21/06/2021 in CCC No. 293/2021 does not have much relevance to this criminal case as it is of contempt proceedings and the Hon'ble High Court of Karnataka has disposed of the said case with a condition that once the interim order of injunction is vacated, then the necessary steps would be taken for removal of encroachment in accordance with law. In the similar way, the Ex. P.17 i.e., order dated 20/02/2023 in writ petition No.10073/2022 (GM-CPC) wherein the accused along 12 KABC030419372017 CC No.16531/2017 with other children of Sri Munibylappa challenged the order dated 07/01/2022 for impleading the Deputy Commissioner, Bangalore in O S NO.2814/2010 does not have much relevance to decide this criminal case. However the order dated 31/10/2023 as per Ex.P.18 in O S No. 2814/2020 on the file of VII Additional City Civil and Sessions Judge (CCH19) Bangalore wherein the possession of accused was protected by way of interim injunction order.
16. The first charge against the accused is under Section 295 of IPC which reads as under
Injuring or defiling place of worship, with intent to insult the religion of any class.-- Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion The necessary ingredients of section 295 of IPC reads as under
1. The accused must do such an act with the intention of 13 KABC030419372017 CC No.16531/2017 insulting the religion of any person, or with the knowledge that any class of person is likely to consider such destruction, damage or defilement as an insult to their religion.
2.The accused must destroy , damage or defile any place of worship or any object which is held as sacred by any class of persons In this regard, PW1 had deposed in his chief in examination that the accused has used the prayer hall for keeping his puppies and used the furniture for his own purpose and the photographs of elders and saints of their community were missing however the Ex.P.4 to 11 the photographs of saints and elders are available in the prayer hall and the same was taken in the presence of PW1. Added to which, no evidence was placed or seized by the PW4 that the prayer hall was used for keeping his puppies and he used the furniture therein. Without any iota of any material on record, how this court could come to a conclusion that the accused has insulted the parsi community by disappearing the photographs of saints and elders. Added to which, nothing on record particularly Ex.P.4 to 11 does not reflect so that the 14 KABC030419372017 CC No.16531/2017 frame of the photographs was broken and hence the ingredients of Section 295 of IPC was not proved.
17. The Second charge is for section 427 of IPC. The expression "mischief" has been defined in Section 425 IPC to mean an act done with intent to cause or knowing that it is likely to cause wrongful loss or damage to the public or to any person causes the destruction of any property etc. Section 427 IPC reads as follows:
"Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or with both."
In the instant case, the accused damaged to the foundation stone wall and caused loss of Rs. 10,000/-/-. In this regard, it is relevant to extract the relevant portion of cross examination of PW1 and PW4 ಸಾಮಾನ್ಯವಾಗಿ ಪೌಂಡೇಶನ್ ಸ್ಟೋನನ್ನು ಕಟ್ಟಡವನ್ನು ಪ್ರಾರಂಭ ಮಾಡುವ ಪೂರ್ವದಲ್ಲಿ ಹಾಕಲಾಗುತ್ತದೆ ಎಂದರೆ ಸರಿ. ನನ್ನ ದೂರಿನಲ್ಲಿ ನಮೂದಿಸಿರುವ ಪೌಂಡೇಶನ್ ಸ್ಟೋನ್ ಎಂದರೆ ಕಟ್ಟಡ ಕಾಮಗಾರಿ ಪ್ರಾರಂಭ ಮಾಡುವ 15 KABC030419372017 CC No.16531/2017 ಪೂರ್ವದಲ್ಲಿ ಸದರಿ ಶಂಕುಸ್ಥಾಪನೆಯನ್ನು ಮಾಡಿದವರ ಹೆಸರನ್ನು ಮೂದಿಸಮಂತಹ ಕಲ್ಲು ಎಂದರೆ ಸರಿ. ನನ್ನ ಅನುಭವದ ಪ್ರಕಾರ ಸದರಿ ಪೌಂಡೇಶನ್ ಸ್ಟೋನನ್ನು 1926 ರಲ್ಲಿ ಹಾಕಲಾಗಿತ್ತು. ಆರೋಪಿ ಪೌಂಡೇಶನ್ ಸ್ಟೋನನ್ನು ತೆಗೆದು ಹಾಕಿದ್ದನ್ನು ನಾನು ಖುದ್ದಾಗಿ ನೋಡಿಲ್ಲ ಎಂದರೆ ಸರಿ.
ಡೊಕ್ಮಾ ಪಾರ್ಸಿ ಕಮ್ಯುನಿಟಿ ಹಾಗೂ ನಮ್ಮ ನಡುವೆ ಇದ್ದ ವ್ಯಾಜ್ಯವನ್ನು ಅಂದಿನ ಮೈಸೂರಿನ ಮಹಾರಾಜರಿಗೆ ರೆಫರ್ ಮಾಡಲಾಗಿತ್ತು ಎಂದರೆ ಸರಿ. ಮೈಸೂರಿನ ಮಹಾರಾಜರು ವ್ಯಾಜ್ಯವನ್ನು ಬಗೆಹರಿಸಿಕೊಳ್ಳುವಂತೆ ಬುದ್ದಿಮಾತನ್ನು ಹೇಳಿರುತ್ತಾರೆಂದರೆ ಸರಿಯಲ್ಲ ಹೆಬ್ಬಾಳ ಮುಖ್ಯರಸ್ತೆಯಲ್ಲಿ ಟವರ್ ಆಫ್ ಸೈಲೆನ್ಸ್ ಗಾಗಿ ಜಮೀನನ್ನು ಮಂಜೂರು ಮಾಡಲಾಗಿತ್ತು ಎಂದರೆ ಸರಿ. ಹೆಚ್ಚಿನ ಸಂಖೆಗಳು ಪಾರ್ಸಿಗಳು ಮೃತ ದೇಹವನ್ನು ಟವರ್ ಆಫ್ ಸೈಲೆನ್ಸ್ ಗೆ ಒಯ್ಯುತ್ತಾರೆ ಎಂದರೆ ಸರಿ. Xxxxx ಸದರಿ ಎರಡು ಬಣಗಳ ನಡುವೆ ಬೆಂಗಳೂರಿನ ನ್ಯಾಯಾಲಯದಲ್ಲಿ ಓ ಎಸ್ ಸಂ.8149/2005 ಸಿವಿಲ್ ದಾವೆ ಚಾಲ್ತಿಯಲ್ಲಿದೆ ಎಂದರೆ ಸರಿ. ಎಂಒ 1 ರಿಂದ 8 ನನ್ನ ಸುಪರ್ದಿಯಲ್ಲಿದೆ. ಸದರಿ ಎಂಒ 1 ರಿಂದ 8 ಪೊಟೋಗಳಿಗೆ ಯಾವುದೇ ಜಖಂ ಆಗಿಲ್ಲವೆಂದರೆ ಸಾಕ್ಷಿಯು ಆರೋಪಿಯಿಂದ ಜಪ್ತಿ ಮಾಡುವ ಸಂದರ್ಭದಲ್ಲಿ ಒಂದು ಪೋಟೋಗೆ ಫ್ರೇಮ ಇರಲಿಲ್ಲ, ಉಳಿದವು ಸರಿಯಾಗಿದ್ದವು ಎಂದು ನುಡಿಯುತ್ತಾರೆ.
16KABC030419372017 CC No.16531/2017 PW4 in his cross examination deposed that:
ನಿಪಿ.4 ರಿಂದ 11ರ ಪೊಟೋಗಳಲ್ಲಿ ಯಾವುದೇ ವಸ್ತು ಹಾನಿಯಾದ ಬಗ್ಗೆ ಕಾಣುತ್ತಿಲ್ಲ ಎಂದರೆ ಸಾಕ್ಷಿ ಒಂದು ಪೊಟೋದಲ್ಲಿ ಗ್ಲಾಸ್ ಒಡೆದು ಹೋಗಿರುವ ಬಗ್ಗೆ ಕಾಣಿಸುತ್ತಿದೆ ಎಂದು ಉತ್ತರಿಸುತ್ತಾರೆ. ಸದರಿ ಗ್ಲಾಸ್ ಒಡೆದು ಹೋಗಿರುವ ಭಾವಚಿತ್ತವನ್ನು ಈಗ ನೋಡಿ ಗುರುತಿಸಲು ಸಾಧ್ಯವಿಲ್ಲ.
Thus, it is clear that there is no cogent or probable evidence produced that MO1 to MO8 were damaged and no evidece was produced to that extent except caliming glass of one photograph was damaged. If the glass of photograph was damaged, however, PW4 could not identify the said photograph from exhibits. The prosecution failed to produce any document that the PW1 or his representative has put the glass for the said photograph after the lodging of complaint as per Ex. P. 1. Then on what basis, this court come to a conclusion that the accused has broken the photograph of saints and elders of the Parsi community and removed the foundation stone to corroborate the loss incurred to the PW1.
18. In fact, PW1 himself deposed that he did not see that the accused has removed the foundation stone.
19. There is no independent witness to the alleged incident that the accused has removed the 17 KABC030419372017 CC No.16531/2017 foundation stone and broken the photographs of saints and elders of the Parsi community thereby the ingredients of Section 427 of IPC was not proved.
20. The third charge against accused under section 448 of IPC provides punishment for house-
trespass which is defined under Section 442 of the IPC which states that "whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as human dwelling or any building used as a place for worship, or as a place for the custody of property". Meaning thereby to constitute house trespass, it must be a criminal trespass.
Criminal trespass is defined under Section 441 of the IPC. Basic ingredient to satisfy criminal trespass is (i) entry into or upon property in the possession of another, (ii) if such entry is lawful then unlawfully remaining upon such property, (iii) such entry or unlawful remaining must be with intent (a) to commit an offence; or (b) to intimidate, insult or annoy the person in possession.
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21. In order to constitute offence under Section 441 of IPC, the accused must enter into property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property. It is clear from the wording of the section that there can be no criminal trespass unless the "intent" specified in the section is present. The phrase "any person in possession of such property" is also to be remembered. The intent to annoy and intimidate must be not with respect to any and every person connected with the property but with respect to any person in actual possession of such property. It is aimed to protect possession and not the ownership.
22. Mere entry upon another's land, under however preposterous a claim of right or even without any claim of right, is no offence unless this entry is accompanied by one of the specific intents provided for in Section 441 of IPC.
23. The presence of such criminal intent may be manifested by the act or may be inferred from other circumstances. But in either case there must be an intention to commit an offence or to intimidate, insult or annoy any person in possession of such property.
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24. However the PW1 deposed in his cross examination that ಈಗ ಸಾಕ್ಷಿಗೆ ರಿಟ್ ಪಿಟಿಷನ್ ಸಂಖ್ಯೆಃ 31312/2015ರ ಆದೇಶ ಪುಟ ಹಾಗೂ ರಿಟ್ ಪಿಟಿಷನ್ ಕಾಪಿಯ ದೃಢೀಕೃತ ನಕಲನುನ ತೋರಿಸಲಾಗುತ್ತಿದ್ದು ನಿಡಿ.1 ಎಂದು ಗುರುತಿಸಲಾಯಿತು. ನಿಡಿ.1 ರಿಟ್ ಅರ್ಜಿಯನ್ನು ನಾನೇ ಸಲ್ಲಿಸಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿ. ನಾನು ದಿಃ 26-2-2018 ರಂದು ಶ್ರೀಮತಿ ಡಲಾಲ್ ರವರು ಮರಣ ಹೊಂದಿದಾಗ ಸದರಿ ಸಿಮೆಂಟರಿ ಬಳಿ ಹೋಗಿರುತ್ತೇನೆ...
ಆರೋಪಿಯನ್ನು ಉಸ್ತುವಾಗಿಯಾಗಿ ನೇಮಕ ಮಾಡಿದ ಬಗ್ಗೆ ಹಾಗೂ ಅವನಿಗೆ ಸಂಬಳ ನೀಡುತ್ತಿದ್ದ ಬಗ್ಗೆ ನಿಡಿ.1 ರಿಟ್ ಪಿಟಿಷನ್ ನಲ್ಲಿ ನಮೂದಿಸಿಲ್ಲ. ಸಾಕ್ಷಿ ಮುಂದುವರೆದು ಸದರಿ ಸಿಮೆಂಟರಿಯ ಪ್ರಾರ್ಥನಾ ಮಂದಿರದ ಬೀಗ ಆರೋಪಿ ಬಳಿ ಇತ್ತು ಎಂದು ನುಡಿಯುತ್ತಾರೆ. ಉಚ್ಚ ನ್ಯಾಯಾಲಯದ ಆದೇಶದಂತೆ ಆರೋಪಿ ಪ್ರಾರ್ಥನಾ ಮಂದಿರದ ಬೀಗವನ್ನು ಕೊಡುವ ಬಗ್ಗೆ ಆದೇಶ ಇಲ್ಲ ಎಂದರೆ ಸರಿ. Xxxx ನಮ್ಮ ಟ್ರಸ್ಟ್ ಸದರಿ ಸಿಮೆಂಟರಿ ಮಾಲೀಕರಲ್ಲ ಎಂದರೆ ಸರಿ. ಸದರಿ ಸಿವೆುಂಟರಿ ಸರ್ಕಾರಕ್ಕೆ ಸೇರಿದ್ದು ಎಂದರೆ ಸರಿ. ಸ್ಮಶಾನ ಮತ್ತು ಅದರ ಸುತ್ತ ಮುತ್ತ ಇರುವ ಜಾಗ ಸರ್ಕಾರಕ್ಕೆ ಸೇರಿದ್ದು ಎಂದರೆ ಸರಿ. ಆರೋಪಿ ಮತ್ತು ಅವರ ಹಿಂದಿನವರು ಸದರಿ ಸ್ಮಶಾನದಲ್ಲಿ ವಾಸವಿದ್ದರು ಎಂದರೆ ಸಾಕ್ಷಿಯು ಆರೋಪಿಯ ತಂದೆಯನ್ನು ಮಾಲಿಯಾಗಿ ನಾವು ನೇಮಕ ಮಾಡಿರುತ್ತೇವೆ. ಅವರ ತಂದೆಯ ನಂತರ 20 KABC030419372017 CC No.16531/2017 ಆರೋಪಿಯನ್ನು ಮಾಲಿಯಾಗಿ ನೇಮಕ ಮಾಡಿರುತ್ತೇವೆ.
Thus, it is clear that the the father of accused and accused was appointed as a care taker or mali and he is in possession of key and his appointment was not revoked and his possession was primafacily admitted by the PW1. Such being the case, the question of criminal trespass does not arise.
25. Added to which, spot and seizure mahazar witness did not support the prosecution case as per Ex. P. 2 and Ex. P. 3. Therefore, the prosecution failed to prove the charges against the accused beyond all reasonable doubt thereby this court answer the above point No.1 to 3 in the negative.
26. Point No. 4:- For the foregoing discussion and the findings to the above point No.1 to 3, this court proceeds to pass the following:
ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused is found not guilty and acquitted from the offences punishable under Sec.448, 427, 295 of IPC.21
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(ii) Accused is set at liberty.
(iii) In view of Section 437-A of Cr.P.C his bail bond shall be in force for 6 (six) months.
(iv) After expiry of appeal period, the interim custody of properties seized under PF No.43/2015 granted in favour of PW1 is made absolute
(v) Ordered accordingly.
(Dictated to the stenographer, typed by steno, verified and corrected by me, then the judgment pronounced by me in the open court, on this the 13th day of November, 2024) (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution :
PW1 : Sri. R.K.Batha
PW2 : Sri. Dilar Damania
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PW3 : Smt. Dil Nawaz Pattawala
PW4 : Sri. L.R.Masaguppi
Documents marked on behalf of the prosecution:
Ex.P1 : Complaint Ex.P2 : Spot Mahazar Ex.P3 : Seizure Mahazar Ex.P4-11 : 8 photographs Ex.P12 : FIR Ex.P13 : Letter Ex.P14 : Voluntary statement of accused/
order dated: 08-07-2020 passed in WP No.31312/2018 Ex.P15-16 : Order and order sheet of CCC No.293/2021 Ex.P17 : Order passed in WP No.173/2022 Ex.P18 : Interim order passed in OS No.2814/2020 Material Objects marked on behalf of the prosecution:
MO1 to 7 : Photographs
MO8 : Foundation Stone
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Witnesses examined for the defence: Nil Documents marked on behalf of the defence:
Ex.D1 : CC of order sheet and
writ petition No.31312/2015
VIII Addl. Chief Judicial
Magistrate, Bengaluru City.
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