Bangalore District Court
(Represented By The Learned Senior App) vs For The Offences Punishable Under on 24 January, 2022
1 CC 40689 OF 2010
IN THE COURT OF XLI (41ST) ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
DATED THIS THE 24th DAY OF JANUARY 2022
PRESENT
SRI S.S.BHARATH M.A. LL.M.,
ST
XLI (41 ) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BENGALURU
CRIMINAL CASE NUMBER 40689 OF 2010
BETWEEN
1. STATE represented by
Kormangala Police. ....COMPLAINANT
(Represented by the learned Senior APP)
AND
1. K.T.PILLA REDDY
S/o Late Thimmareddy,
Aged about 70 years,
R/at No.21, Ground Floor,
5th Cross, Jakkasandra Layout,
Kormangala Bengaluru City.
(Case against A1 has been abated
as he has been reported dead)
2. SMT.LALITHAMMA
W/o Pilla Reddy,
Aged about 55 years,
R/at No.21, Ground Floor,
5th Cross, Jakkasandra Layout,
Kormangala Bengaluru City.
(Case against A2 has been abated
as she has been reported dead)
2 CC 40689 OF 2010
3. HARISH BABU
S/o Pilla Reddy,
Aged about 35 years,
R/at No.21, Ground Floor,
5th Cross, Jakkasandra Layout,
Kormangala Bengaluru City.
....ACCUSED
(Represented by Sri.V.Vishwanath., Advocate)
KORMANGALA POLICE HAVE CHARGE SHEETED THE
ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 277, 284 R/W SECTION 34 OF IPC.
AFTER COMPLETION OF ADJUDICATION, THIS CASE
COMING ON FOR JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING...
Offences alleged u/s : 277, 284 R/W Section
34 of IPC
Charge sheet filed on : 18092010
Trial commenced on : 29082012
Trial completed on : 13012022
Judgment date : 24012022
Total duration : DaysMonths Years
06 04 11
JUDGMENT
1. Case of the prosecution is as under; There has been a civil litigation between PW1 and accused No.2 with respect to a house bearing No.21, 5th Cross, 8th Main, Jakkasandra, Kormangala. In the said backdrop all these accused Nos.01 to 03 have mixed kerosene to water storage sump of the said 3 CC 40689 OF 2010 house to ensure that the PW1 shall use it and face trouble.
2. The investigation officer visited the spot, drew the mahazar and seized the articles and recorded the statements of the witnesses. Upon completion of his investigation, he charge sheeted the accused for the offences aforementioned.
3. This court has taken the cognizance of the offences punishable under sections 277, 284 R/w Section 34 of IPC. As per the directions of the court, CC.No.40689 of 2010 came to be registered. In compliance of section 207 of Cr.P.C, the copies of the charge sheet and other prosecution papers came to be supplied to the accused.
4. The court, after being satisfied as to existence of materials against the accused to proceed further in this matter, framed the charge, read over the same to the accused in Kannada language in which they claim 4 CC 40689 OF 2010 to be conversant with. But they did not plead guilty and they claimed then, to be tried. Therefore, this court issued summons to the witnesses.
5. In the course of trial, accused No.1 and 2 have been reported dead. Hence, case against A1 and A2 has been abated. Hence, this is the matter being dealt with in accordance with law only against A3. Further in view of the failure of the prosecution to keep CW6 present in the court, evidence of CW6 has been discarded, as CW6 failed to subject him to cross examination as well. Further as could be seen from the record, CW1 has been examined as PW1. CW4 has been examined as PW2. CW3 has been examined as PW3. CW7 has been examined as PW
4. CW5 has been examined as PW5. CW8 has been examined as PW6. As noted above, CW6 came to be examined as PW7, but in view of his failure to subject him to cross examination, his evidence has been discarded. As could be seen from the order 5 CC 40689 OF 2010 sheet, CW2 has been dropped because of the failure of the prosecution to secure his presence. After recording the evidence of prosecution, statement of accused No.3 under section 313 of Cr.P.C., came to be recorded in which the accused No.3 has denied the incriminating circumstances explained to him and he did not choose to adduce evidence. This court posted this matter for hearing of arguments.
6. Heard the learned Sr.APP.
7. Heard the learned counsel for accused No.3
8. Following points arise for determination;
1) Whether the prosecution proves beyond reasonable doubt that, on 18/03/2009, at night hours, the accused Nos.01 to 03 with common intention indulged themselves in fouling the water stored at the storage tank of the house of PW1 aforementioned and they rendered the water in the said storage less fit for the purpose of beneficial use of humans and therefore they have committed the offence punishable under section 277 R/w Section 34 of IPC ?
6 CC 40689 OF 2010
2) Whether the prosecution proves beyond reasonable doubt that, on the aforementioned date, time and place, the accused altogether with common intention have mixed the poisonous substance called kerosene to the water storage at the house of PW1 aforementioned and they were very negligent while mixing the kerosene as above, so as to put the human life to danger and to ensure that PW1 would suffer health related troubles after consuming the same and they knowingly well have mixed the said poisonous substance to the water storage at PW1's house as above and therefore they are liable to be punished for an offence punishable under section 284 R/w Section 34 of IPC ?
3) what order ?
9. Above points have been answered as under; Points' no.01 and 02: In the Negative Point no.03: As per final orders for the following reasons...;
REASONS The prosecution is duty bound to prove the guilt alleged as above against accused. The burden to prove the 7 CC 40689 OF 2010 aspects stated herein above against the accused, heavily rests upon the prosecution. The points aforementioned have been taken up separately for discussion.
10. Points No.01 ; It is appropriate to examine as to how far the prosecution is able to establish case alleged against these accused. It is needless to state again that for the reasons foregoing the case against accused nos.1 and 2 has been abated.
11. As aforesaid CW1 has been examined as PW1 and he deposed that he has been acquainted with all three accused and they were residing on the ground floor of his house on the basis of a sale agreement executed by him. They failed to get the sale deed in their names within 03 months from the date of the said agreement and hence he has ensured an issuance of a notice through his advocate calling upon them to pay the remaining sale consideration and to get the sale 8 CC 40689 OF 2010 deed registered. A suit before the concerned court for eviction also came to be filed and accused inturn have filed a suit seeking specific performance of the terms of the agreement. In his house there has been a facility which is reportedly available to lift the water from under ground tank. On 18/03/2019 they did notice that the kerosene content was being mixed to the water tank at the instance of these accusd and therefore they did submit an information to the police. He identified during his examination in chief, the first information and also his signature affixed upon it. He deposed further that police did visit his house premises and did draw a mahazar. He identified the same during his further chief and he identified the signature on mahazar as well and he deposed specifically that 02 bottles came to be seized and he identified the accused No.3 in the court during his examination.
9 CC 40689 OF 2010
12. As could be seen from his cross examination, he has answered that he has received Rs.07,00,000/ from accused No.2 towards the sale consideration of his entire house and he has handed over the possession over the ground floor of his house as per the terms of their agreement and further he has answered that from the date of handing over of possession over the ground floor both accused Nos.1 and 2 have been residing in the said house and their relationship has been strained and he does not have cordial relationship with accused. Further questions regarding absence of date in the first information etc, have been questioned and he has admitted further that one more case has been filed alleging that the accused have committed the offences punishable under the provisions of Prevention of Atrocities on SC & ST Act and in the said case, the accused have been acquitted. He further answered that accused persons also use the water available in the same water storage and the application also has been 10 CC 40689 OF 2010 admitted to have been filed before Hon'ble City Civil Court to claim the right on the water available in the said storage and the same has been considered positively.
13. As could be seen from his further cross examination, it is clear that there has been no specific defence against the accusations present against these accused. Learned advocate appearing for accused has suggested PW1 denying his evidence and only defence which could be seen from his cross examination is that, as a matter of revenge, the present case has been filed etc. However those suggestion has been denied.
14. PW2 being the son of PW1 has reiterated all the evidence adduced by his father, in his examination in chief. However he further elaborated that on 18/03/2009 at 10.00 p.m., when he was in his room 11 CC 40689 OF 2010 at first floor he heard some sound near water storage sump and he noticed the accused No.3 who was then standing thereof with a can. Accused No.1 has handed over it to him.
15. Accused No.1 did pour the contents present in the said can, to the said sump and he reported the same to his father PW1. Thereafter they did see the sump water thereof being contaminated. He further elaborated that there had been some civil litigation. As a matter of revenge, oilly itmes came to be mixed inside the water sump etc.
16. As could be seen from his cross examination, he has answered that since the year 2003, several cases came to be registered and in those cases his father PW1 and these accused are being the rival parties. He denied a specific suggestion of the learned advocate for the accused that the occupants of first floor and ground floor of his house both use the water 12 CC 40689 OF 2010 of the very same sump to which it has been alleged that accused have mixed some poisonous oil. He admitted the age of the accused No.1 to be 80 years as on the date of his evidence. He also denied the suggestion of the learned advocate appearing for the accused that as a matter of revenge, present case has been filed against accused.
17. As could be seen from the record, PW3 being a witness for mahazar has deposed that on 19/03/2009 Police subInspector did draw a mahazar near the water sump of a house of these accused and PW1 and he identified his signature present on Ex.P2 the Mahazar. During Mahazar, police collected 02 bottles of water for the purpose of sample and those bottles came to be seized in his presence.
18. As could be seen from his cross examination, he has answered that he stays 01 km away from the house of PW1 and he is cordial with PW1 and frequently he 13 CC 40689 OF 2010 visited the house of PW1. Strangely he has answered that, before conducting mahazar, police did not inform him regarding the same. He denied the suggestion that he did not witness any mahazar.
19. As could be seen from the record, PW4has deposed being a retired ASI that when he was in a duty in Kormangala Police station dated 19/03/2009 at about late night 02.10 a.m., the PW1 did submit the information in writing and the same came to be registered and FIR came to be forwarded to the court and the copy of the same was forwarded to his higher ups and he handed over this matter for further investigation to PW6
20. During his cross examination, his evidence came to be denied by way of suggestions which came to be put forward by learned advocate for accused. However he has answered admitting that the first information does not specify any date as to its submission. 14 CC 40689 OF 2010
21. As could be seen from the record, PW5 has deposed in the court being the retired Deputy Director of Foreinsic Scientific lab. He deposed that on 31/03/2009, he received the sealed bottes at the instance of police inspector, Kormangala Police station through the constable and on 11/05/2009 he did examine the contents of those bottles and he did find the contents of kerosence inside it and accordingly he has given his opinion on Ex.P3 to the police inspector and during his evidence Mo.1 came to be marked. It is none other than a bottle with some liquid content on which the PW5 has reportedly given his opinion.
22. As could be seen from his cross examination, he denied the suggestion of the learned advocate appearing for accused that in collusion with the police inspector of Kormangala police station, he has given false opinion vide Ex.P3. Apart from above suggestion nothing much has been elicited from him. 15 CC 40689 OF 2010
23. As could be seen from the record, PW6 as aforesaid is a retired PSI, who was a PSI as on the date of registration of the first information of this matter and he deposed that he did receive the file from PW4 for further investigation and continued his investigation and he did draw the spot mahazar and did draw a sample from the water sump and forwarded the same for chemical examination and recorded the statements of concerned witnesses and thereafter obtained the report Ex.P3 from the PW5 and he identified Mo.1.
24. As could be seen from his cross examination, many questions regarding procedures to be followed before initiating a case etc, have been put. Further timings etc, as to mahazar etc, also have been questioned. Except denying his evidence, nothing much has been done by the learned advocate for accused during his cross examination. As aforesaid, the evidence of CW6, for the said reason has been discarded. 16 CC 40689 OF 2010
25. This is a case in which the prosecution has alleged that at the instance of these accused, the sump water has been converted into a poisonous liquid by mixing some kerosene like oil and therefore the accused shall be punished etc. But as could be seen as aforesaid in the cross examination of PW1, it has been admitted that the accused persons also use the same water to which the prosecution alleges that the poison has been mixed. Above answer has taken away the strength of the case of the prosecution. Prosecution has failed to explain the said answer given by PW1. Because if at all the accused persons herein also use the same water available in the said sump, if the said water itself is made poisonous, does it not affect the interest of accused, has not been explained by the prosecution.
26. Even during the cross examination of PW2, same line of cross examination has been done on him by learned advocate appearing for accused and he is none other 17 CC 40689 OF 2010 than the son of PW1. But PW2 has denied the said sort of suggestion of the learned advocate put upon him during his cross examination.
27. It is no doubt true that the chemical examination report as per Ex.P3 specifies that some kerosene content is there in the sample bottles forwarded to examination, still the very presence of the kerosene content in the sample forwarded by itself does not incriminate the accused. Because Section 277 of IPC makes it clear that if anybody fouls the water of any public spring or reservoir so as to render the same less fit for the purpose, for which the same is being used, then only it is an offence. But in the case on hand what has been alleged is that a private sump water has been made foul in the said way. Therefore, considering the contents of Section 277 of IPC, this court opines that the point No.1 aforementioned requires negative findings.
18 CC 40689 OF 2010
28. Therefore, forall the above collective reasons and more particularly considering the absence of evidence as to fouling of water at the water sump, at the instance of accused allegedly, cannot be believed. Because no evidence is available on record which would establish the presence of those accused near the water sump and no evidence is available on record which would prove beyond reasonable doubt that the accused indulged themselves in mixing kerosene to the sump water. Becuase the answer given by PW1 during his cross examination as to the usage of sump water by accused persons as well, as aforesaid has taken away the strength of the case of the prosecution.
29. Although PW2 and other witnesses aforementioned herein above have denied the said suggestion during their respective cross examinations, same does not take away the importance of the admission aforesaid given by PW1. Moreover the accused have allegedly committed the said offence during late night hours. 19 CC 40689 OF 2010 Whether the accused have made any other arrangements for water supply has not been stated by the prosecution. Be that as it may be. In view of long standing civil litigation between these parties and subsequent registration of the present case after to the registration of civil litigations, would render these witnesses interested. Further though the chemical examination report has come with an opinion that the kerosene content has been found in the water etc, still the same does not attract the offence contemplated in Section 277 of IPC. Therefore, the point No.1 aforementioned is hereby answered in the Negative.
30. Point No.02: For the purpose of clarity Section 284 of IPC is extracted as below;
Section 284 in The Indian Penal Code
284. Negligent conduct with respect to poisonous substance.--Whoever does, with any poisonous substance, any act in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any person, or knowingly or negligently omits to take such order with any poisonous substance in his possession 20 CC 40689 OF 2010 as is sufficient to guard against any probable danger to human life from such poisonous substance, 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.
31. It contemplates that whoever does any act with any poisonous substance, which would be rash and negligent so as to put human life to danger, or likely to cause injury or any hurt, then such person shall be punished in accordance with law etc.
32. Learned Advocate appearing for the accused has relied on a judgment of Hon'ble Supreme Court of India delivered in a case between Mitesh Kumar J.Sha V/s The State of Karnataka and others. He has argued that as per the above judgment if the dispute is civil in nature, the criminal cases in the said backdrop cannot be entertained and I have carefully gone through the above judgment and considered the nature of the dispute between the parties thereof. 21 CC 40689 OF 2010 Same is completely different than the nature of the dispute between the parties herein. However this court has kept in mind, the ratio delivered in the said case to an effect that if a civil case is colored as a criminal case to take advantage of a relatively quick relief in a criminal case, in contrast to the civil dispute, if such an exercise is done, it is nothing but abusing the process of law and it shall be discouraged.
33. Secondly, learned advocate appearing for the accused has relied upon one more judgment delivered by Hon'ble Supreme Court in a case between Randheer Singh V/s The state of U.P. and others. He has argued that if the facts would make out the civil wrong, if civil remedy is available on it, it may not be a ground to close such criminal case, but if no case is made out, the case filed in the backdrop of a civil litigation shall not be continued if the civil case is 22 CC 40689 OF 2010 given a colour of a criminal offence. In the present case on hand, no doubt, the civil case is pending between these parties for different reliefs, wherein, one suit has been filed seeking eviction of these accused and 2nd suit has been filed by the accused seeking to grant the decree for specific performance of an agreement terms. In the light of peculiar facts being involved in the present case, the ratio laid down in the 2nd judgment being relied upon by the accused, (quoted supra) is not available to the accused herein, because the relief sought before high court under section 482 of Cr.P.C., seeking to quash the proceedings pending thereof against him, came to be turned down by Hon'ble High Court and the same order came to be assailed before Hon'ble Supreme Court and Hon'ble Supreme court has appreciated the powers of Hon'ble High Court under section 482 of Cr.P.C.
23 CC 40689 OF 2010
34. In the case on hand, though the Kerosene is a poisonous substance when it comes to human consumption, though Ex.P3 is a document which proves the presence of Kerosence content inside the sump water etc, still the evidence is not present to an effect that these accused only have mixed the kerosene content inside the sump water in the manner alleged by the prosecution. Because as aforesaid the witnesses have been classified as interested witnesses for the foregoing reasons. When PW1 only only has admitted that these accused persons also use the same water for their consumption, the case against accused cannot be stated to have been proved beyond reasonable doubt. Hence, considering the contents of section 284 of IPC as well and considering the status of witnesses aforementioned and the nature of the evidence of those witnesses and for the above collective reasons, this court is of the opinion to answer the point No.2 also in the negative and it is answered in the negative. 24 CC 40689 OF 2010
35. Point No.3; The circumstances warrant the following operative portion for the foregoing reasons;
OPERATIVE PORTION Invoking section 248(1) of Cr.P.C, accused No.3 is hereby acquitted of the offences punishable U/s. 277, 284 R/w Section 34 of IPC.
The bail bond and surety bond of the accused No.3 will be in force till completion of the appeal period, thereafter, they shall stand cancelled.
Case against A1 and A2 has been abated, as they have been reported dead.
MO No.1Bottle containing liquid, which is worthless, shall be destroyed after the lapse of an appeal period.
(Dictated to the stenographer, typed by him, corrected by me and then pronounced in the open court today, that is on 24012022) S.S.BHARATH XLI (41ST) ACMM, BENGALURU 25 CC 40689 OF 2010 ANNEXURES List of witnesses examined on behalf of prosecution: PW.1 : Muniyappa PW.2 : Srinath PW.3 : G.N.Srinivas PW.4 : Puttalingaiah PW.5 : R.Rangegowda PW.6 : H.M.Lakshminarasimha PW.7 : Fakruddin Sab (Discarded) List of documents marked on behalf of the Prosecution: Ex.P.1 : Complaint Ex.P.1(a) : Signature of PW1 Ex.P.1(b) : Signature of PW4 Ex.P.2 : Mahazar Ex.P.2(a) : Signature of PW1 Ex.P.2(b) : Signature of PW3 Ex.P.2(c) : Signature of PW6 Ex.P.3 : Report Ex.P.3(a) : Signature of PW5 List of witnesses examined on behalf of accused : NIL List of documents marked on behalf of the accused : NIL List of materials marked on behalf of the Prosecution: MO.1 : Bottle containing liquid S.S.BHARATH XLI (41ST) ACMM, BENGALURU