Bangalore District Court
State By Jnanabharathi Police vs Persons Along With Another With Common ... on 28 March, 2016
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BANGALORE.
Dated this the 28th day of March 2016
Present : Sri J.V.Vijayananda, B.Com., LL.B
IX Addl.C.M.M.Bangalore.
JUDGMENT UNDER SECTION 355 OF Cr.P.C..
1.C.C.No. 40248/2010
2.Date of offence 13-02-2010
3.Complainant State by Jnanabharathi Police
Station
4.Accused K.Thomas T Kolate
S/o. K. Thomas, aged 47 years,
No.181/3, 1st B Main, O.M.B.R
Layout, Chikkabanasavadi,
Bangalore.
5. Offences complained U/s. 447 and 427 of IPC.
of
6.Plea 1. Rajashekharaiah ( split up)
2. Ganga Narasaiah
Son of Doddapapaiah, aged 62 years,
Residing at No.147, 1st Cross, 1st
Block, 2nd Phase, Nagarabavi,
Bangalore.
3. Galappa
Son of Doddapapaiah, aged 61E,
Eranapalya, Bangalore.
7.Final Order Accused Nos.2 and 3 are acquitted
2 C.C.No.40248/2010
8.Date of Order 28-3-2016
REASONS
The Sub Inspector of Police, Jnanabharathi Police
Station, Bangalore has filed this charge sheet against accused
Nos.1 to 3 for the offences punishable under sections 427 and
447 r/w 34 of IPC. It appears during the pendency of this
case, the accused No.1 remained absent before the court and
as such vide order dated 23-2-2013 this case against accused
No.1 is split up and registered separate case in
C.C.No.4498/2013, which is pending before this court for
consideration.
2. The brief facts of prosecution case are that, on
13-2-2010 at 10-30 p.m., in site No.13, its Khata No.430
belonged to C.W.4 Sabeen, situated at Eeran palya, Bangalore
city within the limits of Jnanabharathi police station, these
accused persons along with another with common intention
trespassed into it, removed the shed constructed in it and
caused loss to C.W.4 to the extent of Rs.20,000/- and thereby
committed aforesaid offences.
3. The accused Nos.2 and 3 are on bail. On receipt of
charge sheet copies, this court took cognizance of offences and
furnished copies of prosecution papers to the accused
persons. After hearing on accusation, my learned predecessor
3 C.C.No.40248/2010
in office has framed the accusation for the offences punishable
U/s.447 and 427 of IPC and read over to the accused Nos.2
and 3 in the language known to them, they pleaded not guilty
and claimed to be tried.
4. The prosecution to prove guilt against accused No.2
and 3 has examined five witnesses as P.Ws.1 to 5 and got
marked six documents as per Exs.P1 to P6. Since C.Ws.5 to 7
did not turn up before this court, by rejecting the prayer of
Sr.APP, this court dropped the examination of said witnesses.
5. Thereafter, this court examined the accused Nos.2 and
3 as required U/s.313 of Cr.P.C., the accused Nos.2 and 3
denied the incriminating evidence appeared against them and
submitted that they have no defence evidence.
6. I have heard the arguments on both sides and perused
evidence on record.
7. As stated above, the prosecution to prove guilt against
accused Nos.2 and 3 has examined five witnesses. P.W.1
Mohammed Ifaqtulla Shariff is the complainant. P.W.2
Sabeena is the owner of the site where offence taken place.
P.W.3 Alla Bakash and P.W.4 Mohammed Shifiulla Shariff are
the spot mahazar witnesses. P.W. 4 D. Chandrappa is the
4 C.C.No.40248/2010
investigating officer. I have carefully perused the evidence on
record.
8. As stated above, P.Ws.1 and 2 are the complainant
and owner of site where the alleged offences taken place.
Their testimony indicates that P.W.2 has purchased the
vacant site No.30 measuring to an extent of 30X40 feet of
Eranapalya village, Srigandhada Kavalu, Bangalore City from
one Riyana Begum and constructed house in an extent of
10X10 feet. On 13-2-2010 between 10 to 11-00 p.m., some
body damaged their said house and they came to know from
their neighbors that accused persons have damaged the said
house. Due to damage to their house, they sustained loss to
the extent of 20 to 50 thousand of rupees.
9. It appears the prosecution to prove the ownership over
the said site marked certified copies of Judgment and decree
passed in O.S. No.3002/2011 dated 20-9-2011, sale deed of
above said site, tax paid receipts and copy of order sheet in
Mis.No.201/2012. On perusal of above, referred documents,
prima facie, no doubt, it is true that P.W.2 is the owner of
above referred site, she has filed suit for declaration, and
permanent injunction against accused persons and the civil
court granted relief in her favour. However, it appears, the
accused No.1 has filed miscellaneous petition before civil court
challenging the exparte decree passed in favour of P.W.2 and it
5 C.C.No.40248/2010
appears the said petition came to be, dismissed for non-
prosecution. Therefore, from the documents marked by
prosecution, it is very much clear that P.W.2 is the owner in
possession of above said site.
10. The evidence of P.Ws.1 and 2 indicates that they
came to know from their neighboring owners of their site that
accused persons trespassed into their site and damaged the
house constructed in it and caused loss to the extent of 30 to
50 thousand rupees. It appears, their said say is not
corroborated any of their neighbors by entering into witness
box. Since P.Ws.1 and 2 are heresy witnesses to the alleged
incident, their testimony is not sufficient to hold that the
present accused Nos.2 and 3 trespassed into their site and
damaged the house constructed in it. In my opinion, in order
to believe their testimony corroboration by independent
eyewitnesses is necessary. Unfortunately, in spite of giving
sufficient opportunities, the prosecution has not examined the
eyewitnesses to the alleged incident who witnessed the act of
present accused persons in trespassing and damaging of
house of P.W.2. Therefore, the prosecution has failed to prove
that accused Nos.2 and 3 trespassed into the site belonged to
P.Ws.1 and 2 and damaged house constructed in it beyond all
reasonable doubt.
6 C.C.No.40248/2010
11. P.Ws.2 and 3 deposed in respect of preparing of spot
mahazar and P.W.4 deposed regarding investigation. In my
opinion, the evidence of P.Ws.3 to 5 is only formal one and
need not required detailed consideration. Therefore, having
regard to the discussion made above and evidence available on
record, this court is of the considered opinion that the
prosecution has failed to prove its case beyond all reasonable
doubt. Accordingly, the accused Nos.2 and 3 are entitled for
benefit of doubt. In the result, I proceed to pass the following.
ORDER
This court did not found guilt of accused Nos.2 and 3 for the offences punishable under sections 447 and 427 of IPC.
Consequently, acting under section 248(1) of Cr.P.C., the accused Nos.2 and 3 have been acquitted for the above- referred offences.
Their bail bonds and surety bonds stand cancelled. Office to retain entire case papers of this case in split up case registered against accused No.1 in C.C. No.4498/2013. (Dictated to the Stenographer directly on computer and print out taken by her is verified and then pronounced by me in the open court on this the 28th day of March 2016) (J.V.Vijayananda) IX Addl.Chief Metropolitan Magistrate, Bangalore.
7 C.C.No.40248/2010ANNEXURE List of witnesses examined on behalf of the prosecution:
P.W.1, Mohammed Irfakatulla Shariff;
P.W., Sabeena; P.W.3, Allabakash; P.W.4, D.Chandrappa; P.W.5, Mohammed Shafiulla Shariff;
List of documents marked on behalf of the prosecution:
Ex.P1, Complaint; Ex.P.1(a), Signature of P.W.1; Ex.P2, Mahazar; Ex.P2(a), Signature of P.W.1; Ex.P.2(b), Signature of P.W.3, P.W.4 and P.W.5;
Exs.P3 to 6, Khata Certificate;
Ex.P.3(a) Signature of P.W.2;
List of material objects marked on behalf of the prosecution:
Nil List of witnesses examined, documents & materials marked on behalf of the defence:
Nil IX ADDL.C.M.M. Bangalore.8 C.C.No.40248/2010
Judgement pronounced in the open court vide separate sheet.
ORDER This court did not found guilt of accused Nos.2 and 3 for the offences punishable under sections 447 and 427 of IPC.
Consequently, acting under Section 248(1) of Cr.P.C., the accused Nos.2 and 3 have been acquitted for the above- referred offences.
Their bail bonds and surety bonds stand cancelled.
IX ADDL.C.M.M. Bangalore.