Bangalore District Court
State By vs Saroja W/O Govindaraja on 1 February, 2023
1 CC.No.54337/2016
KABC0C0109512016
IN THE COURT OF THE X ADDL.C.M.M.
MAYO HALL UNIT, AT BENGALURU
Dated: This the 1st day of February 2023
PRESENT: Smt.ARATI B.KAMATE
B.A., LL.B.,
X Addl. Chief Metropolitan Magistrate,
Bengaluru City.
C.C.No. 54337/2016
Complainant - State by, Police Sub Inspector
Indira Nagara Police Station
/vs/
Accused 1. Saroja W/o Govindaraja, 56 years,
2. K.Govindara S/o Kannaiahnaidu, 62 years,
both are R/at No.618, 2nd Main Road,
in front of Airtel Office, Indira Nagara
Bengaluru.
JUDGMENT
1. The PSI of Indira Nagara police station has filed this charge sheet against the accused persons for the offences punishable u/S. 427, 448 R/w 34 of IPC.
2. It is alleged by the prosecution that on 15/4/2016 at 11.00 AM the accused persons trespassed into the property of CW1 bearing No.637, I Main, I Stage, Indiranagar, Bengaluru and started to put up construction of 2 CC.No.54337/2016 building and damaged the compound wall and building wall belonging to CW.1. Hence, it is alleged that accused have committed the alleged offences.
3. On the basis of the FIS lodged by the informant, case was registered against the accused in Indira Nagara P.S., Cr.No.168/2016 and FIR was submitted to the court. On completion of investigation charge sheet has been filed against the accused for the alleged offences.
4. Cognizance of offence was taken and summons was issued to the accused. Accused persons appeared before the court through their counsel and they are on bail. Copy of chargesheet was furnished to accused u/S.207 of Cr.P.C. Substance of accusation was read over and explained to the accused. The accused pleaded not guilty and claimed to be tried.
5. The prosecution in support of its case has examined 8 witnesses as PW.1 to 8, got marked 9 documents as Exs.P1 to 9. The statement of the accused was recorded u/S.313 of Cr.P.C. The accused No.2 was examined as DW-1. The accused got marked the documents at Ex.D1 and 2.
6. Heard the arguments of Sr.APP appearing for the state and the counsel for accused and perused the records.
7. The following points arise for determination:
1. Whether the prosecution proves beyond doubt that on 15/4/2016 at 11.00 AM the accused persons trespassed into the property of CW1 bearing No.637, I Main, I Stage, Indiranagar, 3 CC.No.54337/2016 Bengaluru. And thereby the accused have committed an offence punishable under Section. 447 R/w 34 of IPC?
2. Whether the prosecution proves beyond doubt that on the same date, time and place, in furtherance of common intention the accused damaged the compound wall and building wall.
And thereby the accused have committed an offence punishable under Section 427 R/w 34 of IPC?
3. What order?
8. The above points are answered in the following manner;
Point No.1 and 2 - Negative, Point No.3 - As per final order, for the following;
REASONS
9. POINT NO.1 and 2: The criminal law was set into motion by CW-1 by lodging FIS. She was examined by the prosecution as PW1. During her evidence she has stated that accused persons were throwing garbage, mud, cement, bricks, stones, pipes to their compound. On 15.4.2016 accused persons by opening a common wall put up two big windows and trespassed into her property through windows. This trespass has caused lot of harassment and nuisance to her. In spite of her request accused did not stop harassment till now. The accused persons have damaged her house tiles, plastering, pipes, clothes lining, cables and caused loss to the extent of Rs.75000/-. In this regard she lodged FIS as per Ex.P1. She also deposed regarding drawing of 4 CC.No.54337/2016 mahazar as per Ex.P2. She identified the four photographs marked at Ex.P3 to 6 relating to the trespass and loss caused by accused.
10. PW.2 in her evidence deposed that she has seen accused persons causing trouble several times to CW.1 and accused persons trespassed into the property of CW.1 and caused loss to her property by damaging the tiles and other things. On 15.4.2016 at about 11.00 a.m when she visited the house of CW.1 she saw that accused persons by opening a common wall put up two big windows and trespassed into property of CW1 through windows. This trespass has caused lot of harassment and nuisance to her. In spite of request they did not stop harassment till now. The accused persons have damaged house tiles, plastering, pipes, clothes lining and cables of CW-1.
11. PW.3 in his evidence deposed that the mahazar was conducted as per Ex.P2 with relating to the trespass and loss caused to the complainant. At the time of mahazar he was present at the spot and he signed the mahazar in the spot.
12. PW.5 is the then WPC of Indiranagar police station deposed that on 6.6.2016 herself and CW.7 were deputed for apprehending accused. Accordingly they went to address of accused and apprehended and produced accused before the court.
5 CC.No.54337/2016
13. PW.6 in his evidence deposed that on 06-06-2016 CW-9 deputed himself and CW-6 for apprehending accused in this case. They apprehend accused and produced before SHO along with report as per Ex.P8.
14. PW.7 in his evidence deposed that in the year 2016 the accused dumped the waste and broken materials in the property of others.
15. PW.4 is the then HC-4675 of Indiranagar police station. He deposed regarding receipt of FIS and registration of FIR. The further investigation is made by PW.8. He visited the spot and conducted mahazar as per Ex.P2 in the place shown by CW-1 in the presence of CW-2 and 3. He identified the photographs of the spot marked at Ex.P2 to 6, Katha Certificate marked at Ex.P7. He recorded the statements of CW-4 and 5. He deputed CW- 6 and 7 for apprehending the accused. They produced accused before him along with report as per Ex.P8. He arrested accused and released on bail. He recorded the statement of CW-6 and on completion of investigation he filed charge sheet.
16. The learned Counsel for the accused submitted that as per the decision of Hon'ble High Court Gouhati in Criminal Appeal No. 294/13 between Biswajit Oaul v. State of Assam, in the absence of determination of ownership, the allegation of trespass cannot be accepted. It is stated that the suit filed by the complainant in OS No. 25894/17 was dismissed. There is no 6 CC.No.54337/2016 compound or pillar wall. He also relied on the order in WP No. 2776/2022 between Sri Shivaswamy and others v. The state of Karnataka. I do respect the decision relied by the learned Counsel for the accused. But by considering the facts and circumstance, the same is not helpful to the accused. In this case the accused have not denied the ownership and possession of complainant over her property. PW1 has stated that she has filed suit with respect to pillar. The accused have stated that the said suit is dismissed. In this case it is alleged that the accused have trespassed and caused damage to the property of PW1. In this case it is for the prosecution to prove trespass into the property of CW1 and causing damage and throwing of garbage and other things in her property.
17. PW1 has lodged FIS alleging that the alleging trespass and damage to her property by the accused. In her evidence she has stated that the accused are throwing garbage, mud, cement, bricks, stones, pipes to her compound. It is further stated that on 15-4-2016 the accused persons put up windows in common wall and trespassed through windows. It is further stated that the accused have caused loss of Rs.75,000/- by damaging her house tiles, plastering, clothes lining, cables. But there is no mention regarding putting windows or causing such damage in Ex.P.1. During cross examination she has stated she got written about damage to compound. When a suggestion was 7 CC.No.54337/2016 made that are there any witness who have seen the incident, she has stated that she is alone.
18. She has stated that she has lodged the FIS on the date of incident itself. The alleged incident took place on 15-4-2016 and FIS was lodged on 11-5-2016. She has also stated that as the incident took place in her absence the delay is caused in lodging FIS. She has stated that she was at Madikeri and the neighbors have witnessed the incident. It is clear from the evidence that there is a property dispute between the parties. She has admitted that the suit was disposed against her.
19. She has admitted the photograph during her cross examination and the same is marked at Ex.D1. She has admitted that there is a common wall. She has admitted that there is no compound wall. But she has stated that on 15-4-2016 the accused have damaged the compound wall. She also admitted that the compound wall belongs to accused. She has also admitted that she has not constructed the common wall. She has also stated that before construction of her house the accused have made construction of their house.
20. PW2 has stated that the accused were causing trouble to CW1 and on 15-4-2016 they damaged the common wall and put up windows and trespassed into the property of CW1 through windows. During cross examination she has stated that CW1 is her friend. PW1 has also stated that all 8 CC.No.54337/2016 the witnesses are her friends. She has stated that she does not know the amount of loss caused to the complainant.
21. PW3 is the mahazar witness. During cross examination he has stated that he does not know the date and time of mahazar. He has stated that the police had called him to police station and took his signature in police station. He also admitted that he has put signature on mahazar in police station. PW1 has stated that at the time of mahazar the police have taken photographs regarding damage to her property. But PW3 has stated that no photographs were taken in his presence.
22. PW7 has stated that the accused had dumped waste and broken materials in the property of others. He has not stated in whose property the accused had dumped the garbage. He was turned hostile by the prosecution. During cross examination by the learned Sr.APP he has admitted that on 15-4-2016 CW1 called him to the spot and he found that the accused No.2 had undertaken construction. But as per version of PW1 she was not present in the spot on 15-4-2016 and had gone to Madikeri. PW7 also admitted that the accused were constructing supporting pole adjacent to compound of CW1 without permission. But as per version of PW1 the compound belongs to accused. During cross examination by the learned Counsel for the accused he has stated that he does not know the house numbers of CW1 and accused. He 9 CC.No.54337/2016 does not know when the accused started construction. He also stated that he does not know who has constructed compound. He has also stated that when he had gone to the spot, the accused were not present there.
23. PW4 to 6 and 8 have deposed regarding their official acts during investigation. PW5 and 6 have apprehend the accused as per directions of IO. PW4 deposed regarding receipt of FIS and registration of FIR. DW1 in his evidence stated that the complainant started troubling after he undertook construction. He has filed complaint against the complainant on two occasions but the police registered NCR. He has stated that the complainant has filed false complaint by using her influence even though they have not trespassed and caused any damage. During cross examination PW4 has stated that he does not know about the complaint filed by the accused against the complainant. He also stated that he does not know whether the same was registered as NCR. The alleged incident happened on 15-4-2016 and the FIS was lodged on 11-5-2016. The delay in lodging FIS is not properly explained by the prosecution. PW8 has stated that he has conducted mahazar in the presence of witnesses. But the mahazar witness has admitted that he has put signature in the police station.
24. There is inconsistency in the evidence of prosecution witnesses as argued by the learned Counsel for the accused. The prosecution has to 10 CC.No.54337/2016 prove the guilt of the accused beyond reasonable doubt. After considering the materials on record, if two views are possible in such circumstance, the one which is favourable to the accused be considered. If any doubt arises, the benefit of the same should go to the accused. The facts and circumstances revealing from the evidence by itself are sufficient to extend benefit of doubt to the accused persons. By considering the facts and circumstances, the prosecution is not able to prove the charges leveled against the accused persons beyond reasonable doubt. Accordingly, Point No.1 and 2 are answered in the Negative.
25. POINT NO.3: For the afore said reasons, the following order is passed;
ORDER Acting u/S.255(1) of Cr.P.C. the accused No.1 and 2 are acquitted of the offences punishable u/S. 448, 427 R/w 34 of IPC.
Bail bond of accused and surety stand cancelled.
(Dictated to the Stenographer directly on computer, typed by her, same was corrected by me and then pronounced in open court on this the 1st day of February 2023).
ARATI B Digitally signed by ARATI B KAMATE KAMATE 16:20:01 +0530 Date: 2023.02.01 (ARATI B.KAMATE) X A.C.M.M., BENGALURU.
11 CC.No.54337/2016 ANNEXURE LIST OF WITNESSES EXAMINED Prosecution Defence PW.1 Bharathi Uttappa Nil PW.2 Anand Ashiya PW.3 Raju Motwani PW.4 Narayanaswamy PW.5 Soubhagyamma @ Bhagyamma PW.6 K.Bhakthakumar PW.7 Kannaiah Jetani PW.8 Santhosh Kumar.L Exhibits Marked Ex.P1 FIS Ex.P1(a)Signature of PW.1. Ex.P1(b)Signature of PW.4. Ex.P2 Mahazar Ex.P2(a)Signature of PW.1. Ex.P2(b)Signature of PW.3. Ex.P.2(c) signature of PW8 Ex.P3 to 6 Photos Ex.P7 FIR Ex.P7(a)Signature of PW.4. Ex.P8 Report Ex.P8(a)Signature of PW.6. Ex.P9 Katha Certificate Ex.P9(a)Signature of PW.8. Material Objects got marked NIL Defense DW.1 Govindaraju Exhibits Marked Ex.D1 Photo Ex.D2 copy of NCR Material Objects got marked NIL Digitally signed by ARATI B ARATI B KAMATE KAMATE Date: 2023.02.01 16:19:45 +0530 (ARATI B. KAMATE) X ADDL.C.M.M., BENGALURU.