Bangalore District Court
State By A.P.Nagar vs Muthuraya on 10 February, 2020
IN THE COURT OF V ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE AT: BANGALORE
Dated this the 10th day of February , 2020 .
:PRESENT:
Smt. SHIRIN J ANSARI B.A.LL.B(Hon's) LLM
V ACMM Bangalore .
CRIMINAL CASE No.28489/2017
Complainant : State by A.P.Nagar
Police station, Bangalore.
(Rep by Sr.A.P.P)
-VS-
Accused : 1. Muthuraya
@ Muthuraiah
S/of Hanumanthappa
Aged 45 years,
Hanumanthanagar
Sreegandadakavalu
Vishwaneedam Post
Bangalore.
2.Shivanna
S/of Munireddy
aged 48 years
R/of No.417, 6th cross
Sreegandhadanagar
Heggenahalli
Bangalore.
(By Sri DJBG. Advocate,)
2
CC No.28489/2017
1. Date of commencement of 03.07.2017
offence
2. Date of report of offence 05.07.2017
3 Arrest of the accused The accused Nos 1 and 2
on bail
4. Name of the complainant Ramaiah
5. Date of recording of 01.03.2019
evidence
6. Date of closing of evidence 11.07.2019
7. Offences complained of Secs. 447 & 427 r/w. 34 IPC.
8. Opinion of the Judge The accused No.1 and 2
are found not guilty
9. Complainant by The Learned Sr.APP
10. Accused defence by Sri.DJBG ,Advocate,
JUDGMENT
The IO of Kamakshipalya police station, Bangalore has submitted the present charge sheet against the accused No.1 & 2 for the offences punishable U/Sections 447 & 427 r/w. 34 of IPC.
2. The brief facts of the prosecution case are as under:-
That the site bearing No.12 situated at Sy no. 27/10 situated at Yeshwanthpur Hobli , Srigandadakaval , 3 CC No.28489/2017 Erannapalya village within limits of A.P. Nagar police station belongs to CW 1. That on 3.7.2017 at about 12.00 noon accused No.1 and 2 with common intention to commit an offence, unlawfully entered into the said site and destroyed the wire fencing and also damaged the stones and caused loss to tune Rs.2 lakhs to CW 1 and thereby committed the offence punishable under Sec.447 & 427 r/w 34 of IPC.Hence this complaint.
On the basis of above said allegations the police have registered a case in crime No.159/2017 and forwarded FIR to this court. During the course of investigation, police have arrested the accused persons and got enlarged on bail. Thereafter, police have as usually conducted the investigation and submitted the charge sheet against the accused persons for the above said offences.
3. On the basis of materials on record, cognizance for the aforesaid offences has been taken and issued summons to the 4 CC.No.28489 /2017 accused. The accused faced the trial through the Advocate. Copies are furnished. The necessary charges were framed, read over and explained the same to the accused, wherein, they pleaded not guilty and claimed to be tried. The prosecution examined Pws 1 and 2 and got marked Ex.P.1 to Ex.P7.
4. The incriminating evidence available against the accused persons has been brought to the notice of the accused Nos.1, 2 and 4 by recording of 313 Cr.P.C. statement . The accused persons denied the same . But, did not choose to lead defence evidence.
Heard the arguments on both sides, perused the oral and documentary evidence on record.
5. Based on the above facts and circumstances on record, the following points arise for my determination:-
POINTS
1. Whether the prosecution proves beyond all reasonable doubt that, the site bearing No.12 situated at Sy no. 27/10 situated at Yeshwanthpur Hobli , Srigandadakaval , Erannapalya village within limits of A.P. 5 CC.No.28489 /2017 Nagar police station belongs to CW 1 and that on 3.7.2017 at about 12.00 noon accused No.1 and 2 with common intention to commit an offence, unlawfully entered into the said site and thereby committed the offence punishable under Sec.447 r/w 34 of IPC?
2. Whether the prosecution proves beyond reasonable doubt that on the said date, time and place, the accused persons with common intention to commit an offence unlawfully entered into CW1's site and destroyed the wire fencing and also damaged the stones and caused loss to tune Rs.2 lakhs to CW 1 and thereby committed the offence punishable under Sec.427 r/w 34 of IPC.
3. What order ?
7. My findings on the above points are as under:-
Point No.1 and 2 - In the "Negative"
Point No.3 - As per final order
for the following:-
REASONS
8.POINT No.1 & 2 :- It is the allegation of the prosecution that the site bearing No.12 situated at Sy no. 27/10 situated at Yeshwanthpur Hobli , Srigandadakaval , Erannapalya village within limits of A.P. Nagar police station belongs to 6 CC.No.28489 /2017 CW 1. That on 3.7.2017 at about 12.00 noon accused No.1 and 2 with common intention to commit an offence, unlawfully entered into the said site and destroyed the wire fencing and also damaged the stones and caused loss to tune Rs.2 lakhs to CW 1 and thereby committed the offence punishable under Sec 447 & 427 r/w 34 of IPC.
9. In order to prove the case , the prosecution has cited 4 witnesses in the charge sheet. But the prosecution has examined Cws 1 and 2. Despite of issuance of proclamation against Cws 3 and 4 the same is not published . Hence, CWs 3 and 4 have been dropped by rejecting the prayer of APP. The prosecution has marked 7 documents as Ex.P.1 to P.7 .
10. CW1 being the complainant in this case has deposed in favour of the prosecution. He has clearly admitted in the cross-examination that there are multiple litigations pertaining to Sy.No.27/10 against him. It is admitted fact that Sy No.27/10 originally belongs to Mr Mutturaya i.e Grand father of accused No.1 . Having admitted this fact, PW 1/CW 1 has 7 CC.No.28489 /2017 shown ignorance as to what is the extent of the property standing in the name of father of accused No.1 after demise of grand father of accused No.1. Admittedly the parties are litigating before the civil court and there are multiple civil proceedings pertaining to Sy.No.27/10 against the complainant.
11. At this juncture the prosecution has produced Ex.P.1, the complaint, Ex.P.2 Mahazar, ExP.3 certified copy of the Sale deed, Ex.P.4 certified copy of the sale deed, Ex.P.5 certified copy of the tax paid receipt & Ex.P.6 is certified copy of Form B . Ex.P.3 is the Sale Deed dt.14.3.1991 and Ex.P.4 is also the sale deed. No doubt the complainant has produced the sale deed in his favour but admittedly there are civil litigations pending between the parties pertaining to said property.
12. During the course of further cross-examination the complainant has deposed that due to the act of the accused persons i.e breaking of the stones and destroying of the fencing, he has incurred loss of Rs.2 lakhs. But absolutely, neither the photographs nor any other documents are 8 CC.No.28489 /2017 produced to show that Cw 1 /PW 1 had put up a wire fencing and stones around the said property to the tune of Rs.2 lakhs.
13. Further, he has also deposed that the accused persons threatened him over the telephone. The complainant has neither produced any phone details or the phone number to show that from which mobile number to which mobile number the accused persons called up and threatened the complainant. This aspect of the matter creates fatal doubt on the very case of the prosecution. The prosecution has failed to link up the chain in order to prove the allegations against the accused persons .
14. It is further clearly admitted by PW1 that he has not seen the alleged incident personally . He arrived at the spot only when one of his neighbor called him and informed him .
But who called up PW1 to give information of the alleged incident, his name is not been brought to the light before this court. This aspect of the matter creates doubt ton the very case of the prosecution.
15. Admittedly, according to the prosecution the alleged incident took place on 03.07.2017 and the complainant has 9 CC.No.28489 /2017 lodged the complaint on 05.07.2017. But the delay in lodging the complaint is not explained by the prosecution at any point of time. During the course of cross-examination, PW 1 has admitted that after the alleged incident he discussed with lawyer and then decided to lodge complaint against the accused persons .
16. On further perusal of the material on record, it is found that though the complainant has alleged that the accused persons have destroyed the fencing and the stones, put around the disputed property, but, no such materials have been seized by the Investigating Officer . The prosecution has failed to examine the Investigating Officer in this case. As stated supra, Cw 3 and 4 have been dropped for their non appearance before the court. Therefore non- examining of the Investigating Officer again has defeated the case of the prosecution .
17. PW 2 being the pancha as well as eye witness has completely turned hostile to the case of the prosecution. He has stated that he has not seen the alleged incident personally. 10
CC.No.28489 /2017 He has also admitted in cross-examination that he has no acquittance with the accused persons. After the incident when the complainant showed the accused persons to CW2, he came to know that they are the accused persons in this case. This aspect of the matter clearly go to show that if at all the CW2 had seen the accused persons committing any offence, he should have identified the accused persons before this court. But he has clearly stated that he has no acquittance with the accused persons before the complainant told him that they are the accused in this case.
18. On further perusal of the cross-examination of PW 2 , it is crystal clear that PW 2 has no knowledge of the alleged incident or the litigations pending between the parties. Further he has admitted that he does not know the contents of Ex.P.2 as he does not know reading and writing Kannada.
19. Pw 2 has stated that he does not remember whether he has made the signature to Ex.P.2 at the place of incident or in the police station . This aspect of the matter clearly show that PW 2 has no exact knowledge about the incident and as to what took place subsequently .
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CC.No.28489 /2017
20. On perusal of the testimony of the prosecution witnesses it is made clear that the testimony of the prosecution witnesses is not constant. The prosecution witness especially, the complainant has failed to prove the allegations made against the accused persons. There are material contradictions in the prosecution witnesses. Non-examination of the independent witness and the Investigating Officer has created fatal doubt with regard to the very case of the prosecution. Mere production of the complaint, FIR and the sale deed along with the tax paid receipts will not prove the allegations made against the accused persons. The prosecution has failed to produce the convincing & satisfactory materials before the court to prove the allegations made out against the accused persons. Hence the court has no other option except to acquit the accused persons . Hence, Point Nos 1 and 2 are answered in the Negative.
21.POINT No.3:- In view of findings on points No.1 & 2 , I find that the accused No.1 & 2 are not guilty and in the result , I proceed to pass the following:- 12
CC.No.28489 /2017 ORDER By acting U/Sec 248(1) of Cr.P.C., the accused Nos.1 & 2 are acquitted for the offences punishable U/Sections 447 & 427 r/w. 34 of IPC Bail bonds and surety bonds shall stand cancelled.
Accused Nos.1 & 2 shall execute personal bonds of Rs.10,000/- each towards compliance of section 437(A) of Cr.P.C.
[ (Dictated to the stenographer directly on the computer, typed by her and corrected by me, then pronounced in the open court, on this the 10th day of February , 2020).
(SHIRIN J ANSARI) V ACMM, Bangalore ANNEXURE
1. Witnesses examined by the prosecution.
P.W.1 Sri Ramaiah
P.W.2 Narayanappa
2. List of the documents exhibited for the prosecution.
Ex.P.1 Complaint
Ex.P.1(a) Signatures of CW 1
Ex.P.2 Mahazar
Ex.P.2(a)(b) Signatures of CW 1& 2
Ex.P.3& 4 CC of the sale deeds
Ex.P.5 CC of the Tax paid receipts
13
CC.No.28489 /2017
Ex.P.6 CC of Form 'B'
Ex.P.7 CC of the Judgment
in O.S.No.1013/2004
3. List of the witnesses examined for defence :Nil
4. List of the Documents exhibited for defence:Nil
5. List of the MOs marked in the evidence: Nil (SHIRIN J ANSARI) V ACMM,Bangalore.
14 CC.No.28489 /2017