Bangalore District Court
State By vs Hanumantha Reddy S/O.Late Nallappa on 12 February, 2016
IN THE COURT OF THE X ADDL.C.M.M.
MAYO HALL UNIT, AT BENGALURU
Dated: This the 12th day of February 2016
PRESENT: Sri.ARJUN.S.MALLUR,
B.A.L., LL.B.,
X Addl. Chief Metropolitan Magistrate,
Bengaluru City.
C.C.No.22169/2011
Complainant - State by, Police Sub Inspector
R.M.Nagar Police Station
/vs/
Accused Hanumantha Reddy S/o.late Nallappa
Reddy, 54 yrs. No.255/02, Lal
Bahadurnagar Layout, B.Channasan-
dra, Banaswadi Post, Bengaluru.
JUDGMENT
1. The P.S.I of R.M.Nagar police station have filed this chargesheet against the accused for the offences punishable u/S.447 and 427 of IPC.
2. It is alleged by the prosecution that on 17/11/2007 at Lal Bahadur Layout Out ward No.84, Bengaluru the accused wrongfully trespassed to the public road constructed by BBMP and had put up a compound and shed by digging public road causing wrongful loss to Corporation Authorities and damaged the public road and thereby committed the alleged offences.
2 CC No.22169/2011
3. On the basis of the complaint filed by complainant, a case was registered in R.M.Nagar P.S., Cr.No.298/2007 and FIR was submitted to the court. Panchanama of scene of offence was conducted in presence of panchas and statement of witnesses were recorded. On completion of investigation chargesheet has been filed against the accused for the alleged offences.
4. Cognizance of offence was taken and summons was issued to the accused. Accused has appeared before the court through his counsel and has been released on bail. Copies of chargesheet were furnished to accused u/S.207 of Cr.P.C. Substance of accusation was readover to the accused for the alleged offences and accused has pleaded not guilty and claimed to be tried.
5. The prosecution in support of its case has examined 2 witnesses as PWs.1 and 2 and got marked 2 documents as Exs.P1 and P2. Statement of the accused u/S.313 of Cr.P.C. was recorded and the accused denied the circumstances incriminating him in the prosecution evidence.
6. Heard the arguments of Sr.APP appearing for the state and the counsel for accused and perused the records. 3 CC No.22169/2011
7. The points for consideration is:
1. Whether the prosecution proves beyond doubt that on 17/11/2007 at Lal Bahadur Layout Out ward No.84, Bengaluru the accused wrongfully trespassed to the public road constructed by BBMP and had put up a compound and shed by digging public road causing wrongful loss to Corporation Authorities and damaged the public road and thereby committed the alleged offences?
2. What order?
8. My answer on the above points:
Point No.1 - Negative, Point No.2 - As per final order, for the following;
REASONS
9. POINT NO.1:
The prosecution in support of its case has examined 2 witnesses. PW.1 Murthy is the resident of said area who has deposed that corporation authorities had laid a road at 3rd cross, B.Channasandra and in the year 2007 one day accused with the help of JCB removed the tar and constructed the shed in the place where road existed and in that regard he has given complaint to corporation authorities. In the course of cross examination PW.1 has deposed that 4 CC No.22169/2011 accused had filed a suit in OS No.6369/2000 against him and against BBMP authorities and said suit has been decreed in favour of accused, wherein himself and the corporation authorities have been restrained by an order of injunction not to interfere with the possession of accused and also in putting up construction of road in the said order.
10. PW.2 Mustaq Ahmed is examined as eye witness who has turned hostile to the prosecution denying having witnessed any incident and also denied any statement made before the I.O. under Ex.P1.
11. Apart from PWs.1 and 2 the prosecution has not examined any other witness. The place of alleged offence is not in dispute. Therefore, the spot mahazar is marked by consent under Ex.P2. It is the specific case of the prosecution that accused by digging the public road caused wrongful loss to the corporation authorities and constructed compound by trespassing upon the public road. Per contra it is the specific defence of the accused that alleged road is not the property of corporation authorities whereas it is the property of accused and in that regard the accused has obtained injunction order against corporation authorities and PW.1 from constructing any road in that order and also from interfering with his possession. The 5 CC No.22169/2011 material witness CW.1 has not been examined before the court. PW.1 has categorically admitted in his cross examination the defence raised by the accused. The learned counsel for accused has filed copy of the Judgment and Decree in O.S.No. 6369/2000 wherein the corporation authorities as well as PW.1 and two other persons have been restrained by an order of Injunction from putting up any construction of road in the disputed area and also they are restrained from interfering with peace possession and enjoyment of accused. The Judgment and Decree has been passed on 15/6/2007 and the present complaint has filed on 12/11/2007 i.e., about 5 months later. Therefore, at the time of filing complaint the corporation authorities and PW.1 had the knowledge of prohibitory injunction order passed against them. Under these circumstances, accused even though has removed road is justified as he has been protected by an order of injunction passed against corporation authorities and PW.1 in particular. Under these circumstances, no grounds to hold that accused has trespassed upon the corporation property and damaged the road constructed by them. In the result, for the aforesaid reasons, it cannot be said that prosecution has been able to prove the alleged 6 CC No.22169/2011 offences beyond reasonable doubt and I answer Point No.1 in the Negative.
12. POINT NO.2:
For the afore said reasons, I pass the following;
ORDER U/s 255(1) of Cr.P.C. the accused is acquitted of the alleged offences punishable u/s 447 and 427 of IPC. Bail bond of accused stands cancelled and he is set at liberty. Dictated to the Steno, transcribed by him, same was corrected by me and then pronounced in open court on this the 12th day of February 2016).
(ARJUN.S.MALLUR) X A.C.M.M., BENGALURU ANNEXURE LIST OF WITNESSES EXAMINED Prosecution Defence PW.1 Murthy. Nil PW.2 Mustaq Ahmed.
Exhibits Marked Ex.P1 Statement of PW.2.
Ex.P2 Mahazar.
Material Objects got marked
-Nil-
X A.C.M.M., Bengaluru 7 CC No.22169/2011