Bangalore District Court
Smt Muniyamma vs Munivenkatappa on 16 July, 2025
KABC030417092018
Presented on : 07-06-2018
Registered on : 07-06-2018
Decided on : 16-07-2025
Duration : 7 years, 1 months, 9 days
IN THE COURT OF THE 30TH ADDL.CHIEF
JUDICIAL MAGISTRATE, BENGALURU
Dated: This the 16th day of July-2025
:Present: Sri.Thimmaiah.G B.A. LLB.
30th ACJM, Bengaluru.
C.C.No.15344/2018
Judgment U/s.355 of Cr.P.C.
Date of Offence 08.10.2015
Complainant State by Subramanyapura Police
Station,
R/by. Learned Senior APP
V/s.
Accused A1. Munivenkatappa
S/o. Late.Masthappa,
Aged about 19,
Judgment 2 C.C.No.15344/2018
A2. Smt. Rajeshwari
W/o. Late.Krishnappa,
Aged about 35 years,
Both are R/at. Jambusawari
Dinne, Gottigere Post,
Uttarahalli Hobli,
Bengaluru City.
A3. Mariyappa
S/o. Late. Chikka
Gurumurthy,
Aged about 36 years,
R/at, No.16/1,
Venkateshappa Layout,
Kambathahalli Main Road,
Kottigere Post,
Bengaluru City.
A4. Vajra
S/o.Late. Jayaram,
Aged about 36 years,
R/at. Jambusawari
Dinne, Gottigere Post,
Judgment 3 C.C.No.15344/2018
Uttarahalli Hobli,
Bengaluru City.
Offences U/s. 427, 448 of IPC
Plea Recorded on: 03.11.2022 and
accused No.2 and 3 are Pleaded
not guilty.
Examination U/sec., On 28.04.2025
313 of Cr.P.C recorded
on:
Final Oder Accused No.1 to 4 are
Acquitted.
Date of Order 16.07.2025
Thimmaiah.G
30 ACJM, Bengaluru.
th
JUDGMENT
The PSI of Subramanyapura Police Station has filed
charge sheet against accused persons for the offences
punishable U/s. 427, 448 of IPC.
Judgment 4 C.C.No.15344/2018
2. The brief facts of the prosecution case are as
follows:-
It is alleged that, Cw.1 husband Cw.2 is having ancestors
property at Sy.No.31/2, in Kotthanur, within the jurisdiction
of Subramanyapura police station and the Cw.2 had filed a
suit in City Civil Court in O.S.No.6018/2015 on the above said
property and the Hon’ble court ordered to maintain the status
quo of the said property till the disposal of the suit. On
08.10.2015 at about 10.15 the accused persons illegally
trespass the above said site property and damaged the house
constructed in the said site and caused loss to the Cw.1 & 2
and thereby the accused persons have committed the above
said alleged offences which are offences punishable U/s. 427,
448 of IPC.
3. After filing the charge sheet, cognizance taken for the
offence punishable offences punishable U/s. 427, 448 R/w
sec., 34 of IPC against the accused persons and accused
persons were released on bail. Copy of the prosecution papers
furnished to the accused persons as required U/Sec.207 of
Cr.P.C. Heard before charge. Charge has been framed and read
over to the accused persons language known to them wherein
they have denied the same and claim to be tried.
Judgment 5 C.C.No.15344/2018
4. In order to secure the Cw.1,2, 5 to 7 this court
repeatedly issued Summons and Proclamation, even though
the sufficient time given to the concerned police, they have
failed to secure these witnesses. Moreover, this case is 07
years old. Hence, dropped the said witness respectively. In this
regard relied on the following Hon’ble High Court, full bench
Judgment of the Madras High Court, passed in The State
( Tamil Nadu) V/s Veerappan and Others, on 24 March
1980, AIR 1980 MAD260-ILR 3 MAD 245 where in it held as
below:
2. Of the two questions which have been
referred to this Full Bench, the first one, namely,
whether under Section 255(1) Cr. P. C., a
Magistrate can acquit the accused if the
prosecution fails to apply for the issue of
summons to any witness and does not produce
the witness for several hearings and does not
serve summons on the witnesses despite
having been granted sufficient opportunity to
serve the summons or to produce the witnesses,
is the one that directly arises for determination
in these appeals. The second question which
arises for determination by us incidentally is
whether a Magistrate can acquit the accused
under Section 248(1) Cr. P. C., if the prosecution
does not apply for the issue of summons to any
of the witnesses and does not produce the
witness for several hearings and does not serve
the summons on the witnesses despite having
been granted sufficient opportunities to serve
Judgment 6 C.C.No.15344/2018the summons on the witnesses or to produce
the witnesses.
3. In all these appeals, the learned
Magistrate acquitted the accused under Section
255(1) Cr. P. C., on the ground that even though
the cases had been posted for hearing on
various dates and summons had been issued
to the witnesses for all the hearings, the
witnesses were not produced on any of the
hearing dates and in spite of a notice issued
that the case would be disposed of without
examining the witnesses if they are not
produced the prosecution did not choose to let
in any evidence and as such the Magistrate
found that the prosecution had no evidence to
let in.
15. In State of Madh. Pra. v. Kaluthawar,
1972 Cri LJ 1639, a Division Bench of the
Madhya Pradesh High Court observed as
follows: “It was the duty of the prosecution to
make necessary arrangements for the
production of its witnesses…. The Police must
always remember that it has got a duty to the
court and they cannot just send a challan and
think that the rest will be done by the court.
When nobody appeared in t he court to inform
what the reason was for non-appearance of the
witnesses, the court could legitimately come to
the conclusion that the police was not very
serious in prosecuting the offence which was a
minor one. Under Section 245, the Magistrate
can record an order of acquittal if there is no
Judgment 7 C.C.No.15344/2018
evidence to hold the accused guilty. If the
prosecution did not take proper steps to produce
the witnesses, or ask the court to give them
time to do the same, or to issue fresh summons,
the court was not bound to fix another date.
The police has a duty towards the citizen.
When the accused is brought before the court
and the prosecuting department does not take
any steps it will be an abuse of the process of
the court to continue the trial. Bringing a person
before the court accusing him of some offence is
a serious matter and however petty the offence
may be, the prosecuting department, must do
its duty towards the accused as well as the
court. When once the accused is challaned
there is no privilege given to the police to remain
absent”.
16. There are quite a number of decisions in
which it had been held that an acquittal of the
accused on the failure of the prosecution to
produce the witnesses is not legal. (Vide State
v. Kaliram Nandlal, ), the State of Mysore v.
Ramu, 1973 Mad LJ (Crl.) 116: (1973 Cri LJ
1257) (Mys); State of Mysore v. Kalilulla Ahmed
Sheriff. AIR 1971 Mys 60; Kanduri Misra v.
Sabadev Kunda, (1962) 2 Cri LJ 295; State of
Orissa v. Sibcharan Singh, ; State of Mysore v.
Somala, 1972 Mad LJ (Cri) 476: (1972 Cri LJ
1478) (Mys); State of Mysore v. Shanta, 1972
Mad LJ (Cri) 589 (Mys); State v. Nagappa, 1973
Cri LJ 548 (Mad); Public Prosecutor v.
Judgment 8 C.C.No.15344/2018
Sambangi Mudaliar, ; State of Kerala v.
Kunhiaraman, 1964 Mad LJ (Cri) 330 (Ker);
State of Mysore v. Narasimha Gowda, AIR 1965
Mys 167; State of Gujarat v. Thakorbhai
Sukhabhai, , State of U.P. v. Ramjani, All LJ
1126; Lakshmiamma Kochukuttiamma v.
Raman Pillai, AIR 1952 Trav-Co 268; State v.
Madhavan Nair, 1959 Mad LJ (Cri) 633 (Ker);
Emperor v. Varadarajulu Naidu, AIR 1932 Mad
25 (2); State of Kerala v. Desan Mary, 1960
Mad LJ (Cri) 378 (Ker); Kesar Singh v. State of
Jammu and Kashmir, 1963-1 Cri LJ 765: (AIR
1963 J & K 23); R. K. V. Motors and Timbers
Ltd. v. Regional Transport Authority,
Trivandrum, ; K. K. Subbier v. K. M. S.
Lakshmana Iyer, 1942 Mad WN (Cri) 64: (AIR
1942 Mad 452 (1)); State of Tripura v. Niranjan
Deb Barma, 1973 Cri LJ 108 (Tripura); Apren
Joseph v. State of Kerala, 1972 Mad LJ (Cri)
10: (1972 Cri LJ 1162) (Ker). As against these
decisions, there are the following decisions in
which it has been held that acquittal on the
ground of non-production of witnesses by the
prosecution was proper.
23. On the question as to whether the
Magistrate can acquit an accused at all under
Section 251A (11), Cr. P. C., if the prosecution
failed to produce their witnesses, a Division
Bench of the Gujarat High Court observed in
State of Gujarat v. Bava Bhadya (1962)’2 Cri
LJ 537 (2), as follows: “Where a charge Is
Judgment 9 C.C.No.15344/2018
framed In a warrant case on police report, if
owing to the failure of the prosecution to
produce their witnesses and owing also to the
failure of the prosecution to make full
endeavour to serve the summonses according
to the provisions contained in Sections 69, 70
and 71, Cr. P. C., 1890, there is no evidence
before the Magistrate, the Magistrate can acquit
the accused under Section 251A (11).”
” In State of Karnataka v. Subramania Setti
1980 Mad LJ 138: (1980 CA LJ NOC 129), a
Division Bench of the Karnataka High Court
referring to the decisions in State of Mysore v.
Narasimha Gowda (1964) 2 Mys LJ 241: (AIR
1965 Mys 167) and the State of Mysore v.
Abdul Hameed Khan (1969) 1 Mys LJ 4: (1970
Cri LJ 112 (Mys)), observed that the real
distinction between the two decisions is as to
whether there was remissness and want of
diligence on the part of the prosecuting agency
in producing the witnesses before the Court
and therefore the principle laid down in Abdul
Hameed Khan’s case applied to the facts of
the case with which the Division Bench was
concerned. We may riots here that in Abdul
Hameed Khan’s case, it was found on the
facts that the prosecution was not at all
diligent as the non-bailable warrants issued
to the witnesses had neither been served nor
returned to the court by the concerned police
and it was therefore held that where the
prosecution was not diligent in producing its
witnesses and had failed to serve the bailable
warrants on the witnesses and return the
Judgment 10 C.C.No.15344/2018same the Magistrate would be justified in
refusing to grant an adjournment and to
proceed to acquit the accused on the material
on record. We may note here that in State of
Karnataka v. Subramania Setti 1980 MLJ 138
the Division Bench was dealing with a24.
After carefully considering all the aforesaid
decisions and the views expressed therein, we
are of the view that if the prosecution had
made an application for the issue of summons
to its witnesses either under Section 242(2) or
254(2) of the Criminal Procedural Code it is
the duty of the court to issue summons to the
prosecution witnesses and to secure the
witnesses by exercising all the powers given to
it under the Criminal Procedure Code, as
already indicated by us and if still the
presence of the witnesses could not be
secured and the prosecution also either on
account of pronounced negligence or
recalcitrance does not produce the witnesses
after the Court had given it sufficient time and
opportunities to do so, then the Court, being
left with no other alternative would be
justified in acquitting the accused for want of
evidence to prove the prosecution case, under
Section 248, Cr. P. C., in the case of warrant
cases instituted on a police report and under
Section 255(1), Cr. P. C. in summons cases,
and we answer the two questions referred to
us in the above terms.
Judgment 11 C.C.No.15344/2018
Hence, the present case on hand, this court also dropped
the Cw.1,2, 5 to 7 who are not secured since long time. In
order to prove the guilt of the accused persons, the
prosecution has examined 05 witnesses as Pw.1 to Pw.5 and
04 documents marked as Ex.P1 to Ex.P4.
5. Thereafter examination of the accused persons
U/sec.313 of Cr.P.C. is recorded, the accused persons have
denied the incriminating evidence in the prosecution case and
not chosen to lead their side evidence. No documents are got
marked on their behalf.
6. Heard both sides and perused the evidence available
on record.
7. Upon hearing arguments advanced from both sides
and on perusal of materials placed on record, following points
arise for consideration:
POINTS
1. Whether the prosecution proves
beyond all reasonable doubt that, Cw.1
husband Cw.2 is having ancestors
property at Sy.No.31/2, in Kotthanur,
within the jurisdiction of
Subramanyapura police station and the
Cw.2 had filed a suit in City Civil Court in
O.S.No.6018/2015 on the above said
property and the Hon’ble court ordered to
maintain the status quo of the said
property till the disposal of the suit. On
08.10.2015 at about 10.15 the accused
Judgment 12 C.C.No.15344/2018persons illegally trespass the above said
site property and thereby committed an
offence punishable U/sec.,448 IPC?
2. Whether the prosecution proves
beyond all reasonable doubt that, On
08.10.2015 at about 10.15 the accused
persons illegally trespass the above said
site property and damaged the house
constructed in the said place and caused
loss to the Cw.1 and 2 and thereby
committed an offence punishable
U/sec.,427 of IPC?
3. What order.?
8. My findings to the above points are:
Point No.1 : In the Negative
Point No.2 : In the Negative
Point No.3 : As per final order
for the following
REASONS
9. POINTS NO.1 & 2: These points are inter connected
to each other and have taken for discussion in common to
avoid repetition of the facts and evidence. Further, I am of the
opinion that, I need not repeat the entire case of the complaint
here also, since I have already narrated the same at the
inception of this judgment.
Judgment 13 C.C.No.15344/2018
10. The Pw.1.Ramesh, who is the incident witness to
the case, he has deposed in his evidence before the court that,
he do not the accused persons, there is a site in Kothanur
belongs to his father but, he do not the survey number and
their was one house reconstructed in the said place, the said
house had been demolished by some forty people and he do
not who are they and their names and further he do not
remember the date of the incident and they built a compound
and left the said place and further he do not know, that the
people present today before the court, are the same persons
who demolished their house and further he had not given any
statement before the police regarding the said incident.
Further the learned Sr. APP cross examined the said
witness, where in nothing worthy was elicited from his mouth
and he turned hostile to the prosecution case. Hence, his
evidence is not helpful to the prosecution to prove the guilt of
the accused persons beyond all reasonable doubt.
11. The Pw.2. Shekar, who is the eye witness to the
case, he has deposed in his evidence before the court that, he
had seen the accused persons before the court. One acre of
land in Survey No. 30/1 of Kothanur village was the ancestral
property of Muniswamappa, Lakshmayya and Ramappa and it
was no longer part of it. One party had sold a property of 1800
sq. ft.,There was a sheet house in it. One day in 2015, at
Judgment 14 C.C.No.15344/2018
around 11.00 am, while he, his parents and his older brothers
Cw3, 6 and 7 were there, a person named Munivenkatappa
came and demolished the house, saying that a person named
Rajeshwari had sold the said plot to them. The remaining
accused and their associates were with him. We suffered a loss
due to this. It was no longer part of the property, further he
had given a statement to the police about the same.
Further, the learned counsel for the accused persons,
had cross examined the said witnesses, where in he stated
that, the Sy.No.31/2, is the ancestor property of Cw.1 and
there is a civil dispute on the said property, further in
CC.No.14037/2018 he appeared as accused No.4 in the same
court and further denied the rest of the suggestions put by the
learned counsel for the accused persons.
12. The Pw.3. Vajramuni, who is the IO to the case, he
has deposed in his evidence before the court that, On
10.10.2017, he had obtained the file of the said case from Cw-
9 for further investigation and on 25-10-2017, he had recorded
the statement of Cw-2 to 5. Then, on the production of the
copy of the EC related to the property in Survey No. 31/2,
Kothanur Village, Uttarahalli, by Cw-1, and the same has been
attached it to the file. Then, since the investigation has been
completed, the charges against the accused persons have been
Judgment 15 C.C.No.15344/2018
prima facie proven and he had submitted the final report to
the Honorable Court.
Further, the learned counsel for the accused persons,
had cross examined the said witnesses, where in he stated
that, the Cw.9 mentioned in spot mahazar the Sy.No.30/1 but,
the Cw.1 had mentioned the Sy.No.31/2 of Kottanur village,
Uttarahalli Grama and further denied the rest of the
suggestions put by the learned counsel for the accused
persons.
13. The Pw.4.H. Govinda, who is the 1st IO to the case,
he has deposed in his evidence before the court that, On
08.10.2015 at 11:45 AM, while he was in charge of the police
station, he received the written complaint given by Cw-1 and
registered a case in Police Station Crime No. 676/2015 and
submitted the report to the Honorable Court and the superior
officers. Then he transferred the case file to the Cw.9 for
further investigation.
14. The Pw.5. Arjun, who is the 2nd IO to the case, he
has deposed in his evidence before the court that, On
08.10.2015, he had received the case file from Cw-8, checked
it and continued the investigation. On the same day, he had
conducted the panchanama in the presence of the pancha’s
Cw-6 and 7 from 12-15 to 01-00 noon at the place shown by
Judgment 16 C.C.No.15344/2018
Cw-1. Then, Cw-10 has taken over the case file for further
investigation.
15. It is the paramount duty of the prosecution to
establish the guilt of the accused persons beyond all
reasonable doubt. Unless the guilt is established beyond all
reasonable doubt, the accused persons can not be held guilty
of the alleged offenses.
16. Further, in order to secure the Cw.1,2, 5 to 7
witnesses this court repeatedly issued Summons and
Proclamation, even though the sufficient time given to the
concerned police, they have failed to secure these witnesses.
Moreover, non examination of the material witness is fatal to
the prosecution case. As such the accused persons are
certainly would be entitled to benefit of the doubt. Regarding
this relied on the following Judgment.
On this point held in, (2016) 10 SCC 519 – AIR 2016 SC
4581 in para 56, Hon’ble Apex held thus hereunder:
”56. It is a trite proposition of law, that suspicion
however grave, it cannot take the place of proof and that
the prosecution in order to succeed on a criminal charge
cannot afford to lodge its case in the realm of ”may be
true”’ but has to essentially elevate it to the grade of
”must be true”. In a criminal prosecution, the court has
Judgment 17 C.C.No.15344/2018a duty to ensure that mere conjectures or suspicion do
not take the place of legal proof and in a situation
where a reasonable doubt is entertained in the
backdrop of the evidence available, to prevent
miscarriage of justice, benefit of doubt is to be extended
to the accused. Such a doubt essentially has to be
reasonable and not imaginary, fanciful, intangible or
non-existent but as entertainable by an impartial,
prudent and analytical mind, judged on the touchstone
of reason and common sense. It is also a primary
postulation in criminal jurisprudence that if two views
are possible on the evidence available one pointing to
the guilt of the accused and the other to his innocence,
the one favourable to the accused ought to be adopted.”
17. Thus, the above Hon’ble Apex Court decision has
opt to the present case on hand and the accused persons are
entitled to the benefit of the reasonable doubt. Moreover, non
examination of material witness is fatal to the prosecution
case. The prosecution has not able to prove the alleged
offences against the accused persons beyond all reasonable
doubt. Therefore, I Answer to the Points No.1 & 2 in the
Negative.
Judgment 18 C.C.No.15344/2018
18. POINT NO.3: In view of the above findings on Point
No.1 & 2, I proceed to pass the following:
: ORDER :
The Powers Conferred Upon me U/Sec. 248(1)
of Cr.P.C. The Accused No.1 to 4 are hereby
Acquitted for the alleged offence punishable
U/sec.,448, 427 of IPC.
The bail bond of Accused No.1 to 4 and surety
extended for further 6 months in order to comply
Sec.437A of Cr.P.C. Thereafter, this bail bond
automatically stands cancelled.
(Dictated to the Stenographer directly on computer and after corrections
made by me and then pronounced by me in the Open Court on this the 16 th day of
July-2025).
(Thimmaiah.G)
30 ACJM, Bengaluru.
th
ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE
PROSECUTION:
P.W. 1 : Sri.Ramesh
Judgment 19 C.C.No.15344/2018
P.W. 2 : Sri.Shekar
P.W. 2 : Sri.Vajramuni
P.W. 2 : Sri.H.Govinda
P.W. 2 : Sri.Arjun
2. LIST OF THE DOCUMENTS MARKED FOR THE
PROSECUTION:
Ex.P1 : Statement of Pw.1 Ex.P2 : Complaint Ex.P3 : FIR Ex.P4 : Spot Mahazar
3. LIST OF THE WITNESS EXAMINED AND DOCUMENTS
MARKED FOR THE DEFENCE:
-NIL-
4. LIST OF THE MATERIAL OBJECTS MARKED FOR THE
PROSECUTION
Digitally signed
by
-NIL- THIMMAIAH
THIMMAIAH G
G Date:
2025.07.23
16:10:51
+0530(Thimmaiah G)
30th ACJM, Bengaluru.
Judgment 20 C.C.No.15344/2018