State of Karnataka vs Aspak @ Asmath

K.N. Phaneendra, J.—The State has preferred this appeal against the judgment of acquittal passed by the Trial Court i.e. J.M.F.C., Bhatkal in C.C. No. 659/2005 in acquitting the accused for the offences u/s 30(i)(iv) of The Ancient Monuments and Archaeological Sites and Remains Act, 1958. I have heard the arguments of the learned Additional State Public Prosecutor for State. It is very unfortunate that in spite of several opportunities, the respondent did not appear before this Court nor his Counsel appeared before this Court and argued the matter.

The learned Additional State Public Prosecutor strenuously contended that the learned J.M.F.C. has not properly assigned the reasons for acquitting the accused person. Though the prosecution has established a case beyond reasonable doubt against the respondent the Trial. Court has grossly erred in acquitting the accused without effectively appreciating the oral and documentary evidence on record. The evidence of PWs 1, 2 and 4 have categorically deposed before the Trial Court that the accused has put up construction within 100 (hundred) meters from the monument building. Therefore, he has committed the offence under the above said provision of law. The Magistrate has also grossly erred in coming to the conclusion that the evidence of PWs 1, 2, 4 and 5 are doubtful. Therefore, with all certainty it cannot be said that the accused has committed such an offence, such observation by the learned Magistrate is erroneous. Therefore, the learned Additional State Public Prosecutor strenuously argued that the judgment of acquittal recorded by the Trial Court is liable to be set aside and accused is liable to be convicted for the above said offences.

The factual matrix of the case discloses that, Bhatkal Town Police submitted a charge sheet against the accused for the offences u/s 30(i)(iv) of The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (hereinafter called as the ''Act'' for short) and also Section 188 of I.P.C. It is the contention of the prosecution that, there is a monument called "Sri Jettappa Naika Chandranatha Basadi" situated by the side of Bhatkal Main Road at Bhatkal. According to the above said provision of the Act and Section 188 of the Act, no person can put up any construction within 100 meters from the said monument building. In fact, the Archaeological Department has made it clear by means of putting sign boards near the said monumental building. It is alleged that in spite of above said law, the accused has constructed a house near the said monument building at the distance of about 71 meters. Therefore, the Police have submitted the charge sheet. The Court has framed the charges against the accused for the above said offences and recorded the evidence.

The prosecution in order to prove the case, examined as many as 7 witnesses PW-1 to PW-7 and got marked Ex. P1 to P11. The accused was also examined u/s 313 of Cr.P.C. and the accused did not choose to lead any evidence, as such after hearing the arguments of the learned Counsel for the accused and the learned A.P.P. the Trial Court has acquitted the accused.

The Trial Court has assessed and appreciated and then disbelieved the evidence of PW-1, PW-2 and PW-5. I have also carefully examined the evidence of these witnesses. In fact, PW-1 is the person who lodged a private complaint on 24.01.2005, which was referred to the Police. It is contended that the said person has no authority to file the complaint without the orders of the competent authorities. The complaint was lodged on 24.01.2005. The authorisation given to PW-1 as per Ex. P6 was on 09.02.2005. Therefore, PW-1 has no jurisdiction to lodge the complaint. On perusal of the private complaint filed before the Magistrate, it is shown that the complaint was filed on 24.01.2006, but the learned Magistrate has noted that it was referred to Police on 24.01.2005 because the complaint was referred to Police for investigation and report was awaited as on 05.05.2005. The Police have also registered a case in FIR No. 28/2005 and FIR registered on 07.02.2005. Therefore, it cannot be said that the complaint was lodged on 24.01.2006, there may be some mistake with regard to the mentioning of the date in the complaint instead of mentioning it as 24.01.2005 it was mentioned as 24.01.2006. Therefore, the authorisation which was given on 09.02.2005 does not come to the help of the authority. Therefore, on this ground also the learned Magistrate has come to the conclusion that the complaint itself is not properly maintainable.

In this particular case, the evidence of PW-5 plays a very important role. Actually his evidence is a decisive evidence because according to the prosecution he visited the spot, measured the distance between the property of the accused, the said monument and gave the certificate with a plan that construction was at a distance of 71 meters from the monument. The evidence of this witness is appreciated by the Trial Court. This witness has categorically stated in his evidence that on that particular date he visited the spot that was on 18.03.2005 along with two Surveyors and also with some Officials belonging to the Archaeological Department. They measured the distance between the monument and the property of the accused and they found it as 71 meters and it was well within 100 meters. They have also produced Ex. P11, which is the sketch which also shows that it was 71 meters. But during the course of cross-examination, some important aspects have been elicited that, this witness has stated that he cannot say how many other properties are there, whether any shopping complex or other properties are there near the said monument in between the property of the accused and the monument. He has also stated in the examination-in-chief that so many other persons were also present at the time of drawing up of the sketch, but he has not taken the signatures of those persons. This shows that after lodging of the complaint, the Police Officers did not go to the spot and conducted any mahazar nor measured the said property in order to ascertain whether the contents of Ex. P11 have been properly mentioned or not. The Police have wholly relied upon the statement of this witness and as well as Ex. P11. It is seen that on 08.03.2005 this witness has stated that on the directions of the Investigating Officer this witness had been to the said spot and measured the distance. Therefore, for all these reasons the learned Magistrate has come to the conclusion that it is very difficult to believe the version of the said witness and it creates a serious doubt whether the said witness has actually visited the said spot and conducted the survey and measured the distance between the property of the accused and as well as the monument. Therefore, the learned Magistrate has incurred a serious doubt with regard to this aspect. Therefore, he disbelieved the evidence of PW-5.

So far as other witnesses are concerned, the learned Magistrate has also appreciated their evidence and come to the conclusion that their evidence is also not fully satisfactory. Though PW-4 has issued several notices to the complainant but none of these notices disclose what exactly the distance between the property of the accused and the said monument. PW-4 in the course of cross-examination has admitted that there are so many properties situated within 50 meters from the said monument. But those properties were not demolished and he also stated that he cannot say the distance between the property of the accused and as well as the said monument. Therefore, for all these reasons, the evidence of PW-4 was also disbelieved by the learned Magistrate.

PW-6, the Investigating Officer in fact, he has also deposed during the course of cross-examination that he did not know the correct boundaries of the said monument. He has not described the properties situated surrounding the said monument.

The prosecution witnesses PW-1 and PW-4 have also admitted and deposed that after coming to know the property of the accused being constructed within 100 meters from the monument, the house constructed by accused was demolished.

Looking to the above said evidence of these witnesses particularly PW-5, the learned Magistrate has incurred serious doubt with regard to any Officer pertaining to the Archaeological Department or even PW-5 and the Investigating Officer have visited the spot and conducted any survey and measured the distance between the property of the accused and as well as this monument. Therefore, on the basis of said doubt he has given the benefit of doubt to the accused and acquitted the accused. When the learned Magistrate has incurred serious doubt and when on the basis of the materials on record such doubts can be incurred and such view taken up by the learned Magistrate is also a possible view that may be taken on the basis of the evidence on record, in my opinion, while exercising the powers as an Appellate Court normally, the view which is also possible as taken by the Trial Court cannot be disturbed by substituting the view of the Appellate Court.

In this regard, it is worth to mention a decision of the Hon''ble Supreme Court reported in Govindaraju @ Govinda Vs. State by Sriramapuram P.S. and Another, . The Apex Court has held that:

It is a settled legal proposition that in exceptional circumstances, the appellate Court, for compelling reasons, should not hesitate to reverse a judgment of acquittal passed by the Court below, if the findings so recorded by the Court below are found to be perverse, i.e. if the conclusions arrived at by the Court below are contrary to the evidence on record, or if the Court''s entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case. While doing so, the appellate Court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the Court below bolsters such presumption of innocence.

In view of the above said Ruling and also the factual matrix of this case, when there are doubts in the case of the prosecution and the learned Magistrate after appreciating the evidence of the prosecution witnesses and the documentary evidence placed before it acquitted the accused, in my opinion, unless there is a perversity in the appreciation of the evidence by the learned Magistrate the judgment should not be normally disturbed. Therefore, I don''t find any strong reason to interfere with the judgment of acquittal passed by the Trial Court. Hence, the appeal filed by the State deserves to be dismissed. Accordingly, the appeal is dismissed.