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IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF FIRST
CLASS :: SRIKALAHASTI
Present:: Sri Srikanth,
Additional Judicial Magistrate of First Class,
Srikalahasti
Monday, the fifteenth (15th ) day of April, 2019
C.C.No. 252 of 2012
(Cr.No.50 of 2012 of Thottambedu Police Station)
Between: The State of Andhra Pradesh represented by the Sub-Inspector of Police, Thottambedu Police Station. … Complainant
And:
1. Mallarapu Dharmaiah, aged 70years,, S/o. Late Venkataiah, Ramachandrapuram Village, Thottambedu Mandal. (died)
2. Mallarapu Venkataiah, aged 35years, S/o.Dharmaiah, Ramachandrapuram Village, Thottambedu Mandal
3. Malarapu Veeraswamy, aged 38years, S/o. Late Krishnaiah, Thottambedu /Wada, Thottambedu Mandal.
4. Mallarapu Subba Lakshmi, aged 30years, W/o.Venkataiah, Ramachandrapuram Village, Thottambedu Mandal.
5. Mallarapu Chittemma W Bathema, aged 34years, W/o.Veeraswamy, Thottambedu /wada, Thottambedu Mandal.
6. Polamreddy Jayachandra Reddy, aged 48years, S/o.Venkataswamy Reddy, Gajulapelluru village, BN Kandriga Mandal.
7. Kalathuru Raghava Reddy, aged 47years, S/o.Narasimha Reddy, Kalluru Village, Vadamalapet Mandal. Now residing at opposite to Bangaramma Temple, Thottambedu Mandal.
8. Moramtram Sivarami Reddy, aged 47years, S/o.RAmakrishna Reddy, D.No.2/693, Kondamitta, Srikalahati
9. Nelavayi Krishnadas Prabhu, aegd 39years, S/o.Krishnadas Reddy, Kandada Village, Yerpedu Mandal. … Accused
This case coming on 02.04.2019 before me for final hearing in the presence of Assistant Public Prosecutor, for the Complainant and of Sri V.Mallikarjunaiah, Advocate for accused, upon hearing on both the sides and upon perusing the documents available on record and having stood over for consideration to this day, the court delivered the following:
J U D G M E N T
The Sub-Inspector, Thottambedu Police station laid charge sheet against accused in Cr.No.50/2012 for offences punishable u/Sec.147, 148, 447, 427, 506 r/w. 149 of 2
Indian Penal Code.
2. The brief facts of the prosecution case are as follows :-
On 13.07.2012 at 08.00a.m., in Sy.Nos.192/3 and 191/2 near Nellimanukandriga village and in Sy.Nos.125/4 and 125/5, near Thottambedu arundathiwada, A1 to A5 colluded with A6 to A9 formed themselves into an unlawful assembly duly armed with crowbars, spades and knifes, took JCB and tractors, then trespassed into the above survey numbers and demolished the sheds, iron gates, barbed fencing and caused loss to a tune of Rs.3,00,000/- to PW1/Sayed Salar and leveled the land on pretext that the land belongs to them. When PW1 and his son PW2 objected their high handed activities, they threatened them that they will foist SC/ST cases. Basing on the complaint from PW1,
PW10/V.Ramakrishna, Sub-Inspector of Police, Thottambedu Police station registered a case in crime No.50/2012 under Section 147, 148, 447, 427, 506 r/w. 149 IPC and investigated the case.
During the course of investigation, PW10 examined the witnesses, recorded their statements, visited the scene of offence, drafted scene observation and seizure mahazars on 14.07.2012 at 10.00a.m., and 12.00 noon in the presence of PW9 and LW11-Davala
Cheeralaiah, prepared rough sketch of scene and took photographs. On 17.07.2012,
PW10 arrested A1 to A5, recorded the confession statement of A2 from 07.00a.m., to 08.30a.m., in the presence of PW9 and LW11 duly attested by them and produced them
before the court for judicial custody. Basing on the confessional statement of A2, the
identity of a6 to A9 were established and included their names as accused in this case. On 30.07.2012 A6 to A9 were arrested by PW10 and produced them before the court for judicial remand.
3. This Court has taken cognizance against the A1 to A9 for the offence under
Sections 147, 148, 447, 427, 506 r/w. 149 of Indian Penal Code.
4. On appearance of A1 to A9, copies of documents were furnished to them under
Section 207 Criminal Procedure Code.
5. A1 to A9 were examined U/s. 251 of Criminal Procedure Code by explaining the substance of accusation for the offence punishable under Sections 147, 148, 447, 427, 506 r/w. 149 of Indian Penal Code in Telugu, for which they denied the same, pleaded not guilty and claimed to be tried. Hence, the case was posted for trial.
6. During the course of trial, prosecution has examined PW1 to PW10 and got marked Ex.P1 to Ex.P18.
7. During course of trial, A1 was reported died and hence the case against A1 abated.
8. After closure of prosecution evidence, A2 to A9 were examined U/s. 313 of
Criminal Procedure Code by explaining the incriminating prosecution evidence in question form in Telugu, for which they denied and reported that there is no defence evidence.
9. Heard arguments of the learned Assistant Public Prosecutor and learned defence counsel. Perused the entire record.
10. Now, the points that arose for determination are:
1) Whether the prosecution is able to establish the guilt of A2 to A9 for mischief committed to the property of PW1 and thereby PW1 sustained loss of Rs.3 lakhs and thereby committed the offence u/Sec.427 of IPC ?
2) Whether the prosecution is able to establish the guilt of A2 to A9 for rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence and thereby committed the offences u/Sec.147 and 148 of IPC?
3) Whether the prosecution is able to establish the guilt of A2 to A9 in entering into the property of PW1 with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remained there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence and thereby committed the offence u/Sec.447 r/w 149 of IPC ?
4) Whether the prosecution is able to establish the guilt of A2 to A9 in threatening another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation and thereby committed the offence u/Sec.506 of IPC ?
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5) Whether the prosecution is able to establish the guilt of A2 to A9 for offence punishable u/Secs.147, 148, 447, 427, 506 r/w. 149 of Indian Penal Code, beyond the reasonable doubt?
11. Before ascertaining the evidence, the definition of sections 147, 148, 447, 427, 506 r/w 149 of IPC has been extracted below:-
Section 146 of Indian Penal Code. "Rioting"
Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.
Section 147 of Indian Penal Code. "Punishment for Rioting"
Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 148 of Indian Penal Code. "Rioting armed with deadly weapon"
Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 441 of IPC :- Criminal trespass.
Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”.
Section 425 of IPC:- Mischief.
Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief”.
Section 503 of IPC :- Criminal Intimidiation.
Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
S ction 149 :- Every member of unlawful assembly guilty of offence committed in prosecution of common object.
If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
12. Point No.1:Appreciation of facts and law:-
Section 427 of IPC. Mischief causing damage to the amount of fifty rupees.—Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
SECTION 427 of IPC:- It provides punishment for causing damage by committing mischief to the amount of fifty rupees or upwards.
The definition of mischief is provided in section 425 IPC. The ingredients of mischief are as follows;
(i) Any property is destroyed or an act is committed leading to diminishing of its value or utility or affecting it injuriously.
(ii) Wrongful loss or damage is caused to the public or to any person by such destruction or act.
(iii) Such destruction or act is done intentionally or knowingly.
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Further clarity and interpretation has been done by judicial decisions in
respect of the said law. The Hon’ble Punjab-Haryana High Court, in Ram Pal
Singh Chauhan vs State Of Haryana on 28 August, 2014, wherein was held as
follows:- “Second part of Section 425 , IPC , requires destruction or change in the property or situation thereof. Destruction can be of a property, which was already in existence and change is with reference to a property or the situation prevailing at a particular time.
First part of Section 425 , IPC , as quoted above, requires intent or knowledge on the part of a person to cause wrongful loss or damage. The term "wrongful loss" as defined in Section 23 , IPC , requires loss by unlawful means of property to which a person is legally entitled to. The loss should be caused by unlawful means adopted by the accused. A person who has lost property because of unlawful means adopted by another person is said to have suffered wrongfully. "Mischief" as defined in Section 425 , IPC , is not confined to cases of "wrongful loss" but engulfs cases of "wrongful damages", i.e., damage by unlawful means. The word "damage" is not limited in scope by definition and is to be given natural meaning but the word "wrongful" will also qualify the requirement "damages". Loss or damage must be caused by unlawful means to come within the purview of
Section 425 , IPC . This ensures difference between an act which is criminal wrong and an act which can be categorized as a morally wrong act. What is morally wrong is subjective depending upon custom, habit and social milieu to which a person belongs. These wrongs are uncertain and difficult to prove.
Word "unlawful" has not been defined in the IPC but word "illegal" has been broadly defined in Section 43 , IPC , as anything which is prohibited by law, which constitutes an offence and which furnishes basis for a civil suit, ending KUMUD VERMA 2014.09.04 14:21 I attest to the accuracy and integrity of this document High Court Chandigarh in damages. It may be stated that definition includes anything which is an offence or which is prohibited by law, or which furnishes ground for a civil action, or say the word "unlawful" in the definition of "wrongful loss" must have the same meaning as the word "illegal". Generally speaking, there is no difference in meaning between the word "unlawful" and "illegal", but it does not follow that if one of those words is specially defined in the statute, and the other is not the two words must necessarily have the meaning given to the one word by the definition. The word 'illegal' has been defined as covering everything which gives rise to a civil suit, but I am not prepared to say that in the Penal Code the word 'unlawful', which has not been so defined, must be taken throughout as having the very wide meaning. In my view, corner stone of the offence of mischief is the intention to cause wrongful loss/damage or knowledge that such a damage/loss is the consequence of a particular unlawful, or say illegal, act.”
13. Further, it has been held by the Hon’ble Delhi High Court in Manish
Mittal & Others vs State & Others on 30 April, 2010 that “The first part of the Section 425 of the IPC sets out mensrea or the guilty mind which is the intention or knowledge that he is likely to cause wrongful loss or damage to public or any other person. The second part of the Section pertains to the actus reus i.e. to say the criminal act. Thus the ingredients of Section 425 of the CRL.M.C. Nos. 2683/2007 & 2136/2008 7 IPC are as under:- "(1) Intention or knowledge of likelihood to cause wrongful loss or damage to the public or to any person. (2) Causes destruction of some property or any such change in any property or in the situation thereof; and (3) Such changes must result in destroying or diminishing the value or utility of any property or „affecting it injuriously ." ‟ (emphasis supplied)
6. Ingredient No. 2 requires destruction or change in the property or situation thereof. Destruction can be of a property, which was already in existence and change is with reference to a property or the situation prevailing at a particular time.”
Ingredient No. 1 as quoted above requires intent or knowledge on the part of a person to cause wrongful loss or damage. The term "wrongful loss" as defined in Section 23 of the
IPC requires loss by unlawful means of a property to which a person is legally entitled to.
The loss should be caused by unlawful means adopted by the accused. A person who has lost property because of unlawful means adopted by another person is said to have suffered wrongfully. Mischief as defined in Section 425 of the IPC is not confined to cases of „wrongful loss but engulfs cases of "wrongful damages" i.e. damage by‟ unlawful means. The word "damage" is not limited in scope by definition and is to be given natural meaning but the word "wrongful" will also qualify the requirement "damages". Loss or damage must be caused by unlawful means to come within the 8 purview of section 425 of the IPC. This ensures difference between an act which is criminal wrong and an act which can be categorized as a morally wrong act. What is morally wrong is subjective depending upon custom, habit and social milieu to which a person belongs. These CRL.M.C. Nos. 2683/2007 & 2136/2008 9 wrongs are uncertain and difficult to prove.
Word „unlawful has not been defined in the ‟IPC but word „illegal has been‟ broadly defined in Section 43 of the IPC as anything which is prohibited by law, which constitutes an offence and which furnishes basis for a civil suit, ending in damages. These provisions were examined in Punjaji Bapuji Bagul versus Emperor, AIR 1935 Bom 164.
The Court discussed Explanation I to the Section and the meaning of „wrongful loss . It‟ held „Wrongful loss is defined in Section 23 of the IPC as being „loss by unlawful means of property to which the person losing it is legally entitled, and the expression in ‟Section 425 of the IPC, „wrongful loss or damage must mean loss or damage by unlawful‟ means. With respect to the contention of the complainant who relied on the definition of‟ „illegal in ‟Section 43 of the IPC, the Court observed as under:
" That definition includes anything which is an offence or which is prohibited by law, or which furnishes ground for a civil action, and it is argued that the word „unlawful in the definition of „wrongful loss must have the same‟‟ meaning as the word „illegal . Generally speaking, I should say that there is‟ no difference in meaning between the word „unlawful and „illegal , but it‟‟ does not follow that if one of those words is specially defined in the statute, and the other is not the two words must necessarily have the meaning given to the one word by the definition.....The word 'illegal' has been defined as covering everything which gives rise to a civil suit, but I am not prepared to say that in the Penal Code the word 'unlawful', which is not been so defined, must be taken throughout as having the very wide meaning." (emphasis supplied) Similar view has been taken in Shippaliar Singh versus Krishna AIR 1957 All. 405 , Babu Krishna Ghose versus State AIR 1957 Cal. 385 and Arjuno Gondo & others versus State & others AIR 1969 Orissa 200. In Dr. Hari Singh Gour s‟ "Penal Law of India", 11th Edition at page 219 it has been explained that the term „unlawful when used in criminal jurisdiction is limited to convey an act ‟ which may be prohibited as well as punishable but the said term in a given case can be interpreted flexibly.”
Applying the said principles it can be said that Section 425/427 of the IPC even applies when there is a wrongful loss or damage to one s own property but no loss or damage is‟ wrongful if it is caused by bonafide exercise of right which a person has over one’s own property. Even if the claim of the party is ill- founded he will not be guilty if his claim or dispute is bonafide.”
14. This being the law, now basing on which, the present facts of the case has to be ascertained.
Firstly, it has to be seen whether prima-faciely the complainant – PW1 bonafidely shows the existence of a right/ownership over the land to which dispute arise. It has to be born-in-mind that this court is not deciding about the ownership or title over the property.
For the purpose of this section, it has to be seen, if bonafide exercise of right over the property is shown by the party. In this regard, PW1 on his deposition stated that they were total 6 brothers, out of which one person had died in the year, 2001 and thereafter among 5 brothers, one of his brothers by name Syed Amzad had purchased the land in
Sy.No.192/3 for Ac.0.66 cents, 191/2 for Ac.0.80 cents i.e., total extent of Ac.1.46 cents from A1 in the year 1982 under a registered sale deed dated:05.05.1982. For this, he filed
Ex.P2 certified copy of registered sale deed executed by Dharmaiah (A1) in favour of
Syed Amzad dated: 05.05.1982. Thereafter, PW1 stated that in the year, 1983 another brother had purchased the land for Ac.0.32 cents in Sy.No.125/4 and Ac.0.72 cents in
Sy.No.125/5 from A1 under registered sale deed. For this, Ex.P3 was filed by PW1 which is certified copy of registered sale deed dated 08.09.1983 executed by A1 in favour of Syed Ahamad. Thereafter, it was stated by PW1 that in the year, 1993 there was partition among the brothers and in that partition, he obtained lands in Sy.No.125/4 for
Ac.0.16 cents, 125/5 for Ac.0.18 cents, Sy.No.192/3 for Ac.0.33 cents, Sy.No.192/1 for
Ac.0.40 cents and for that he filed Ex.P4 certified copy of registered partition deed executed among Syed Ahamad and others including PW1 dated 28.04.1983. Thereafter, it was stated by PW1 that in the year, 1997 his elder brother sold his share of property in his favour in Sy.No.125/4 for Ac.0.16 cents and Sy.No.125/5 for Ac.0.36 cents under registered sale deed and from the said deed, he was in possession and enjoyment by rising the crop. For the said fact, PW1 filed Ex.P5 certified copy of registered sale deed executed by A1 in favour of Syed Salar (PW1) dated 14.11.1997.
15. Further, in order to show PW1’s bonafide exercise of right over the said property, he has filed Ex.P6 i.e., extract copy of adangal dated 16.07.2012, Ex.P7 i.e., 1-B
Namuna dated 24.07.2012, Ex.P8 i.e., pattadar passbook issued by the Mandal Revenue
Officer, Thottambedu Mandal dated 28.02.1997 and Ex.P9 i.e., certified copy of decree in
O.S.No.64/2014 on the file of the Hon’ble Senior Civil Judge, Srikalahasti which was
filed by PW1 against A1 and others. Thus, the evidence of PW1 prima-faciely shows that
PW1 has bonafide exercise of right over the said property. Further, during cross- examination of PW1, nothing was elucidated which could dispute the documents filed by
PW1. Further suggestion was made during cross-examination that whether the lands in which the dispute is alleged to be taken was in his share or not, for which, PW1 accepted.
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It was also elucidated that a cheating case was filed by the accused against him and his brother which was numbered as C.C.No.73/2009 which is pending. The defence through cross-examination accepts the name of PW1 being there on the documents pertaining to the land as in the cross-examination, the defence itself suggested that physically the accused are enjoying the property whereas on papers, PW1 is having it in his name. This itself shows that the defence accepts to the ownership of PW1 for the said land. It is the defence that the land has been falsely registered by PW1 in his name. But other than suggestion no evidence was brought by the defence and further the defence did not bring any piece of evidence to show that the accused are physically holding the said land/property. Other than this, only suggestions were put in the cross-examination which are not helpful for the defence. Therefore, PW1’s claim over the property having bonafide right over the property may be taken into consideration as evidence shows such fact.
16. Now, it has to be seen, whether the act of the accused as alleged by the prosecution comes under the purview of section 425 of IPC.
PW1 in his evidence categorically stated that on 13.07.2012 at 8.00 am., when he along with PW2 reached their land situated in Nellimanukandriga, A1 to A5 and some other persons entered into his land along with one JCB and with the help of JCB they damaged the shed, fencing and stone pillars erected in his land and then when PW1 and
PW2 came near, they observed the persons and further they questioned them for which, the accused reluctuntly replied that he is noway concerned with the property and further threatened PW1 and PW2 to leave the place. Further, it was stated by PW1 that the accused were armed with deadly weapons in their hands because of which, he and PW2 got terrified and thereby the accused completely damaged the shed, fencing and stone pillars and they left the place and reached Arundhathiwada at 9.30 am., and there also the accused damaged PW1’s shed, gate, fencing in the property. In the property which belonging to PW1 and PW2, the accused took all the utensil and left the place by threatening PW1 to foist SC/ST case against him if he objected the accused. Further,
PW1 stated that because of acts of A1 to A5 and other persons, he has sustained loss of
Rs.3 lakhs and thereafter, he has given complaint to the Police on the next day i.e., on 14.07.2012 which is marked as Ex.P1.
17. To corroborate the evidence of PW1, PW2 was examined. PW2 is the son of
PW1. PW2 stated that on 13.07.2012 at 8.00 am., he along with PW1 went to the agricultural land situated on the way to the Nellimanukandriga and saw A1 to A5 along with 20 other persons damaging shed and fencing with the help of JCB and tractors for which, A1 was questioned and A1 stated that PW2 and PW1 do not have any right over the property and further threatened to give complaint against PW1 and PW2 and also to foist SC/ST case if they objected. Further, PW1 corroborated by stating that the accused were armed with deadly weapons and later after demolishing shed, fencing and stone pillars, they left from the scene in four tractors and went to another land of PW1 situated at Totthabedu Village in front of Arundhathiwada and there also they demolished shed, fencing and fencing stones and before leaving the crime scene, the accused threatened
PW1 and PW2.
18. Further, PW3 corroborated the version of PW1 and PW2 who stated that on 13.07.2012 at 7.00 am., while he was present at his house, A1, his son and some others came with four tractors and one JCB and collapsed the fencing erected by PW1 around his land and thereafter, PW1 and PW2 were threatened by the accused while they tried to obstruct the said act of the accused, then the accused caused damage to the compound stones, fencing and shed constructed in the land belonging to PW1. Thereafter, accused took iron and stone which was damaged in a tractor whereby PW1 and PW2 also followed the accused in their vehicles. Hence, PW3 is an independent witness.
19. In the same way, PW4 who is an independent witness also corroborated the version of PW1 to PW3, whereby PW4 stated that on 13.07.2012 at 7.00 am., while he was present at his house, A1, his son and some others came with four tractors and one
JCB and collapsed the fencing erected by PW1 around his land and thereafter, PW1 and
PW2 were threatened by the accused while they tried to obstruct the said act of the accused, then the accused caused damage to the compound stones, fencing and shed constructed in the land belonging to PW1. Thereafter, accused took iron and stone which was damaged in a tractor whereby PW1 and PW2 also followed the accused in their vehicles.
20. In regard to the deposition of PW1, the defence during cross-examination elucidated that the route which he took has moment of people and thereby defence stated that no other witness had come forward to support the version of prosecution. Other than this, no elucidation was made by the defence rather mere suggestions were made which was denied. The elucidation by the defence in regard to the moment of the people on the way to which route he took, doesn’t help the defence as it is not practical to cross- 12 examine each and every person who were present or may be present near to the scene and further prosecution has examined two independent witnesses.
21. It is the quality of the evidence that matters rather than the quantity of evidence. Further in PW2’s cross-examination, it was elucidated that at the time when they reached the scene, the incident happened. From this elucidation, it is clear that the act of the accused was done during the presence of PW2 and PW1. It is not the case that the act was already committed by the accused and then PW1 and PW2 have reached to the scene. Further, PW2 denied to the suggestion that he has not stated before the police that at 8.00 am., the incident happened after they reached to the scene. From 161 Cr.p.C statement of PW2, it can be seen that the incident to have happened before PW2 is stated, but the exact lines are not mentioned. In this regard, it is stated that the crux of the evidence has to be taken rather than each and every word being compared. Other than this, no elucidation was done in the cross-examination of PW2 rather mere suggestions were made which were denied by PW2.
22. Further in the cross-examination of PW3, suggestions were made that he was not there at the scene for which, he denied the same. Further in order to test the veracity and credibility of PW3, it was suggested that his father has filed the case against the accused. This fact was denied by PW3. If that is the case, then accused should have produced any evidence to show that the father of PW3 has filed the case against the accused and thereby PW3 was an interested witness. But the defence did not put any piece of evidence to that effect.
23. Further in the cross-examination of PW4, it was elucidated that he did not know anything about the second scene, but no elucidation was made in regard to the first act of the accused made at the first scene of offence. Furthermore suggestions were made which were denied by PW4. Further it is the case of the defence that the private case has been filed by the accused against the father of PW4, it was denied by PW4 and moreover, the accused did not file any piece of evidence to that effect.
24. PW5 to PW7 did not support the case of the prosecution and they turned hostile and nothing was elucidated even from their respective cross-examinations by the learned Assistant Public Prosecutor.
25. Further PW9 was examined who is the Village Revenue Officer and independent witness. In order to corroborate the version of PW1 to PW4, PW9 deposed that on 14.07.2012 at about 9.30 am., while he was present in the Mandal Revenue
Office, Thottambedu Mandal, PW10, the Sub-Inspector of Police, Thottambedu Police station along with his staff and LW11 came to him and stated about a land dispute and requested him to accompany and accordingly, he accompanied the Police and reached the land situated in the Village. Further, at the scene, he is stated to have observed the destructed structure of iron sheet shed, iron railing of the gate and fencing stones and further he stated that the police seized MO.1 i.e., cement brick under the cover of the scene observation – cum – seizure mahazarnama dated 14.07.2012 at about 10.00 am, i.e., Ex.P13 and further PW9 stated to have put signature on it. Thereafter, PW9 stated that on the same day i.e., on 14.07.2012, at about 11.30 am., while he was present in the
Mandal Revenue Office, the Sub-Inspector of Police along with his staff and LW11 came to him and further PW10 the Sub-Inspector of Police stated to him that there was land dispute at Arundhathiwada, Thottambedu Mandal and requested him to accompany and accordingly, he accompanied them and reached the crime scene wherein he noticed the destructed structure of iron sheet shed, iron railing of the gate and fencing stones and further the police seized the brick i.e., MO.2 under the cover of scene observation -cum – mahazarnama dated 14.07.2012 at 12.00 noon which is marked as Ex.P14. In regard to these facts, he was cross-examined by the defence wherein it was elucidated that the seized bricks will be there at the lands and further PW9 stated that he doesn’t know as to by whom shed was established and also about the directions of shed and further it was elucidated that the seized material at the second scene i.e., MO.2 is easily available at anywhere. In this regard, it is to be stated that it is not the case where materials used are unique to the market rather such materials are usually used and easily available. This does not mean that if such is the case then all materials which are easily available in the market has to be doubted. Therefore, this elucidation does not help the defence. Further, it was elucidated from PW9 that they have not tried to secure any mediator at the scene.
In this regard, it is stated that the Village Revenue Officer is the Government official who accompanied PW10 to the scene as a mediator and moreover no doubt is being created on credibility of PW9 as a mediator. Further, it is not always practicable and possible to secure mediators from the spot itself. Therefore, this elucidation does not help the defence. Other than this, mere suggestions were made which do not help the defence.
26. Further to corroborate the version of PW9, PW10 the Investigating Officer was examined who stated that on 14.07.2012 at 8.00 am., PW1 came to the Police station and gave Ex.P1 along with documents i.e., Ex.P2 to Ex.P9 and basing on the strength of
Ex.P1, he has issued FIR i.e., Ex.P16. Thereafter, PW10 deposed that after recording the 14 statement of witnesses i.e., PW1 and PW2, he left the Police station and in the presence of mediators i.e., PW9 and LW11-D.Cheeralaiah, he prepared Ex.P13 and he also stated to have noticed the damaged barbwire, shed, fencing and Ex.P17 i.e., rough sketch was drawn at the crime scene and he also seized MO.1 and thereafter he stated of going to the second scene where in the presence of PW9 and LW11, he seized MO.2 and drawn
Ex.P14 and Ex.P18 and corroborated the version of PW9.
27. In cross-examination of PW10, it was elucidated that he did not know about the civil case pending in between PW1 and accused and also he did not file any document showing ownership along with charge sheet and other than this, no elucidation was made which could help the defence. In this regard, it is to be stated that non filing of documents along with charge sheet is not a defence as the Cr.P.C itself gives right to file documents at later stages.
28. From the above discussion, it can be seen that the accused with an intention to get the land in wrongful manner damaged the property of PW1 and because of which, the property belonging to PW1 was affected injuriously. Herein, the intention of the accused can be gathered from the circumstances and where the act was committed. Herein, act of the accused shows their intention. Apart from that in the cross-examination of PW1 to
PW3, suggestions were put by the defence that there were pending cases between PW1 and accused. This suggestion itself shows that the accused had the knowledge about the dispute already been pending and still the accused acted in illegal way. That being said now, it has to be seen which accused have participated in the said act. PW1 stated in his chief that A1 to A9 are the persons i.e., accused damaged to his property. Further in his chief at the stage of identifying the accused, he stated that A1 to A5 had damaged his property by trespassing into land and further he stated of not identifying any other persons other than A1 to A5.
29. In this case, the case against A1 was abated on 22.02.2018 as death certificate of A1 was filed said to have been died. In regard to identification of A2 to A5 by PW1, no cross-examination was made by the defence. Further, PW2 stated that along with A1 to A5, A6 to A9 were also present and further stated of identifying them in the Court. In the chief – examination of PW2, he stated of 20 members along with A1 to A5 are being present and in the cross-examination, it was elucidated that he has not stated of 20 members before the Police. Therefore, from the evidence of PW2, it is seen that he knows only about A1 to A5 as it was also elucidated that he did not state the names of other persons except A1 to A5. Further, PW3 stated of knowing the accused as he worked as electrician. PW3 stated of Dharmaiah and his son i.e., A2 and some other persons came to scene with four tractors and one JCB. Further, PW3 identified the accused who was involved in the said act. PW4 also stated of knowing the accused that he saw them on the date of offence. Further identifying the accused who was involved in damaging the fencing, stones and shed in the land of PW1.
30. From the evidence of PW1 to PW4, it can be seen that A1 to A5 were there on the date when the act was committed and they have participated in the said act. In regard to A6 to A9, PW1 though he was present there did not identify A6 to A9 while identifying them in the court. Further, PW2 also stated of 20 members were present along with accused, but his 161 Cr.P.C statement was not found about the presence of 20 members at the scene of offence. But during the identification of accused, PW2 has identified all the accused in this case. In that regard no elucidation was done which could doubt the version of PW2. Other than this, PW3 and PW4 has identified all the accused persons standing in the court. PW3 and PW4 are independent witnesses and important witnesses for the prosecution, there is no doubt being thrown on the evidence of PW3 and PW4 that whether they are related to PW1 and PW2. PW3 and PW4 did not state the names of the accused, but PW3 stated the name of A1 and further stated that his son was present. PW4 also stated in the same lines with PW3. In regard to identifying the accused by PW3 and
PW4, there was no cross-examination which could doubt the version of PW3 and PW4 and further PW2 identified A1 to A5 and A6 to A9 in the court. It is only PW1 who has not identified A6 to A9. Further, it is the defence version that PW3 and PW4’s family members are having cases against accused and therefore they are planted witnesses. But to doubt such version there has been no other evidence brought or any elucidation done in the cross-examination in order to doubt their credibility. Moreover, PW1 being a man of old age could have missed in identifying other accused i.e., A6 to A9, but PW2, PW3 and
PW4 have identified all the accused who were standing in the court on the said day when the evidence of witnesses were recorded recording and further stated to have seen the accused participating in the commission of offence on the said land. Hence, the identification of A1 to A9 is established by the prosecution. But this case against A1 was abated since he died and therefore, the case has to be decided against A2 to A9 only.
Therefore, their identification has been proved by the prosecution.
31. As now the offence falls under definition of section 425 of IPC, it has to be seen whether section 427 of IPC is attracted or not. To substantiate it, the prosecution 16 must show that in the hands of accused persons, PW1 sustained loss or damage to the amount of fifty rupees or upwards. Herein case, PW1 stated of sustaining huge loss for amount of Rs.3 lakhs in the hands of accused. Further it is the suggestion of the defence itself that the damaged property is not more than Rs.10,000/-, though witness denied the same, but the defence itself accepts to the damage of property valued at Rs.10,000/-.
Further, another suggestion was made to PW10 that damaged property was not worth about Rs.3 lakhs and it was below Rs.10,000/- which was denied by PW10, though the prosecution relied on the property being worth Rs.3 lakh. Even if the defence version is considered then also the offence falls u/Sec.425 of IPC as loss or damage required is for the amount of fifty rupees or upwards. Therefore, the prosecution established this point as to mischief and thereby prosecution has established ingredients u/Sec.427 of IPC.
32. Point No.2: In so far as the offences u/Secs.147 and 148 of IPC are concerned, section 148 of IPC is an aggravated form of section 147 of IPC. Before observing the evidence on the point of view of offence u/Sec.147 of IPC, the definition of rioting has to be extracted below:-
Section 146 of Indian Penal Code. "Rioting"
Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.
33. From the above definition, it can be seen that whenever force or violence is used by an unlawful assembly in prosecution of the common object of such assembly, then they are guilty for the offence of rioting. Though PW1 and PW2 in their respective chief examinations stated that they were threatened by accused, but they did not state of any force or violence being used by the accused against them. Further, it was elucidated from PW1 that there was damage caused by the accused, but no agitation was done by the accused while doing the act. Therefore, the prosecution could not establish the guilt of the offence u/Sec.147 of IPC against accused, beyond reasonable doubt and as section 147 of IPC could not establish, the aggravated offence i.e., Sec.148 of IPC is also not proved, even though if it is assumed that the accused were armed with deadly weapons but no force was used. Therefore, the section 148 of IPC is not attracted to the accused persons. Hence, the point is answered in favour of the defence and against the prosecution.
34. Point No.3: In order to decide the section 447 of IPC, the ingredients of the offence shall fall under section 441 of IPC which reads as follows:-
Essential ingredients (1) Entry into or upon property in the possession of another, (2) Such entry should be with intent to (a) commit an offence or (b) to intimidate, insult or annoy any person in possession of such property. There is another ingredient which is in regard to lawful entry into the property and then unlawful remaining on that property.
35. The first part i.e., the entry into or upon property in the possession of another:-
PW1 in hisdeposition has stated that from the date of purchase, he was in possession of the property and he has been raising the crops. Further he has filed Ex.P2 to Ex.P9 which has been discussed before and which prima-facie establish his bonafide right over the property. In regard to PW1’s claim over possession, he was cross- examined by putting suggestion that physically the accused are enjoying the property whereas, on papers, PW1 is having it in his name and such suggestion was denied by
PW1 and no other elucidation was done by the defence so as to doubt the version of
PW1. Further, if it is the claim of the defence that the accused were in possession, then they should have shown some documents or must have brought some evidence before the court to support their claim. But eventually, no such evidence was brought before the
Court and hence assertion made by PW1 appears to be true. Further, PW2 corroborated the version of PW1 who stated of entering into their lands while PW1 and PW2 were going to the said land. No cross-examination was made in regard to the possession of the land by the defence. Further, PW3 and PW4 stated of only the accused collapsing the fencing around the compound wall and did not state anything about the entry of accused into the lands of PW1. Further, on perusal of Ex.P18, it can be seen that the place of offence is inside the land which PW1 claims. Further, PW1’s claim for being in possession goes unrebutted. The defence could only make a suggestion that they were in possession, but no records were placed to that effect. Though from the evidence of the witnesses, it can be seen that PW1 was not actually present at the scene before the accused came to the scene of offence. But, it is the claim of the witnesses that they came to the scene after the accused have reached. In this regard, it was argued by the defence that PW1 was not in possession of the said lands. Here, it is necessary to mention that the lands which pertains to the dispute is not an house site rather it is agricultural land and moreover it is not practicable that the owner should always be physically there at the property. Further, section 441 of IPC implies only possession as the main ingredient. In 18 regard to the word possession as appearing in Section 441 of IPC, it has been held by the
Hon’ble High Court of Himachal Pradesh
In Sant And Anr. vs The Union Of India (UOI), reported in AIR 1962 HP 1 “The concept of possession embraces both actual and constructive possession. Possession may exist in law but not in fact and such possession is termed as constructive. The Roman lawyers distinguished possession in fact as possessio naturalis and possession in law as possessio civilis. It is trite law that every owner of property is presumed to be in possession of it unless the contrary is proved. The word 'possession' as used in the aforesaid section is, therefore, wide enough to include not only actual and physical but also constructive possession. The Legislature must be deemed to have been aware of the legal connotation of the word 'possession' when it used that word in Section 441, I. P. C. If the intention of the Legislature had been that actual and physical possession should be an ingredient of criminal trespass nothing would have been easier for it than to have qualified the word possession with the words 'actual and physical.”
Therefore from the above judgment, it can be seen that though defence claim of physically the accused being there but no cross was done to elucidate whether any constructive possession was there with PW1. Therefore, from the evidence PW1 and
PW2 and more particularly from the claim of PW1, it can be seen that the said two lands where the dispute arose were in the possession of PW1.
36. Now, the second part i.e., such entry should be with intent to (a) commit an offence or (b) to intimidate, insult or annoy any person in possession of such property.
In this regard, it has to be seen as to what acts were done by the accused while entering into lands of PW1. PW1 categorically deposed of A1 to A5 and some persons entering into the land along with JCB and damaged the fencing and stone pillars which was erected in land and further they went to other land at Arundhathiwada, where they damaged the iron sheet shed, iron railing of the gate and fencing stones and took utensil kept in the shed. In this regard, nothing was elucidated which could doubt the version of
PW1. In cross-examination also, PW1 has stated that there was only damage, but no kind of agitation was there. Further, in order to corroborate the version of PW1, PW2 corroborated the version of PW1 in the same lines. In regard to the said facts, no elucidation was done by the defence rather suggestions were made to PW2 which were denied. The only elucidation was made in regard to the registration number of tractor or vehicles which were brought by the accused for which he denied of not knowing the same. In this regard, it is to state that it is practically impossible to note the registration numbers of the vehicle and therefore, no doubt is created in the version of PW2. Further,
PW3 and PW4 stated of A1 and others coming in 4 tractors and JCB and collapsing the fencing erected by PW1 around his land. PW3 and PW4 have deposed in regard to the first property where the dispute arose. For PW3 and PW4 certain suggestions were made by the defence which were denied. Further earlier discussion has been made in regard to the acts of accused in the lands of PW1. Therefore, they are not been repeated for the sake of brevity.
37. PW5 to PW7 turned hostile and did not support the prosecution case.
Hence, their evidence is not much helpful to the prosecution case.
38. PW8’s evidence does not relate to the dispute rather he only stated of registration of certain lands in the name of PW1. Further in order to support the version of PW1 to PW4, PW9 and PW10 were examined. PW9 has categorically deposed of going to the crime scene and noticed destructed structure of iron sheet shed, iron railing of the gate and fencing stones and further he stated that the police seized MO.1 i.e., cement brick under the cover of the scene observation – cum – seizure mahazarnama
dated 14.07.2012 at about 10.00 am, i.e., Ex.P13 and further PW9 stated to have put his
signature on it. Thereafter, PW9 stated that on the same day, on 14.07.2012, at about 11.30 am., while he was present in the Mandal Revenue Office, the Sub-Inspector of
Police along with his staff and LW11 came to him and further PW10 the Sub-Inspector of
Police stated to him that there was land dispute at Arundhathiwada, Thottambedu Mandal and requested him to accompany and accordingly, he accompanied them and reached the crime scene wherein he noticed the destructed structure of iron sheet shed, iron railing of the gate and fencing stones and further the police seized the brick i.e., MO.2 under the cover of scene observation -cum – mahazarnama dated 14.07.2012 at 12.00 noon which is marked as Ex.P14. Further, in the cross-examination, it was elucidated that the seized bricks will be there at all the lands and further PW9 stated that he doesn’t know as to who has established the shed and also directions of shed and further it was elucidated that the seized material at the second scene i.e., MO.2 is easily available anywhere. In this regard, it is to be stated that it is not the case whether such materials are very unique which is not available rather it is the case of the prosecution that there were certain damages and there is no doubt that MO.1 and MO.2 are easily available in the market as for for every construction it is used. Therefore, the defence could not throw any doubt on the version of PW9 and PW10 in respect of acts of all accused as alleged by the prosecution. Therefore, it can be seen that the accused have caused destruction in the lands of PW1 situated at Nellimanukandriga and also Arundhathiwada and thereby the 20 accused not only committed the offence, but also has caused insult and annoyance to
PW1. Such act of accused false under the term of offence as defined u/Sec.40 of IPC which states that the word “offence” denotes a thing made punishable by this Code and as earlier discussed the act of the accused falls under section 425 of IPC, thereby the accused are liable for punishment u/Sec.427 of IPC. Further, the prosecution has proved all the ingredients covered u/Sec.441 of IPC and thereby the accused falls u/Sec.447 of
IPC, which is an offence as per Indian Penal Code.
39. In view of the facts and circumstances and in the light of the evidence, I am of the opinion that the prosecution partly established its case, beyond reasonable doubt.
40. Before concluding this case, the court has to discuss the requirements for invoking the vicarious liability under Section 149 IPC. Section 149 IPC consists of two parts:
The first part of the section means that there exists common object and that the offence has been committed in prosecution of the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member.
The second part of the section means that even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149, if it can be shown that the offence was such as the members knew was likely to be committed.
Ingredients of Sec. 149:
1. There was an unlawful assembly as contemplated by Sec. 141.
2. The accused was a member of such assembly.
3. The accused had intentionally joined or continued in that unlawful assembly.
4. He knew of the common object of such unlawful assembly.
5. An offence was committed by one or more members of that assembly.
6. Such offence was committed in prosecution of the common object of that assembly.
7. As the members of the assembly knew that such offence was likely to be committed in prosecution of their common object.
41. From the above evidence of PW1 to PW4, it is seen that the accused had common object to commit the offences and further it is seen from the surrounded circumstances and conduct of accused and from independent evidence of prosecution witnesses i.e., PW3 and PW4 that the accused themselves form an unlawful assembly in committing the offences towards the property of PW1 and accordingly committed mischief. No elucidation was done by the defence or evidence has been attributed that anyone of the accused has not participated in such commission of offence rather the evidence of prosecution shows that each accused had knowledge as to what act is to be committed in prosecution of the common object. Therefore, the offence was such as the members knew was likely to be committed. Hence, the point is answered in favour of the prosecution and against the accused.
42. Point No.4: Further, in so far as section 506 of IPC is concerned, PW1 has deposed that the accused threatened him to file SC/ST case against him, in the same way,
PW2 stated that A1 has threatened PW1 to file SC/ST case if PW1 objected and PW3 and
PW4 also stated of accused threatened PW1 that SC/ST case will be filed against him.
Here, except PW2’s evidence, PW1, PW3 and PW4 has not stated of which accused has threatened PW1. Even PW1 did not specifically stated as to who has threatened him.
Moreover, it is only PW2 stated that A1 has threatened PW1. As the case was abated against A1, it is not apt to discuss in regard to A1 at this stage. Moreover, there is no whisper about any other specific accused who has threatened PW1. Therefore, the prosecution failed to prove the offence u/Sec.506 of IPC against the accused persons, beyond reasonable doubt.
43. Point No.5: In view of aforesaid discussion, I am of the opinion that the prosecution established its case in part that the accused criminally trespassed into the land of the complainant – PW1 and committed mischief and thereby PW1 sustained loss above Rs.50/-, and therefore accused/A2 to A9 are liable to be punished u/Secs.447 r/w 149 and 427 of IPC, whereas the prosecution failed to prove its case against the accused for the offences u/Secs. 147, 148 and 506 of IPC, beyond reasonable doubt and therefore they are entitled for acquittal for the said offences.
In the result, A2 to A9 are found not guilty for the offences u/Secs. 147, 148 and 506 of IPC and accordingly, they are acquitted u/Sec.255 (1) of Cr.P.C.,
As regards the offences u/Secs.447 and 427 r/w 149 of IPC, A2 to A9 are found guilty and they are convicted u/Sec.255 (2) of Cr.P.C.,
Dictated to the Personal Assistant, after his transcription, corrected and
pronounced by me in the open court on this the 15 th day of April, 2019.
Sd/- Srikanth
Additional Judicial Magistrate of I Class,
Srikalahasti.
22
On questioning the accused/A2 to A9 about the quantum of sentence imposed on them, for which they have stated separately:-
Firstly:- A2 stated that he is having child.
Secondly: A3 stated that he is the sole breadwinner.
Thirdly: A4 stated that she is having small children.
Fourthly: A5 stated that she is the sole breadwinner.
Fifthly: A6 stated that he is a Government employee.
Sixthly : A7 stated that he asked to take lenient view.
Seventhly: A8 stated that he doesn’t know anything.
Lastly: A9 stated that he is having small children.
Having regard to facts and circumstances narrated by accused and nature of offence, it is not a fit case to apply the section 4 of Probation Offenders Act or 360 Cr.P.C., to accused person, however, upon considering the grievances expressed by them and upon case facts, this court is inclined to take a balanced view in imposing the sentence.
Hence, A2 to A9 are sentenced to undergo Simple Imprisonment for a period of TWO (2) MONTHS each for the offence punishable u/Sec.447 r/w 149 of Indian Penal Code and pay a fine of Rs.500/- each in default to suffer simple imprisonment for further period of fifteen days. A2 to A9 are further sentenced to undergo Simple Imprisonment for a period of THREE (3) MONTHS each for the offence punishable u/Sec.427 r/w 149 of Indian Penal Code and pay a fine of Rs.500/- each in default to suffer simple imprisonment for further period of fifteen days.
The sentence imposed in both the offences shall run concurrently.
Total fine amount is comes to Rs.8,000/
MO.1 and MO.2 shall be destroyed after expiry of appeal time.
The remand period, if any, shall be set off u/Sec.428 of Cr.P.C.,
A2 to A9 are informed of their right to prefer an appeal against the Calendar and
Judgment of this court. When they are asked about their means to prefer an appeal, they stated that they are having means to engage a legal counsel and they do not have legal aid. A2 to A9 are informed that they have right to avail free legal aid.
The case against A1 was abated, since he died.
Dictated to the Personal Assistant, after his transcription, corrected and
pronounced by me in the open court on this the 15 th day of April, 2019.
Sd/- Srikanth
Additional Judicial Magistrate of I Class,
Srikalahasti.
APPENDIX OF EVIDENCE
witnesses examined
For Prosecution: For Defence: P.W.1Syed Salar
P.W.2Syed Inthiyaz
P.W.3R.Srinivasulu
P.W.4R.Nagabhushanam
P.W.5K.Balu
P.W.6K.Subramanyam
P.W.7Syed Amzad
P.W.8Syed Reyaz
P.W.9P.Narayanaswamy
P.W.10V.Ramakrishna, the Sub-Inspector of Police
DOCUMENTS MARKED
For prosecution:
Ex.P.1Complaint
Ex.P.2Certified copy of Regd. Sale deed executed by Dharmaiah(A1) in favour of Syed Amzad dated 05.05.1982
Ex.P3Certified copy of Regd. Sale deed executed byDharmaiah (A1) in favour of Syed Ahamad dated 08.09.1983
Ex.P4Certified copy of registered partition deed executed among Syed Ahamad and others including LW1 dated 28.04.1993
Ex.P5Certified copy of registered sale deed executed by Syed Ahamad in favour of PW1 dated14.11.1997
Ex.P6Extract copy of adangal dated 16.07.2012
Ex.P71-B Namoona dated 24.07.2012
Ex.P8Pattadar passbook issued by the MRO, Thottambedu dated 28.02.1997
Ex.P9Certified copy of decree in O.S.No.64/2014 on the file of Hon'ble
Senior Civil Judge, Srikalahasti filed by Syed Salar against
Dharmaiah and others.
Ex.P10161 statement of PW5
Ex.P11161 statement of PW6 24
Ex.P12161 statement of PW7
Ex.P13Scene observation cum seizure mahazarnama dated 14.07.2012 at 10.00a.m.
Ex.P14Scene observation cum seizure mahazarnama dated 14.07.2012 at 12 noon
EX.P15Arrest mahazarnama dated 17.07.2012 at 07.00a.m.
Ex.P16First information report
Ex.P17Rough sketch of scene
EX.P18Rough sketch at crime scene
For Defence:
-Nil-
MATERIAL OBJECTS MARKED
For Prosecution
MO1 :Brick pieces MO2 :Seized cement brick pieces
For Defence:
-Nil-
Sd/- Srikanth
Additional Judicial Magistrate of I Class,
Srikalahasti.
// true copy //
Additional Judicial Magistrate of I Class,
Srikalahasti.
Draft/fair judgment in C.C.No.252 of 2012
dated:15.04.2019
IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF FIRST
CLASS :: SRIKALAHASTI
CALENDER AND JUDGMENT
C.C.NO.252 OF 2012
Date of Offence: 13.07.2012 Date of Complaint: 14.07.2012 Date of arrest: A1 to A5 on 17.07.2017, and A6 to A9 on 30.07.2012 Date of release: A1 to A5 on 17.07.2017, and A6 to A9 on 30.07.2012 Date of Taken on file: 25.08.2012 Date of apprehension: 23.04.2015 Date of Commencement of trial: 04.07.2018 Date of Close of trial: 09.04.2019 Date of Judgment: 15.04.2019 Explanation for delay: Owing to non-service of summons and heavy pendency, the trial could not be commenced till 04.07.2018 Complainant:State Rep., by the Sub-Inspector of Police, Thottambedu Rural Police Station, Cr.No.50 of 2012 of Thottambedu Police Station
Name and addresses of the accused
1) Mallarapu Dharmaiah, aged 70years,, S/o. Late Venkataiah, Ramachandrapuram Village, Thottambedu Mandal. (died)
2) Mallarapu Venkataiah, aged 35years, S/o.Dharmaiah, Ramachandrapuram Village, Thottambedu Mandal
3) Malarapu Veeraswamy, aged 38years, S/o. Late Krishnaiah, Thottambedu /Wada, Thottambedu Mandal.
4) Mallarapu Subba Lakshmi, aged 30years, W/o.Venkataiah, Ramachandrapuram Village, Thottambedu Mandal.
5) Mallarapu Chittemma W Bathema, aged 34years, W/o.Veeraswamy, Thottambedu /wada, Thottambedu Mandal.
6) Polamreddy Jayachandra Reddy, aged 48years, S/o.Venkataswamy Reddy, Gajulapelluru village, BN Kandriga Mandal.
7) Kalathuru Raghava Reddy, aged 47years, S/o.Narasimha Reddy, Kalluru Village, Vadamalapet Mandal. Now residing at opposite to Bangaramma Temple, Thottambedu Mandal.
8) Moramtram Sivarami Reddy, aged 47years, S/o.RAmakrishna Reddy, D.No.2/693, Kondamitta, Srikalahati.
9) Nelavayi Krishnadas Prabhu, aegd 39years, S/o.Krishnadas Reddy, Kandada Village, Yerpedu Mandal. … Accused
Section of Law: u/Secs.147, 148, 447, 427, 506 r/w. 149 of Indian Penal Code Nature of offence: Committing of rioting, rioting armed with deadly 26 weapon, criminal trespass, mischief causing damage to the amount of fifty rupees, criminal intimidation, vicarious liability of common object
Finding of the Court: A2 to A9 are found not guilty for the offences u/Secs. 147, 148 and 506 of IPC.
: A2 to A9 are found guilty for the offences u/Secs.447 and 427 r/w 149 of IPC
Sentence or Order: In the result, A2 to A9 are found not guilty for the offences u/Secs. 147, 148 and 506 of IPC and accordingly, they are acquitted u/Sec.255 (1) of Cr.P.C., As regards the offences u/Secs.447 r/w 149 and 427 of IPC, A2 to A9 are found guilty and they are convicted u/Sec.255 (2) of Cr.P.C., and sentenced to undergo Simple Imprisonment for a period of TWO (2) MONTHS each for the offence punishable u/Sec.447 r/w 149 of Indian Penal Code and pay a fine of Rs.500/- each in default to suffer simple imprisonment for further period of fifteen days. A2 to A9 are further sentenced to undergo Simple Imprisonment for a period of THREE (3) MONTHS each for the offence punishable u/Sec.427 r/w 149 of Indian Penal Code and pay a fine of Rs.500/- each in default to suffer simple imprisonment for further period of fifteen days. The sentence imposed in both the offences shall run concurrently. Total fine amount is comes to Rs.8,000/-. MO.1 and MO.2 shall be destroyed after expiry of appeal time. The remand period, if any, shall be set off u/Sec.428 of Cr.P.C. A2 to A9 are informed of their right to prefer an appeal against the Calendar and Judgment of this court. When they are asked about their means to prefer an appeal, they stated that they are having means to engage a legal counsel and they do not have legal aid. A2 to A9 are informed that they have right to avail free legal aid. The case against A1 was abated, since he died.
A2 to A9 paid the total fine amount of Rs.8,000/- (Rupees eight thousands only) on 15.04.2019 and the sentence of accused has been suspended by this Court till 01.05.2019 as per orders in Crl.M.P.No.
541/2019, dated 15.04.2019.
Addl.Judl. Magistrate of I Class Srikalahasti.
In the Court of the Additional Judicial Magistrate of First Class, Srikalahasthi.
Calender Case No.252 of 2012
Examination of accused with regard to quantum of sentence
Name: Calling: Father’s Name: Religion: Village: Age: Mandal: Date: ------------------------------------------------------------------------------------------------------- Q.1 You/A2 to A9 are found guilty for the offences u/Secs.447 r/w 149 and 427 of IPC. What do you say? With regard to quantum of sentence to be imposed upon you.
28
Ans :-
IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF FIRST
CLASS :: SRIKALAHASTI
Present:: Sri Srikanth,
Additional Judicial Magistrate of First Class,
Srikalahasti
Monday, the fifteenth (15th ) day of April, 2019
C.C.No. 252 of 2012
(Cr.No.50 of 2012 of Thottambedu Police Station)
Between: The State of Andhra Pradesh represented by the Sub-Inspector f Police, Thottambedu Police Station. … Complainant
And: 10.Mallarapu Dharmaiah, aged 70years,, S/o. Late Venkataiah, Ramachandrapuram Village, Thottambedu Mandal.
11. Mallarapu Venkataiah, aged 35years, S/o.Dharmaiah, Ramachandrapuram Village, Thottambedu Mandal 12.Malarapu Veeraswamy, aged 38years, S/o. Late Krishnaiah, Thottambedu /Wada, Thottambedu Mandal. 13.Mallarapu Subba Lakshmi, aged 30years, W/o.Venkataiah, Ramachandrapuram Village, Thottambedu Mandal. 14.Mallarapu Chittemma W Bathema, aged 34years, W/o.Veeraswamy, Thottambedu /wada, Thottambedu Mandal. 15.Polamreddy Jayachandra Reddy, aged 48years, S/o.Venkataswamy Reddy, Gajulapelluru village, BN Kandriga Mandal. 16.Kalathuru Raghava Reddy, aged 47years, S/o.Narasimha Reddy, Kalluru Village, Vadamalapet Mandal. Now residing at opposite to Bangaramma Temple, Thottambedu Mandal. 17.Moramtram Sivarami Reddy, aged 47years, S/o.RAmakrishna Reddy, D.No.2/693, Kondamitta, Srikalahati 18.Nelavayi Krishnadas Prabhu, aegd 39years, S/o.Krishnadas Reddy, Kandada Village, Yerpedu Mandal. … Accused
ACKNOWLEDGMENT
Sec.363(1) Cr.P.C. and Rule 72 of Criminal Rules of practice
We received the gratis copy of judgment in the above case today.
Accused Counsel for the accused 30