Smt.B.Gayathri

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C A L E N D A R

IN THE COURT OF THE IV ADDL. SESSIONS JUDGE : KAKINADA

Present: : Smt. B. Gayatri

IV Addl. Sessions Judge.

Wednesday, the 3rd day of April, 2019.

SESSIONS CASE No. 160 of 2016

(P.R.C.No.1/2016 on the file of III Additional Judicial First Class Magistrate, Kakinada connected with Cr.No.55/2015 of Gollapalem Police Station )

COMPLAINANTNAME & DESCRIPTION OF THE ACCUSED

State : Inspector of Police, : Pothu Veera Swamy, S/o. Surayya, Kakinada Rural 51 years, C/SC, Mala, D.No. 4-46, S.C. Colony, Penumalla Village, Kajuluru Mandal

Prosecution is conducted by : The accused is defended Addl. Public Prosecutor, Kakinada. by Sri P. Prasanna Kumar, Advocate, Kakinada DATES OF:

OCCURRENCE: 27/28-5-2015

COMPLAINT: 28-5-2015

APPREHENSION OF ACCUSED: 12-6-2015

COMMITMENT: 28-3-2016

COMMENCEMENT OF TRIAL: 21-1-2019

CLOSURE OF TRIAL: 7-3-2019

DATE OF JUDGMENT: 3-4-2019

NATURE OF CHARGES: U/S. 302 IPC

PLEA OF THE ACCUSED: NOT GUILTY

SENTENCE OR ORDER:

The accused is found not guilty for the offence punishable under section 302 I.P.C. Accordingly, the accused is acquitted under section 235 (1) Cr.P.C. The bail bonds of the accused shall stand cancelled. M.Os.1 to 2 7 and the unmarked property if any, shall be destroyed after expiry of appeal time.

EXPLANATION FOR DELAY:

The Inspector of Police, Kakinada Rural filed the charge sheet against the accused and the same was numbered as P.R.C. No. 1/2016 on the file of the III Additional Judicial First Class Magistrate, Kakinada and the same was committed to the Court of Sessions, East Godavari Division at

Rajahmundry and the same was numbered as Sessions Case No. 160/2016 and the District & Sessions Judge made over the same to this court for disposal according to law. Having received the case, this Court framed charge and posted for trial and the trial was commenced on 21-1-2019 and concluded on 7-3-2019. Accused was examined under Sec.313 Cr.P.C. on 20- 3-2019. Arguments were heard finally on 28-3-2019 and the case was posted to 3-4-2019 for judgment. On 3-4-2019 judgment was pronounced.

Hence, there is no unavoidable delay.

IV ADDL. SESSIONS JUDGE

KAKINADA

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IN THE COURT OF THE IV ADDL. SESSIONS JUDGE : KAKINADA

Present: : Smt. B. Gayatri

IV Addl. Sessions Judge.

Wednesday, the 3rd day of April, 2019.

SESSIONS CASE No. 160 of 2016

(P.R.C.No.1/2016 on the file of III Additional Judicial First Class Magistrate, Kakinada connected with Cr.No.55/2015 of Gollapalem Police Station )

COMPLAINANTNAME & DESCRIPTION OF THE ACCUSED

State : Inspector of Police, : Pothu Veera Swamy, S/o. Surayya, Kakinada Rural 51 years, C/SC, Mala, D.No. 4-46, S.C. Colony, Penumalla Village, Kajuluru Mandal

Prosecution is conducted by : The accused is defended Addl. Public Prosecutor, Kakinada. by Sri P. Prasanna Kumar, Advocate, Kakinada DATES OF:

OCCURRENCE: 27/28-5-2015

COMPLAINT: 28-5-2015

APPREHENSION OF ACCUSED: 12-6-2015

COMMITMENT: 28-3-2016

COMMENCEMENT OF TRIAL: 21-1-2019

CLOSURE OF TRIAL: 7-3-2019

DATE OF JUDGMENT: 3-4-2019

NATURE OF CHARGES: U/S. 302 IPC

PLEA OF THE ACCUSED: NOT GUILTY

FINDING OF THE JUDGE: NOT GUILTY

J U D G M E N T

The Inspector of Police, Kakinada Rural filed charge sheet against the accused alleging that he had committed the offence punishable 4 under Section 302 IPC., relating to Cr.No. 55/2015 of Gollapalem Police

Station.

2.The material allegations stemming from the record are that the deceased Panthagadda Vijaya Ratna Kumar is working a Technician in

Reliance at Gadimoga Village and he is residing in his own house at S.C.

Colony in Penumalla Village of Kajuluru Mandal with his family. The house of accused is in opposite direction to the house of deceased/ P.Vijaya Ratna

Kumar. The accused is a Rowday element, used to abuse the inhabitants of

S.C. Colony by consuming liquor frequently. Earlier when the elders of S.C.

Colony Chastised him, the accused abused them also. The accused was involved in criminal cases for his high handed behaviour. On the intervening night of 27/28-05-2015 at about 12 Mid-Night the accused started abusing the deceased/P.Vijaya Ratna Kumar in filthy language without any reason.

When the deceased questioned him, a wordy conversation took place between the accused and the deceased. While they were disputing, the wife of accused was intervened and took him into their house. Later, the deceased was slept in front of his house with his wife on a cot, his mother slept near to them due to summer. At about 1-15 A.M. keeping the dispute occurred at 12 Mid-Night the accused went to the house of deceased by armed with a knife and hacked the deceased indiscriminately, resulting which the deceased received severe bleeding injuries on his throat, left palm, right thigh and under the chin. Meanwhile the wife (L.W2- P.Bhavani) and mother (L.W.3- P.Nagaratnam) of the deceased were woke up and when they pushed the accused by raising cries, the accused was absconded with the knife and the deceased ran behind the accused and fell down with injuries in front of the house of LW1-Y.Kameswara Rao in S.C. colony.

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It is mentioned in the charge sheet that on hearing the cries,

LW1-Y.Kameswara Rao who slept in front of his house was woke up and noticed the absconding accused in the lighting of street lights. LW1 after enquired about the occurrence, shifted the deceased to Area Hospital,

Ramachandrapuram with the assistance of L.W.5- S.Kishore on Motor cycle to some distance and from thereby 108 ambulance. The Medical Officer,

Area Hospital, Ramachandrapuram treated the deceased and referred him to Government General Hospital, Kakinada for better treatment. The deceased was died on the way to Government General Hospital, Kakinada.

The Causality Medical Officer, Government General Hospital, Kakinada examined the deceased and declared him as dead at 2.54 A.M on 28-05- 2015.

It is further mentioned in the charge sheet that on the statement of LW1, S.I. (LW21- Ch.Sudhakar) registered a cased in

Cr.No.55/15 under Section 302 IPC at Gollapalem Police Station on 28-05- 2015 at 5.45 A.M., and dispatched the copies of expenses FIR, to all concerned Officers.

It is further mentioned in the charge sheet that the Inspector of

Police (LW22- V.Pavan Kishore, Circle Inspector of Police) Kakinada Rural took up investigation into the case and visited the scene of offence and photographed the same and prepared a rough sketch of the scene of offence.

It is further mentioned in the charge sheet that LW22-V.Pavan

Kishore, Circle Inspector of Police held inquest over the dead body of the deceased on 28-05-2015 at 12 Noon and sent the dead body for 6

Postmortem examination. LW22 arrested the above noted accused on 12-6- 2015 at 11 a.m., and got recorded his confessional statement under a cover of Mediators Report and in pursuance of his confession, seized a curved knife with which the accused hacked the deceased, one blood stained full hands shirt and a blood stained lungi of the accused in the presence of Lws.

16 and 17 viz., P.Sathibabu and O.Durga Prasad under a cover of another

Mediators report drafted from 1 P.M., to 1.30 P.M. LW22 sent the accused to the Hon’ble Court on 13-06-2015 for Judicial Custody.

It is further mentioned in the charge sheet that LW19 the

Assistant Professor, Department of Forensic Medicine, Rangaraya Medical

College, Kakinada conducted autopsy over the dead body of the deceased and he opined that the cause of death to best of his knowledge and belief was due to transaction of spinal cord along with fracture of C3 and C4 edged, medium to heavy size cutting weapon. After completion of investi- gation, the investigating officer laid charge sheet against the accused.

Hence, the charge.

3. The case was taken on file against the accused under section 302 of Indian Penal Code by the III Additional Judicial First Class Magistrate,

Kakinada.

4.The copies were issued to the Accused as required U/s.207

Cr.P.C. The case was committed to the Court of Sessions at Rajahmundry

U/s.209(a) of Cr.P.C. Since the offence punishable U/s. 302 IPC is exclusively triable by Court of Sessions, the case was made over to this court for trial by Sessions Judge at Rajahmundry, East Godavari District.

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5.The Charge under Section 302 IPC against the accused is framed U/s.228 Cr.P.C., and it was read over and explained to him in Telugu and the accused pleaded not guilty and claimed for trial.

6.The prosecution has examined as many as witnesses P.Ws.1 to 12 and marked Ex.P1 to P11 and M.Os.1 to 7 on its behalf.

7.After closure of the prosecution evidence, the accused was examined U/s.313 Cr.P.C., by putting the incriminating material in the evidence of prosecution witnesses and he denied the same, he pleaded innocence. On behalf of the accused, no defence witnesses were examined.

8.The point for determination is :

Whether the prosecution could bring home the guilt of Accused for the offence U/Sec. 302 I.P.C., beyond all reasonable doubt?

9.P O I N T :

To support the case of the prosecution, the prosecution has examined P.Ws. 1 to 12.

10. P.W.1 Yadala Kameswara Rao deposed that on 27-5-2015 at about 1.15 A.M., while they were sleeping, they heard some shoutings and found the deceased Vijaya Ratna Kumar coming towards their house side with bleeding injuries. He deposed that he questioned him what happened, for which he stated that the accused hacked him and himself and L.W.5-

Kishore took the deceased to the Government hospital, Ramachandrapuram wherein first aid was given and from there he was referred to Government

General Hospital, Kakinada and after shifting to GGH, Kakinada he was declared died.

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11. P.W.2 Panthagada Bhavani who is the wife of the deceased deposed that the accused used to stay in front of their house and on 27-5- 2015 at about 12 mid night the accused and her deceased husband quarreled with each other and in the meanwhile the wife of the accused came outside and took the accused into the house. She deposed that all of them slept outside their house and around 1.15 A.M., the accused came with a knife and hacked her husband on his neck and left palm and on the right thigh and also on chin. She deposed that when herself and her mother- in-law came to rescue of her husband, the accused ran away towards the house of PW1 along with knife. She deposed that her husband also ran behind the accused and fell down in front of the house of PW1.

She deposed that PW1 and others took her husband to the hospital at

Ramachandrapuram and thereafter he was shifted to Government General

Hospital, Kakinada, wherein he died. She deposed that on that day from the morning the accused abused her deceased husband in drunken state and always the accused used to abuse all in drunken state.

12. P.W.3 Panthagada Nagaratnam who is the mother of the deceased deposed that the accused used to stay in front of their house and on 27-5-2015 from the morning the accused is abusing all in drunken state and every day the accused used to abuse all in drunken state. She deposed that on that day evening around 5 to 6 PM her deceased son questioned the accused why the accused used to abuse all, for which the accused stated that the accused will abuse as he like and stated to her deceased son that her son can question only when the accused abused the deceased. He deposed that around 1.15 AM on that day all of them slept on the pial of their house and she slept on the ground along with her grandson whereas the deceased and his wife slept on the cot by her side. She deposed that around 1.20 AM on hearing the cries of her deceased son, they got up and 9 found that the accused hacked her deceased son and when she caught hold her son, the accused escaped with his knife. She deposed that herself and

PW2 took the deceased towards the house of PW1 and by that time PW1 got up and she requested him to save her son and on that PW1 and L.W.5-

Kishore took her injured/deceased son to the hospital at Ramachandra- puram and thereafter her deceased son was shifted to Government General

Hospital, Kakinada and he was declared died.

13. P.W.4 Oduri China Annavaram deposed that about 3 years ago around 12 mid night while he was sleeping in front of his house, he heard shoutings and immediately he woke up and found that the accused is proceeding on the road in a hurry manner. He deposed that P.Ws. 2 and 3 were shouting that ‘narikesadu baboyi’ and they shouted that the accused hacked the son of PW3 and in the meanwhile people gathered there and shifted the injured/deceased to the hospital and he was examined by the police and police recorded his statement.

14. P.W.5 Pulugu Eswara Rao deposed that about 3 years ago during mid night around 1 AM, when PW 3 raised shoutings that why nobody was woke up even though her son was hacked, then he woke up. She deposed that P.W.3 brought the injured/deceased to the house of PW1 and they found the injured with bleeding injuries and shifted him to the hospital. He deposed that PW3 shouted that the accused hacked her son.

15. P.W.6 Boola Nageswara Rao deposed that about 3 years ago, around 1 AM while he was moving as he could not sleep, he heard the cries from the house of the deceased and while he was proceeding towards the house of the deceased, he heard the cries of P.W.3 “Narikesaru baboyi” and found that the accused is running from the scene towards donka and he found the deceased fell down with bleeding injuries. He deposed that in the 10 meanwhile all the people gathered and shifted him to the hospital and within half an hour to one hour he came to know that the injured/deceased died.

16. P.W.7 Vinakoti Appayamma deposed that about 3 years ago, at about 8 AM on hearing about the incident she went to the house of the deceased and by that time she reached there, police were present there and the deceased was shifted to Government General Hospital, Kakinada. She deposed that about 4 years back the accused beat her without any reason and on that occasion she also filed a complaint against the accused.

17. P.W.8 Panthagada Vijaya Prasad deposed that on 28-5-2015 around 12.30 to 1 AM PW1 informed him over telephone that the accused hacked the deceased and that they shifted his brother to the hospital at

Ramachandrapuram and immediately he proceeded to Ramachan- drapuram and from there he shifted his deceased brother to GGH, Kakinada where he was declared died.

18. P.W.9 Pydimalla Sathibabu who previously worked as in-charge

V.R.O., Penumalla deposed that on 28-5-2015 at about 7.30 AM he was called by the police, Gollapalem and himself, CI of Police, LW17-VRA and the police staff proceeded to the house of the deceased situated at SC colony,

Penumalla village and police observed the scene of offence in their presence and he scribed the scene observation report and the C.I. of Police seized blood stained saree, bontha, blood stained cement pieces, blood stained earth under the cover of mediators report. He deposed that then they proceeded to GGH, Kakinada and inquest was held over the dead body of the deceased in their presence and he scribed the inquest report and they opined that the deceased died due to hacking by knife.

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P.W.9 further deposed that on 12-6-2015 at about 11 AM he was called by the police and himself, another mediator and the police proceeded towards Penumalla village and on the way to Penumalla village they found the accused and basing on his confessional statement police arrested the accused and from there the accused lead them to the fish tank of

Satyanarayana and brought one knife, lungi and blood stained shirt kept by the accused in a thatched hut and police seized the same under the cover of mediators report.

19. P.W.10 Dr. P. Umamaheswara Rao who previously worked as

Assistant Professor, Department of Forensic Medicine Rangaraya Medical

College, Kakinada deposed that on 28-5-2015 he received requisition from

Inspector of Police, Kakinada Rural to conduct postmortem examination over the dead body of deceased Panthagada Vijaya Lakshmana Kumar and accordingly he conducted postmortem examination and he opined that the injuries are ante mortem in nature and sustained due to sharp edged medium to heavy sized weapon and sustained about few hours prior to death and the approximate time of death is less than 24 hours prior to PM examination. He deposed that the cause of death is due to transaction of spinal cord along with fracture of C3 and C4 cervical vertebrae at the corresponding level due to incised wound with sharp edged, medium to heavy size cutting weapon. He deposed that Ex.P.5 is the wound certificate.

20. P.W.11 Ch. Sudhakar who previously worked as S.I. of Police,

Gollapalem Police Station deposed that on 28-5-2015 at about 3.30 AM while he was present in the Police station he received MLC intimation from

Outpost P.S., GGH, Kakinada and immediately he proceeded to the hospital and recorded the statement of P.W.1 and basing on Ex.P.1 statement of PW1, he registered the case in Crime No.55/2015 under section 302 IPC. He 12 deposed that further investigation was taken up by L.W.22-Pavan Kishore,

Inspector of Police.

21. P.W.12 V. Pavan Kishore who previously worked as Inspector of

Police, Kakinada Rural deposed that on 28-5-2015 at 6.30 AM he received express FIR in Crime No.55/2015 under Section 302 IPC from SI, Gollapalem and he examined P.W.1 and recorded his statement and he deposed about visiting of scene of offence and got drafting of scene observation report and he got photographed the scene of offence and got prepared the rough sketch of the scene of offence. He deposed that he sent the dead body for

Postmortem examination.

22. P.W.12 further deposed that on 12-6-2015 he arrested the accused at Jagannadhagiri bridge. He deposed that the accused lead them to a hut located on the eastern side bund prawn tank belongs to

Kukkala Satyanarayana at Penumalla Village and the accused produced

MO3 knife, MO4 lungi, MO5 shirt which was used by the accused at the time of commission of offence. He deposed that he had seized the same under the cover of mediators report. He deposed that on 23-6-2015 he received

Postmortem certificate and after completion of investigation he filed charge sheet against the accused.

23. P.W.1 during cross examination admitted that the deceased did not inform him personally that the accused hacked him. P.W.2 wife of the deceased during cross examination deposed that her parents used to reside in the same area in the first street whereas they used to reside in the last street of their village. She deposed that L.W.10-Mortha Lakshmi is her junior maternal aunt and PW1 used to reside in that street which is behind their street. She admitted that the entrance of the house of Mortha Lakshmi is facing towards northern side. She admitted that all their houses were 13 surrounded thickly by trees. She admitted that there is a gravel road in between their house and the house of the accused. She deposed that around 5 to 5.30 A.M., on 28-5-2015 police visited their house. She deposed that police recorded her statement on that day but she do not remember whether they obtained her signature or not. She deposed that police took away the clothes on their cot and knife. She admitted that by the time when the accused came near to their cot, they are sleeping.

P.W.2 deposed that she do not know whether her father-in-law and the accused used to cultivate the land of one Sitaramaraju for taking the same on lease. She deposed that she do not know whether disputes arose in between their family and the family of the accused in relation to the lease land of Sitaramaraju. She deposed that she do not know whether the accused contested in the Cooperative Elections against her father-in-law and won the same. She deposed that she do not know whether there are disputes in between their family and the family of the accused in relation to the above said fact also. She deposed that she do not know whether her deceased husband used to move in YSR Congress party. She deposed that she do not know whether there are disputes in between her husband and the people belong to TDP in their village.

24. P.W.3 mother of the deceased during cross examination deposed that on hearing the shoutings of PW2, she woke up. She deposed that while she was observing only the accused took away his knife and escaped from their house. She deposed that her clothes were also blood stained as she caught hold her deceased son. P.W.4duringcross examination deposed that his house was not situated near the house of

PW1. He admitted that his house is not situated in the same street of the house of the deceased. P.W.5 during cross examination admitted that he did 14 not state to the police that PW3 shouted that the accused hacked her son.

P.W.6 during cross examination admitted that he did not state to the police that he had observed the accused running from the scene. He admitted that he had also not stated to the police that he heard the cries of P.W.3 that “Narikesaru Baboyi”. P.W.9 during cross examination admitted that the thatched hut where MOs. 3 to 5 were kept was access to the public. MOs 3 to 5 are visible to them. He admitted that the words that “I will show where

MOs. 3 to 5 were incorporated in between the lines in Ex.P.4/mediators report.

25. P.W.11 during cross examination deposed that the distance between their police station and the court is about 14 km and one can reach within 15 minutes. He admitted that as per the endorsement on Ex.P.7 the same was received by the court on 28-5-2015 at about 3.45 PM. P.W.12 during cross examination admitted that as per Ex.P.11 blood group could not be determined. He admitted that PW6 did not state before him that he found while the accused was running from scene of offence towards donka.

He admitted that no mattress was found in the rough sketch/Ex.P.9 at the scene of offence alleged to be that the mother of the deceased/PW3 slept on the same. He deposed that there is no recorded proof to show that the electrical street lights were burnt on the previous day night. He admitted that MOs. 3 to 5 were produced by the accused from the hut situated in the open place. He denied for the suggestion that P.W.2 and P.W.3 were not present at the scene of offence on the date of alleged incident and that they were planted for the purpose of the case.

26.From the above evidence of the prosecution witnesses, it is to be seen that there is no corroboration in between their evidence with regard to material aspects and there are number of contradictions and 15 omissions in their evidence. It is the evidence of P.W.1 that the accused himself came in front of his house with bleeding injuries and himself and

L.W.5 Kishore shifted him to the hospital. Even though as per the evidence of P.W.1, the injured/deceased was conscious at that time, he did not state to him that the accused hacked. Whereas it is the version of P.W. 3 who is the mother of the deceased that they took the injured/deceased to P.W.1.

At first P.W.2 did not depose the presence of her mother-in-law at the scene of offence, but P.W.3 stated that on hearing the shoutings of P.W.2 only she woke up. Whereas it is another version of P.W.2 that on hearing the shoutings of the injured/deceased, herself and P.W.3 woke up and observed the accused. It is the version of P.W.2 wife of the deceased that police took away the blood stained clothes on the cot and knife, whereas it is the case of the prosecution and the evidence of P.W.3 that the accused after committing the offence escaped from the scene along with M.O.3 knife.

Hence, the presence of P.Ws. 2 and 3 at the scene of offence at the time of alleged offence and observing the accused while committing the offence is doubtful.

27.As per the evidence of the investigating officer and Ex.P.4 mediators report, M.O.3 knife was seized when the accused was arrested and produced the same from a hut which is situated in a public place.

Whereas, it is the version of P.W.2 wife of the deceased who is said to be the eye witness of the incident that the police took the knife from their cot.

Hence, it is clear that there is no corroboration in between the evidence of the prosecution witnesses with regard to the seizure of M.O.3 knife.

28. It was observed in the decision reported in AIR 2002 Supreme

Court 2902 in between Muthu Vs. State of Karnataka – that version of 16 informant/wife that accused had thrown away knife at the place of occurrence and escaped - but witnesses stated that while coming to place of occurrence they saw accused running away with knife in his hand –

Evidence of witnesses and informant not consistent – More so, when there is no evidence to prove that knife was seized on spot by police – prosecution case that knife was recovered from house of accused rendered doubtful.

In the present case, it is the evidence of P.W.2/wife of the deceased that police took away the M.O.3 knife from their cot which was left by the accused after committing the offence. But, the evidence of the prosecution witnesses and the evidence of investigating officer shows that the same was seized somewhere else at the place of seizure. Hence, in view of the observation made in the above mentioned decision, the prosecution version could not be believable.

29.It was observed in the decision reported in AIR 1987 Supreme

Court 1507 in between Kansa Behera Vs. State of Orissa – that recovery of blood stained clothes from accused – Serologist that clothes were stained with human blood but blood group not indicated – Evidence of blood group is only conclusive to connect blood-stains with accused.

In the present case also, as per Ex.P.11 R.F.S.L. Report, the blood group could not be determined.

30. It was observed in the decision reported in 2009 Crl.L.J. 3971 in betweenMotilal and another Vs. State of Rajasthan – that delay in sending FIR to Magistrate – not explained by prosecution.

In the present case also, there is delay in sending the F.I.R. to the Court, the delay of which was not explained by the prosecution.

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Therefore, the decisions mentioned supra are squarely applicable to the present case on hand.

31.There is no evidence to show that the death of deceased

Panthagada Vijaya Ratna Kumar was due to the acts of accused.

32. In the above stated circumstances, this Court is of the opinion that the prosecution has miserably failed in establishing the guilt of the accused beyond all reasonable doubt for the offence punishable under section 302 I.P.C., and the accused is entitled for acquittal.

33.In the result, the accused is found not guilty for the offence punishable under section 302 I.P.C. Accordingly, the accused is acquitted under section 235 (1) Cr.P.C. The bail bonds of the accused shall stand cancelled. M.Os.1 to 7 and the unmarked property if any, shall be destroyed after expiry of appeal time.

Typed to my dictation by the Personal Assistant, corrected and

pronounced by me in the open court this the 3rd day of April, 2019.

IV Addl. District and Sessions Judge, Kakinada.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution:

PW1Yadala Kameswara Rao PW2Panthagada Bhavani PW3Panthagada Nagaratnam PW4Oduri China Annavaram PW5Pulugu Eswararao PW6Boola Nageswara Rao PW7Vinakoti Appayamma PW8Panthagada Vijaya Prasad PW9Pydimalla Satti Babu 18

PW10Dr. P. Uma Maheswara Rao PW11Ch. SUdhakar PW12V. Pavan Kishore

For Defence : None

DOCUMENTS MARKED

For Prosecution:

Ex.P.1Statement given to police by PW1. Ex.P.2Scene observation report. Ex.P.3Inquest report. Ex.P.4Mediators report. Ex.P.5Postmortem Certificate. Ex.P.6Hospital intimation. Ex.P.7FIR in Crime No.210/2014. Ex.P.8Photos 12 in number. Ex.P.9Rough sketch. Ex.P.10Letter of advice. Ex.P.11R.F.S.L. report.

For Defence:

Nil.

MATERIAL OBJECTS MARKED

MO1Blue colour bontha. MO2Black and white blood stained saree. MO3Curved knife (blood stained ) MO4Cotton lungi (blood stained ) MO5Full hands shirt (blood stained ) MO6Cotton lungi (blood stained ) MO7Waste thread (blood stained )

IV A.D & S.J.

Kakinada.

Copies to:

1. The Registrar (Judicial), Hon'ble High Court for the State of Andhra Pradesh.

2. The District Judge, East Godavari, Rajahmundry.

3. The Superintendent of police, East Godavari, Kakinada.

4. The III Additional Judicial First Class Magistrate, Kakinada.

5. The Addl. Public Prosecutor, IV Addl. District Court, Kakinada.

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IN THE COURT OF THE IV ADDL. SESSIONS JUDGE, EAST GODAVARI

DISTRICT, KAKINADA

Present: Smt. B. Gayatri

IV Addl. Sessions Judge

Wednesday, the 3rd day of April, 2019.

CRIMINAL APPEAL No. 31 of 2018

From which court this appeal is :III Additional Judicial Magistrate of First PreferredClass Court, Kakinada

Number of the case in that court : C.C.No. 329/2014 Name and description of the : Appellants1. Dwarampudi Ramachandra Reddy @ Ramesh Reddy, S/o. Venkata Krishna Reddy, aged 45 years, Lakshmi Narasapuram, H/o.Gollalamamidada Village, Pedapudi Mandal. (A2)

2. Dwarampudi Nirmala, W/o. Ramachandra Reddy @ Ramesh Reddy, 40 years, Housewife, Lakshmi Narasapuram, H/o.Gollalamamidada Village, Pedapudi Mandal. (A3) (Accused 2 and 3)

Name and description of the: State: Station House Officer, Respondent Pedapudi Police Station, Rep. by Addl. P.P., Kakinada (Complainant)

Section of law under which the : U/s. 420 r/w. 34 IPC Appellants were convicted in the lower court

Whether confirmed, reversed or Modified : Reversed

DATES ON WHICH:

Presentation of appeal : 23-1-2018

Filing : 29-1-2018

Hearing : 27-3-2019

Judgment: 3-4-2019

This appeal coming before me on 27-3-2019 for final hearing in the presence of Sri P. Papi Reddy, Advocate for the appellants/Accused 2 and 3 and of Additional Public Prosecutor for the State-respondent and upon perusing the material available on record 2 and upon hearing the arguments of both sides and the matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

This appeal arises out of the judgment of the III Additional

Judicial Magistrate of First Class Court, Kakinada in C.C.No. 329/2014

and the accused were charged for the offence punishable U/s. 420 r/w. 34 IPC in Cr.No. 17/2013 of Pedapudi Police Station.

2. Through its judgment dated 9-1-2018 the trial court convicted the accused 1 to 3 U/s.248(2) Cr.P.C. for the offence punishable U/s. 420 r/w. 34 IPC. Accused 1 to 3 are sentenced to undergo rigorous imprisonment for a period of two years each and to pay a fine of Rs.10,000/- each in default of payment of fine, to suffer simple imprisonment for a period of two months each for the offence

U/s.420 R/w.34 IPC. The remand period of A1 from 15-3-2013 to 21-3- 2013 and the remand period of A2 from 4.3.2014 to 21.3.2014 shall be set off U/s.428 Cr.P.C.,

3. Aggrieved thereby the Accused 1 and 3 preferred

Criminal Appeal No. 31 of 2018 on the file of this court.

4. The case of the prosecution is that LW.1 Karri

Venkata Krishna Reddy is the defacto complainant and victim in this case. A1 is father and A3 is wife of A2. LW.1 is resident of G.mamidada

Village, Pedapudi Mandal. A1 to A3 and one Dwarampudi

Suryanarayana Reddy who are members of a family have been run chits and Finance business in the name and style of Sri Dhanalakshmi

Chits and Finance at Lakshmi Narasapuram of G.mamidada Village,

Pedapudi Mandal. A1 to A3 and Dwarampudi Suryanarayana Reddy informed the members of chits with attractive words with a promise 3 that they would give dividends every month and the members shall pay the installments every month by remitting the dividends. Thereby

LWs 1 to 5 by name Karri Venkata Krishna Reddy, Karri Satyavathi,

Karri Brundavathi, Dwarampudi Puspavathi and Bora Bharathi joined as members in Rs.10 lakhs, 5 lakhs and 4 lakhs chits run by A1 to A3 and Dwarampudi Suryanarayana Reddy and paid an amount of

Rs.15,00,000/-, Rs.9,80,000/-, Rs.9,48,000/-, Rs.30,00,000/- and

Rs.8,00,000/- respectively.

It is stated that after maturity of chit amount, when LWs 1 to 5 asked A1 to 3 and Dwarampudi Suryanarayana Reddy, they promised that they would give interest at Rs.1.50 ps. For their amounts and executed promissory notes in their favour. But they came to know that A1 to A3 and Dwarampudi Suryanrayana Reddy created fake auctions every month and used the amounts collected from the members for their personal use. LWs 1 to 5 got suspicion on them and when asked A1 to A3 and Suryanarayana Reddy about the chit amount, they did not pay any amount. Thereby, LWs 1 to 5 approached the police station and basing on the complaint given by

LW.1 Karri Venkata Krishna Reddy, LW.8 the then S.I of police registered a case in Cr.No.17/2013 U/s.420 R/w.34 IPC., on 02.3.2013 against A1 to A3 herein and Dwarampudi Suryanarayana Reddy as A1 to A4. Later during the investigation, A4 died on 6-7-2013. Hence, the case against A4 was abated and his name was deleted from the list of accused.

It is stated that during the course of investigation the S.I of

Police examined LWs 1 to 7 and recorded their statements, examined the scene of offence and drawn rough sketch, seized the promissory notes executed by the accused and arrested A1 on 28.2.2013 in 4

Cr.No.15/13, A2 surrendered before the court on 4.3.2014 and A3 obtained anticipatory bail from the Hon’ble High Court. After completion of investigation LW.10 Sub-Inspector of Police filed charge sheet.

5. The accused 1 to 3 pleaded not guilty to the charge under Section 420 r/w. 34 IPC when they were examined, they denied the offence charged against them.

6. The prosecution has examined P.Ws.1 to 7 and exhibited documents Ex.P1 to P12 on its behalf. After closure of the prosecution evidence the accused were examined U/s.313 Cr.P.C. for the incriminating material in the evidence of the prosecution witnesses, for which they denied the same and reported no defence on their behalf.

7. The learned Magistrate on appreciation of oral and documentary evidence, found guilty of the Accused 1 to 3 for the charge U/s. 420 r/w. 34 IPC and thereby inflicted the above sentence of Rigorous Imprisonment and fine. It is that conviction recorded and the sentence inflicted that are challenged in this appeal by the

Accused 2 and 3.

8.Heard both sides. Perused the material available on record.

9.The point for consideration in this appeal is:

Whether the conviction recorded and the sentence inflected by the learned III Additional Judicial

Magistrate of First Class Court, Kakinada can be

maintained?

10. POINT:

To prove the case of prosecution, P.Ws. 1 to 7 were 5 examined.

11. It is the case of the prosecution that A2 is son of A1 and A3 is wife of A2. A2 and A3 guided by A1 running an unauthorized chit business and all of them made to believe the defacto complainant and other witnesses that they are running chit business and they can return the chit amounts whenever the auction conducted to the highest bidder and thereby collected the chit subscriptions and subsequently A1 to A3 dishonestly induced to deliver amounts towards subscription of chits but the chit amounts which are entitled by the witnesses from A1 to A3 are not returned and therefore they are liable to be punished for the offence punishable U/s.420 R/w.34

IPC.

12.On the other hand, the case of the defence is that the accused A1 to A3 never did private hit business and that P.Ws. 1 to 5 never paid chit installments as alleged and that they never cheated them and that this case is foisted at the instance of one Chintha

Dorababu who is having grudge against A1 to A3.

13.PW.1 deposed that her husband paid chit amount to

A1 to A3 in her name for Rs.10,00,000/- for the installment amounts from the year 2010 to 2012 and after completion of payment of entire chit amount the accused avoided to pay the amount either to her husband or to her by saying that some other persons raised the bid amount. She further deposed that though she demanded several times to pay he chit amount, the accused avoided to pay the same and they executed promissory note in her favour and Ex.P.3 is the promissory note dt.24.12.2012 executed by A2. Subsequently her husband filed report before he police and the accused due an amount 6 of Rs.9,80,000/- to her and PW.1 identified the signature of her husband on Ex.P.1 report.

14.PW.2 who is daughter-in-law of PW.1 deposed that she also joined as a member in the chit run by the accused A1 to A3 for an amount of Rs.5,00,000/- and she paid all the chit subscriptions from the year 2010 to 2012 along with PW.1 and the other witnesses are subscribers in the chit transactions individually. She further deposed that after completion of chit she asked A1 to A3 for the chit amount and on repeated demands the accused avoided to pay the amount but lastly on 28.12.2012 A1 paid an amount of Rs.52,000/- and again when she demanded for the remaining amount, accused asked to return chit book and after returning the chit book A2 executed a promissory note for Rs.9,48,000/- on 6.1.2013. Ex.P.1 is the promissory note executed by A2 in favour of PW.2. She identified the signature of her father-in-law, complainant, K.V.Krishna Reddy, Ex.P.2 is report submitted by LW.1 K.V.Krishna Reddy. PW.1 is mother-in-law of

PW.2.

15.PW.3 who is daughter of PW.1 deposed that A1 to A3 conducted chit fund business under the name and style of

Dhanalakshmi Chits and Finance and she joined as member in two chits for Rs.5,00,000/ and Rs.10,00,000/- along with his family members and she paid chits from the year 2007 to 2012. She further deposed that after completion of chits, when she asked the accused for the bid amount, the accused postponing the same and subsequently she came to know that they are not conducting any chit business. She further deposed that A1 to A3 gave chit books for payments of chit subscription amounts and subsequently when she demanded the money, after execution of promissory notes by 7 undertaking to repay the same by the accused and on execution of promissory notes by them she returned the chit books to the accused.

She further deposed that A2 executed promissory note for

Rs.15,00,000/- and Ex.P.4 is the promissory note dt.22.12.2012 executed by A2.

16.PW.4 is the daughter of PW.1 who deposed that she is one of the subscribers to the chits conducted by A1 to A3 under the name and style of Dhanalakshmi Chits and she is member of 4 chits for the amounts of Rs.2,00,000/- each and she paid total chit amount for a period of 50 months. She further deposed that she did not knock down chit amount for the sake of marriage of her daughter and she paid entire amount, whenever she paid the chit amount, accused used to note down the same on the respective chit books. She further deposed that when she asked the accused to pay the chit amount, they stated that amount will be paid and on the said promise A2 also executed promissory notes under Ex.P.6 to P.9 for Rs.2,00,000/- each.

17.PW.5 is said to be another subscriber to the chits conducted by A1 to A3. He further deposed that one Sivaprasada

Reddy, Satish Kumar Reddy are subscribers in each chit transaction conducted by the accused and the accused after receipt of the subscription they used to say that somebody knocked down the bid amount and also used to avoid the payments to the subscribers and subsequently they represented that they will repay the said amount with interest at 18% p.a but they did not repay the same. He further deposed that the accused by avoiding the said payment cheated the public and subsequently A2 and A3 hide themselves to the public.

8

18. PW.6 is investigating officer who registered the case basing on the report submitted by PW.1 for the offence punishable

U/s.420 R/w.34 IPC., and after registration of the first information report, he examined several witnesses, recorded their statements and received photocopies of pass books issued by the accused, visited scene of offence ie., house of accused situated at Lakshmi

Narasapuram village of Gollalamamidada, prepared rough sketch of scene of offence, arrested the accused.

19. PW.7 is investigating officer who filed charge sheet after completion of investigation.

20. During the course of cross-examination P.Ws.1 to 3 and admitted that they have no documentary proof about the alleged chit transaction and with regard to the payment of amounts to the accused. They denied for the suggestion that A1 to A.3 never run the chit business. P.Ws.2 to 4 during their cross examination deposed that they did not file any civil suit against the accused basing on the alleged promissory notes.

21.During the course of cross-examination P.W. 3 deposed that there is no endorsement on the promissory note about the chit transaction.

22.During cross examination P.W.4 admitted that as on date the alleged promissory notes were barred by limitation for filing a civil suit.

23. P.W.6 Investigating Officer during the course of cross examination deposed that he did not obtain any documentary proof to 9 show that the accused did chits and finance business.

24.Even though it is the version of PWs. 1 to 5 that the accused used to collect chit amounts from them and whenever the witnesses demanded for payment of the chit amount, accused A2 executed promissory notes in their respective names. Ex.P.1 and P.3 to

P.9 are respective promissory notes executed in favour of PWs 1 to 5 by promising that the amount will be paid very soon, but they themselves during their cross examination deposed that there is no documentary proof to show that the accused used to run chit business and that there is no proof to show that they paid amounts to the accused towards chit installments.

25.Therefore, the prosecution failed to prove that the accused 1 to 3 induced P.Ws. 1 to 5 and made them to believe their words and received amounts towards alleged chit installments and subsequently failed to pay the amounts to them and thereby cheated them.

26. In view of the foregoing discussion, the prosecution failed to prove the guilt of the accused A2 and A3 for the offence punishable U/s.420 R/w.34 IPC., and therefore, they are entitled for acquittal. Therefore, there is necessity to interfere with the judgment of the trial Court by allowing the appeal by setting aside the judgment of the trial court.

27. In the result, the criminal appeal is allowed by setting aside the calendar and judgment passed in C.C. 329/2014 on the file of III Additional Judicial Magistrate of First Class Court,

Kakinada, dt. 9-1-2018.

10

The appellants/Accused 2 and 3 are found not guilty for the offence punishable under Section 420 r/w. 34 IPC and they are acquitted under Section 248(1) Cr.P.C.

Fine amount paid by the appellants/accused 2 and 3 shall be returned to them after expiry of appeal period.

Typed to my dictation, corrected and pronounced by me in the open Court, this the 3rd day of April, 2019.

IV ADDL. SESSIONS JUDGE

KAKINADA.

No Additional oral or documentary evidence adduced on either side.

IV A.S.J.

Kakinada. Copies to:

1. The Registrar (Judicial), Hon'ble High Court for the State of Andhra Pradesh

2. The District Judge, East Godavari, Rajahmundry.

3. The III Additional Judicial Magistrate of First Class Court, Kakinada

1

IN THE COURT OF THE IV ADDL. SESSIONS JUDGE, EAST GODAVARI

DISTRICT, KAKINADA

Present: Smt. B. Gayatri IV Addl. Sessions Judge

Wednesday, the 3rd day of April, 2019.

CRIMINAL APPEAL No. 40 of 2018

From which court this appeal is :III Additional Judicial Magistrate of First PreferredClass Court, Kakinada

Number of the case in that court : C.C.No. 329/2014

Name and description of the : Appellants Dwarampudi Venkata Krishna Reddy S/o. Satyanarayana Reddy, 60 Years, Lakshmi Narasapuram, H/o. Gollalamamidada Village, Pedapudi Mandal.

( Accused No.1)

Name and description of the: State: Station House Officer, Respondent Pedapudi Police Station, Rep. by Addl. P.P., Kakinada (Complainant)

Section of law under which the : U/s. 420 r/w. 34 IPC Appellant was convicted in the lower court

Whether confirmed, reversed or Modified : Reversed

DATES ON WHICH:

Presentation of appeal : 24-1-2018

Filing : 29-1-2018

Hearing : 27-3-2019

Judgment: 3-4-2019

This appeal coming before me on 27-3-2019 for final hearing in the presence of Sri M.K. Mohiuddin, Advocate for the appellant/Accused

No.1 and of Additional Public Prosecutor for the State-respondent and upon perusing the material available on record and upon hearing the arguments of both sides and the matter having stood over for consideration till this day, this Court delivered the following:

2

J U D G M E N T

This appeal arises out of the judgment of the III Additional

Judicial Magistrate of First Class Court, Kakinada in C.C.No. 329/2014 and

the accused were charged for the offence punishable U/s. 420 r/w. 34 IPC in Cr.No. 17/2013 of Pedapudi Police Station.

2. Through its judgment dated 9-1-2018 the trial court convicted the accused 1 to 3 U/s.248(2) Cr.P.C. for the offence punishable

U/s. 420 r/w. 34 IPC. Accused 1 to 3 are sentenced to undergo rigorous imprisonment for a period of two years each and to pay a fine of

Rs.10,000/- each in default of payment of fine, to suffer simple imprisonment for a period of two months each for the offence U/s.420

R/w.34 IPC. The remand period of A1 from 15-3-2013 to 21-3-2013 and the remand period of A2 from 4.3.2014 to 21.3.2014 shall be set off U/s.428

Cr.P.C.,

3. Aggrieved thereby the Accused No.1 preferred Criminal

Appeal No. 40 of 2018 on the file of this court.

4. The case of the prosecution is that LW.1 Karri Venkata

Krishna Reddy is the defacto complainant and victim in this case. A1 is father and A3 is wife of A2. LW.1 is resident of G.mamidada Village,

Pedapudi Mandal. A1 to A3 and one Dwarampudi Suryanarayana Reddy who are members of a family have been run chits and Finance business in the name and style of Sri Dhanalakshmi Chits and Finance at Lakshmi

Narasapuram of G.mamidada Village, Pedapudi Mandal. A1 to A3 and

Dwarampudi Suryanarayana Reddy informed the members of chits with attractive words with a promise that they would give dividends every month and the members shall pay the installments every month by remitting the dividends. Thereby LWs 1 to 5 by name Karri Venkata Krishna 3

Reddy, Karri Satyavathi, Karri Brundavathi, Dwarampudi Puspavathi and

Bora Bharathi joined as members in Rs.10 lakhs, 5 lakhs and 4 lakhs chits run by A1 to A3 and Dwarampudi Suryanarayana Reddy and paid an amount of Rs.15,00,000/-, Rs.9,80,000/-,Rs.9,48,000/-, Rs.30,00,000/- and

Rs.8,00,000/- respectively.

It is stated that after maturity of chit amount, when LWs 1 to 5 asked A1 to 3 and Dwarampudi Suryanarayana Reddy, they promised that they would give interest at Rs.1.50 ps. For their amounts and executed promissory notes in their favour. But they came to know that A1 to A3 and

Dwarampudi Suryanrayana Reddy created fake auctions every month and used the amounts collected from the members for their personal use. LWs 1 to 5 got suspicion on them and when asked A1 to A3 and Suryanarayana

Reddy about the chit amount, they did not pay any amount. Thereby, LWs 1 to 5 approached the police station and basing on the complaint given by

LW.1 Karri Venkata Krishna Reddy, LW.8 the then S.I of police registered a case in Cr.No.17/2013 U/s.420 R/w.34 IPC., on 02.3.2013 against A1 to A3 herein and Dwarampudi Suryanarayana Reddy as A1 to A4. Later during the investigation, A4 died on 6-7-2013. Hence, the case against A4 was abated and his name was deleted from the list of accused.

It is stated that during the course of investigation the S.I of

Police examined LWs 1 to 7 and recorded their statements, examined the scene of offence and drawn rough sketch, seized the promissory notes executed by the accused and arrested A1 on 28.2.2013 in Cr.No.15/13, A2 surrendered before the court on 4.3.2014 and A3 obtained anticipatory bail from the Hon’ble High Court. After completion of investigation LW.10

Sub-Inspector of Police filed chargesheet.

5. The accused 1 to 3 pleaded not guilty to the charge 4 under Section 420 r/w. 34 IPC when they were examined, they denied the offence charged against them.

6. The prosecution has examined P.Ws.1 to 7 and exhibited documents Ex.P1 to P12 on its behalf. After closure of the prosecution evidence the accused were examined U/s.313 Cr.P.C. for the incriminating material in the evidence of the prosecution witnesses, for which they denied the same and reported no defence on their behalf.

7. The learned Magistrate on appreciation of oral and documentary evidence, found guilty of the Accused 1 to 3 for the charge

U/s. 420 r/w. 34 IPC and thereby inflicted the above sentence of Rigorous

Imprisonment and fine. It is that conviction recorded and the sentence inflicted that are challenged in this appeal by the Accused No.1.

8.Heard both sides. Perused the material available on record.

9.The point for consideration in this appeal is:

Whether the conviction recorded and the sentence inflected by the learned III Additional Judicial Magistrate of First Class Court, Kakinada can be maintained?

10. POINT:

To prove the case of prosecution, P.Ws. 1 to 7 were examined.

11. It is the case of the prosecution that A2 is son of A1 and

A3 is wife of A2. A2 and A3 guided by A1 running an unauthorized chit business and all of them made to believe the defacto complainant and other witnesses that they are running chit business and they can return the chit amounts whenever the auction conducted to the highest bidder and thereby collected the chit subscriptions and subsequently A1 to A3 dishonestly induced to deliver amounts towards subscription of chits but 5 the chit amounts which are entitled by the witnesses from A1 to A3 are not returned and therefore they are liable to be punished for the offence punishable U/s.420 R/w.34 IPC.,

12.On the other hand, the case of the defence is that the accused A1 to A3 never did private hit business and that P.Ws. 1 to 5 never paid chit installments as alleged and that they never cheated them and that this case is foisted at the instance of one Chintha Dorababu who is having grudge against A1 to A3.

13.PW.1 deposed that her husband paid chit amount to A1 to A3 in her name for Rs.10,00,000/- for the installment amounts from the year 2010 to 2012 and after completion of payment of entire chit amount the accused avoided to pay the amount either to her husband or to her by saying that some other persons raised the bid amount. She further deposed that though she demanded several times to pay he chit amount, the accused avoided to pay the same and they executed promissory note in her favour and Ex.P.3 is the promissory note dt.24.12.2012 executed by

A2. Subsequently her husband filed report before he police and the accused due an amount of Rs.9,80,000/- to her and PW.1 identified the signature of her husband on Ex.P.1 report.

14.PW.2 who is daughter-in-law of PW.1 deposed that she also joined as a member in the chit run by the accused A1 to A3 for an amount of Rs.5,00,000/- and she paid all the chit subscriptions from the year 2010 to 2012 along with PW.1 and the other witnesses are subscribers in the chit transactions individually. She further deposed that after completion of chit she asked A1 to A3 for the chit amount and on repeated demands the accused avoided to pay the amount but lastly on 28.12.2012 A1 paid an amount of Rs.52,000/- and again when she 6 demanded for the remaining amount, accused asked to return chit book and after returning the chit book A2 executed a promissory note for

Rs.9,48,000/- on 6.1.2013. Ex.P.1 is the promissory note executed by A2 in favour of PW.2. She identified the signature of her father-in-law, complainant, K.V.Krishna Reddy, Ex.P.2 is report submitted by LW.1

K.V.Krishna Reddy. PW.1 is mother-in-law of PW.2.

15.PW.3 who is daughter of PW.1 deposed that A1 to A3 conducted chit fund business under the name and style of Dhanalakshmi

Chits and Finance and she joined as member in two chits for Rs.5,00,000/ and Rs.10,00,000/- along with his family members and she paid chits from the year 2007 to 2012. She further deposed that after completion of chits, when she asked the accused for the bid amount, the accused postponing the same and subsequently she came to know that they are not conducting any chit business. She further deposed that A1 to A3 gave chit books for payments of chit subscription amounts and subsequently when she demanded the money, after execution of promissory notes by undertaking to repay the same by the accused and on execution of promissory notes by them she returned the chit books to the accused. She further deposed that A2 executed promissory note for Rs.15,00,000/- and

Ex.P.4 is the promissory note dt.22.12.2012 executed by A2.

16.PW.4 is the daughter of PW.1 who deposed that she is one of the subscribers to the chits conducted by A1 to A3 under the name and style of Dhanalakshmi Chits and she is member of 4 chits for the amounts of Rs.2,00,000/- each and she paid total chit amount for a period of 50 months. She further deposed that she did not knock down chit amount for the sake of marriage of her daughter and she paid entire amount, whenever she paid the chit amount, accused used to note down the same on the respective chit books. She further deposed that when she 7 asked the accused to pay the chit amount, they stated that amount will be paid and on the said promise A2 also executed promissory notes under

Ex.P.6 to P.9 for Rs.2,00,000/- each.

17.PW.5 is said to be another subscriber to the chits conducted by A1 to A3. He further deposed that one Sivaprasada Reddy,

Satish Kumar Reddy are subscribers in each chit transaction conducted by the accused and the accused after receipt of the subscription they used to say that somebody knocked down the bid amount and also used to avoid the payments to the subscribers and subsequently they represented that they will repay the said amount with interest at 18% p.a but they did not repay the same. He further deposed that the accused by avoiding the said payment cheated the public and subsequently A2 and A3 hide themselves to the public.

18. PW.6 is investigating officer who registered the case basing on the report submitted by PW.1 for the offence punishable U/s.420

R/w.34 IPC., and after registration of the first information report, he examined several witnesses, recorded their statements and received photocopies of pass books issued by the accused, visited scene of offence ie., house of accused situated at Lakshmi Narasapuram village of

Gollalamamidada, prepared rough sketch of scene of offence, arrested the accused.

19. PW.7 is investigating officer who filed charge sheet after completion of investigation.

20. During the course of cross-examination P.Ws.1 to 3 and admitted that they have no documentary proof about the alleged chit transaction and with regard to the payment of amounts to the accused.

They denied for the suggestion that A1 to A.3 never run the chit business.

8

P.Ws.2 to 4 during their cross examination deposed that they did not file any civil suit against the accused basing on the alleged promissory notes.

21.During the course of cross-examination P.W. 3 deposed that there is no endorsement on the promissory note about the chit transaction.

22.During cross examination P.W.4 admitted that as on date the alleged promissory notes were barred by limitation for filing a civil suit.

23. P.W.6 Investigating Officer during the course of cross examination deposed that he did not obtain any documentary proof to show that the accused did chits and finance business.

24.Even though it is the version of PWs. 1 to 5 that the accused used to collect chit amounts from them and whenever the witnesses demanded for payment of the chit amount, accused A2 executed promissory notes in their respective names. Ex.P.1 and P.3 to P.9 are respective promissory notes executed in favour of PWs 1 to 5 by promising that the amount will be paid very soon, but they themselves during their cross examination deposed that there is no documentary proof to show that the accused used to run chit business and that there is no proof to show that they paid amounts to the accused towards chit installments.

25.Therefore, the prosecution failed to prove that the accused 1 to 3 induced P.Ws. 1 to 5 and made them to believe their words and received amounts towards alleged chit installments and subsequently failed to pay the amounts to them and thereby cheated them.

26. In view of the foregoing discussion, the prosecution failed to prove the guilt of the accused No.1 for the offence punishable 9

U/s.420 r/w.34 IPC., and therefore, he is entitled for acquittal. Therefore, there is necessity to interfere with the judgment of the trial Court by allowing the appeal by setting aside the judgment of the trial court.

27. In the result, the criminal appeal is allowed by setting aside the calendar and judgment passed in C.C. 329/2014 on the file of III

Additional Judicial Magistrate of First Class Court, Kakinada, dt. 9-1-2018.

The appellant/Accused No.1 is found not guilty for the offence punishable under Section 420 r/w. 34 IPC and he is acquitted under

Section 248(1) Cr.P.C.

Fine amount paid by the appellant/accused No.1 shall be returned to him after expiry of appeal period.

Typed to my dictation, corrected and pronounced by me in the open Court, this the 3rd day of April, 2019.

IV ADDL. SESSIONS JUDGE

KAKINADA.

No Additional oral or documentary evidence adduced on either side.

IV A.S.J.

Kakinada. Copies to:

1. The Registrar (Judicial), Hon'ble High Court for the State of Andhra Pradesh

2. The District Judge, East Godavari, Rajahmundry.

3. The III Additional Judicial Magistrate of First Class Court, Kakinada

1

IN THE COURT OF THE VI ADDL. SESSIONS JUDGE, EAST

GODAVARI DISTRICT, KAKINADA

Present: Smt. B. Gayatri,

IV Addl. Sessions Judge, FAC VI Addl.Sessions Judge, Kakinada.

Wednesday, the 27th day of March, 2019.

Criminal Appeal No.126/2018

From which court this appeal is : IV Addl.J.F.C.Magistrate Court, Preferred Kakinada

Number of the case in that court : C.C.No.127/2015

Name and description of the : Pulavarthi Naga Venkata Appellant/Defacto complainant Subbarao, S/o Lakshmi Surya Subrahmanyam, Age 45 years, Business, D.No.33-1-30/1, Bapuji Jewellers, Show Room, Main Road, Kakinada.

Name and description of the: 1.Sayyad Mahaboob Shamsuddin Respondents Shakir @ Shakir, S/o Sayyadh Mohiddin Haji, Age 29 years, D.No.62-1-40, China Market, J.Ramaraopeta, Kakinada.

2.State: Sub-Inspector of Police, III Town L&O P.S, Kakinada, rep. by Addl.Public Prosecutor, Kakinada.

Section of law under which the : U/S.420 and 408 IPC Appellant was convicted in the lower court

Whether confirmed, reversed or Modified : Confirmed.

DATES ON WHICH:

Presentation of appeal : 03-11-2017 Filing : 03-4-2018 Hearing : 19-3-2019 Judgment : 27-3-2019

This appeal coming before me on 19-3-2019 for final hearing in the presence of Sri Y.Subrahmanyam, Advocate for Appellant and Sri Md.Azam, Advocate for 1st Respondent/Accused and Additional Public Prosecutor for the State-2nd respondent and upon perusing the material available on record and upon hearing the arguments of both sides and the matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

2

This appeal arises out of the judgment of the IV Additional

Judicial Magistrate of First Class, Kakinada in C.C.No.127/2015, dt.07-

8-2017 and the accused was charged for the offence punishable

U/Secs.420 and 408 IPC.

2.Through its judgment dated 07-8-2017 the trial court acquitted the accused under Sec.248(1) Cr.P.C. for the offences punishable under sections 420 and 408 of IPC.

3. Aggrieved thereby the appellant/defacto-complainant preferred criminal appeal 126 of 2018 on the file of this court.

4. The case of the prosecution was that P.W.1-Pulavarthy

Naga Venkata Subbarao is doing business under the name and style of

Bapuji Jewelers at Main Road, Kakinada. The accused worked as

Manager under P.W.1 and secured the gold jewels weighing about 88.550 gms/11 sov. and converted the same as his property in the year 2014, disposed of the same and spent away the same for his personal use. The accused cheated P.W.1 by misappropriating the amount and committed criminal breach of trust. Thereafter, p.W.1 presented a report to the police. On the strength of report of P.W.1, P.W.5-K.Kishore

Babu, Sub Inspector of Police, III Town L&O P.S, Kakinada registered a case in Cr.No.4/15 U/S.420 and 408 IPC and investigated into. During the course of investigation, PW.5 visited the scene of offence, seized deficiency slip from P.W.1, examined all the prosecution witnesses and recorded their statements. PW.5 arrested accused, seized Xerox copy of account paper prepared by the accused on both sides under a cover of mediators report and forwarded him to judicial custody. P.W.5 forwarded the seized document along with specimen signatures and writings of the accused and Xerox copy of the account paper on both sides prepared by the accused as admitted writings to the Handwriting

Expert, FSL, Hyderabad for comparison. The Handwriting Expert issued opinion stating that the person who wrote the red enclosed signatures and writings marked as S.1 to S.12 also wrote the red enclosed 3 signatures writing marked as “Q”. After completion of investigation, charge sheet was laid.

5. The accused pleaded not guilty to the charges under

Sections 420 and 408 of IPC when he was examined, he denied the offence charged against him.

6. The prosecution has examined P.Ws.1 to 5 and exhibited documents Exs.P1 to P10 on its behalf. After closure of the prosecution evidence, the accused was examined U/s.313 Cr.P.C. for the incriminating material in the evidence of the prosecution witnesses, for which he denied the same and reported no defence evidence, but

Ex.D1 marked.

7. The learned Magistrate on appreciation of oral and documentary evidence, found not guilty of the accused for the charges under Sections 420 and 408 of IPC and thereby acquitted the accused

U/Sec.248(1) Cr.P.C. It is that acquittal recorded that are challenged in this appeal by the defacto-complainant.

8. The learned counsel for the respondents on the other hand contended that the evidence placed by the prosecution not establishes the guilt of the accused and that there are no grounds to interfere with the acquittal recorded by the learned trial Judge and hence, the appeal is liable to be dismissed.

9. Heard both sides. Perused the material available on record.

10. The point for consideration in this appeal is:

Whether the acquittal recorded by the learned IV

Additional J.F.C. Magistrate, Kakinada can be

maintained?

11.POINT:

To prove its case, the prosecution has examined P.Ws 1 to 5.

4

12. As per the evidence of P.W.1, he is running a gold shop under the name and style of Bapuji Jewelers, Main Road, Gold Market

Center, Kakinada. He further deposed that he used to look after the gold section in his shop. He further deposed that they are in habit of verifying their accounts with regard to the gold weight every month.

He further deposed that on 01-7-2014 he verified the accounts with regard to the gold weight and found difference of 88.550 gms of gold, on that he enquired with the accused. After some time, the accused informed that he had taken gold ornaments of 88.550 gms and promised that he shall return the same within a short period and executed a list to that effect, but failed to return the same.

13.P.W.1 further deposed that the accused continued to work in his shop till November, 2014 and he used to ask the accused to return the gold ornaments. He further deposed that in the month of

November, as he pressurized the accused to produce the gold ornaments, the accused stopped to come to the shop. He further deposed that in the month of December, 2014, he came to know that the accused had started one gram gold shop at Jagannaickpur,

Kakinada. He further deposed that on one occasion, he had sent his staff demanding the accused to return the gold articles, but the accused gave arrogant reply. Later, he presented a report to III Town

L&O police.

14.During cross examination, P.W.1 admitted that to each and every gold ornament, they shall keep bar code tag and they shall scan each and every item and they shall record to which sales man the said gold ornament is entrusted with. He deposed that they shall not scan the gold item at the time of its sale but they shall sell item wise and after sale of the gold item they shall delete the same from the list. He further admitted that the scanned items list shall be present in the computer and the same shall be in his custody. The names of the 5 persons or the shop from whom they had purchased the gold articles shall not be present in the computer. Except the oral say of P.W.1, there is no proof to show that the accused was entrusted with the alleged gold ornaments. There is no documentary proof to show the total weight of gold ornaments entrusted to the accused.

15.P.Ws.2 and 3 who are the sales men deposed that on 01- 7-2014 P.W.1 was accounting the gold articles entrusted to the accused and found shortage of 88 grams, on that P.W.1 questioned the accused, then the accused represented that he shall verify the gold ornaments and handed over Ex.P2/slip to that effect, but he did not return 88 grams of gold to P.W.1 and used to postpone the same. He further deposed that P.W.1 asked the accused to come to the shop with the difference gold ornaments, but the accused did not turn up. He further deposed that the accused started one gram gold shop at

Jagannaickpur, Kakinada, later P.W.1 sent them to the shop of accused with regard to the difference gold ornaments, but the accused denied the same.

16.During cross examination, P.W.2 deposed that he cannot say the weight of the ornaments handed over to the employee in the shop of P.W.1. He further deposed that he does not know about the ornaments handed over to the accused in the previous month of the alleged incident. He further deposed that P.W.1 had not shown any document or paper to show the entrustment of gold ornaments to the accused. He further deposed that he cannot tell the tag number or weight of the difference gold ornaments.

17.In cross examination, P.W.3 deposed that he was present at the time of verifying the difference gold ornaments. He further deposed that he cannot tell specifically the description and exact weight and code of each missing gold ornaments. He further deposed that P.W.1 made a list of missing gold ornaments on the letter pad of 6 the shop of P.W.1, but P.W.1 did not put his signature on the same and the said list was present in the possession of the accused. He further deposed that in the absence of P.W.1, no one used to verify the accounts. He further deposed that he cannot tell the exact date and time when he went to the house of the accused and shop of the accused and questioned him.

18.P.W.4 who is the mediator deposed about the arrest of the accused and seizure of documents under a cover of mediators report and forwarding the accused to judicial remand. During cross examination, he deposed that he cannot tell the weight of the property seized under Ex.P3. He further deposed that the constable dictated the mediators report to L.W.7. He further deposed that at the time of drafting Ex.P3 mediators report, himself, L.W.7, the accused and constable Venkata Rao were present. He further deposed that he does not know when the signature of S.I of Police was obtained on Ex.P3. He further deposed that he cannot tell whether the document seized from the accused is an original or a Xerox copy but it is written on either side. He further deposed that the name of the scribe is not mentioned in Exs.P3 to P5. He further deposed that the details of the owner of house in which the accused was residing were not mentioned in

Ex.P4/mediators report and he does not know whether the police had examined the owner of the said house.

19.P.W.5/I.O deposed with regard to the registration of FIR, examining prosecution witnesses and recorded their statements, preparation of rough sketch, arrest of the accused and seizure of documents under a cover of mediators report.

20.During cross examination, P.W.5 deposed that during the course of investigation, P.W.1 did not hand over any document to show that he handed over the gold section to the accused. He further deposed that he has not conducted any investigation whether P.W.1 7 had not handed over any document to show that he handed over the gold section to the accused. He further deposed that P.W.1 had not handed over any document with regard to the stock or business transaction except Ex.P2. He further deposed that he has not verified the stock in the shop of P.W.1. He further deposed that he has not verified any register with regard to the misappropriation of the property in the shop of P.W.1. He further deposed that his investigation does not reveal as to for how many days, the accused worked in the shop of P.W.1 subsequent to 01-7-2014. He further deposed that P.W.2 did not state that P.W.1 sent him to the shop of accused with regard to the difference gold ornaments, when P.W.2 questioned the accused, the accused denied the same. Except the oral evidence, he has not secured any document to show that P.W.2 was working in the shop of

P.W.1 as on the date of his investigation.

21.P.W.5 further deposed that the particulars of the document seized from the accused were not mentioned in Ex.P4/mediators report. He further deposed that he has not examined the local persons near the house of the accused. He further deposed that he obtained specimen signatures of the accused in the police station. He further deposed that Ex.P9 does not disclose his signature nor the signatures of the mediators.

22.From the evidence of prosecution witnesses, they deposed contrary to each other. Further there is no evidence on record as to the entrustment of the gold ornaments to the accused. The evidence of

P.W.4 is not helpful to the case of prosecution as he is a stock mediator and Exs.P3 to P5 were fabricated for the purpose of launching this case. Furthermore, there is no document to prove that the gold ornaments were infact ever entrusted to the accused. There is no invoice, stock register, no letter of handing over, no bills etc.

Admittedly, there was no seizure of gold ornaments from the accused.

8

The prosecution has not explained the delay in registering the FIR even after lapse of six months which is fatal to the case of the prosecution.

There are number of contradictions and omissions in the evidence of prosecution witnesses.

23.Hence, the prosecution miserably failed to prove its case against the accused for the offences punishable under Sections 420 and 408 of IPC. The accused is found not guilty for the offences punishable U/Secs.420 and 408 of I.P.C.

24. The learned Magistrate appreciated the evidence on record in proper perspective manner and came to proper conclusion and rightly acquitted the accused and there are no grounds to interfere with the same. Accordingly this point is answered.

25. In the result, the criminal appeal is dismissed by confirming the calendar and judgment passed in C.C.127/2015, dt.07-08-2017 on the file of IV Additional Judicial First class Magistrate, Kakinada.

Typed to my dictation, corrected and pronounced by me in the open Court, this the 27th day of March, 2019.

Sd/- B.Gayatri

IV ADDL. SESSIONS JUDGE,

FAC VI ADDL.SESSIONS JUDGE,

KAKINADA.

No Additional oral or documentary evidence adduced on either side.

Sd/- B.Gayatri

IV ADDL. SESSIONS JUDGE,

FAC VI ADDL.SESSIONS JUDGE,

KAKINADA.

//True copy//

FAC VI A.S.J.,

Kakinada. Copies to:

1. The Registrar (Judicial), Hon'ble High Court for the State of Andhra Pradesh, at Amaravathi.

2. The District Judge, East Godavari, Rajahmundry.

3. The IV Additional Judicial Magistrate of First Class, Kakinada 9

1

IN THE COURT OF THE III ADDL. SESSIONS JUDGE, EAST

GODAVARI DISTRICT, KAKINADA

Present: Smt. B. Gayatri

IV Addl. Sessions Judge

FAC. III Addl. Sessions Judge

Monday, the 16 th day of April, 2018

CRIMINAL APPEAL Nos. 670 of 2015 and 665/2015

CRIMINAL APPEAL Nos. 670 of 2015: :IV Additional J.F.C. Magistrate Court, From which court this appeal is PreferredKakinada

Number of the case in that court:C.C.No.252/2010 : Name and description of the 1.Pendyala Satyanarayana @ Abbu, appellants S/o.Krishna, 45 years, R/o.17th ward counselor, Verraghava- puram Samalkota.

2. Nammi Ramu, S/o.Apparao, 40 years, Yadava, R/o. Veerraghava- puram, Samalkota.

3. Nammi Vasu, S/o. Sriramulu, 37 years, Yadava, R/o. Veerraghava- puram, Samalkota.

4. Gundam Lovaraju @ Lova, S/o. Srinivasu, 35 years, Kapu, R/o.D.No.11-3-17, Veerraghava- puram, Samalkota. (Accused 1,3 to 5)

Name and description of the :State: Station House Officer, Samalkota Police Station, Respondent Rep. by Additional Public Prosecutor, Kakinada (Complainant) :U/Sec. 454, 380, 427 r/w.34 IPC Section of law under which the appellants convicted in the lower court

Whether confirmed, reversed or: Reversed Modified 2

DATES ON WHICH

Presentation of appeal:28-12-2015 :30-12-2015 Filing Hearing:13-4-2018

Judgment:16-4-2018

CRIMINAL APPEAL Nos. 665 of 2015:

:IV Additional J.F.C. Magistrate Court, From which court this appeal is PreferredKakinada

Number of the case in that court:C.C.No.252/2010 :1. Kasa Satyanarayana, S/o. Ramarao, Name and description of the appellants 45years., Kapu, Municipal Asst.

Engineer, Samalkota Municipality,

Samalkota.

2. Bangaru Apparao, S/o. Pydiah, 45 years, Veerraghavapuram,

Samalkota (Accused 2 and 6)

Name and description of the :State: Station House Officer, Samalkota Police Station, Respondent Rep. by Additional Public Prosecutor, Kakinada (Complainant) :U/Sec. 454, 380, 427 r/w.34 IPC Section of law under which the appellants convicted in the lower court

Whether confirmed, reversed or: Reversed Modified

DATES ON WHICH

Presentation of appeal:23-12-2015 :28-12-2015 Filing Hearing:13-4-2018 3

Judgment:16-4-2018

These appeals coming before me on 13-4-2018 for final hearing in the presence of Ms. K. Padmini, Advocate for appellants/Accused 1 to 6 and Additional Public Prosecutor for the State- respondent and upon perusing the material available on record and upon hearing the arguments of both sides, and the matter having stood over for consideration till this day, this Court delivered the following:

C O M M O N J U D G M E N T

These appeals arise out of the judgment of the IV Additional

J.F.C. Magistrate’s Court, Kakinada in C.C.No.252/2010, dt. 9-12-2015 the Accused 1 to 6 were charged for the offence punishable U/s. 454, 380, 427 r/w.34 IPC

2. Through its judgment dated 9-12-2015 the trial court found the accused 1 to 6 guilty for the offence punishable under Sections 454, 380, 427 r/w.34 IPC and accordingly they are convicted U/sec.

248(2) Cr.P.C., and sentenced the accused Nos.1 to 6 to undergo simple imprisonment for a period of three months each and to pay a fine of Rs.

500/- each for the offence U/sec.454 IPC, in default of payment of fine the accused Nos.1 to 6 shall undergo simple imprisonment for a period of one week in addition to the actual sentence imposed. The accused Nos.1 to 6 further sentenced to undergo simple imprisonment for a period of three months each and to pay a fine of Rs. 500/- each for the offence U/sec.380

IPC, in default of payment of fine the accused Nos.1 to 6 shall undergo simple imprisonment for a period of one week in addition to the actual sentence imposed. The accused Nos.1 to 6 further sentenced to pay a fine of Rs. 1,000/- each for the offence U/sec.427 IPC, in default of payment of fine the accused Nos.1 to 6 shall undergo simple 4 imprisonment for a period of one week. All the sentences shall run concurrently. Accused Nos.1 to 6 are entitled for the set off U/sec.428 of

Cr.P.C. for the remand period they undergone already. M.Os.1 to 10 shall be returned to the P.W.1 who is owner of the property with proper identification and acknowledgment after appeal period is over.

3. Aggrieved thereby the accused 1 to 6 preferred these appeals on the file of this court.

4. The case of the prosecution is that L.W.1 Rotta

Srinivasarao is the defacto complainant and he is resident of Samalkota and working as President of B.C. Welfare Association, Samalkota. He has own thatched house located at Veerraghavapuram, Samalkota. On 3-5- 2010 he went to his mother in law's house located at Visakhapatnam. In his temporary absence i.e., on 3-5-2010 at about 2.30 p.m. the accused

No.1 to 6 criminally trespassed into the residential house of L.w.1 Rotta

Srinivasa Rao located at Veerraghavapuram, Samalkota and demolished the entire house and damaged the house hold articles and took away the house hold property due to political rivalry and the said house hold articles were kept in the store room belongs to the Municipal water supply tank at Ganapathinagaram, Samalkota as a result, L.W.1 Rotta Srinivasa

Rao sustained huge loss to a tune of Rs.2,00,000/-. L.W.2 Nalli

Ramprasad, L.w.3 Gaddey Srinivasarao, L.w.4 Mekala Sathish Kumar,

L.w.5 Gunnam Appayamma, L.w.6 Mekala Ramana are neighbours to the scene of offence and witnesses. L.W.8 Kollu Venkataramana is Advocate commissioner who seized the property and produced in the court. L.w.9

K.Laxmana Reddy, Sub-Inspector of police, Samalkota Police Station, 5 received report from L.w.1 Rotta Srinivasa Rao through the Court and registered a case in Cr.No.108/2010 U/sec. 454, 380, 427 r/w.34 of IPC of

Samalkota Police Station on 21-6-2010 at 7-30 p.m. and visited the scene of offence, inspected the same, prepared rough sketch, photographed the same and recorded the statements of witnesses.

Accused No.2 and 6 were surrendered before the Hon'ble Court of III

District Sessions Judge, Kakinada and enlarged on bail on 19-8-2010.

Accused No.1, 3, 4 and 5 were surrendered before the Hon'ble Court of

III District Sessions Judge, Kakinada and enlarged on bail on 07-09-2010.

After completion of investigation the Sub-Inspector of police filed charge sheet against the accused. Hence, the charge.

5. The accused 1 to 6 pleaded not guilty for the charge under Sections 454, 380, 427 r/w.34 IPC when they were examined by the trial court and denied the offence charged against them.

6. The prosecution had examined P.Ws.1 to 8 and exhibited documents Ex.P1 to P10 and M.Os. 1 to 10. After closure of the prosecution evidence the accused were examined U/s.313 Cr.P.C. for the incriminating material in the evidence of the prosecution witnesses, for which they denied the same and reported no defence evidence, but marked Exs. D.1 to D.3 on their behalf.

7. After full trial and hearing on both sides, the trial court convicted the Accused U/s.248(2) Cr.P.C. for the offence punishable under

Sections 454, 380, 427 r/w.34 IPC. It is that conviction recorded and the sentence inflicted that are challenged in this appeal by the accused 1 to 6.

6

8.The appellants counsel argued that the judgment of the trial court is contrary to law, weight of evidence and probabilities of the case. Hence, prays to set aside the judgment of the trial court and to acquit the accused 1 to 6.

9. The learned Additional Public Prosecutor on the other hand contended that the evidence placed by the prosecution coupled with the exhibits clearly establishes the guilt of the accused 1 to 6 and that there are no grounds to interfere with the conviction recorded by the learned trial court and hence, the appeal is liable to be dismissed.

10. Heard the Additional Public Prosecutor and the learned counsel for the appellants. Perused the grounds of appeal.

11. Now the points for determination in this appeal are:

1) Whether the conviction recorded and sentence inflicted by the learned IV Additional J.F.C. Magistrate, Kakinada can be maintained?

2) Whether the impugned Calendar and Judgment of the trial Court are liable to be set aside?

POINT Nos.1 and 2 :- 12.

In order to prove the case of the prosecution, the prosecution has examined as many as 8 witnesses and marked Exs. P.1 to P.10 and M.Os. 1 to 10.

13. By perusing the evidence of P.Ws. 1 to 3, it is to be seen that on 03-5-2010 at about 2-30 p.m. the accused No.2 and 6 had demolished the thatched hut of the P.w.1 and house old articles worth 7

Rs.1,00,000/- were kept in the store room near the water tank of

Samalkota. On that the P.W.1 had given police complaint, and as the police had not taken any action against the accused and then the P.w.1 had filed a private complaint against accused No.1 to 6. P.W.4 who is said to be eye witness turned hostile and did not support the case of the prosecution.

P.W.5 is the Advocate Commissioner who was appointed to search the warrant property i.e. Item No.1 to 10 and as per the orders of Hon'ble

Court, the P.W.5 had executed a search warrant and seized M.O.1 to 10.

P.w.6 is the photographer who took photographs at the scene of offence.

P.W.7 is the Investigating Officer who had registered the FIR in the present case and examined the prosecution witnesses and seized the property from the P.W.5. P.W.8 is the then Municipal Commissioner,

Samalkota Municipality and she deposed that she issued a NOC to P.W.1 for obtaining electricity connection to the house bearing D.No.11-3-17/1.

14. P.W.1 during his cross examination admitted that he is having another house bearing D.No. 7-2-25/1 and he is also having

Ration card, Aadhar card and paying house tax to the said house. He admitted that he is not having any ration card, aadhar card or voter card with regard to the house in which the alleged incident had taken place.

He admitted that the house pertains to Ex.P.2 is situated on the Karapa

Cheruvu Gattu (Bund). He deposed that he knows about conducting of the meetings by the Counselors with regard to the laying of the roads etc.

8

He deposed that Municipalities are having right to remove the encroachments with regard to the property of the Municipality.

15. P.W.3 during his cross examination deposed that he never came to know that A.2 and A.6 had dismantled the thatched hut as per the orders of the Municipal Authorities.

16. P.W.5 Advocate- Commissioner during his cross examination admitted that the scene of offence premises is under the control of the Municipality. He deposed that M.Os. 1 to 10 said to be seized from the scene of offence does not contain any household articles.

17. P.W.7 Investigating Officer during his cross examination admitted that the scene of offence is cheruvu gattu and the present case was filed as the Municipality had demolished the house of

P.W.1. He deposed that he had not made any efforts to obtain sanction for prosecution even though complaint was lodged against the

Government Officials. He deposed that he has not verified any material objects and not seized anything.

18. P.W.8 Municipal Commissioner during her cross examination admitted that if any individual occupies any of the public place, they can remove the encroachments. She admitted that basing on the Council Resolution and as per the office record only she had instructed the concerned to remove the encroachments.

19. From the above admissions made by the prosecution witnesses it is clear that there is no proof to show that accused 1 to 6 9 tresspassed into the house of P.W.1 and demolished the house and damaged the household articles and took away the proeprty of P.W.1.

20. Therefore, the prosecution failed to bring home the guilt of Accused 1 to 6 for the alleged offence U/s. U/Sec. 454, 380, 427 r/w. 34 IPC beyond all reasonable doubt. Therefore, there is necessity to interfere with the judgment of the trial Court by allowing the appeal by setting aside the judgment of the trial court.

21. CRIMINAL APPEAL Nos. 670 of 2015 and 665/2015:

In the result, these criminal appeals are allowed by setting aside the calendar and judgment passed in C.C. 252/2010 on the file of

IV Additional J.F.C. Magistrate’s Court, Kakinada dt. 9-12-2015. The appellants/ Accused 1 to 6 are found not guilty for the offence punishable under Sections 454, 380, 427 r/w. 34 IPC and they are acquitted under

Section 248(1) Cr.P.C.

Fine amount paid by the appellants/accused 1 to 6 herein shall be returned to them after expiry of appeal period. Property order passed by the trial court shall holds good after expiry of appeal period.

Typed to my dictation, corrected and pronounced by me in the open Court, this the 16th day of April, 2018.

IV ADDL. SESSIONS JUDGE

FAC. III ADDL. SESSIONS JUDGE

KAKINADA.

No Additional oral or documentary evidence adduced on either side.

IV A.S.J.

FAC. III A.S.J.

Kakinada.

1 0

Copies to:

1. The Registrar (Judicial), Hon'ble High Court for the State of Telangana and the State of Andhra Pradesh, Hyderabad.

2. The District Judge, East Godavari, Rajahmundry.

3. The IV Additional J.F.C. Magistrate’s Court, Kakinada