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IN THE COURT OF THE I ADDITIONAL JUDICIAL MAGISTRATE OF
FIRST CLASS :AT: MANCHERIAL
PRESENT: Sri B.RAMESH,
Principal Judl. Magistrate of First class,
Mancherial. FAC: I Addl. Judl. Magistrate of I Class, Mancherial.
Friday, this the 20th day of April, 2018
C.C.No.455/2014
Between: The State of Telangana represented by Station House Officer, Mandamarri.
...complainant
AND
Sk. Siddaiah, S/o.Hajarath, Age: 52 years, Occ: Hotel business, R/o.Near Railway gate, Mandamarri. …Accused.
This case is coming before me on 16.4.2018 for final hearing in the presence of Assistant Public Prosecutor for the State and of Sri P.Lalithaa Prasad, advocate for the accused, and having been heard and having stood over for consideration to this day, the Court delivered the following:-
:: J U D G M E N T ::
The accused/Sk. Siddaiah, the owner of Sonia Daba, Mandamarri is facing trial for the offence u/sec.290, 332, 353 IPC.
2.In brief, the prosecution version is that the informant Ponaganti
Rambabu is working as a Junior Lineman in Electricity Department. As per his superiors instructions, on 29-11-2014 at about 9.00 a.m. or so he along with other staff i.e., LW2/Budige Kotesh (Assistant Lineman),
LW3/Challa Sadanandam (contract worker at NPDCL), LW4/Gampala
Raghu (Helper in NPDCL) had been to Sonia Daba, which was owned by the accused/Sk. Siddaiah for collection due electricity bill, but Accused has failed to pay the same, hence disconnected. Later on the said
Siddaiah has paid the outstanding electricity dues and met the 2 informant near Kalanjali Motors of Mandamarri and stopped his way and abused him by saying “current bill kattanura lanjakoduka, badukav” and on saying so, he pushed the informant aside. The accused further abused the informant by saying “ even if you inform the matter to Assistant Engineer, Assistant Divisional Engineer and
Divisional Engineer of Electricity Department, no one can do anything”.
This incident was witnessed by LW3/Sadanandam, LW4/Gampala
Raghu, LW5/Konaganti Anwesh, the supervisor of Kalanjali motor bikes showroom, Mandamarri and one Sandeep/LW6. The accused by doing so, committed the offence of causing obstruction in discharging his official duty. Thereby on the next day at about 4.00 p.m., he has filed a report with the police. After receiving the report, LW9/N.Rajender, the then Sub Inspector of Police, Mandamarri has registered the present case in Cr.No.170/2014 for the offence u/sec.290 and 353 IPC and issued FIR. During the course of investigation, the statements of
LW1/PonagantiRambabu,LW2/BudigeKotesh,LW3/Challa
Sadanandam, LW4/Gampala Raghu, LW5/Konaganti Anwesh were recorded, and the statement of LW6/Md. Feroz Khan, who deputed
LW1/Rambabu for collection of electricity dues was also examined.
Further, crime details was also drawn in the presence of LW7/Dayaneni
Sagar and LW8/Nandi Kishan. On 3-12-2014 at about 11.30 a.m., the accused came to the Police Station and confessed the offence, accordingly he was arrested and released on bail, later the police have filed the charge sheet.
3.The charge sheet filed by the police was taken cognizance by the court for the offence u/secs.290, 332, 353 IPC against the accused and issued summons to him.
4.On service of summons, accused appeared before the court, and he was furnished with the copies of documents as required u/sec.207 3 Cr.P.C. After hearing both sides, accused was examined u/sec.239
Cr.P.C., the charges for the offence u/secs.290, 332, 353 IPC against the accused were framed, read over and explained to him in vernacular and he pleaded not guilty and claimed to be tried, hence trial proceeded.
5.In order to bring home the guilt of the accused, the prosecution has examined the informant Ponaganti Rambabu as PW1, through him
Ex.P1/report was marked. The prosecution also examined eye witnesses to the incident i.e., Budige Kotesh as PW2, Gampala Raghu as PW3, through PW3 Ex.P2/sec.161 Cr.P.C statement was marked,
Ch.Sadanandam as PW4, the panch witness for crime details form
Nandi Kishan as PW5, through PW5 Ex.P3 crime details form was marked, and the Investigating Officer as PW6, through him Ex.P4/FIR was marked.
6.After closure of prosecution evidence, the incriminating circumstances appearing against the accused were brought to his knowledge U/s.313 Cr.P.C., he denied such circumstances and reported no defence evidence.
7.Heard both sides and perused the record.
8.The learned Assistant Public Prosecutor appearing for the State has submitted that the prosecution is able to prove the guilt of the accused with the help of evidence of PW1 and PW2, which is corroborated by PW4 to PW6. According to the learned Assistant Public
Prosecutor, even the evidence of PW3 hostile in nature, which is not fatal to the case of prosecution, since the involvement of accused is sufficiently established by the evidence of PW1, PW2, PW4 to PW6.
Hence, the accused is liable for conviction.
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9.Interalia, the learned counsel for the accused has submitted that there is no reference in Ex.P1 about the date of incident, even assumed that the incident was occurred on 29-11-2014 at about 4.40 p.m., the report was lodged on 30-11-2014 at 4.00 p.m., thereby there is unexplained delay of 24 hours in reporting the matter to the police, hence, the prosecution evidence must be rejected. The learned defence counsel also submitted that the evidence of PW1 to PW4 never says about they were discharging official duty, further the accused obstructed their official duties. The evidence of PW1 shows as if the incident was occurred on 30-11-2014, thereby there is no corroboration with regard to the date of incident, whereas the evidence of PW2 shows the incident occurred on 29-11-2014 and no document is filed to show that the service connection released infavour of Sonia Dhaba, to quantity of electricity dues payable to the Electricity Department. It is incumbent duty of the prosecution to prove that the accused being the
Proprietor of Sonia Daba, has fell due to the Electricity Department, thereby the Electricity Department has disconnected the service connection of Sonia Daba and after paying the same, the accused committed the offence. As per the evidence of PW1, they have waited till afternoon hours for collecting of payment, since the accused has failed to clear the dues, they have disconnected the service connection. But such vital aspect is not mentioned in Ex.P1 report. The learned defence counsel also submitted that the examination of LW- 6/Feroz Khan, who assigned duties to PW1 to collect the outstanding dues of defaulters is important, but he was not examined before the court. Since the incident dated 29-11-2014 occurred near Kalanjali
Motors of Mandamarri, the presence of eye witnesses is highly doubtful, further the prosecution has not examined even single independent witness including LW5/Anwesh, thereby the evidence of 5 PW1 and PW2 cannot be taken into consideration. With these grounds the learned defence counsel prayed to acquit the acucused.
10.After hearing both sides and perusal of record the following points arose for determination:
1. Whether the prosecution could able to prove the guilt of the accused for the offence u/secs.290, 332, 353 IPC beyond reasonable doubt?
2. To what result?
11.The evidence of PW1/Ponaganti Rambabu reads as:
In the year 2014 he was working as Junior Lineman in Electricity
Department. He knew his colleagues i.e., LW2/Kotesh,
LW3/Sadanandam and LW4/Raghu. He also knew LW5/Anwesh, so also the accused, who is running Sonia Daba at Mandamarri. On 30- 11-2014 at about 1.30 p.m., on the instructions of LW6/Feroz Khan,
Additional Assistant Engineer (Operations), PW1 along with PW2 have
visited Sonia Daba for collection of electricity dues. As per the request of the accused, they waited till afternoon hours for collecting the due amount, since the accused has failed to clear the dues, they have disconnected his service connection. On the same day in the evening hours the accused has repaid the due amount. Later the accused met him near Kalanjali showroom, Mandamarri and abused him by saying “Lanjakoduka, Badkav etc.,” and questioned PW1 for disconnecting his service connection and pushed him aside, thereby he fell on the ground. The incident was witnessed by PW4/Sadanandam and
LW5/Anwesh. Later on the same day he has filed Ex.P1/report before the police. In the cross examination of PW1 it is clarified that the incident occurred on 29-11-2014. On 29-11-2014 PW1 was ordered to disconnect the service connection of defaulters, accordingly he visited them. PW1 testified that he is unable to recollect whether in Ex.P1 6 there is a specific reference about time of visiting Sonia Daba or not. At the time of visiting Sonia Daba, accused was not present, as such he has waited till afternoon hours for collecting due amount. PW1 admitted that he has failed to state before the police that due to pushing of accused, he fell down. As per normal procedure from 9.00 a.m. to 4.00 p.m., PW1 and others would be on rounds by disconnecting the defaulters connections, later they will return to the office and after taking information from the official concern about payment, if any, made by the defaulters, they would reconnect the service connection on the same day evening hours. It was denied by the witness that the electricity department officials were in the habit of taking free meals at Sonia Daba, when the accused demanded for the money, the present case is filed against the accused though the accused never committed the offence.
12.The evidence of PW2/B.Kotesh goes to show that he is working as
Lineman in Electricity Department. On 29-11-2014 on the instructions of LW6/Mohd. Feroz Khan, he and PW1 have visited the Sonia Daba,
Mandamarri for collecting electricity due amount. As per the request of the accused, they waited till afternoon hours, but the accused has failed to clear the dues, thereby they disconnected the service connection of Sonia Daba. On the same day evening hours, the accused has cleared the dues, accordingly on the instructions of superiors, PW1 was going to Sonia Daba for reconnection, however when he reached near Kalanjali motors, Mandamarri the accused said to have met PW1 and abused PW1 and pushed him aside. At the time of incident he/PW2 was not present and through PW1 he came to know about the incident. In the cross examination of PW2, it was elicited that
PW2 was entered into Government Service in the year 2003 and in the year 2014 he was working as Assistant Lineman. One of his official 7 functions is collecting dues from the defaulters and there are no specific working hours. The Assistant Engineer of Electricity, Mandmarri is his controlling officer. As per the list given by Assistant Electrical
Engineer, they have visited the Sonia Daba, however he is unable to say the details of the orders given by Assistant Electrical Engineer. It is also admitted by PW2 that they have not given the written orders issued by LW6/Md. Feroz Khan to the police. PW2 is unable to give the quantum of due payable by Sonia Daba. As per PW2, whenever payment amount is more than Rs.500/-, they go for disconnection.
They started disconnection by 9.00 a.m. and finished by 1.00 pm. PW2 is unable to give the details of disconnection of service connection of
Sonia Daba on 29-11-2014. PW2 admitted that by the time of disconnection of power supply to Sonia Daba, accused was not present. They have disconnected the power supply at the meter of
Sonia Daba. Unless clearing the dues, they will not reconnect the service connection of the customer concern. Sonia Daba is a famous
Daba. They might have taken meals at Sonia Daba. PW2 denied the suggestion that they are in the habit of taking free meals at Sonia
Daba, when the accused demanded for money, they have filed the present case. PW2 admitted that he never stated before the police that at the instance of accused they waited till afternoon, later the accused failed to clear the dues, thus they have disconnected the power supply.
13.The evidence of PW3/G.Raghu/helper in Electricity Department shows that he never worked as Helper in Electricity Department. He knew PW1, who was working as Junior Lineman in Electricity
Department and he was attending electrical work at the request of
PW1. Few years back, while he and PW1 were at Kalanjali showroom,
Old Mandamarri, one Siddaiah came to PW1 and obstructed his official 8 duty, however PW3 failed to identify the accused though he was present in the court hall. There was a quarrel between Siddaiah and
PW1 in connection with a dispute when PW1 disconnected the electricity connection of Siddaiah. PW3 treated as hostile and cross examined by the learned Assistant Public Prosecutor, but nothing is elicited. More surprisingly suggestions were given to PW3 by the accused disputing his presence at the time of incident, which was denied by PW3.
14.The evidence of PW4/Ch.Sadanandam goes to shows that he is outsourcing employee of NPDCL and he knew PW1 to PW3. On 29- 11-2014 in the evening hours when he was at Kalanjali Motor Servicing
Centre, Old Bus stand, Mandamarri he saw a quarrel between the accused and PW1 and accused raised quarrel with PW1 by saying how dare to disconnect his electricity connection, further abused PW1 by saying "lanjakoduka naa current cut chestava" and pushed PW1 aside.
In the cross examination, it was elicited that PW4 has not observed anything in the hands of accused and the place of offence is a busy locality and separated by a divider, further a National Highway passing through the place of offence. PW4 admitted that at the time of incident, he gave his two wheelers for servicing in Kalanjali motor servicing centre. However he denied the suggestion that at the time of incident, he was inside the Kalanjali motor servicing centre, as such he was unable to see what was happening on the road. According to PW4, he was present at 100 meters distance from the place of offence and he admitted that he is unable to recollect, whether he gave the details of the motorcycle in sec.161(3) Cr.P.C. statement. PW4 denied the suggestion that since he has not witnessed the incident and as PW1 is his colleague, deposing false.
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15.The evidence of PW5/N.Kishan, panch for Crime Details Form shows that in the year 2014, he was working as Sub-Station operator at Deepaknagar, Mandamarri. One day prior to the date of panchanama, he and PW4 had been to Kalanjali Motors to attend some repairs of two wheeler of PW4, while they were attending such repairs there was an incident between PW1 and accused, wherein the accused abused PW1, since PW1 disconnected the service connection of accused. In this regard, on the next day of the incident i.e., on 30-11-2014 the police have conducted panchanama in his presence vide Ex.P3. In the cross examination, it was elicited that on 30-11-2014, the police called him from his house. PW5 was unable to recollect whether he has signed on the panchanama, however he might have signed 2 to 4 signatures. According to PW5, the police never issued him a written summon seeking his presence. PW5 has admitted that he is unable to give the exact time of drawing of panchanama.
16.The evidence of PW6/Investigating Officer shows that on 30-11-2014 at about 4.00 p.m, PW1 came to the Police Station and lodged a Telugu written report, basing on the contents of the report, he has registered a case in Cr.No.1702014 for the offence u/sec.290, 353
IPC and issued FIR vide Ex.P4. Later recorded the statements of material witnesses and drawn panchanama in the presence of PW5 and
LW7/Sagar. On 3-12-2014 the accused surrendered before him, later he was arrested and released on bail, thereafter he has filed charge sheet.
In the cross examination of PW6, it was elicited that as per the investigation, the offence taken place in the evening hours on 29-11-2014, however it was reported to him at 4.00 p.m. on 30-11-2014. It is also elicited that the distance between the scene of offence and Police Station is about 2 Kms. PW6 never enquired with 10 PW1 about one day delay in filing report. PW6 admitted that in Ex.P1, the date of incident is not mentioned except the time at 4.40 p.m. PW6 admitted that he has not collected the record showing the accused/Siddaiah is service holder of Electricity Connection No.8370 of
Sonia Daba, further the said consumer has fell due to the department concern. PW6 also admitted that Kalanjali showroom, Mandamarri is situated on main road leading from Mandamarri to Mancherial and width of road is about 100 feets. PW6 was unable to say how many employees are working Kalanjali Motors and he is unable to say whether towards back side of Kalanjali motors, its work shop is situated. PW6 admitted that though the name of one Sandeep is mentioned in Ex.P1 as an eye witness, but he has not cited him as a prosecution witness, however the copy of sec.161 Cr.P.C. statement of
Sandeep was furnished to the accused u/sec.207 Cr.P.C. PW6 admitted that PW1 never stated before him that at the request of accused, they waited till afternoon hours of 29-11-2014 to clear electricity dues amount. It is also admitted by PW6 that PW1 failed to state before him in specific words that due to pushing of accused PW1 fell on the ground, however PW1 stated that he was pushed by the accused.
According to PW6, PW2 is not an eye witness to the incident. PW6 also admitted that no investigation is carried out to say the quantum of due amount payable to the electricity department by Sonia Dhaba. An admission came on record to the effect that as per the investigation
PW1 was passing through Kalanjali motors so as to reconnect the electricity connection of customers, who had cleared the dues, in the mid way the accused stopped him. According to PW6, his investigation did not transpire that the electricity department personnel were in the habit of visiting Sonia Daba on every day for taking free meals and when the accused demanded them for payment, the present case is filed against the accused. According to PW6, all the 11 witnesses PW1 to PW4 are working in Electricity Department. PW6 admitted that except Anwesh/LW5 he has not recorded the statements of any employees of Kalanjali showroom. According to PW6, PW3 and
LW-7/Sagar are not residents of locality of Kalanjali motors and he has not mentioned the house number of Kalanjali Motors in Ex.P1. PW6 was unable to say whether after commission of offence PW1 discharged his duties or not. It is denied by the witness that the contents of Ex.P1 even if taken on it’s face value, no offence is made u/sec.290, 353, 332 IPC against the accused.
17.POINT No.1:In short the prosecution version is that on 29-11-2014 on the instructions of LW6/Md. Feroz Khan, PW1 and PW2 had been to Sonia Daba of Mandamarri town, who is having service connection No.8370 and till afternoon they have given time to the accused for clearing electricity bill due amount, since the accused being Proprietor of Sonia Daba was unable to clear the dues, accordingly it was disconnected. Thereafter, in the evening hours when the accused has cleared the due amount, when PW1 was going to
Sonia Daba for reconnecting electricity connection, on the way when he reached near Kalanjali motors, the accused met PW1 and pushed him by abusing him as “Current bill kattanura Lanjakoduka Bhadkav” and obstructed in discharging his official duty, it was witnessed by PW3 and PW4 and LW5/Anwesh a Supervisor of Kalanjali motors,
Mandamarri. In order to prove its case the prosecution has examined the informant as PW1, eye witnesses as PW2 to PW4, panch for Crime
Details Forms as PW5 and Investigating Officer as PW6.
18The case of accused is total denial. According to him, there is no mention of date of offence in Ex.P1/report, further PW1 never stated that accused obstructed his official duty and there are variations in the 12 oral evidence of PW1 to PW4 and the witnesses examined by the prosecution are belongs to electricity department and no independent witness is examined, though the alleged offence dated 29-11-2014 at about 4.40 pm. taken place near Kalanjali motors, a public place, thereby the prosecution is unable to prove its case, which entitles the accused for an acquittal.
19.Since the accused is charged for the offence u/sec.290 IPC, the prosecution has to prove that the accused caused public nuisance.
Further the accused is charged for the offence u/sec.353, 332 IPC, to prove the charge the prosecution has to prove that the victim as a public servant, further while victim was discharging his official duty the accused has obstructed and further applied criminal force and caused hurt.
20.For the clarity sake, the evidence of prosecution has to be discussed in two parts, i.e., first part which took place at Sonia Daba of accused. It is admitted fact that the accused is the owner of Sonia
Dhaba at Mandamarri. In the examination u/sec.313 Cr.P.C. the accused has admitted that he is the owner of Sonia Dhaba,
Mandamarri. As per the evidence of PW1 and PW2, on 29-11-2014 in the morning hours they had been to Sonia Dhaba for collecting
Electricity bill due amount from the accused, who is owner of Sonia
Daba. Admittedly it is the case of the prosecution that on the instructions given by LW6/Md. Feroz Khan, Additional Assistant
Engineer (Operations), they had visited the Sonia Daba on 29-11-2014, but PW1 and PW2 though cross examined, are unable to give the total due amount payable by the accused, further any list was with them to show the default amount payable by Sonia Daba, further no document is filed in the court to show the exact amount of due 13 payable by Sonia Daba. In the cross examination of PW1 and PW2, it is elicited that whenever due amount is more than Rs.500/-, the authorities will normally go for disconnection. In the evidence PW1 and PW2, they have stated that in the early morning hours of 29-11-2014 they visited Sonia Dhaba, Mandamarri for collection of electricity due amount and at the instance of the accused they waited till afternoon hours, but the accused failed to pay the same, they disconnected the service connection in the afternoon hours. PW1 and
PW2 have successfully contradicted in their cross examination that they omitted to state before the Investigating Officer/PW6 that at the instance of accused they have waited till afternoon hours for disconnection and in the afternoon hours they have disconnected the service connection of Sonia Dhaba, Mandamarri.
21.The sole defence of accused is that the officials of electricity department were in the habit of taking free meals at Sonia Daba,
Mandamarri, when the accused used to demand them for money, they have falsely implicated him in this case. Similar suggestion was given to all the electricity department officials, however they denied the same. PW2 stated that at some times the electricity department people were visiting Sonia Dhaba for taking meals, however PW2 denied that the electricity department people were in the habit of taking free meals in Sonia Daba. No incident occurred at Sonia Daba till afternoon hours on 29-11-2014, but it has prompted the incident which occurred near Kalanjali motors, thereby the visit of PW1 and PW2 to
Sonia Daba in the morning hours of 29-11-2014 has to be taken into consideration as, a motive for committing the offence at 4.40 p.m. of 29-11-2014. The cross examination of PW1 and PW2 is concentrated on the aspect of their time of reaching and the presence of the accused at the spot, further the omission of PW1 and PW2 to state before PW6 14 that at the instance of accused they have waited till 1.30 p.m. All these aspects goes to show that though the accused has disputed the prosecution case, but it has established that on 29-11-2014
PW1 and PW2 never visited Sonia Daba in connection with collection of due amounts of service connection. Here the evidence of PW1 and
PW2 has to be appreciated in the back drop of section 114(e) of Indian
Evidence Act, which read as all the judicial and official acts have been regularly performed. It is not the case of the accused that PW1 and
PW2 are not in cordial terms with the accused, further they are in inimical terms. The sole defence of accused is that the electricity department officials used to take free meals at Sonia Dhaba, when
Accuseddemanded for money, the incident occurred, but the same is denied by the witnesses. Since the cross examination of PW1 and PW2 is silent with regard to any hostile or inimical relationship between accused and PW1, PW2, thereby it appears that there is no force in the arguments advanced by the learned defence counsel to the effect that the officials of electricity department were in the habit of taking free meals in Sonia Daba and on the demand of accused to pay the money, the accused is implicated in this case.
22.Coming to the second aspect of incident which occurred at 4.40 p.m. on 29-11-2014 at Kalanjali Showroom, Mandamarri. In Ex.P1 it is mentioned that when PW1 reached to Kalanjali motors, Mandamarri at about 4.40 p.m., the accused stopped the motorcycle of PW1 and abused him in filthylanguage as “current bill kattanura lanjakoduka, badukav”. The evidence of PW1 more particularly who is victim of the case is silent with regard to whether the accused has obstructed PW1 in discharging of his official duty, but the evidence of PW1 shows that on the same day of incident, the accused has paid the due amount, later he stopped him at Kalanjali motors, Mandamarri and abused him 15 by saying “current bill kattanura lanjakoduka, badukav” and questioned him for disconnecting service connection and pushed him aside, thereby he fell down on the ground. The assertions mentioned in
Ex.P1 to the effect that the accused abused him as “current bill kattanura lanjakoduka, badukav”, are supported by PW1, as his oral evidence reveals the same. Even one of the eye witness i.e., PW4 whose presence is stand proved by the accused. The evidence of PW4 to the effect that the accused abused PW1 as "lanjakoduka naa currenet cut chestava". Thereby it appears there was quarrel between the accused and PW1, wherein the accused has used some abusive words in view of disconnection of service connection of Sonia Dhaba,
Mandamarri. The learned defence counsel has successfully contradicted the evidence of PW1 to the effect that he omitted to state
before the police that in view of pushing of accused PW1 fell down on
the ground. In Ex.P1 it is only mentioned that after abusing PW1, further the accused pushed PW1 aside. It is also spoken by PW4. The
Investigating Officer/PW6 also cross examined in this regard, wherein he admitted that PW1 omitted to state before him that due to pushing of accused, PW1 fell on the ground. The evidence of prosecution witnesses is resisted on the ground that no document is filed to show that PW1 was discharging official duty at 4.40 p.m. on 29-11-2014. It is true that except the oral assertions of PW1 to PW4, no document, whatsoever is filed in the court to show that the accused committed the offence and obstructed official duty of PW1. Even the evidence of
PW1 is silent in this regard. The evidence of PW1 speaks that on the same day of incident, the accused has paid due amount, later he met
PW1 and used abusive words. PW1 never testified that at 4.40 p.m of 29-11-2014 he was on official duty, but PW2, who is not eye witness to the incident which occurred at Kalanjali motors testified that on the same day of the incident the accused has cleared the due amount, 16 accordingly on the instructions of the superiors, PW1 was going to
Sonia Dhaba, Mandamarri for reconnect service connection, however when PW1 reached Kalanjali motors, the accused said to have met
PW1 and abused him as to why he has disconnected electricity connection and pushed him aside. PW2 fairly admitted that he was not present at the time of incident occurred at Kalanjali motors and he was informed by PW1 himself. Therefore, the assertion that in the evening hours on 29-4-2014 on the instructions of superiors PW1 was going to
Sonia Daba to reconnect the electricity connection to Sonia Daba cannot be accepted, since PW1 omitted to testify in this regard. Further there is no such reference given in Ex.P1. Therefore, the assertion of
PW2 that at the time of incident PW1 was going to Sonia Daba cannot be accepted. The incident occurred at Kalanjali motors is witnessed by
PW3 and PW4. PW3 though not supported the case of prosecution in all aspects, but the same can be considered for limited purpose that there was a quarrel between PW1 and one culprit by name Siddaiah. PW3 has failed to identify the accused/Siddaiah though he was present in the court hall on that day. Therefore, PW3 was treated as hostile. In the cross examination of PW3, some suggestions were given to him, wherein the presence of PW3 was denied. The first suggestion given in the cross examination of PW3 is about disputing the presence of PW3 at the spot. The second suggestion was with regard to at the instance of his superiors, PW3 is deposing false. The cross examination of PW3 can be appreciated in the back drop of sec.154(2) of Evidence Act, which says though a witness is declared as hostile, his part of evidence can be taken into consideration, either for the prosecution or for the defence. Therefore, the evidence of PW3 has to be taken into consideration for the limited extent of the quarrel between PW1 and another at Kalanjali Motors of Mandamarri in the evening hours on 29- 11-2014, wherein PW1 was pushed aside.
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23.The star witness to unfold the case of prosecution is PW4,an outsourcing employee of NPDCL. According to PW4, on the day of incident, in the evening hours, PW4 was at Kalanjali motor’s servicing center at Mandamarri and he saw a quarrel between PW1 and accused, wherein the accused stated how dare to disconnect his electricity connection, further abused PW1 by saying “lanjakoduka naa current cut chestava” and pushed PW1 aside. In the cross examination, it was elicited that PW4 never observed anything in the hands of the accused and the place of offence is a busy locality and separated by divider. A fatal admission came in the cross examination of PW4 to the effect that “It is true at the time of incident I gave my two wheeler for servicing in
Kalanjali motor servicing centre.” PW4 denied the suggestion that at the time of incident he was inside Kalanjali motor servicing center, as such he was not in a position to see what was happening in front of
Kalanjali motors. Here Crime Details Form/Ex.P3 and rough sketch prepared by the police assumes importance. One of the mediators of
Crime Details Form was examined as PW5. According to PW5, he and
PW4 came to Kalanjali Motors for attending service work of two wheeler of PW4 and saw there was a quarrel between PW1 and accused. In this connection, on the next day morning a panchanama was drawn by the police. As per the evidence of PW5, a panchanama was drawn in the morning hours of 30-11-2014, the same is not in tune with the prosecution case, since the report itself is filed with the police on the evening hours of 30-11-2014. As per panchanama drawn by
PW6, it was commenced at 4.30 p.m. on 30-11-2014, thereby drawing of panchanama in the morning hours on 30-11-2014 cannot be considered. But the rough sketch which was annexed to Ex.P3 shows that the place of offence is situated immediately in front of Kalanjali
Motors, Mandamarri and the rough sketch is also shows the 18 motorcycles in the Kalanjali Motors and the National Highway road is divided. In the cross examination of PW6 it was suggested that
Kalanjali motors and Kalanjali servicing center are situated in two different places. One has to cross the Kalanjali motors to reach
Kalanjali servicing center, but Ex.P3 is silent with regard to such separate construction of Kalanjali servicing center. The rough sketch annexed to Ex.P3 evidencing the location only as Kalanjali motors,
Mandamarri and there is no separation between Kalanjali motors and
Kalanjali servicing center. The evidence let in by the prosecution can be accepted for a limited extent of presence of accused at the spot on 29-11-2014, further he has questioned the authority of PW1 in disconnecting the service connection of Sonia Daba, further pushed
PW1 aside, which is stand proved by the oral evidence of PW1 and PW3 and corroborated by PW3 and PW5.
24.The another round of argument advanced by the learned defence counsel that since all the witnesses examined by the prosecution i.e.,
PW1 to PW5 are belongs to Electricity Department, as such their evidence cannot be believable, since they are interested witnesses. In the cross examination, it was elicited by PW6 that in Ex.P1 report the names of eye witnesses are mentioned as LW5/Anwesh and one
Sandeep, however the name of said Sandeep is not cited as prosecution witness. In the cross examination of Investigating
Officer/PW6, it was elicited that a copy of statement of Sandeep recorded by the police u/sec.161 Cr.P.C. was furnished to the accused u/sec.207 Cr.P.C., but he has not cited as prosecution witness, that does not make difference in the prosecution case, since it is for the prosecution to examine the witnesses and none can compel the prosecution to examine a particular prosecution witness or cite a particular person as prosecution witness. When the presence of 19 accused at the spot and abusing PW1 by saying “Lanjakoduka bhadkav etc.,” is found place in Ex.P1 report and spoken by PW1 and eye witness PW4, the non-citing of Sandeep or non-examining him as prosecution witness is not much material. The learned defence counsel also argued that the eye witness LW5/Anwesh is not examined before the court to prove the incident. Admittedly the said Anwesh is working as Supervisor in Kalanjali motors, he was shown as LW5/Anwesh, but the reasons best known to the prosecution, he could not examined as prosecution witness. In view of the foregoing discussion, since PW1 is a public servant and nothing is elicited in the cross examination of PW1 to PW4 that any one of them are in hostile terms or not in cordial terms with the accused for falsely implicating the accused in this case.
Therefore, either non-examination of LW5/Anwesh or non-citing of
Sandeep as prosecution witness is no way detrimental to the case of the prosecution.
25.The learned defence counsel submitted that in Ex.P1 report there is no reference as to on what day, month and year the incident was occurred. Admittedly on whole reading of Ex.P1 nothing is mentioned about the date of offence except the time as 4.40 p.m., but in the cross examination of PW1 it was clarified that the incident was taken place on 29-11-2014 and the report was lodged on the next day of the incident. Even the statements of material witnesses recorded by PW6 u/sec.161 Cr.P.C. is also reveals the date of commission of offence on 29-11-2014. Mere non-mentioning of date of offence in Ex.P1 is not fatal to the case of prosecution, since the FIR is not encyclopedia of entire prosecution case. On whole reading of evidence of PW1 to PW6 and Ex.P1 to P4 one can come to a definite conclusion that the incident occurred on 29-4-2014 at 4.40 p.m. at Kalanjali motors, Mandamarry.
The above discussion leads to conclude that since the victim has never 20 stated that the accused has obstructed in discharging official duty, thereby all the ingredients u/sec.353 and 332 IPC is not established by the prosecution, but the prosecution is able to establish that on 29-11-2014 at 4.40 p.m., the accused abused PW1 in filthy language by saying “Lanjakoduka Bhadkav etc.,” and pushed him aside thereby the offence u/sec.290 IPC is made out.
26.Now it has to be considered whether pushing of PW1 by the accused is amounts any offence or not. On careful reading of sec.349 and 350 IPC, one can come to a definite conclusion that the accused has applied criminal force without knowledge and consent of PW1.
Therefore, he has committed the offence of assault or criminal force otherwise than on grave provocation which is punishable u/sec.352
IPC. Now it has to be considered whether the accused can be convicted for that charge u/sec.352 IPC, even though he was not specifically charged. On close reading of essential ingredients of sec.332 and 353
IPC, one of ingredient is applying the criminal force to an ordinary person otherwise than on grave provocation without knowledge of the victim would attracts u/sec.352 IPC, wherein such criminal force was applied to a public servant, while discharging official duties, then aggravated form i.e. sec.352 or 332 IPC would come into play.
Therefore, even if the assertion of PW1 that due to pushing of accused he fell down on the ground, is excluded from consideration, the remaining aspect i.e., the accused has applied criminal force to PW1 without his consent and knowledge has to be taken into consideration, if does so, it attracts a minor offence u/sec.352 IPC, for which no specific charge required and further by taking aid of sec.222 Cr.P.C., the accused can be convicted for the offence u/sec.352 IPC, even though he is not specifically charged. Thereby the point No.1 is accordingly answered.
21
27.POINT No.2:
In the result, accused is found not guilty for the offence u/secs.332, 353 IPC, accordingly he is acquitted for the same u/sec.248(1) Cr.P.C. At the same time the accused is found guilty for the offence u/sec.290 and 352 IPC, accordingly he is convicted u/sec.248(2) Cr.P.C.
Dictated to the Stenographer, transcribed by him, corrected and
pronounced by me in the open Court on this the 20th day of April,
2018.
Prl. Judl. Magistrate of First Class, Mancherial. FAC: I Addl. Judl. Magistrate of I Class, Mancherial.
The accused is heard on the quantum of sentence proposed to be imposed on him, for which the accused pleaded mercy by saying that he is having old aged parents and minor children and he is not previously convicted person, thereby he prayed the court to impose fine and he may be released on bail.
Whereas the learned In-charge Assistant Public Prosecutor has prayed for maximum sentence.
Since the accused is convicted for the offence u/sec.290 IPC, which is punishable with fine of Rs.200/-, whereas the offence u/sec.352 IPC is punishable with imprisonment which extend to three months or with fine which may extend to Rs.500/- or with both. In view of the submissions of accused, since the offence is taken place more than 3 years back and during this period the accused is regularly attending the court and taking severity of the offence proved against the accused and the submissions made by the accused, he is not entitle for benefit U/s 360 CrPC or probation of offender’s act, however this court is of the considered opinion that sentencing of accused to 22 imprisonment is not justifiable, by imposing fine would meet the ends of justice:
In the result, the accused is found not guilty for the offence u/secs.332, 353 IPC, accordingly he is acquitted for the same u/sec.248(1) Cr.P.C. The accused is found guilty for the offence u/sec.290 & 352 IPC, accordingly he is convicted u/sec.248(2) Cr.P.C.
Hence, the accused is sentenced to pay a fine of Rs.200/- (Rupees two hundred only) for the offence u/sec.290 IPC, further the accused is sentenced to pay a fine of Rs.500/- (Rupees five hundred only) for the offence u/sec.352 IPC [Total fine of Rs.700/- (Rupees seven hundred only)]. On failure of payment of fine, the accused is sentenced to undergo Simple Imprisonment for a term of 7+15 days. Out of payment of fine amount, the amount of Rs.500/- (Rupees five hundred only) payable to PW1/Ponaganti Rambabu towards compensation u/sec.357(1) Cr.P.C. The bail bonds of accused be in force for 6 months from today. No property as to order.
Dictated to the Stenographer, transcribed by him, corrected and
pronounced by me in the open Court on this the 20th day of April,
2018.
Prl. Judl. Magistrate of First Class, Mancherial. FAC: I Addl. Judl. Magistrate of I Class, Mancherial.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR THE COMPLAINANT:FOR THE DEFENCE:
PW-1 : Ponaganti Rambabu None. PW-2 : Budige Kotesh PW-3 : Gampala Raghu PW-4 : Ch.Sadanandam PW-5 : Nandi Kishan PW-6 : N.Rajender/Investigating Officer
EXHIBITS MARKED
23 FOR THE PROSECUTION:
Ex.P1 : Report, dated 30-11-2014. -Nil- Ex.P2 : Sec.161 Cr.P.C. statement of PW3, dated 30-11-2014. Ex.P3 : Crime Details Form, dated 30-11-2014. Ex.P4 : First Information Report, dated 30-11-2014.
M.Os Marked
Nil.
Prl. Judl. Magistrate of First Class, Mancherial. FAC: I Addl. Judl. Magistrate of I Class, Mancherial.