Ch.sunandamma

1

IN THE COURT OF THE II ADDL.JUDL.MAGISTRATE OF I CLASS: KOTHAGUDEM.

Turesday, this the 19th day of May, 2 0 1 5.

Present: Smt.Ch. Sunandamma,B.Sc.,LL.B., II Addl. Judl. Magistrate of I Class, Kothagudem.

C.C.No.574 of 2013

Between: The State through Sub Inspector of Police, P.S.Paloncha Town. (Cr.No.473 of 2013) …Complainant

And

A1.Phirangi Srinivasa Rao, S/o.Thirupathaiah, age.32 years, Coolie, SC-Mala, R/o.Pullaigudem of Paloncha Mandal. A2.Kocharla Prabhakar, S/o.Veeraswamy, 45 years, Coolie, SC-Mala, R/o.Srinivasa Colony, Paloncha. A3.Kocharla Vijay Kumar, S/o.Prabhakar, 23 years, Coolie, SC-Mala, R/o.Srinivasa Colony, Paloncha. A4.Yenna Dilip, S/o.Srinu, 19 years, Auto driver of AP20 TB 4683, SC-Mala, R/o.Srinivasa Colony, Paloncha.

...Accused

@@@

This case coming before me for final hearing in the presence of Learned APP for the State and of Sri G. Kanthaiah, Counsel for the accused and upon perusing the material papers on record, on hearing both sides and having stood over for consideration, till this day, the court delivered the following:

::J U D G M E N T::

1.This is a case of criminal force to deter public servant from discharge of duties with criminal intimidation using obscene language which occurred on 11-12-2013 at 1400 hours infron of Paloncha Rural P.S. And reported on the same day at 2100 hours by the complainanat Jarpula Bharathi, W/o.Gandhi in which the accused A1 to A4 were used criminal force to deter public servant from discharge of duties with criminal intimidation using obscene language, which arises out of crime No.473/2013 U/sec.353, 506, 294(b) r/w.34 IPC.

2.Basing on the report , Lw9 registered a case in Crime No.473/2013 U/s.353, 506, 294(b) r/w.34 IPC. During the course of investigation, LW9 secured the presence of

Lws.1 to 6 and recorded their detail statements in Part-II of the CDs, visited the scene of offence, drawn rough sketch of the scene and incorporated the same in crime Detail form before the mediators Lw.s7 and 8. On 17-12-2013 at 1000 hours the accused A1 to

A4 were arrested at Srinivasa Colony and sent to judicial custody and after completion of investigation chargesheet was filed into this case. Hence, the accused A1 to A4 are liabel for the punishment for the above said offences.

2

3. Cognizance was taken against the accused A1 to A4 for offence under

Section 353, 506, 294(b) r/w.34 IPC.

4. After furnishing copies of relevant documents as required under section.207

Cr.P.C. accused was examined under Section 251 Cr.P.C, read over and explained to him, for which he pleaded not guilty and claimed to be tried.

5.PW 1 to 8 are examined and Exs. P1 to P5 were marked on behalf of prosecution, the details of which are mentioned at the appendix of evidence.

6.A1 to A4 are examined under section 313 Cr.P.C . Their plea was total denial

7.Heard.

8.The point that arises for consideration is :

Whether the prosecution has established guilt of accused beyond all reasonable doubt offence under Section 353, 506, 294(b) r/w.34 IPC ?

9. POINT:

The case of prosecution is that on 27-10-2013 a case was registered vide POR 63/30 against the accused A1 and auto bearing No.AP20 TB 4683, at the same time on 27-10-2013 a criminal case was registered against A1 and others alongwith auto bearing No.AP20 TB 4683 accused persons were remanded and auto seized by

Paloncha Rural Police. Forest Rnage Officer of Yanambile addressed a letter to

P.S.paloncha Rural to relase the said auto, while the auto was releasing from Police

Station Pw3, alongwith Pws 1 and 2 went to Police Station Paloncha Rural to take over the seized auto in the meantime the accused persons A1, A2 (Owner of auto bearing

No.AP20 TB 4683) A2 's son and A3 and auto driver A4 were came there and used criminal force discharge of their duties using obscene language and threatening with dire consequences thereby the accused A1 to A4 have committed the offence punishable U/sec.353, 506, 294(b) r/w.34 IPC.

10.To prove the same the prosecution got examined Pws.1 to 8 ; Pw1 and 2 are the eye witnesses who assisted to Pw3; Pw3 is the complainant. Pw6 also eye witness;

Pws.5 and 6 are the eye witnesses; Pw7 is the panch witness for CDF. Pws.4 and 8 are the investigating officers; 3

11.Heard the Learned APP for the State. He vehemently contended that the evildence of Pw1 to 6 and 8 is sufficient, cogent and trust worthy and requested the court to convict the accused. On the other hand the learned counsel for the accused vehemtnly contended that the Pw1 to 3, 5 and 6 are the interested witnesses; their and that evidence cannot be taken into consideration their evidence is full of contradictions and omissions and requested the court to acquit the accused.

Now, let us see how far the prosecution established the guilt of the accused.

As per Section 294(b) IPC:

is concerned:

Whoever, to the annoyance of others,

(a)does any obscene act in any public place , or

(b) sings, recites or utters any obscene songs, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extent to three months, or with fine, or with both.

As per the evidence of Pw1 to 3 ; they deposed before the court that the accused abused Pw3 in most filthy language, and also threatened them with dire consequences. Neither Pw3 nor Pw1, 2, 5 and 6 deposed before the court the specific abusing wrods against Pw1 to 3. Moreover Pw8 admitted that he did not examine the neighbours of the shops at the scene of offence, likewise he did not examine the owners of the Server hotel and shop and police persons and town police persons. They called the Lw5 and Pw5 at 9.30 PM by auto stand.

So, as per the version of Pw5 he deposed before the court that he does not know any facts of this case. He never witnessed any incident. So, there is no evidence from Pw5 to connect the accused for alleged charges framed against him Under

Section 294(b) IPC. As per the version of the prosecution Lw5 and Pw5 are the eye witnesses to the scene of offence other than the forest officials. Prosecution failed to examine Lw5. The non-examination of Lw5 and hostile attitude of Pw5 is fatal to the case of prosecution. Admittedly Pws.1 to 3 and 6 are the interest witnesses but no one deposed before the court about the specific abusing 4 words. So, the above discussion leads me to conclude that the prosecution utterly failed to prove the offence against the accused for the offence Under

Section 294((b) IPC.

Now, let us see Section 353 IPC,

Section 353 of the Penal Code creates an offence

“ if a person assaults or uses criminal force, to any person, being a public

servant, in the execution of his duty as such public servant, or with intent to

prevent or deter that person from discharging his duty as such public servant, or

in consequence of anything done or attempted to be done by such person to the

lawful discharge of his duty as such public servant, shall be punished with

imprisonment of either description for a term which may extend to two years, or

with fine, or with both.”

10. The basic ingredients of an offence u/s 353 IPC can be culled out as follows; a. Accused assaults or uses criminal force b. The assault or criminal force is used to deter the public servant from discharge of duty as public servant.

11. It is inherent in section 353 IPC that intention to deter the public servant must be accompanied by use of criminal force or assault. Assault again is the making of any gesture, or any preparation, intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person. Criminal force on the other hand is use of force with intent to commit any offence, annoyance etc. Again a person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other.

12. It will, thus, be seen that in order to attract the penal provisions of section 353

IPC prosecution must necessarily prove use of force or assault. The use of force, if in- tentional, would make out the offence of criminal force and if such criminal force or as- sault is used against any public servant with an intent to deter such public servant from discharging his duty as public servant an offence u/s 353 IPC can be said to have been committed.

13.Coming to the evidence of P.W.3 is that previously one case was registered vide

POR No.63/30 against A1 and A2 auto bearing No.AP20 4683. later another case was also registered in Paloncha Rural Police Station. Their Ranger addressed a lettter to the 5

SHO, Paloncha to intimate whenever the said auto was released from Police Station, the Police Paloncoha Rural informed the Range Officer about the release of the said auto from Police Station. Upon that on the instructions of their Range Officer, he along- with Pws.1 and 2 Answar pasha proceeded to Police Station, meanwhile the accused came out from Police Station with the auto, when they were going to seize the said auto the accused abused them in filthy language and threatened with dire cosnequences.

The accused also used the criminal force due to which they are unable to discharge their duties. He identified the accused 1 to 4 are the persons who obstructed their le- gitimate duties.At that time the S.I.of Police also came out from Police Station and took away the auto the police Station. Then he intimated the same to their Superior Officer and after obtaining permission from him she lodged report as in Ex.P1. The evidence of Pw2 and 3 also supported the version of the prosecution. The testimony of PWs.1 to 3 reveals that as per the instructions of their superiors Pws.1 to 3 and Lw4 proceeded to the scene of offence where the accused obstructed their legitimate duties used crimi- nal force accused came out from the police station when they are going to seize the said auto the accused abused and threatened them with dire consequences the ac- cused also used criminal force due to which the accused are unable to discharge their duties. Who are obstructed their legitimate duties at that time S.I.of police came out and took away auto to the Police Station. They intimated after obtaining permission Pw3 lodged Ex.P1 to the Police. His evidence was corroborated with the testimony of Pw1 and 2 that the accused pushed them while they are discharging their duties.

14.During cross examination the defence counsel made an effort to disprove the case of the prosecution by suggesting that A1 demanded their superiors about dues to him at the instance of their superiors under their influence a case was registered against the accused and the accused never obstructed their legitimate duties and no offence was occurred to avoid dues they filed a false case, but nothing was elicited in favour of defence. Thus it is appearing that previously some disputes were pending against them. So the motive behind the offence was also established by the prosecu- tion.

15.P.W. 4 and P.W.8 are investigating officers in this case and they are simply official witnesses. P.Ws 1 and 2 are the panch witness for CDF. But they denied to support the 6 case of the prosecution and turned hostile. The evidence of Pw6 is also supported the version of Pws. 1 to 3 . Pw7 is the panch witness for CDF he turned hostile. He admit- ted in the cross examination that he studied 10th class. He know read and write Telugu.

He denied that police conducted scene of offence panchanama. He acted as panch alongwith Lw8 and he is deposing false against the accused. As per the hostile attitude of Pw7 has not thresh hold totally. IN the cross examination he admitted that he studied 10th class. He know read and write Telugu. So. The contents of the Ex.P5. So, the court can presume that the contents of Ex.P5 known to the Pw7 to some extent. He support- ed the version of Pw1 to 3 and 6 also. So, the hostile attitude of Pw7 is not at all fatal to the case of prosecution since CDF was brought into record through PW8.

16.Now, from the entire evidence on record, I find that there is ample corroboration to the fact that the accused person used criminal force i.e the accused pushed the po- lice officials while discharging their duties. The learned defence counsel raised another contention that except the evidence of police officials, there is no other evidence to sup- port the case of the prosecution. However, the present case relates to the offence pun- ishable under section 353 of Indian Penal Code. Therefore the competent witness to depose against the accused are the public servants who were deterred from discharg- ing their duties.

17.The learned counsel for the accused raised another contention except their evi- dence of forest officials and Investigating officer and there is no other evidence to support the contention of the prosecution. However, the present case relates to the of- fence punishable Under Section 353 of IPC through the competent witness to depose against the accused are the public servants who are compelled from discharging their duties. In this case Pw1 to 3 and 6 are the forest officials Pws.4 and 8 are the investi- gating officers Their evidence is supported with each other. The paramount consider- ation of the Court is to ensure that miscarriage of justice is prevented. Point is ac - cordingly answered against the defence. In my considered opinion, prosecution could establish the guilt of the accused persons U/S 353 IPC removing all shadow of doubt.

18.Now let us see the offence under section 506 of IPC. As per Section 506 :

7 “Whoever commits the offence of criminal intimidation shall be punished

with imprisonment of either description for a term which may extent to two

years, or with fine, or with both”

On perusal of the evidence of Pws.1 to 3 and 6 the accused did not threaten the

Pws.1 to 3 with any injury to his person, reputation or property, or to the person or repu- tation of any one in whom that person is interested, with an intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.

In this case the ingredients were not attracted to the present facts of the case. So, I answered the point in favour of the offence. In the light of above discussion, I answered the point in favour of the prosecution. In the result, the

A1 to A4 are found guilty for the offence Under Section 353 IPC. They are found not guilty for the charged offences U/sec.294(b), 506 r/w.34 IPC.

II ADDL JUDL.MAGISTRATE OF FIRST CLASS

KOTHAGUDEM

HEARING ON QUANTUM OF SENTENCE:

19. Heard the convict on the point of sentence. The accused submitted that they are doing coolie work and that prayed for mercy of the court. Considering the sub- missions of the learned counsel for the accused and considering the age of the ac- cused. A3 and A4 are aged persons. So, inspite of sentencing them they are admon- ished Under Section 3 of Probation of Offenders Act . A1 and A2 are concerned they are 32 to 40 years on enquiry prosecution failed to produce any document to show that

A1 involved in another crime. So, considering the request of the accused A1 and A2 are convicted and sentenced to pay a fine of Rs.500/- each and also released Under Sec- tion 4 of Probation of Offenders Act on executing of Personal bonds for Rs.10,000/- without any sureties.

20.In the result, A1 to A4 found not guilty for the offences U/s.294(b), 506 r/w.34

IPC, accordingly they are acquitted U/s.255(1) Cr.P.C for the above said offences. How- ever, A1 to A4 are found guilty for the offence U/sec.353 IPC and convicted

U/s.255(2)Cr.P.C. A3 and A4 are admonished U/s.3 of P.O.act for the said offence and

A1 and A2 are convicted and sentenced to pay a fine of Rs.500/- each and also re- 8 leased Under Section 4 of Probation of Offenders Act on executing personal bonds for

Rs.10,000/- without any sureties.

Dictated to the Personal Assistant, transcribed by her, corrected and pronounced by

me in open court on this the 19th day of May, 2015.

II ADDL JUDL.MAGISTRATE OF FIRST CLASS

KOTHAGUDEM

APPENDIX OF EVIDENCE

Witnesses examined

For ProsecutionFor defence PW1: Bhukya Krishna -None- PW2: T.Koteswar Rao PW3:Jarpula Bharathi PW4:A. Ramakanth PW5: K.Sanny PW6:Sk.Anwar Pasha PW7:A.Nagender PW8.A. Prabhakar Rao.

Documents marked

For ProsecutionFor defence Ex.P1: Report -Nil- Ex.P2. 161 Statement of Pw5 Ex.P3. Signature of Pw7 on CDF Ex.P4. F.I.R. Ex.P5. Crime Detail Form.

Material Objects marked -Nil-

II Addl. Judl. Magistrate of I Class, Kothagudem.

Corrections carried out by me:

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IN THE COURT OF THE II ADDL.JUDL.MAGISTRATE OF I CLASS: KOTHAGUDEM.

Thursday, this the 14th day of May, 2 0 1 5 .

Present: Smt.Ch. Sunandamma,B.Sc.,LL.B., II Addl. Judl. Magistrate of I Class, Kothagudem.

C.C.No.337 of 2013

Between: The State through Sub Inspector of Police, P.S.II Town, Kothagudem. (Crime.No.110 of 2013) …Complainant

And

Bejjanki Raja Ram, S/o.Durgaiah, 37 years, Caste.Madiga, Occ.Painter, R/o.Sri Ram Nagar, Manchiryala of Adilabad District.

...Accused

@@@

This case coming before me for final hearing in the presence of Learned APP for the State and of Sri T.Malleshwara Rao, Counsel for the accused and upon perusing the material papers on record, on hearing both sides and having stood over for consideration, till this day, the court delivered the following:

::J U D G M E N T::

1.This is a case of trespass into the house of complainant having made preparation for causing hurt and criminal intimidation, which occurred on 21-04-2013 at 2300 hours at Rudrampur, Kothagudem and reporte don 22-4-2013 at 1230 hours by the complainant Bejjanki Radha, W/o.Raja ram, wherein the accused Bejjanki Raja Ram,

S/o.Durgaiah, 37 years, Caste.Madiga, Occ.Painter, R/o.Sri Ramnagar, Manchiryala of

Adilabad District trespassed into the house of the complainant, abused her in filthy language, beat her with his hands and threatened her with dire consequences to do away her life, which arises out of Crime No.110/2013 for the offence U/s.452, 506, 323, 294(b)IPC.

2.The brief facts of the prosecution is as follows:

On 21-04-2013 at 2300b hours the husband of complainant.Bejjanki Radha, ie., accused entered into the house of parents of complainant, abused in filthy language and threatened them with dire consequences by saying that if he would kill her parents, the case will be closed and also beat them with hands. Basing on the report the Lw8 registered a case in crime No.110/2013 U/s.452, 506, 323, 294(b)IPC . During the course of investigation the LW-8 examined the complainant, recorded her statement in 2

Part-II CD, later the Lw8visited the scene of offence, examined and recorded the statements of Lws.2 to 5 in Part-II CD, drafted crime Detail form and sketch of the scene in the presence of mediators Lws.6 and 7. on 22-04-2013 at 1730 hours the

LW8arrested the accused, on interrogation he voluntarily admitted his guilt, after completion of investigation chargesheet was filed into this case. Hence, it is the case of prosecution that accused is liable for punishment for offence under section 452, 506, 323, 294(b) IPC.

3. Cognizance was taken against the accused for the offence under

Section 452, 506, 323, 294(b) IPC.

4.After furnishing copies of relevant documents as required under section 207 Cr.P.C. Accused was examined under Section 240 Cr.P.C. On hearing both sides charges under Sections 452, 506, 323, 294(b) IPC was framed against the accused, read over and explained to the accused. He pleaded not guilty and claimed to be tried.

5.PW1 to 5 are examined and Ex.P1 to P4 were marked on behalf of prosecution.

6.Accused was examined U/s.313 Cr.P.C. His plea was a total denial.

7.Heard.

8.The point that arises for consideration is :

Whether the prosecution has established guilt of accused beyond all reasonable doubt for the offences under Sections 452, 506, 323, 294(b) IPC?

9. POINT:

The case of the prosecution is that on 21-4-2013at 1100 hours the accused entered into the house of Pw1 parents, abused them in filthy language and threatened them with dire consequences if he would kill her parents, the case will be closed and also beat them with hands thereby the accused had committed the offence punishable U/sec. 452, 506, 323, 294(b) IPC.

3

10.To prove the same the prosecution got examined Pws.1 to 5. Pw1 is the defacto complainant; Pw2 is the mother of Pw1; Pw3 is the elder who conducted counselling with the Pw1 and accused; Pws.4 and 5 are the panch witnesses for

CDF. After giving ample opportunity prosecution failed to produce Lw4.Shankar who is brother of Lw1 and Lw8.N.Venkata Swamy, hence this court constrained to close their evidence. The Learned A.P.P has given-up the evidence of Lw2.

I.Seetharamulu on 7-10-2014.

10.According to Pw1; she reiterated the contents of the Ex.p1. She further deposed that the accused beat her with stick and also slapped her on her right cheek, at that time her brother interfered, on that the accused fled away from their house. As it was late night and due to fear she went to the Police Station on the next day and lodged Ex.P1 report. Pw2 who is the mother of Pw1 and deposed on the same lines of Pw1 in all material aspects. She further deposed that the accused made galata with Pw1, abused her in filthy language, threatened her as to why she lodged criminal case against him and also in the meantime herself and Lw2 and Lw4 came there by the time of their arrival the accused fled away, on the next day Pw1 lodged report. Pw3 is the panchayath elder he deposed that he does not know any facts of this case. Pws.4 and 5 are the panch witnesses for CDF; except the identification of their signatures on the

CDF they did not depose anything against the accused as in Ex.P3 and P4 on

CDF. They turned hostile and not supported the case of prosecution.

11.Heard the Learned APP for the State and the learned counsel for the accused.

12.The Learned A.P.P.vehemently contended that the evidence of Pw1 is sufficient to claim conviction against the accused. On the other hand the learned counsel for the accused argued that except the evidence of Pws.1 and 2 there is 4 no evidence either from the brother of the Pw1 or from the investigating officer and requested the court without corroborating the evidence of Pw1 and 2 by any independent evidence their evidence cannot be taken into consideration and requested the court to acquit the accused beyond all reasonable doubt.

13. In order to prove the offence U/s.452 IPC

“Whoever commits house-trespass, having made preparation for

causing hurt to any person or for assaulting any person, or wrongfully

restraining any person, or for putting any person in fear of hurt, or of

assault, or of wrongful restraint, shall be punished with imprisonment of

either description for a term which may extent to seven years, and shall

also be liable to fine.

In this case on hand Pw1 admitted in her cross examination that since 2006 the accused was not traced out till filing of this case and till the date of date of her evidence and there are no talking terms even phone calls between her and the accused and that she went to Srirampur to file case against the accused as he traced out at Srirampur. The Police of Srirampur suggested her to file case at P.S.II Town Police Station and as per their advise she filed the case against the accused. She further admitted that police not arrested the accused but the accused surrendered before the court in the case U/s.498-A IPC. She denied that police obtained her signatures by force to take revenge against the accused and that police obtained complaint from her and registered this case falsely against the accused. She admitted that presently the accused is residing at

Mandamarri. She further denied that on 21-4-2013 the accused never trespassed into their house and abused her by saying as “Lanja Munda” the accused never threatened her parents to kill them and never beat her with stick. Pw2 admitted that Pw1 and accused separated since seven years. They did not see the accused for the last seven years. No panchayath was held during the period of seven years. Till the filing of the case at 2 Town, Kothagudem the accused was not traced out . She denied that the accused did not came to their house, never abused them with dire consequences to do away their lives and that to take revenge against the accused they registered a false case against them.

5

14.The first contention of the learned counsel for the accused is that the accused never trespassed into the house of the Pw1, never abused and threatened them with dire consequences to do away their lives and that to take revenge against the accused they registered a false case against them. On perusal of the evidence of Pws.1 and 2 for the last seven years the accused did not trance out for that reason Pw1 went to Srirampur as per the advise of Police of Srirampur she came to 2 Town, Kothagudem Police Station and filed a case against the accused. In that case the accused himself surrendered before the court and remanded to judicial custody. As per the Ex.P1 after getting bail the accused came to their house and committed the offence in this case. As per the version of Pw2 they have seen the accused before the S.I of Police till they have seen him they did not complaint against him. After seeing the accused they filed case against him. So, the evidence of Pws.1 and 2 is not corroborated with each other with regard to the appearance of the accused before the S.I.of Police.

15.The other contention of the learned counsel for the accused is that the accused surrendered before the court to take revenge against him they obtained signatures of the Pw1 and filed false case against the accused. In this case brother of the Pw1 by name Venkateswalru is Police constable at Paloncha

Police Station. The learned counsel for the accused suggested the Pw1 the brother of Pw1 used to interfere in the family affairs of Pw1 and accused but she denied. Pw1 admitted at one stage the marriage terms negotiated in between her brother and the father of the accused. So, there is every possibility to the brother of the accused to interfere in the family matters of the Pw1 and the accused. The other contention of the learned counsel for the accused is that Pw1 does not know even cooking, in the absence of accused Pw1 and her brother came to the house of the accused and beat his father due to that reason the father of the accused fell sick and died. To prove his contention he elicited in the cross examination of Pw1 she admitted that she used to assist her father-in-law 6 for cooking. She denied that her father in-law asked her brother that even without knowing cooking to her how he performed the marriage to her and she further denied that in the absence of her husband she alongwith her brother beat her father in law and her father in -law died due to harassment made by Pw1 in view of the disputes between her and accused her father in law fell sick and died.. As per the version of Pw1 she does not know how to cook food at the time of marriage. There is every possibility to arose disputes among the family members of the accused and Pw1. In this case in general father in law might have make allegation against Pw1 for the reason that there is every possibility to her brother to beat father of the accused. In these circumstances the evidence of Pw1 and 2 is doubtful.

16.The learned counsel for the accused contended that Pw1 used to suspect the character of the accused for that reason she herself voluntarily deserted him to take revenge against him she filed a false case against him. To prove his contention Pw1 admited that the accused eloped with her own sister and went to

Hyderabad and lived there. She also admitted that the accused and her own sister were caught hold at Hyderabad and she filed a case against them at

Hyderabad. There is no record to show that the accused and his own sister caught hold by anyone at Hyderabad. So, the contention raised by the accused that the Pw1 suspected the character of the accused is believable.

17. In this case, the learned counsel for the accused also contended that even the brother of the Pw1 was not examined in this case. to prove his contention I perused the record after giving ample opportunity prosecution failed to produce Lw4.Shankar - brother of the Pw1. So, the contention raised by the learned counsel for the accused is believable. In this case, no panchayath elder was examined and and another elder Pw3 turned hostile. Pw1 herself admitted in the cross examination that no panchayath was held during the 7 years in 7 between the accused and Pw1. So, the panchayath conducted in between the parties is not taken into consideration. The panch witnesses to the CDF turned hostile. So, the conducting of scene of offence panchanama by the prosecution is not proved. Moreover in this case investigating officer was not examined. The non examination of Lw8-N.Venkata Swamy, Investigating Officer is also fatal to the case of prosecution. The above discussion leads me to conclude that the prosecution miserably failed to bring home the guilt of the accused beyond all reasonable doubt Under Section 452 IPC. The remaining charges framed against the accused is Under Sections 323, 506 and 294(b) IPC. Once trespass was not proved the commission of beating, abusing and threatening by the accused does not arise. Hence the ingredients Under Sections 323, 506 and 294(b) IPC are not proved by the prosecution.

18.In the result, the accused is found not guilty for the offence U/sec.452, 323, 506 and 294(b) IPC, accordingly he is acquitted U/s.248(1)Cr.P.C.for the above said offences. His bail bonds shall stands cancelled. The unmarked property if any shall be destroyed after expiry of appeal time.

Dictated to the Personal Assistant, transcribed by her, corrected and pronounced

by me in the open court on this the 14th day of May, 2015.

II Addl. Judl. Magistrate of I Class, Kothagudem.

APPENDIX OF EVIDENCE

Witnesses examined

For ProsecutionFor defence PW1: B. Radha -None- PW2. E.Lingamma PW3. V.Rajya Laxmi PW4. A.Narender PW5. Ch.Sampath Kumar

Documents marked

For ProsecutionFor defence Ex.P1: Report -Nil- Ex.P2. 161 Statement of Pw3 Ex.P3. Signature of Pw3 on CDF Ex.P4. Signature of Pw4 on CDF 8

Material Objects marked -Nil-

II Addl. Judl. Magistrate of I Class, Kothagudem. Corrections carried out by me:

9

1

IN THE COURT OF THE II ADDL.JUDL.MAGISTRATE OF I CLASS: KOTHAGUDEM.

Thursday, this the 14th day of May, 2 0 1 5 .

Present: Smt.Ch. Sunandamma,B.Sc.,LL.B., II Addl. Judl. Magistrate of I Class, Kothagudem.

C.C.No.165 of 2014

Between: The State through Sub Inspector of Police, P.S.Palvoncha Town. (Cr.No.169 of 2014) …Complainant

And

A1.Madelaboina Yellaiah, S/o.Sammaiah, 70 years, Bestha, Worker in Peddammathalli Wines, R/o.Bapuinagar, Palvoncha. A2.S;irasani Ramesh Kumar, S/o.Rajeswar Rao, 41 years, Perika, Gumastha in Peddamma Tahalli Wines, R/o.Ambedkar Centre, Palvoncha. A3.Shaik Ashan, S/o.Bade Saheb, 41 years, Dudekula, Gumastha in Peddammathalli Wines, R/o.SBH Road, Palvoncha. A4.Budagam Sravan Kumar, S/o.Laxman Rao, 38 years, Business, R/o.Brahmin Bazar, Palvoncha.

...Accused

@@@

This case coming before me for final hearing in the presence of Learned APP for the State and of Sri N.Rama Krishna and Sri P.Rama Rao, Counsels for the accused and upon perusing the material papers on record, on hearing both sides and having stood over for consideration, till this day, the court delivered the following:

::J U D G M E N T::

1.This is a case of illegal sale of IMFL bottles at night hours for high rates without any prior permission by violating the election code(MCC) and license conditions, which occurred on 24-04-2014 at 0530 hours at Peddamma Thalli Wiones at Shastri Road,

Palvoncha, which arises out of Crime NO.169/2014 for the offence U/s.34(a) and U/s.36 of A.P.Excise Act.

2.A. Prabhakar Rao, the then S.I.of Police, P.S.Paloncha Town(PW3), S.Naga

Ramana Reddy(not examined) PC 597, LW3.T.Shobhan Babu, PC 1030(not examined) and other staff alleged to have received information about the illegal sale of IMFL bottles at night hours for high rates without any prior permission by violating the election code(MCC) and license conditions, on receipt of said information, Pw3 alongwith Lws.2 and 3 went to Peddamma Thalli Wines at

Shastri Road, Palvoncha, Pw3 secured the presence of Koragattu Venkata

Narayana(PW1) and Marumulla Kiran(PW2) as panchas arrested the accused 2 and seized the One Napoleon courier quarter, three AC Premium quarters, three Old Admiral quarters, One MC Diet quarter, Nine MC Brandy quarters, four

Mansion House quarters from the possession of the accused under the cover panchanama dated 24-04-2014 (Ex.P5) alleged to have been drafted on the spot. Hence, it is the case of prosecution that accused is liable for punishment for offence under section 34(a) and Sec.36 of A.P. Excise Act. 1968.

3. Cognizance was taken against A1 to A3 for the offence under Section 34(a) of AP Excise Act and U/sec. 34(a) of A.P. Excise Act, 1968 against A4.

4.After furnishing copies of relevant documents as required under section 207 Cr.P.C. A1 to A4 are examined under Section 240 Cr.P.C. On hearing both sides charges under Sections 34(a) of AP Excise Act against A1 to A3 and

Sec.36 of A.P. Excise Act, 1968 against A4 was framed, read over and explained to the accused. They pleaded not guilty and claimed to be tried.

5.PW1 to 3 are examined and Ex.P1 to P5 were marked on behalf of prosecution.

6.A1 to A4 are examined U/s.313 Cr.P.C. Their plea was a total denial.

7.Heard.

8.The point that arises for consideration is :

Whether the prosecution has established guilt of accused beyond all reasonable doubt offences under Sections 34(a) AP Excise Act against A1 to A3 and 36 of A.P. Excise Act, 1968 against A4 ?

9. POINT: : PWs 1 to 3 were examined by prosecution to prove the guilt of accused. PWs1 and 2 are thepanch witnesses while PW3, Lws.2 and 3 are the police constable alleged to have conducted raid at the scene of offence on the date of alleged incident. It is contended by learned A.P.P.O. that evidence of PW3 is amply corroborated by evidence of PW 1 and 2, who are independent witnesses and hence accused is liable for punishment for offences with which they were charged. Refuting the said contention, learned defence counsel contended that evidence of PWs 1 and 2 is not corroborating with the evidence of 3

PW1 and 4 in all material particulars since Pws.1 and 2 turned hostile without supporting the case of prosecution and as such accused is entitled for acquittal.

10.First I deal with the evidence of PWs 1 and 2 who are the panch witnesses to Ex.P3 panchanama dated 24-04-2014. PW1 and 2 turned hostile without supporting the contents of Ex.P3. Though learned A.P.P.O. cross examined PW1 and 2 nothing could be elicited in favour of prosecution.

Though it is the case of prosecution that accused was found in possession of

One Napoleon courier quarter, three AC Premium quarters, three Old Admiral quarters, One MC Diet quarter, Nine MC Brandy quarters, four Mansion House quarters but the panch witnesses in whose presence the alleged confession was made were turned hostile. Hence, the evidence of Pws.1 and 2 are no way helpful to prove the confession of the accused.

11.PW 3 is admittedly police official. I certainly agree that evidence of police official can not throw out at the threshold. His evidence can be relied upon to base conviction provided it is cogent, trustworthy and inspires confidence in the mind of court. Since PW3 is police official there will be an element of interestedness in these witnesses. Hence, the court has to appreciate the evidence of these witnesses with great care and caution.

12.PW3 played a dual role as complainant and investigating officer in this case. Admittedly, though he had participated in the alleged raid conducted alongwith Lws.2 and 3, he had not produced samples in court. Evidence of PW 3 by itself can not establish the guilt of accused.

13.Had it been a case where the evidence of PW3 is capable of establishing the guilt of accused beyond all reasonable doubt. I do agree that court can not rely on the sole testimony of police official to base conviction provided its cogent, trustworthy and inspires confidence in the mind of court.

However, there are several infirmities in the case of prosecution which compel the court not to rely on the evidence of PW.3.

4

14.There is no mention in Ex.P3 panchanama or in the evidence of

PW3 as to be exact spot where accused was found with the ID liquor at

Peddammthalli wines. Unless exact spot with specific boundaries are mentioned in Ex.P3 panchanama it is highly difficult to believe the evidence of PW3. No sketch mentioning the details of spot is boundaries is also drawn in Ex.P3.

Hence, a serious doubt arises in the mind of court as to whether PW3 fabricated

Ex.P3 panchanama by sitting in the Police Station. Hence, statement of PW3 that his staff also accompanied with him cannot be taken as true and correct.

15.It is the case of prosecution that accused was found in possession of One Napoleon courier quarter, three AC Premium quarters, three Old Admiral quarters, One MC Diet quarter, Nine MC Brandy quarters, four Mansion House quarters. One can not deny that at public place the accused was found while selling ID liquor illegally and found in possession of One Napoleon courier quarter, three AC Premium quarters, three Old Admiral quarters, One MC Diet quarter, Nine MC Brandy quarters, four Mansion House quarters. In the absence of any of these items found at the spot it is highly difficult to believe the evidence of PW3 that accused was found illegal sale of ID liquor.

16.Samples are not produced in court. There is no explanation in this regard from prosecution. I do agree that PW3 alleged to have seized One

Napoleon courier quarter, three AC Premium quarters, three Old Admiral quarters, One MC Diet quarter, Nine MC Brandy quarters, four Mansion House quarters. PW3 ought to have taken photographs before conducting panchanama.

No photographs were taken at the spot by PW3. Hence, no credence can be given to the sole testimony of PW3 .Hence, adverse inference had to be drawn against accused.

17. PW1 is resident of Bollorugudem. While the Pw2 is resident of

Basavatharaka colony, Paloncha. Admittedly the spot is situated at

Peddammathalli Wines, Shastri road, Paloncha. Section 100(4) Cr.P.C. requires

PW2 to secure the presence of two independent locality and respectable 5 inhabitants as panch witnesses. This statutory provision is violated by Pw3.

There is no explanation from PW3 in this regard.

18.Above discussion leads me to conclude that prosecution miserably failed in establishing guilt of accused much less beyond all reasonable doubt for offence under Section 34(a) of A.P. Excise Act, 1968 against A1 to A3 and 36 of

AP Excise Act against A4. Point is accordingly answered against the prosecution.

19.In the result, the A1 to A3 are found not guilty for the ofence

U/sec.34(a)of AP Excise Act, 1968 and A4 is found not guilty for the offence

U/s.36 of A.P.Excise Act, accordingly they are acquitted U/s.248(1)Cr.P.C.for the above said offences. Their bail bonds shall stands cancelled. Unmarked property if any shall be destroyed after expiry of appeal time.

Typed to my dictation, corrected and pronounced by me in the open court on this the 14th day of May, 2015.

II Addl. Judl. Magistrate of I Class, Kothagudem.

APPENDIX OF EVIDENCE

Witnesses examined

For ProsecutionFor defence PW1: K.Venkata Narayana -None- PW2. M.Kiran PW3. A.Prabhakar Rao

Documents marked

For ProsecutionFor defence Ex.P1: Signature of Pw1 on panchanama -Nil- Ex.P2. Signature of Pw1 on Crime Details Form Ex.P3. Signature of Pw2 on panchanama Ex.P4. Signature of Pw2 on CDF Ex.P5. Panchanama

Material Objects marked -Nil-

II Addl. Judl. Magistrate of I Class, Kothagudem. Corrections carried out by me:

6 7

1

IN THE COURT OF THE II ADDL.JUDL.MAGISTRATE OF I CLASS: KOTHAGUDEM.

Thursday, this the 14th day of May, 2 0 1 5 .

Present: Smt.Ch. Sunandamma,B.Sc.,LL.B., II Addl. Judl. Magistrate of I Class, Kothagudem.

C.C.No.173 of 2014

Between: The State through Sub Inspector of Police, P.S.Palvoncha Town. (Cr.No.188 of 2014) …Complainant

And

Poosa Srinivas, S/o.Ramaswamy, 42 years, Bestha, R/o.TTD road, Palvoncha.

...Accused

@@@

This case coming before me for final hearing in the presence of Learned APP for the State and of Sri N.Rama Krishna and Sri P.Rama Rao, Counsels for the accused and upon perusing the material papers on record, on hearing both sides and having stood over for consideration, till this day, the court delivered the following:

::J U D G M E N T::

1.This is a case of illegal sale of liquor bottles to the public by violating election code, which occurred on 13-5-2014 at 1715 hours at Gandhi Road, Paloncha for the offence U/s.188 IPC and Sec.34(a) of A.P.Excise Act.

2.U.Srinivasa Rao, the then H.C.1693 of P.S.Paloncha Town(PW2),

N.Krishna(PW3), LW3.G.Ravi Kumar (not examined) and other staff alleged to have received information about the illegal sale of liquor bottles to the public by violating the election code, on receipt of said information Pw2 and his staff went to Gandhinagar, Paloncha. Accused was arrested, Pw2 secured the presence of

Kanagala Surendra(PW4) and Sangloth Ranjith(PW1) as panchas arrested the accused and seized the liquor bottles ie., AC Premium quarters(2), M.H.Brandy quarters(3), M.H.Brandy ½ bottle(1), M.H.B.full bottle with ½ quantity liquor(1) from the possession of the accused under the cover panchanama dated 13-5- 2015 (Ex.P1) alleged to have been drafted on the spot. Hence, it is the case of prosecution that accused is liable for punishment for offence under section 188

IPC and Sec.34(a) of A.P. Excise Act. 1968.

2

3. Cognizance was taken against the accused for the offence under

Section 188 IPC and 34(a) of A.P. Excise Act, 1968.

4.After furnishing copies of relevant documents as required under section 207 Cr.P.C. Accused was examined under Section 240 Cr.P.C. On hearing both sides charges under Sections 188 IPC and Sec.34(a) of

A.P.Excise , 1968 was framed against the accused, read over and explained to the accused. He pleaded not guilty and claimed to be tried.

5.PW1 to 3 are examined and Ex.P1 to P3 were marked on behalf of prosecution.

6.Accused was examined U/s.313 Cr.P.C. His plea was a total denial.

7.Heard.

8.The point that arises for consideration is :

Whether the prosecution has established guilt of accused beyond all reasonable doubt offences under Sections 188 IPC and Sec.34(a) of A.P.Excise , 1968.?

9. POINT: : PWs 1 to 4 were examined by prosecution to prove the guilt of accused. PWs1 and 4 are thepanch witnesses while PWs 2, 3 and

Lw3.Ravikumar are the police constable. It is contended by learned A.P.P.O. that evidence of PWs 2 and 3 is amply corroborated by evidence of PW1 and 4, who are independent witnesses and hence accused is liable for punishment for offences with which they were charged. Refuting the said contention, learned defence counsel contended that evidence of PWs 2 and 3 is not corroborating with the evidence of PW1 and 4 in all material particulars since Pws.1 and 4 turned hostile without supporting the case of prosecution and as such accused is entitled for acquittal.

10.First I deal with the evidence of PWs 1 and 4 who are the panch witnesses to Ex.P3 panchanama dated 13-5-2015. PW1 and 4 turned hostile without supporting the contents of Ex.P3. Though learned A.P.P.O. cross examined PW1 and 4 nothing could be elicited in favour of prosecution.

3

Though it is the case of prosecution that accused was found in possession of AC

Premium quarters(2), M.H.Brandy quarters(3), M.H.Brandy ½ bottle(1), M.H.B.full bottle with ½ quantity liquor(1) there is no whisper in the evidence of PW2 about the seizure of AC Premium quarters(2), M.H.Brandy quarters(3), M.H.Brandy ½ bottle(1), M.H.B.full bottle with ½ quantity liquor(1)but the panch witnesses in whose presence the alleged confession was made were turned hostile. Hence, the evidence of Pws.1 and 4 are no way helpful to prove the confession of the accused.

11.PWs 2 and 3 are admittedly police officials. I certainly agree that evidence of police officials can not throw out at the threshold. There evidence can be relied upon to base conviction provided it is cogent, trustworthy and inspires confidence in the mind of court. Since PWs 2 and 3 are police officials there will be an element of interestedness in these witnesses. Hence, the court has to appreciate the evidence of these witnesses with great care and caution.

12.PWs 2 and 3 are the police officials and investigating officer in this case. Admittedly, though had not participated in the alleged raid conducted by

PW2 and LW6 another investigating officer . PW2 and Pw3 had not produced samples in court. Evidence of PW 2 and PW 3 by itself can not establish the guilt of accused.

13.Had it been a case where the evidence of PW2 is capable of establishing the guilt of accused beyond all reasonable doubt. I do agree that court can not rely on the sole testimony of excise officials to base conviction provided its cogent, trustworthy and inspires confidence in the mind of court.

However, there are several infirmities in the case of prosecution which compel the court not to rely on the evidence of PW.2.

14.There is no mention in Ex.P3 panchanama or in the evidence of

PW2 as to be exact spot where accused was found with the ID liquor at

Gandhinagar . Unless exact spot with specific boundaries are mentioned in

Ex.P3 panchanama it is highly difficult to believe the evidence of PW2. No 4 sketch mentioning the details of spot is boundaries is also drawn in Ex.P1.

Hence, a serious doubt arises in the mind of court as to whether PW2 fabricated

Ex.P3 panchanama by sitting in the Police Station. Hence, statement of PW2 that his staff also accompanied with him cannot be taken as true and correct.

15.It is the case of prosecution that accused was found in possession of AC Premium quarters(2), M.H.Brandy quarters(3), M.H.Brandy ½ bottle(1),

M.H.B.full bottle with ½ quantity liquor(1). No ID liquor, running stills are required tore of ID liquor was found by PW2 at the spot. One can not deny that at public place the accused was found while selling ID liquor illegally and found in possession of AC Premium quarters(2), M.H.Brandy quarters(3), M.H.Brandy ½ bottle(1), M.H.B.full bottle with ½ quantity liquor(1). In the absence of any of these items found at the spot it is highly difficult to believe the evidence of PW2 that accused was found illegal sale of ID liquor.

16.Samples are not produced in court. There is no explanation in this regard from prosecution. I do agree that PW2 alleged to have seized the ID liquor. PW2 ought to have taken photographs before conducting panchanama.

No photographs were taken at the spot by PW2. Hence, no credence can be given to the sole testimony of PW2 .Hence, adverse inference had to be drawn against accused.

17. PW1 is resident of Bollorugudem. While the Pw4 is resident of

Basavatharaka colony, Paloncha. Admittedly the spot is situated in Gandhinagar,

Paloncha. Section 100(4) Cr.P.C. requires PW2 to secure the presence of two independent locality and respectable inhabitants as panch witnesses. This statutory provision is violated by Pw2. There is no explanation from PW2 in this regard.

18.Above discussion leads me to conclude that prosecution miserably failed in establishing guilt of accused much less beyond all reasonable doubt for offence under Section 188 IPC and 34(a) of A.P. Excise Act. 1968. Point is accordingly answered against the prosecution.

5

19.In the result, the accused is found not guilty for the offence U/sec.188 IPC and Sec.34(a) of A.P.Excise Act, accordingly he is acquitted U/s.248(1)Cr.P.C.for the above said offence. His bail bonds shall stands cancelled. The unmarked property if any shall be destroyed after expiry of appeal time.

Typed to my dictation, corrected and pronounced by me in the open court on this the 14th day of May, 2015.

II Addl. Judl. Magistrate of I Class, Kothagudem.

APPENDIX OF EVIDENCE

Witnesses examined

For ProsecutionFor defence PW1: S.Ranjith -None- PW2. U.Sreenivasa Rao PW3. N.Krishna PW4. K.Surender

Documents marked

For ProsecutionFor defence Ex.P1:Signature of Pw1 on panchanama -Nil- Ex.P2.Signature of Pw1 on Crime Details Form Ex.P3. Panchanama Ex.P4. Signature of Pw3 on panchanama Ex.P5. Signature of Pw3 on CDF

Material Objects marked -Nil-

II Addl. Judl. Magistrate of I Class, Kothagudem.

Corrections carried out by me:

6

TSBK020008252015

Presented on : 20-05-2015 Registered on : 20-05-2015 Decided on : 30-05-2015 Duration : 0 years, 0 months, 10 days

IN THE COURT OF

III Additional Judicial Magistrate of First Class ( Criminal Court for Agency areas), Bhadradri Kothagudem.

AT ,KHAMMAM

(Presided Over by B.Rama Rao)

MC/300017/2015

Exhibit No. (PROSECUTION): JALLERAPU BABY AND 2 OTHERS Through Police Station Officer , H.NO.21-1-160,NEHRU NAGAR,PALONCHA,KHAMMAM.

KHAMMAM

JALLERAPU BABY AND 2 OTHERS VERSUS :

JALLERAPU SREENIVAS RAO

Age: 0 Occupation : H.NO.F-1,MRS 3 INCLINE,RAMAVARAM,KOTHAGUDEM.

----------------------------------------------------------------------------- APP for State }: M.A.Majid, Advocate for appearing for JALLERAPU SREENIVAS RAO Advocate appearing for , respectively. -----------------------------------------------------------------------------

ORDER

SETTLED BEFORE LOK ADALAT

Date : 30-05-2015

(B.Rama Rao) III Additional Judicial Magistrate of First Class (Criminal Court for Agency areas), Bhadradri Kothagudem.