Sri.challa Pavan Kumar, L.l.b.

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FORM No.72

Calendar and Judgment District of Guntur

Calendar of cases tried by the II Addl. Judicial I Class Magistrate, Tenali.

Judgment in Calendar Case No.16/2014 (Cr.No.75/2013 of Tsunduru Police Station)

Nature of Offence: Sec.427 r/w 34 of IPC

Date of Judgment 27.04.2017

Offence Report ofApprehen-Date ofReleaseCommence-Closure ofSentence complainant sion ofremandon bail ment of trialtrial or order accused 23.07.1303.11.1318.01.1418.01.1418.01.1410.02.1620.03.17 27.04.17

Explanation for the delay : The delay is due to non-appearance of the accused and non-production of witnesses.

Complainant : The State: Sub Inspector of Police, Tsunduru Police Station.

Accused: 1.Gundavarapu Kasiviswanadha Sarma, S/o Subba Rao, age 67 years, Caste Brahmin. 2.Kommanaboina Srinivasa Rao @ Babu, S/o Kotaiah, age 38 years, Caste Yadava 3.Akki Venkata Chalapathirao, S/o Veerswamy, age 67 years, caste yadava. 4.Gumma Raghu, S/o Peda Ramaiah, age 40 years, Caste Yadava 5.Paleti Nageswara Rao @ Nagu, S/o Sambasiva Rao, age 29 years, caste Yadava. 6.Gumma Sambaiah, S/o China Ramaiah, age 32 years, caste yadava All are residents to Narikellapalli & Kothapalli village of Tsunduru Mandal.

Finding: Not Guilty

Sentence : In the result, I find the A2 to A6 not guilty for the offence U/Sec.427 r/w 34 of I.P.C and accordingly A2 to A6 are acquitted of the said offence U/Sec.255(1) Cr.P.C. The bail bonds of A2 to A6 which are executed earlier shall be in force for a period of 6 months as required U/Sec.437(A) Cr.P.C. There is no order as to property.

sd/- Ch.Pavan Kumar,

II Addl. Judicial I Class Magistrate, Tenali. Copy submitted to: The Hon’ble Chief Judicial Magistrate, Guntur.

Copy to: The Superintendent of Police, Guntur.

// True copy //

II Addl. Judicial I Class Magistrate, Tenali.

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IN THE COURT OF II ADDITIONAL JUDICIAL I CLASS MAGISTRATE: TENALI

PRESENT: Sri Ch.Pavan Kumar, LL.B., II Additional Judicial I Class Magistrate, Tenali

Thursday, this the 27th day of April, 2017

CALENDAR CASE No.16/2014

Between:

State: Sub Inspector of Police, Tsunduru Police Station.… Complainant

and

1.Gundavarapu Kasiviswanadha Sarma, S/o Subba Rao, age 67 years, Caste Brahmin. 2.Kommanaboina Srinivasa Rao @ Babu, S/o Kotaiah, age 38 years, Caste Yadava 3.Akki Venkata Chalapathirao, S/o Veerswamy, age 67 years, caste yadava. 4.Gumma Raghu, S/o Peda Ramaiah, age 40 years, Caste Yadava 5.Paleti Nageswara Rao @ Nagu, S/o Sambasiva Rao, age 29 years, caste Yadava. 6.Gumma Sambaiah, S/o China Ramaiah, age 32 years, caste yadava All are residents to Narikellapalli & Kothapalli village of Tsunduru Mandal.

… Accused

This case is coming on 24.04.2017 for final hearing before me in the presence of learned A.P.P. for the State and Sri D.Srinivasa Rao, Advocate for accused and upon hearing the arguments on both sides having stood over for consideration till this day, this court delivered the following:

JUDGMENT

1.The Sub Inspector of Police, Tsunduru Police Station has laid charge sheet against the A1 to A6 alleging them of the offence punishable U/Sec.427 of I.P.C in Cr.No.75/2013 of Tsunduru Police Station.

2. The case of prosecution in brief is as follows:

The informant i.e., L.W.1 Angirekula Nageswara rao (herein after referred to as PW. 1) is an active member of Yuvajana Sramika Rythu Congress party in Kothapalli village. Two years prior to the incident P.W.1 and other members of Yuvajana Sramika Rythu Congress party have erected a cement pole by the side of Anjaneyaswamy temple in the village to signify laying of foundation stone for installing statue of YS.Rajasekhar Reddy. While so, on 23.07.2013 Gram panchayat elections were held in the village in which wife of P.W.1 was defeated by the wife of A4 whose candidature was supported by Telugudesam Party. On the same day at about 5.00 p.m., after the results were announced, A1 to A6 and other Telugudesam Party followers took up procession in the village and moved in the streets of village with party flags attached to sticks by raising slogans in 3 favour of Telugudesam Party and against Yuvajana Sramika Rythuparty. When the procession reached Anjaneyaswamy temple A1 to A6 and others damaged the cement pole which was erected by P.W.1 and others and further broken the drinking water pump in the temple and went away. P.W.1 and others who are present at that place witnessed the incident. On 28.09.2013, at about 12.00 noon P.W.1 gave report at Tsunduru Police Station. Since the report given by P.W.1 disclosed non-cognizable offence, the then Sub Inspector of police at Tsunduru Police Station i.e., L.W.8 D.Ravindrababu (herein after referred to as PW. 7) has filed requisition before this court seeking permission to register and investigate into the case. Accordingly, permission was accorded vide Official memorandum dt.18.10.2013. On 03.11.2013 at about 4.00 p.m., PW.7 registered a case in Cr.No.75/2013 U/Sec.143 and 506 of IPC and investigated into the case. In the course of investigation, P.W.7 has visited the scene of offence, observed the scene and prepared rough sketch. Further, PW.7 recorded the statement of informant and witnesses in part-II C.D. Basing on the statements of informant and witnesses, P.W.7 came to the conclusion that the offence U/Se.427 Cr.P.C alone is attracted in this case and filed the memo to that effect before this court. In the course of investigation, on 18.01.2014 P.W.7 arrested A1 to A6 and forwarded them to this court remand seeking judicial custody. Later, after completion of investigation charge sheet was laid for the offence punishable U/Sec.427 of IPC.

3.This court took cognizance for the offence U/Sec.427 r/w 34 of I.P.C and summons were issued to the A1 to A6. On appearance of the A1 to A6, copies of case documents are furnished to them in due compliance of the provisions U/Sec.207 Cr.P.C. In the course of proceedings A1 has died and death report of A1 was filed before this court and the same was verified. Accordingly, case against A1 was abated.

4. On 29.12.2015, A2 to A6 are examined U/Sec.251 Cr.P.C and the substance of the accusation for the offences U/Sec.427 r/w 34 of I.P.C is made known to the accused by explaining them in Telugu, for which he pleaded not guilty and claimed to be tried.

5. In the course of trial, on behalf of the prosecution, PWs.1 to 7 were examined and Exs.P.1 to P4 and Ex.D1 are marked. The learned APP has given up the evidence of L.W.6 Peteti Pitchaiah.

6.Upon closure of prosecution side evidence, A2 to A6 are examined under Sec.313 Cr.P.C. in which they denied the incriminating material that appeared against them in the evidence of prosecution witnesses. On enquiry, they reported no defence evidence on their behalf.

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7.Heard learned APP and that of the counsel for accused.

The learned APP contended that the evidence of PWs.1 to 4 and 6 amply establishes the occurrence of incident in which A1 to A6 and others have damaged the cement pole erected by Yuvajana Sramika Rythu Congress party and also panchayat hand pump in Anjaneyaswamy temple and thereby caused loss. It is further contended that all the circumstances points to the guilt of accused and thus, canvassed for the conviction of A2 to A6.

On the other hand the learned counsel for accused contended that this is a false case foisted against the accused in view of political rivalry and that the accused are innocent of the alleged offence. It is further contended that the prosecution has failed to establish that the cement pole was existing as on the date of incident. It is further contended that all the witnesses examined on behalf of the prosecution are sympathizers of Telugudesam Party, as such, their evidence cannot be believed. It is further contended that none of the witnesses have spoken about the specific overt acts of accused in damaging the cement pole and hand pump. It is further contended that the evidence of prosecution witnesses is marred with inconsistencies and developments, as such, the same cannot be believed. By contending so, it is argued that the prosecution has failed to prove its case against the accused and thus, prayed for the acquittal A2 to A6.

8. Now point for determination is:

Whether the prosecution has proved the guilt of A2 to A6 for the offence alleged against them U/Sec.427 of I.P.C beyond reasonable doubt?

POINT:

9.The allegation in brief against the accused is that on 23.07.2013 the accused and others have taken procession in the village and at that about 5.00 p.m., when the procession reached near Anjaneyaswamy temple, A2 to A6 have damaged the cement pole which was erected to signify laying of foundation stone for installing Y.S.Rajasekhar Reddy statue by P.W.1 and others and further they have damaged the panchayat hand pump in the temple and left that place. Hence, the charge.

10.The prosecution in order to establish its case has examined P.Ws 1 to 6 as material witnesses. P.Ws 1 to 4 have deposed their evidence in examination in chief in consonance with the prosecution case. P.W.5 deposed that she is not aware of the facts of the case. The learned APP treated P.W.5 as hostile witness 5 and cross-examined her with the permission of the court, but nothing could be elicited in support of the prosecution case. P.W.6 deposed that about three years ago panchayat elections were held in their village and Gumma Koteswaramma was declared as winner as Surpanch on behalf of T.D.P party. That procession was held in the village by about 50 persons and when the procession reached near Anjaneyaswamy temple in their village, someone have damaged the cement pole which was laid two years prior to that date and that they have also damaged hand pump at the temple. She further deposed that she could not identify the persons who damaged the cement pole and hand pump as the members in the procession have colored their faces with Gulam. Thus, P.W.3 has not deposed any incriminating evidence against the accused. Now the evidence of P.Ws 1 to 4 remained incriminating against the accused and therefore, it is to be seen whether the evidence of P.Ws 1 to 4 stood to the test of cross- examination and whether their evidence is sufficient to find the accused guilty of the offence charged against them.

11.The learned counsel for accused contended that this is a false case foisted against the accused and there is abnormal delay in giving report to police. The alleged incident took place on 23.07.2013. Whereas, P.W.1 gave report at Tsunduru Police Station on 28.09.2013 at 12.00 noon. Thus, there is delay of more than two months in giving report to police. The reason for delay in reporting by the complainant in Column No.8 of printed FIR is mentioned as “Waiting for court permission”. The above said reason is not pertaining to the delay in giving report, but the delay that was caused after giving report and

before registering the FIR. Either P.W.1 or P.W.7 who is the Investigating Officer in

this case, have not come up with any explanation for the delay caused in giving report to police. A perusal of the record amply makes it clear that the dispute is between members of two political parties and therefore, in view of the political rivalry between the parties, the contents of Ex.P1 report and evidence of P.Ws 1 to 4 has to be viewed cautiously.

12.Admittedly, the cement pole which is said to have been damaged is erected in the temple land. P.W.1 in his cross-examination deposed that he has submitted documentary proof to show that Komaravolu Subramanyam has permitted to construct Y.S.R statue in the temple land. Whereas, P.W.3 in his cross-examination deposed that oral permission was obtained from the temple trustee members for erection of the cement pole. Thus, there is discrepancy in the evidence of prosecution witnesses as to whether the said cement pole was erected with the permission of the temple authorities. At the time of examination of A2 to A6 U/Sec.313 Cr.P.C they have filed a document which is true copy extract of minutes of meeting of Gram panchayat held on 21.02.2011. The said minutes of the meeting reads that one of the item for discussion is for removal 6 of cement pole in front of shed of Gundavarapu Kasiviswanadha Sarma i.e., A1 in panchayat land and accordingly, resolution was passed accepting the said item. Therefore, in view of the said resolution of Gram panchayat a reasonable doubt arises as to whether the cement pole was erected lawfully and whether the same is in existence as on the date of incident. P.W.7 in his cross-examination deposed that he has not ascertained whether any permission was obtained for installing statue in the temple land from the temple authorities or from panchayat Officials. Thus, it is clear that the Investigating Officer has not gathered crucial evidence concerning the existence of cement pole. Admittedly, no incriminating material or damaged property was seized from the scene of offence. Therefore, this aspect also goes to against the prosecution case.

13.A perusal of the record discloses that none of the witnesses have deposed about the specific overt acts A1 to A6 in damaging the cement pole and panchayat hand pump in the temple. A perusal of the record discloses that about 50 persons have participated in the procession. P.W.6 deposed that she could not identity the offenders as they have coloured their faces with Gulam. Hence, in such circumstances in the absence of any evidence from the prosecution witnesses with regard to the specific overt acts of A1 to A6, it is hard to ascertain their involvement in committing the offence.

14.As per the prosecution case and evidence of P.Ws 1 to 4 panchayat hand pump in front of the temple was also damaged by the accused. Admittedly, no report was given by the panchayat Officials with regard to the damage caused to the hand pump. In the cross-examination of P.W.7 he deposed that he has not received any report from the temple authorities or from panchayat Officials concerning the damaged of cement pole or panchayat hand pump. Further, a perusal of the record discloses that P.W.7 who is the Investigating Officer in this case has not examined any panchayat Officials to ascertain the damage caused to hand pump in the incident.

15.In the cross-examination of P.W.4 he deposed that he has not stated to the police that A1 to A6 have not formed themselves into unlawful assembly by arming with sticks and rods and they have not created fear in the minds of public. Ex.D1 which is relevant portion in 161 Cr.P.C statement of P.W.4 is marked to that effect. In the cross-examination of P.W.7 he deposed that except P.W.1 all the remaining witnesses have stated before him that the accused have not formed themselves into unlawful assembly and they have not frightened the public by arming themselves with sticks and rods. In the cross-examination of P.W.1 he deposed that there are disputes between A1 and L.W.4 Komaravolu Narasimharao ie., P.W.3 whereas, P.W.3 in his cross-examination denied the 7 suggestion that there are disputes between him and A1. Thus, the evidence of P.Ws 1 to 4 suffers from several discrepancies which material effect the prosecution case.

16.In view of the discussion in the foregoing paragraphs, I am of the considered opinion that the discrepancies found in the evidence of prosecution witnesses does not inspire confidence of this court in believing the prosecution case. Therefore, there can be no hesitation in holding that the prosecution has failed to establish its case against A2 to A6 and accordingly, A2 to A6 are entitled for benefit of doubt.

17.In the result, I find the A2 to A6 not guilty for the offence U/Sec.427 r/w 34 of I.P.C and accordingly A2 to A6 are acquitted of the said offence U/Sec.255(1) Cr.P.C. The bail bonds of A2 to A6 which are executed earlier shall be in force for a period of 6 months as required U/Sec.437(A) Cr.P.C. There is no order as to property.

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

pronounced by me in open court, this the 27th day of April, 2017.

sd/- Ch.Pavan Kumar,

II Addl. Judicial I Class Magistrate, Tenali. Appendix of evidence Witnesses examined For Prosecution:For Defence:

P.W.1 : A.Nageswara Rao - None - P.W.2 : K.Atchaiah P.W.3 : K.Narasimha Rao P.W.4 : A.Anjaneyulu P.W.5 : K.Vara Lakshmi Subhadra P.W.6 : P.Bhanumathi P.W.7 : D.Ravindra Babu Exhibits marked For Prosecution: Ex.P.1 : Report of PW.1 Ex.P.2 : 161 Cr.P.C statement of P.W.1 Ex.P.3 : FIR Ex.P.3 : Rough sketch

For Defence: Ex.D.1 : Relevant portion of 161 statement of P.W.4

MOs. Marked Nil

sd/- Ch.Pavan Kumar,

II Addl. Judicial I Class Magistrate, Tenali. // True copy //

II Addl. Judicial I Class Magistrate, Tenali.

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