Sri G.L.V. Prasad

1 CC_89_2016 24.12.2018

IN THE COURT OF II ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS-CUM-III ADDITIONAL JUNIOR CIVIL JUDGE :: ELURU.

Present: Sri G.L.V. Prasad Special Judicial Magistrate of First Class (Excise)-cum-IV Additional Junior Civil Judge FAC. II Additional Judicial Magistrate of I Class

Monday, the Twenty-forth day of December 2018

C. C. No.89 of 2016

Between

State: The Food Safety Officer, West Godavari District, Eluru … Complainant

and

Bhisetty Nageswara Rao, s/o late Kanakaiah, aged about 35 years, M/s. B. G. R. Fruits, Near over bridge, Advocate Chakradhara Rao gari building, N. R. Pet, Eluru, West Godavari District. … Accused

This case is coming on before me for final hearing on 18.12.2018 in the presence of Sri Venkata Ratnam, Assistant Public Prosecutor, for complainant and of Smt. D. Radha Vara Lakshmi, advocate for accused and upon perusing the material on record; and having stood over for consideration till this day, the Court delivered the following___

JUDGMENT

The Food Safety Officer, West Godavari District, Eluru filed this complaint alleging that accused has committed the offences punishable under Sections 26(2) (1) and 3(1)(zz)(iii) and punishable under Section 59(i) of the Food Safety and

Standard Act, 2006 (for short, 'Food Safety Act').

2.The case of prosecution, as culled out from the evidence of prosecution witnesses, in brief, is as follows:

(a). Accused is the Proprietor of M/s. B.G.R Fruits, situated near Over

Bridge, Advocate Chakradhara Rao Gari Building, N. R. Pet, Eluru. On 24.02.2015 at about 3.00 PM, PW.1, who is the Food Safety Officer of West Godavari District at Eluru, having secured the presence of PW.2, visited the business premises of accused under the supervision of Designated Officer, Food Safety of West

Godavari District, along with PW.4, who is his Office Subordinate, and found the accused transacting the business. PW.1 disclosed his identity as the Food Safety 2 CC_89_2016 24.12.2018

Officer to accused. In the presence of accused and PWs.2 and 4, PW.1 inspected the business premises and found Banana, Orange, Watermelon and 'Kimia dates' present in the business premises of accused. On enquiry, accused disclosed that ‘Kimia dates’ were supplied by a Van from Vijayawada and he purchased ‘Kimia dates’ supplied by the van from Vijayawada and kept the same for sale to public for human consumption. Accused also stated that purchased bills of ‘Kimia dates’ are not available in the shop, as he was not given the bills. PW.1 observed the said ‘Kimia dates’ and it contains "Original Kimia Dates, Premium Quality,

Nutritional Informatial Typical value per 100 grams energy 285 CAL, Water 31 grams, Proteins 1.61 grams, Carbohydrates 63.77 grams, Fat 0.54 grams Fiber 1.64 grams, Sodium 17 mg, Calcium 43 mg, Phosphourus 50 mg, Potassium 697 gms, Vitamin-A 50 I.U, Vitamin-C 0.1 mg, Thiamine(B) 0.14 mg, Riboflavin(B) 0.12 mg, Niacin 0.68 mg, Folic Acid 7.2 I.U, Iron 2.9 mg, Zinc 0.12 mg, Original ‘Kimia

Dates’ keep in cool place, packed by ZARGARZADEH Commercial Company

West Pars Bird, Industrial Phase 3, ARG-E-JADOD. BAM Kerman Post Code- 7671135586, Net wt.48 pieces 650+100 grams processed in iron date of product

January 2015, valid upto 18 months and MRP 190/-.

(b). Having suspected the above original ‘Kimia dates’ packets as unsafe,

PW.1 purchased (8) boxes of above stock, paid Rs.880/- to accused under Ex.P4

Cash Receipt No.32, dated 24.02.2015, issued Ex.P5 Form-VA Notice to accused under Rule 2.4.1(3) by disclosing his intention to send the so purchased (8) boxes of original ‘Kimia dates’ to the Food Analyst, State Food Laboratory, Hyderabad for analysis and obtained acknowledgement for the same. PW.1 divided the so purchased (8) boxes of original ‘Kimia dates’, into four equal parts i.e. two boxes in each part and tied with paper. On each sample part, a Lable like Ex.P6 bearing

No.005B/01166/2015 containing the particulars of sample are affixed. Each sample part wrapped in the thick wrapper paper and the ends are neatly folded in and affixed by means of gum. On each sample tin, the paper slip issued by the

Designated Officer, Food Safety and Standards, 005-West Godavari District 3 CC_89_2016 24.12.2018 bearing code No.005B/01166/2015 was affixed from bottom to top by means of gum and obtained the signatures of accused on each sample tin in such a manner that both wrapper paper and the paper slip carry the part of signature. Each sample tin tied with a strong thread and affixed seals on top, bottom and middle of both sides the sample tin by using impression seal with wax by covering the knots.

PW.1 informed the accused under Rule 2.4.5 that if it is so desired he may make an application immediately to the Food Safety Officer of West Godavari District for sending one part of the sample to the accredited laboratory. All the above process was covered under Ex.P7 mediators report drafted by PW.1, read over the contents to accused, PWs.2 and 4, and obtained their signatures.

(c). On 25.02.2015, PW.1 sent one part of the sample packet along with

Memorandum in Form-VI to the Food Analyst, Hyderabad by EMS Speed Post

Parcel, vide Ex.P9 Postal Receipt No.ACA801245222IN, dated 25.02.2015, under intimation to the Designated Officer and Ex.P8 a separate copy of Memorandum in

Form-VI containing the impression seal sent to the Food Analyst, Hyderabad by registered post acknowledgement due, vide Ex.P10 receipt No.ARN964157204IN,

dated 25.02.2015 under intimation to the Designated Officer. The remaining three

parts of the sample packets along with Memorandum in Form-VI in triplicate were handed over to the Designated Officer, West Godavari District, in a sealed packet under Ex.P11 acknowledgment dated 25.02.2015. The Food analyst, State Food

Laboratory, Hyderabad delivered Ex.P12 analytical report in Form-B bearing

No.273/2014-15, dated 12.03.2015 with a covering letter No.464/SFL/2015, dated 12.03.2015 and opined that the sample contains E.Coli and Salmonella, which are

Pathogens and injurious to health and it is, therefore, unsafe.

(d). On receipt of Ex.P12 analytical report, Designated Officer, Food Safety and Standards, West Godavari District, Eluru sent Ex.P14 notice bearing

No.005B/01166/2015, dated 18.03.2015, under Registered Post Acknowledgment

Due vide Ex.P15 receipt No.A RN964179655IN, dated 19.03.2015 and intimated the accused, if it is so desired, he may make an application to the Designated 4 CC_89_2016 24.12.2018

Officer, Food Safety and Standards, West Godavari District, Eluru within 30 days from the date of receipt of the notice, to send the other part of sample bearing

Code No.005B/01166/2015 to accused. But, accused did not respond for the same. The Food Safety Designated Officer sent detailed report to the Food Safety

Commissioner dated 07.05.2015. On perusal of all documents, the Commissioner,

Food Safety and Standards, Andhra Pradesh, Hyderabad, issued ExP18 proceedings bearing Rc.No.578/F2/2014-15, dated 22.06.2015, to launch prosecution against accused, stating that there is a prima facie case against accused for sale of original ‘Kimia dates’ for human consumption by violating of the provisions of Section 3(1)(zz),(iii),26(2)(i), punishable under Section 59(1) of Food

Safety Act.

3.On 15.02.2016, this Court took cognizance of the offences under Sections 26(2)(i) and 3(1)(zz)(iii) and punishable under Section 59(i) of Food Safety Act against accused.

4.On appearance of accused, copies of case papers were furnished to accused. Accused was examined under Section 251 of Cr.P.C., for which he denied the offences, pleaded not guilty and claimed to be tried.

5.In order to establish its case, prosecution has examined PWs.1 to 4 and got marked Exs.P1 to P18.

6.After closure of prosecution evidence, accused was examined under

Section 313 of Cr.P.C., with regard to the incriminating material appearing in the evidence of prosecution witnesses, for which he denied. On behalf of the defence,

Ex.D1 was marked during cross-examination of PW.2.

7.Heard learned Assistant Public Prosecutor, for complainant, Smt. D. Radha

Vara Lakshmi, learned counsel for the accused, and perused the record.

5 CC_89_2016 24.12.2018

8.Now the point that arises for determination is___

Whether prosecution has brought home the guilt of accused of the offences under Sections 26(2)(i) and 3(1)(zz)(iii) punishable under Section 59(i) of Food Safety and Standards Act, 2006 beyond all reasonable doubt?

9.Point: It is the contention of learned Assistant Public Prosecutor that the evidence of PWs.1 to 4, particularly the evidence of PWs.1, 3 and 4 is consistent and cogent with regard to PW.1 visiting business premises of accused, purchasing of ‘Kimia Dates’ from accused, sending sample bottles to the analyst for analysis according to the procedure. It is also his contention that immediately on receipt of

Ex.P12 analyst report, Ex.P14 notice as contemplated under law was also given to the accused by PW.1 and as accused has not availed his opportunity to send second sample to the Central Laboratory for analysis, and inasmuch as Ex.P12 analyst report goes to show that 'Kimia dates' purchased in the business premises of accused is 'unsafe food', accused is liable for punishment of the offences with which he is alleged.

10.On the other hand, it is the contention of learned counsel for accused that accused is noway concerned with the alleged business premises in question; and that prosecution witnesses obtained signature of accused, when accused visited the business premises for purchase of some food products, and as such, criminal liability cannot be fastened on the accused. It is also her contention that there are number of procedural irregularities, while purchasing the alleged food products from the alleged business premises, drawing of samples, sending the same to the analyst and also while obtaining the analyst report on the samples, and as such, accused is entitled to acquittal of the offences with which he is alleged. In support of her contention, learned counsel has drawn attention of the Court to the various provisions of the Food Safety Act and the Rules made thereunder and also the

Regulations concerned.

6 CC_89_2016 24.12.2018

11.In view of the case of prosecution and in view of the rival contentions raised on either side, now it has to be seen whether prosecution is able to bring home the guilt of accused of the offences with which he is alleged. As already noted, on behalf of prosecution, PWs.1 to 4 were examined and Exs.P1 to P18 were marked. In his evidence, PW.1, who is the Food Safety Officer, while reiterating the contents of complaint deposed about visiting the business premises of accused on 24.02.2015, purchasing of (8) boxes of 'Kimia dates', drawing of four samples, as per the procedure, sending of the same for analysis, receipt of analyst report mentioning that the samples of 'Kimia dates' is 'unsafe' food, informing the said analyst report to accused, and filing of complaint against accused by PW.3 etc. facts and through him Exs.P1 to P18 were marked. PW.2 is the mediator secured by PW.1, but he did not support the case of prosecution and turned hostile; and according to him he worked as Salesman in M/s. B.G.R. Fruits Shop at Eluru and about four years back on one day four persons came to his shop and asked for the 'kimia dates', each box contain 1/2 and they purchased (8) boxes, verified the shop, prepared some papers, obtained his signatures on Exs.P4 to P7; and that he does not know the contents of Exs.P4 to P7. He also deposed that accused is the relative of Bhisetty Ganga Rao, who is the owner of M/s. B.G.R

Fruits Shop; and that accused aalso came to the shop to purchase the fruits.

PW.3 is the Food Safety Officer of Eluru and according to him based on Ex.P18 proceedings, he filed complaint against accused. PW.4 is the Office Subordinate in Food Safety Office and he corroborated the evidence of PW.1.

12.With regard to the powers and authorities of PWs.1 and 3, prosecution has relied upon Exs.P1 to P3. Ex.P1 is a copy of Andhra Pradesh Gazette Notification

dated 26.08.2011, which goes to show that PW.1 is the Food Safety Officer for the

entire State of Andhra Pradesh, with effect from 05.08.2011. Ex.P2 is an attested copy of Proceedings of Commissioner of Food Safety, Andhra Pradesh,

Hyderabad, which goes to show that PW.3, who is a Gazetted Food Inspector, is 7 CC_89_2016 24.12.2018 the Designated Officer of entire revenue district of West Godavari. Ex.P3 is attested copy of G.O.Rt. No.101, Health, Medical & Family Welfare (L.1)

Department, dated 16.01.2013, which goes to show that the Commissioner of

Health and Family Welfare as Commissioner of Food Safety for the State to exercise the powers and perform the functions under the Food Safety and

Standards Act, 2006 and the Rules 2011 and Regulation 2011 made thereunder with effect from 03.01.2013.

13.Coming to the other documentary evidence placed on record by prosecution,

Ex.P4 is the receipt dated 24.02.2015 issued by the accused to Food Safety Offier of Eluru, which goes to show that PW.1 purchased (8) packet of 'Kimia dates' from the business premises of accused for an amount of Rs.880/-. Ex.P5 is Form-VA

Notice dated 24.02.2015 issued by PW.1 to accused, containing the signatures of

PWs.1, 2, 4 and accused, with regard to taking of sample of food from the business premises of accused. Ex.P6 is a lable of container under Rule 2.3.1(8), containing the signatures of PWs.1, 2, 4 and accused, mentioning the Code

No.005B/01166/2015. Ex.P7 is the mediators report, which goes to show about visiting the business of accused, purchasing of 'kimia dates', drawing of samples according to procedure. Ex.P8 is the Form-VI Memorandum to Food Analyst issued by PW.1 and one part of sample packet and copy of Form-VI were sent to the Food Analyst, State Laboratory, Hyderabad for analysis, under Exs.P9 and

P10 postal receipts. Ex.P11 is the acknowledgment of Food Safety Designated

Officer, in token of receiving three parts of sample bearing Code

No.005B/01166/2015. Ex.P12 is the Food Analyst Report dated 12.03.2015 and according to which the sample i.e., 'kimia dates' contain 'E.Coli & Salmonella, which are pathogens and injurious to health, hence, it is unsafe. Ex.P13 is the covering letter from Food Analyst, Hyderabad to the Food Safety Designated

Officer, West Godavari District, Eluru. Ex.P14 is the Notice dated 18.03.2015 issued by the Food Safety Designated Officer, West Godavari District, Eluru to the 8 CC_89_2016 24.12.2018 accused. Ex.P15 is the postal receipt dated 19.03.2015. Ex.P16 is the postal acknowledgment of accused dated 24.03.2015. Ex.P17 is the letter addressed by

PW.3 to the Commissioner of Food Safety and Standards, Hyderabad. Ex.P18 is the proceedings issued by the Commissioner of Food Safety, Andhra Pradesh,

Hyderabad dated 22.06.2015 directing PW.3 to launch prosecution against accused.

14.A careful perusal of the evidence of PWs.1 to 4 coupled with Exs.P1 to P18, this Court is of the view that as rightly contended by learned counsel for accused, there are certain doubts and discrepancies in the very case of prosecution. For instance, according to complainant, accused was the proprietor of business premises in question. But in his cross examination, PW.1 admitted that Ex.P4 cash receipt said to have been issued by accused goes to show that it contains B.G.R.

Fruits, Proprietor of Bhisetty Ganga Raju. According to prosecution, one Bhisetty

Nageswara Rao is the accused, as the Proprietor of B.G.R. Fruits. It is not case of prosecution that accused is the family member of Bhisetty Ganga Raju and the father's name of accused is mentioned as late Kanakaiah. No doubt, PW.1 voluntarily adds that accused said that he is having licence in his name and he has not produced any licence. But he admitted that he did not mention about the said fact in Ex.P7. He also deposed that he does not know whether the shop licence is in the name of Bhisetty Ganga Raju at the time of inspection. From this, it is quite clear that his evidence is not consistent and cogent with regard to the crucial aspect of the name of the Proprietor of the business premises in question.

However, assuming for a moment that the business premises in question was handed over to accused by its original owner for doing business or the accused is having valid licence over the business premises in question is true, definitely either there would be a statement in that regard from accused or mentioning the said fact in Ex.P7 mediators report. But, no such statement of accused is placed by the prosecution before the Court. Further, in his cross-examination, PW.1 admitted 9 CC_89_2016 24.12.2018 that he has not mentioned in Ex.P7 that accused informed him that he was handed over the shop from the said Bhisetty Ganga Raju for doing business in his name.

Further, in his cross examination, PW.2, who is the then Salesman of M/s. B.G.R.

Fruits Shop of Eluru in question, admitted that accused is noway concerned to M/s

B.G.R. Fruits shop and at the request of PW.1 accused, as attestor, put four or five signatures i.e on Exs.P4 to P7 and through him Ex.D1 original license of Bhisetty

Ganga Raju for fruits business was marked. Furthermore, in his cross- examination, PW.3, who filed complaint against accused, deposed that he has not verified whether accused is the owner of the shop or not.

15.In view of the said evidence of PWs.1 to 3, as rightly contended by learned counsel for accused, this Court has no hesitation to hold that there is any amount of discrepancy with regard to the connection of accused with the business premises in question. In that view of the matter and inasmuch as Ex.D1 coupled with Ex.P4 receipt go to show that one Bheesetty Ganga Raju is the Proprietor of

M/s. B.G.R. Fruits i.e., the business premises in question, this Court is of the view that the case of complainant and the evidence of PWs.1, 3 and 4 to the effect that accused is the Proprietor of the business premises in question, appears to be not believable.

16.The other discrepancy pointed out by learned counsel for accused is, with regard to the presence of PW.3, at the time of inspection of the business premises in question by PW.1. On this aspect, in his chief-examination itself, PW.1 deposed that on 24.02.2015 at about 3.00 PM, himself, Food Safety Designated Officer i.e.

PW.3 and his Office Subordinate i.e. PW.4 visited the business premises of accused. The said evidence of PW.1 go to show that on 24.02.2015 at 3.00 PM, himself and PWs.2 to 4 visited the business premises in question. If really, the evidence of PW.1 is true, the signatures of PWs.1 to 4 and accused would find place on Exs.P4 to P8. But, in his cross-examination, PW.1 deposed that except

Ex.P7, PW.3 has not signed any other documents; and that PW.3 did not sign on 10 CC_89_2016 24.12.2018

Exs.P4 to P6 and P8. Interestingly, in his cross-examination, PW.3, who filed complaint against accused, categorically deposed that he was not present at the time of inspection and lifting of the sample from the business premises in question.

From this, it is quite clear that the evidence of PWs.1 and 3 is contrary to each other, with regard to the presence of PW.3, at the time of preparing Ex.P7 mediators report. The evidence of PW.1 coupled with the contents of Ex.P7 mediators report go to show that PW.3 was very much present at the time of preparing Ex.P7 mediators report. Inasmuch as PW.3 was not at all present along with PW.1 at the time of preparing Ex.P7 mediators report, it is not known how the signature of PW.3 finds place on Ex.P7 mediators report. The said circumstance and the contrary evidence between the evidence of PW.1 and the evidence of

PW.3, create any amount of doubt with regard to the very case of prosecution against accused.

17.So far as the procedural irregularities are concerned, according to learned counsel for accused, 'Kimia dates' are imported food product. In fact, in his cross- examination, PW.1 admitted that the sample is imported food item. He voluntarily adds that when the product came to the circulation it is an eatable item and not come under imported food item. But, he admitted that he has not mentioned the above fact in Ex.P7. In order to establish that complainant has not followed the mandatory procedure, learned counsel has drawn the attention of the Court to certain provisions of law. Therefore, first and foremost it has to be seen the provisions of Sections 42(2) and 47(5) of the Food Safety Act, which reads as follows__ "42. Procedure for launching prosecution (2). The Food Analyst after receiving the sample from the Food Safety Officer shall analyse the sample and send the analysis report mentioning method of sampling and analysis within fourteen days to Designated Officer with a copy to Commissioner of Food Safety." "47. Sampling and analysis (5). In case of imported articles of food, the authorised officer of the Food Authority shall take its sample and send to the Food Analyst of notified laboratory for analysis who shall 11 CC_89_2016 24.12.2018 send the report within a period of five days to the authorized officer."

18.A perusal of the said provisions of law, it can be deduced that as per the provisions of Section 42(2) of the Act, the food analyst shall send the analysis report within fourteen days to the Designated Officer with a copy of Commissioner of Food Safety; and as per Section 47(5) of the Act, if it is a imported articles of food, the food analyst shall send his report within a period of five days to the authorized officer. In view of the said provisions of law, now it has to seen when the sample was drawn and send to the food analyst for analysis and when the food analyst send his opinion. According to prosecution and as per the evidence of PW.1 coupled with Exs.P4 to P8, the sample was drawn on 24.02.2015 and sent to the food analyst on 25.02.2015. As per the contents of Ex.P12 food analyst report, it is evident the sample was received by the analyst on 27.02.2015 and after analysis issued Ex.P12 analyst report on 12.03.2015. From the said facts, it is quite clear that the food analyst issued her report on fourteenth of day receiving the food sample. Ex.P13 covering letter goes to show that Ex.P12 analyst report was sent to the Food Safety Designated Officer, Eluru on 12.03.2015. But, either in the evidence of PWs.1 and 3 or in Exs.P12 and P13, it is nowhere stated on which date the Designated Officer received Ex.P12 analyst report. Assuming for a moment that food analyst sent analyst report within fourteen days from the date of receipt of sample is true, inasmuch the sample is an imported food item and inasmuch as sub-section(5) of Section 47 of the Act goes to show that the food analyst shall send the analyst report to the authorized officer, within a period of five days, it can be held without any hesitation that the prosecution has not followed the mandatory procedure provided under Section 47(5) of the Act.

19.It is the contention of learned counsel for accused that Ex.P12 report was not issued in accordance with Regulation No.2.3.47(4) of the Food Safety and

Standards (Food Products Standards and Food Additives) Regulations, 2011 (for 12 CC_89_2016 24.12.2018 short, 'Regulation'). In fact, in his cross-examination, PW.1 admitted that the 'dates' come under Regulation No.2.3.47(4) of the Regulations. But, he denied the suggestion that Ex.P12 was not issued as per the said Regulation. In view of the same, now it has to be seen Regulation No.2.3.47(4) of the Regulations, which reads as follows___ "2.3.47 Nuts and Raisins

4. "Dates" means the product obtained by drying sound, clean fruits of proper maturity belonging to Phoenix dactylifera. The product may be washed, pitted or unpitted, with or without cap, pressed or loose. The product may be treated with sugar, glucose syrup, flour and vegetable oil. The product shall be free from foreign matter, living insects, mould, dead insects, insect fragments and rodent contamination. The product shall have pleasant taste and smell, free from odour and evidence of fermentation. The product shall be free from any added colouring matter. The product may contain food additives permitted in these regulations including Appendix A. The product shall conform to the microbiological requirements given in Appendix B. The product shall conform to the following requirements:---

(i) Moisture (m/m) Not more than 30.0 percent

(ii) Ash insoluble in dil HCI Not more than 0.1 percent

(iii) Blemished/Damaged Units Not more than 5.0 percent

(iv) Extraneous matter Not more than 1.0 percent Explanation: For the purpose of this paragraph---

(i) 'Blemished' means units showing scars, discoloration, sun burn, dark spots on the surface;

(ii) 'Damaged' means dates affected by mashing and/or tearing of the flesh exposing the pit or significantly changing the appearance.

(iii) 'Extraneous vegetable matter' means stalks, pieces of shells, pits, fibre, peel, etc."

20.A perusal of the said Regulation, it can be deduced that the food product shall conform certain requirements. In view of the said Regulation and inasmuch as it is the contention of learned counsel that Ex.P12 analyst report is not in accordance with the requirements mentioned in the said Regulation, now it has to be seen the contents of Ex.P12 food analyst report, to the extent relevant, which is in tabular form, reads as follows___

SlQuality CharacteristicsResultPrescribed Standards as No.per 2.3.47(4)

1.Moisture22.79%Not more than 30.0%

2.Total Ash4.19%

3.Ash Insoluble in Dilute HCI0.05%Not more than 0.1%

4.Synthetic Food ColourAbsent

5.Damaged DatesAbsentNot more than 5.0%

6.Extraneous matter AbsentNot more than 1.0% 13 CC_89_2016 24.12.2018

Microbiological Examination

7.Total Plate Count100Col/ml at 37oC for 24 Hours Incubation

8.Micro OrganismsPresent

9.Staph aureusAbsent

10. E.ColiPresentShall be absent

11. SalmonellaPresentShall be absent

12. Bacellus cereusAbsent

21.A combined reading of Regulation No.2.3.47(4) of the Regulations and the contents of Ex.P12 food analyst report, as rightly contended by learned counsel for accused, this Court is of the view that the food product is in accordance with the requirements mentioned in Regulation No.2.3.47(4) of the Regulations. So far as the microbiological requirements are concerned, as per Table 4 of Appendix B of

Regulations as against Serial No.2(g) 'Dates' it was mentioned that the 'total plate count, not more than 40,000/gm. In Ex.P12 report, the food analyst opined that sample contains E. Coli & Salmonella, which are pathogens and injurious to health. It may be mentioned here that though in Ex.P12 it was mentioned that the prescribed standards is as per Regulation 2.3.47(4), in the top portion of Ex.P12 report goes to show that food analyst issued her report in accordance with

Regulation (ii) of 2.3.1 of the Regulations. In fact, in his cross-examination, PW.3, admitted that the analyst issued Ex.P12 report under Regulation 2.3.1 of the

Regulations. He also deposed that he cannot say the result of Ex.P12 whether the food product not comes under the Food Safety and Standards (Food Products and Food Additives) Regulations, 2011; and that the expert can say about it.

In order to establish under which Regulation, the analysis was done, prosecution has not examined the food analyst. It is also the contention of learned counsel for accused that PW.1 has not taken any steps while lifting the sample and sending the same to the analyst, in microbiological parameters. In support of his contention, learned counsel has drawn the attention of the Court to Rule 2(10)(iv) 14 CC_89_2016 24.12.2018 of the Food Safety and Standard Rules, 2011 (for short’ Rules), which reads as follows__ "(iv). For lifting a sample for testing microbiological parameters, the method of lifting sample, type of container, temperature to be maintained, method of transportation and any other condition to maintain the integrity of the sample shall be notified by the Food Authority from time to time."

A perusal of the said rule, it can be easily said that there must be a notification by the Food Authority with regard to lifting of sample for testing in microbiological parameters. Coming to the case on hand, in his cross-examination, PW.1 categorically admitted that he has not taken any steps to send the sample as per

Rule 10(iv) of the Rules. The fact remains, even if Ex.P12 report goes to show that sample contains E. Coli & Salmonella, which are pathogens and injurious to health, inasmuch it is the evidence of PW.1 that he has not taken any steps to send the sample as per Rule 10(iv) of the Rules, it can be also easily said that

PW.1 has not followed the mandatory procedure prescribed under law. Therefore, in view of the said discrepancies and in the absence of examining and proving the contents of Ex.P12 through the food analyst concerned, it cannot be said that the seized food product is an 'unsafe' food.

22.On the above analysis of the evidence, this Court is of the view that prosecution has miserably failed to connect the accused of the offences with which he is alleged. In that view of the matter, this Court is of the view that prosecution has miserably failed to bring home the guilt of accused of the offences with which he is alleged and he is accordingly entitled to benefit of doubt.

23.In the result, accused is found not guilty of the offences under Sections 26(2) (1) and 3(1)(zz)(iii) and punishable under Section 59(i) of the Food Safety and

Standard Act, 2006 and he is accordingly acquitted under Section 255(1) Cr.P.C.

15 CC_89_2016 24.12.2018

The bail bond of accused shall be in force for a period of six months from this day as provided under Section 437-A of Cr.P.C.

Dictated to the Stenographer Grade-III, transcribed by her, corrected and

pronounced by me in open Court, on this the 24th day of December 2018.

Sd/-G.L.V.Prasad

SPL. JUDICIAL MAGISTRATE OF I CLASS,

(EXCISE)-CUM-IV AJCJ, ELURU.

FAC/II ADDL. JUDL. MAGISTRATE OF I CLASS, ELURU

Appendix of Evidence

Witnesses examined

For Complainant:For Defence:

PW.1: Y. Panduranga Rao None. PW.2: V. Venkata Kiran PW.3: A. Malakonda Reddy PW.4: P. Pullarao

Documents Marked

For Complainant:

Ex.P1/26.08.2011: Copy of Gazette Notification Ex.P2/26.05.2012: Proceedings of Commissioner of Food Safety AP Ex.P3/16.01.2013: Attested copy of appointment of Food Safety Commissioner. Ex.P4/24.02.2015: Cash receipt Ex.P5/24.02.2015: Form VA notice Ex.P6/24.02.2015: label of the container Ex.P7/24.02.2015: Mediator report Ex.P8/24.02.2015: Form VI Ex.P9/25.02.2015: Postal receipt Ex.P10/25.02.2015: Postal receipt Ex.P11/25.02.2015: Acknowledgment Ex.P12/12.03.2015: Form B analyst report Ex.P13/12.03.2015: Covering letter Ex.P14/18.03.2015: Notice to accused Ex.P15/19.03.2015: Postal receipt Ex.P16/24.03.2015: Acknowledgment from the accused Ex.P17/07.05.2015: Detailed report Ex.P18/22.06.2015: Prosecution sanction orders For Defence: Ex.D1/22.05.2014: Original license of Bhisetty Gangaraju for fruits business. Material Objects Marked.

NIL

Id/ G.L.V.

SJMFC(E)-CUM-IV AJCJ

FAC/II AJFCM 16 CC_89_2016 24.12.2018

CALENDAR AND JUDGMENT

CALENDAR AND JUDGMENT IN C.C. No.89/2016 ON THE FILE OF THE II

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS, ELURU.

DATE OF

Offence complaintapprehensionReleaseTaken Commence-close ofOrder of or reportof accusedon bailon filement of trialtrialsentence 24.02.15 04.02.16----15.02.16 24.10.2017 23.11.18 24.12.2018

Explanation for delay: No avoidable delay took place.

Complainant : The State : The Food Safety Officer, West Godavari District, Eluru ------------------------------------------------------------------------------------------------------------- S.No. Name of the Father’s name Age Religion Sex Calling Village Mandal Accused Bhisetty Nageswara Rao, s/o late Kanakaiah, aged about 35 years, M/s. B. G. R. Fruits, Near over bridge, Advocate Chakradhara Rao gari building, N. R. Pet, Eluru, West Godavari District. ------------------------------------------------------------------------------------------------------------- Offence: under Sections 26(2)(i) and 3(1)(zz)(iii) and punishable under Section 59(i) of Food Safety and Standards Act, 2006.

Finding : Found Not Guilty.

RESULT: Accused is found not guilty of the offences under Sections 26(2)(1) and 3(1)(zz)(iii) and punishable under Section 59(i) of the Food Safety and Standard Act, 2006 and he is accordingly acquitted under Section 255(1) Cr.P.C. The bail bond of accused shall be in force for a period of six months from this day as provided under Section 437-A of Cr.P.C.

Sd/-G.L.V.Prasad

SPL. JUDICIAL MAGISTRATE OF I CLASS,

(EXCISE)-CUM-IV AJCJ, ELURU.

FAC.II ADDL. JUDL. MAGISTRATE OF I CLASS, ELURU

Seal

Copy submitted to

The Hon’ble I Additional District and Sessions Judge, West Godavari District, Eluru.

1 CC_752_2015 24.12.2018

IN THE COURT OF II ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS-

CUM-III ADDITIONAL JUNIOR CIVIL JUDGE :: ELURU.

Present: Sri G. L. V. Prasad Special Judicial Magistrate of First Class (Excise) -cum-IV Additional Junior Civil Judge FAC/ II Additional Judicial Magistrate of I Class

Monday, the Twenty-forth day of December 2018

C. C. No.752 of 2015

Between

State: Sub Inspector of Police, Eluru II Town Law and Order Police Station Crime No.207 of 2015 … Complainant

and

Dandakonda Vamsi, s/o Narasimha Murthy, aged about 19 years, Uppara, Coolie, r/o Jalipudi village, ELuru Mandal, West Godavari District. … Accused

This case is coming on before me for final hearing on 18.12.2018 in the presence of Sri Venkata Ratnam, Assistant Public Prosecutor, for complainant and of Sri P. Naresh Kumar, advocate for accused and upon perusing the material on record; and having stood over for consideration till this day, the Court delivered the following___

JUDGMENT

The Inspector of Police, Eluru II Town Law and Order Police Station filed this case in Crime No.207 of 2015 of his station alleging that accused has committed the offences punishable under Sections 452 and 394 of the Indian

Penal Code, 1860 (for short, 'IPC').

2.The case of prosecution, in brief, is that on 11.05.2015 at about 4.00 PM, when one Smt. Vegunta Maruthi Devi (LW.1) was present at her house situated in

Chunduruvari Street, Powerpet, Eluru, accused trespassed into her house, put her in fear of instantaneous hurt, stabbed her with knife on her both hands, snatched gold chain weighing about 10 sovereigns from her neck and fled away from the spot. On hearing the cries of Smt. Maruthi Devi, PWs.2 to 6 and others chased and caught hold of accused at Lord Vinayaka temple, Powerpet, along with the stolen gold chain. After the said incident, Smt. Maruthi Devi lodged a report to police and based on the said report, PW.10, who is the SI of Police, registered a 2 CC_752_2015 24.12.2018 case in Crime No.207 of 2015, under Sections 452 and 394 of IPC and sent copies of FIRs to all the concerned. In the meanwhile, PW.8, who is the doctor, treated Smt. Maruthi Devi and issued wound certificate opining that the injury sustained by her is simple in nature. On receipt of a copy of FIR, PW.9, who is the

Inspector of Police, took up investigation, visited Lord Vinayaka temple, Powerpet, recorded confession statement of accused and in-pursuance of the confession of accused, seized stolen gold chain and knife and motorcycle bearing No.AP37TC 7190, which were used for commission of the offence, from the possession of accused under the cover of a mediators report in the presence of PW.7 and

Keerthi Naga Babu (LW.10), arrested the accused and sent him for judicial remand. On the same day, at about 7.45 PM, PW.9 visited scene of offence, drawn rough sketch of scene of offence, observed scene of offence, prepared scene of offence observation report in the presence of the same mediators, examined Smt.

Maruthi Devi, PWs.1 to 6 and Smt. Vaja Savitri (LW.7) and recorded their statements. After completion of investigation, PW.9 filed charge sheet against the accused.

3.On 30.06.2015, this Court took cognizance of the offences under Sections 452 and 394 of IPC against accused.

4.On appearance of accused, copies of case papers as required under

Section 207 of Cr.P.C were furnished to accused. Accused was examined under

Section 239 of Cr.P.C., for which he denied the offences. Charges under Sections 452 and 394 of IPC are framed against accused, read over and explained to him in

Telugu, for which he pleaded not guilty and claimed to be tried.

5.In order to establish its case, prosecution has examined PWs.1 to 10 and got marked Exs.P1 to P10 and MOs.1 to 3. Learned Assistant Public Prosecutor has given up the evidence of Keerthi Naga Babu (LW.10). On 25.10.2017 police filed a Memo along with a medical certificate stating that Smt. Vegunta Maruthi 3 CC_752_2015 24.12.2018

Devi (LW.1) is suffering from paralysis and is not able to attend the Court, and as such, her evidence was closed. On 10.12.2018 the evidence of Smt. Vaja Savitri (LW.7) was closed.

6.After closure of prosecution evidence, accused was examined under

Section 313 of Cr.P.C., with regard to the incriminating material appearing in the evidence of prosecution witnesses, for which he denied.

7.Heard learned Assistant Public Prosecutor for the complainant and Sri P.

Naresh Kumar, learned counsel for accused and perused the record.

8.Now the point that arises for determination is___

Whether prosecution has brought home the guilt of accused of the offences under Sections 452 and 394 of IPC beyond all reasonable doubt?

9.Point: The gravamen of the charges levelled against accused is that on 11.05.2015 at about 4.00 PM, when Smt. Vegunta Maruthi Devi (LW.1) was present in her house situated at Chundurivari Street, Powerpet, ELuru having made preparation to commit an offence, he trespassed into her house, put her in fear of instantaneous hurt, stabbed her hands with MO.2 knife, snatched MO.1 gold chain from her neck and when tried to escape on MO.3 motorcycle bearing

No.AP37TC 7190, on hearing her cries, PWs.2 to 6 and others caught hold of him along with MO.1 and produced him before PW.9, who is the Inspector of Police, and on such apprehension, PW.9 recorded his confession statement and in- pursuance of the confession statement, seized MO.1 from his possession, under the cover of Ex.P5 mediators report, in the presence of PW.7 and K. Naga Babu (LW.10), and thereby committed the offences punishable under Sections 452 and 394 of IPC. The plea of accused is one of total denial of the offences with which he is charged.

10.It is the contention of learned Assistant Public Prosecutor that the law with regard to the occurrence of incident of robbery and caught hold of accused was 4 CC_752_2015 24.12.2018 set into motion immediately after the incident; and that there is no delay in setting the law into motion. It is also his contention that though the victim Smt. Maruthi

Devi (LW.1), who is aged more than 80 years, is not examined by the prosecution and though PWs.1 to 3 and 6 did not support the case of the prosecution with regard to the identity of accused as culprit, the evidence of PWs.1 to 3 coupled with the evidence of PWs.4, 5 and 7 to 9 go to show that immediately after the incident PW.1 was treated by PW.8, who is the doctor, and the robbed property was seized from the possession of accused, and as such, accused is liable for the offences with which he is charged.

11.On the other hand, it is the contention of learned counsel for accused that

Smt. Maruthi Devi, who is the alleged victim and owner of alleged robbed property, is not examined by prosecution and the same is fatal to the case of prosecution.

It is also his contention that none of the prosecution witnesses, including PWs.4 and 5, identified the accused, as the culprit and in the absence of any direct evidence, accused cannot be connected to the offences with which he is charged.

It is his further contention that based on interested and inconsistent testimonies

PWs.4, 5, 7 and 9, accused cannot be convicted of the offences with which he is charged, and as such, accused is entitled to acquittal.

12.In order to establish its case, as already noted, prosecution has examined

PWs.1 to 10 and got marked Exs.P1 to P10 and MOs.1 to 3. PWs.1 to 6 are the persons alleged to have chased the accused, immediately after the incident, and caught hold of him with MO.1. PW.7 is the one of the mediators in whose presence confession and recovery mediators report covered under Ex.P5 and scene of offence observation report covered under Ex.P6 were prepared. PW.7 is the doctor treated Smt. Maruthi Devi (LW.1) and issued Ex.P7 wound certificate, opining that the injuries sustained by her are simple in nature. PWs.9 and 10 are investigating officers. PW.10 is the SI of Police registered Ex.P9 report of Smt.

Maruthi Devi (LW.1) as Ex.P10 FIR. PW.9 is the Inspector of Police conducted 5 CC_752_2015 24.12.2018 entire investigation and laid charge sheet against accused and through him, Ex.P8 rough sketch of scene of offence was marked.

13.According to prosecution, the law was set into motion with regard to the incident proper based on Ex.P9 report given by Smt. Vegunta Maruthi Devi (LW.1).

But, unfortunately, prosecution could not examine the victim and injured on the ground that she is aged more than 80 years and unable to move from bed due to paralysis, and with regard to the incident proper relied upon the evidence of PWs.1 to 6. Therefore, before evaluating the evidence of PWs.1 to 8, it is pertinent to refer the recitals of Ex.P9 report. The recitals of Ex.P9 report given by the victim go to show that on 11.05.2015 at about 4.00 PM, when she was in her house one person of the age from 20 to 25 years entered into her house, showed knife to her and keeping knife on her neck snatched gold chain weighing 10 sovereigns from her neck and while doing so, caused bleeding injury on her left hand thumb finger; and on her raising cries, culprit ran away towards Vinayakudi temple; and that neighbours chased and caught hold of the culprit.

14.In Ex.P1 report, it is nowhere mentioned the name of the culprit. In view of the same, now it has to be seen the evidence of PWs.1 to 10. As rightly contended on either side, PWs.1 to 3 did not support the case of prosecution and turned hostile, to the extent of identifying the accused as culprit; and PW.6 completely did not support the case prosecution. However, PWs.1 and 2 almost in similar lines deposed that about four years back between 3.30 PM and 4.00 PM, on hearing the cries of Smt. Maruthi Devi as 'thief' 'thief', they and others chased and caught hold of the thief and brought the gold ornament. PW.3 deposed that about three and half years back on one day he came to know that one person robbed gold chain from the neck of Smt. Maruthi Devi and that she did not see the incident and that police did not examine her. PW.6, who is servant maid of Smt.

Maruthi Devi, deposed that she does not know anything about this case and that she did not see any incident and that police did not examine her.

6 CC_752_2015 24.12.2018

15.Coming to the evidence of PWs.4 and 5, PW.4 deposed that his hotel is situated near the house of Smt. Maruthi Devi and that on 11.05.2015 at about 4.00

PM, while he was present in-front of his hotel, servant of Smt. Vimala Devi raised cries as 'donga' 'donga' and PW.2 and others chased one person and caught hold of the said person. He further deposed that he reached the spot and asked the people, who informed him that the said person stolen the gold chain from the neck of Smt. Maruthi Devi and that on their enquiry, the said person disclosed his name as that of accused. He also deposed that he made a phone call to the police and handed over the accused and case property i.e. MO.1 to the police. PW.5, who is the daughter of Smt. Maruthi Devi, corroborated the evidence of PW.4 and she further deposed that on 11.05.2015 at 4.00 PM, when she was in the bedroom in her house she heard cries of her mother Smt. Maruthi Devi as "donga, donga" and she came out of the bedroom and she and Smt. Savitri (LW.7) noticed her mother sustained injuries on her left palm and blood was oozing. She further deposed that her mother informed her that some unknown offenders stolen gold chain from her neck and stabbed with knife to her left palm; and that some neighbours chased the thief and caught hold of him at Vinayaka temple and brought him to her house and she identified him as accused. She also deposed that herself and neighbours handed over the accused and gold chain to the police and she shifted her mother to KV Hospital, Eluru for treatment; and that her mother gave report to police and took MO.1 gold chain from the Court for interim custody.

16.As seen from the evidence of PWs.1 to 6, this Court is of the view that though PWs.1 to 3 and 6 did not support the case of prosecution to the extent of identifying of accused as the culprit, the evidence of PWs.1 and 2 go to show about occurrence of robbing of gold chain from the neck of Smt. Maruthi Devi, chasing of culprit and caught hold of the culprit, immediately after the said incident.

The said evidence of PWs.1 and 2 coupled with the evidence of PWs.4 and 5, go to show that immediately after the incident the stolen property i.e., MO.1 along 7 CC_752_2015 24.12.2018 with the accused was handed over to the police. In fact, though PWs.4 and 5 were cross-examined by learned counsel for accused nothing was elicited to discredit their testimonies, with regard to the caught hold of accused along with

MO.1, immediately after the incident. No doubt, as rightly contended by learned counsel for accused none of the prosecution witnesses, including PWs.4 and 5, have nowhere deposed that they saw the accused snatching MO.1 from the neck of Smt. Maruthi Devi (LW.1) and prosecution also could not examine the victim and author of Ex.P9 Smt. Maruthi Devi (LW.1). But, it may be mentioned here that the prosecution could not examine the victim and author of Ex.P9 Smt. Vimala Devi only on the ground that she is aged more than 80 years and unable to move from bed due to paralysis. Further, the evidence of PW.8, who is the doctor, goes to show that immediately fifteen minutes after the incident i.e., on 11.05.2015 at about 4.15 PM, he examined Smt. Maruthi Devi (LW.1) and found a deep laceration at the base of left thumb and he issued Ex.P7 wound certificate opining that the said injury is simple in nature. The said evidence of PW.8 coupled with

Ex.P7 wound certificate is in corroboration with the recitals of Ex.P9 report with regard to Smt. Maruthi Devi (LW.1) sustained injury in the hands of culprit with knife. Therefore, simply because prosecution could not examine the victim and author of Ex.P9 report, entire case of prosecution cannot be brushed aside. In fact, it is also the case of prosecution that soon after commission of offence, accused was chased and caught hold of him along with MO.1 and handed over him to the police; and that thereupon, PW.9 recorded confession statement of accused and in-pursuance of the confession of accused MO.1 was recovered from the possession of accused under the cover of Ex.P5 mediators report.

17.In view of the said case of prosecution, now it has to be seen whether prosecution is able to establish about recovery of MO.1 from the possession of accused. On this aspect, PW.7, who is one of the mediators, while reiterating the contents of Ex.P5 mediators report, categorically deposed that on 11.05.2015 at 8 CC_752_2015 24.12.2018 5.30 PM, himself and another mediator Keerthi Naga Babu (LW.10) and Inspector of Police (PW.9) proceeded to Vinayaka temple, whereat some mob caught hold of one person. He further deposed that on enquiry by PW.9, the said person disclosed his identity as that of accused and in-pursuance of the confession of accused, MO.1 gold chain, MO.2 knife and MO.3 motorcycle were recovered from the possession of accused under the cover of Ex.P5. PW.9, who is the Inspector of Police, corroborated the said evidence of PW.7.

18.It is also the contention of learned counsel for accused that at the signatures portion of Ex.P5 mediators report, whitener was applied; and that the evidence of

PW.5 is not consistent with regard to the signature of accused on Ex.P5 and the same will create any amount of doubt. In view of the said contention, now it has to be seen the evidence of PWs.7 and 9. No doubt, in his cross-examination, PW.7 deposed that accused signature was not obtained on mediators report. But, in his chief-examination, PW.7 deposed that he obtained signature of accused. In view of the same, now it has to be seen the recitals of Ex.P5 mediators report. The contents of Ex.P5 mediators report go to show that the signature of accused is very much available. Therefore, simply because PW.7 deposed in his cross- examination that accused signature was not obtained in mediators report, based on the said stray statement, the documentary evidence i.e. Ex.P5, which is the best piece of evidence, containing the signature of accused, cannot be doubted.

The contents of Ex.P5, no doubt, go to show that after the signature of PW.7, whitener was applied and put another signature on it. On this aspect, PW.7 deposed that he has not applied whitener under the signature of PW.9 in mediators report. In fact, no whitener is applied under the signature of PW.9 mediators report and it was applied under the signature of PW.7. In his cross- examination, PW.7 also deposed that there is difference between the signature of second mediator report in original mediator report and the mediator report supplied to accused. According to prosecution Exs.P5 and P6 mediators report and scene 9 CC_752_2015 24.12.2018 of offence observation report were conducted in the presence of PW.7 and one

Keerthi Naga Babu (LW.10). There is no dispute with regard to the signature of

PW.7 on Exs.P5 and P6. The discrepancy is with regard to the applying of whitener and putting of signature under the signature of PW.7 i.e. with regard to the signature of Keerthi Naga Babu. In order to clarify the said discrepancy, prosecution has not examined the said Keerthi Naga Babu. But, on a perusal of the signatures under the signature of PW.7 on Exs.P5 and P6, it goes to show that they are similar. No doubt, in view of the admission of PW.7 that there is difference between the signature of second mediator report in the original mediators report and in the copy of mediators report supplied to accused. But, in order to support the said evidence, supplied copy of mediators report to accused was not marked as an exhibit. Had the said supplied copy of mediators report is marked as an exhibit, the discrepancy between Ex.P5 and supplied copy of accused would have been come to light. Therefore, in the absence of marking supplied copy of mediators report as an exhibit either through PW.7 or through PW.9, based on mere evidence of PW.7 to the effect that there is difference between the signature of second mediator in the original mediators report in the Court and the signature of second mediator in the copy of mediators report supplied to accused, the contents of Ex.P5 cannot be doubted. In that view of the matter, this Court is of the view that though PWs.7 and 9 were cross-examined by learned counsel for accused, nothing was elicited to discredit their testimonies, with regard to seizure of MO.1, belongs to Smt. Maruthi Devi (LW.1) from the possession of accused.

19.As discussed above, though prosecution has failed to establish that accused was the person trespassed into the house of Smt. Maruthi Devi (LW.1), put her in fear of instantaneous hurt, caused injury to her with MO.2 knife and robbed MO.1 gold chain from her neck, it has successfully established that soon after the said offence, MO.1 gold chain belongs to Smt. Maruthi Devi was recovered from the possession of the accused. Inasmuch as prosecution has established that MO.1 10 CC_752_2015 24.12.2018 belongs to Smt. Maruthi Devi was recovered from the possession of accused, this

Court is of the view that accused is liable to account for his possession of MO.1.

Since accused has failed to account for MO.1, belongs to Smt. Maurhti Devi, this

Court has no hesitation to hold that accused is liable for punishment for the offence under Section 411 of IPC. Before concluding, it may be mentioned here that since the offence under Section 411 of IPC is a lesser offence than the major offences under Sections 452 and 394 of IPC, with which accused is charged, at present, there is no need to frame alternative charge for the offence under Section 411 of IPC. In that view of the matter, this Court is of the view that though prosecution has failed to bring home the guilt of accused of the offences under

Sections 452 and 394 of IPC with which he is charged, it has established the guilt of accused of the offence under Section 411 of IPC

20.In the result, accused is found not guilty of the offences under Sections 452 and 394 of IPC and he is accordingly acquitted under Section 248(1) Cr.P.C.

However, accused is found guilty of the offence under Section 411 of IPC and he is accordingly convicted under Section 248(2) Cr.P.C.

Typed to dictation by Stenographer Grade-III, corrected and pronounced by me in open Court, on this the 24th day of December 2018.

Sd/- G. L. V. Prasad

SPL. JUDICIAL MAGISTRATE OF I CLASS,

(EXCISE)-CUM-IV AJCJ, ELURU.

FAC/II ADDL. JUDL. MAGISTRATE OF I CLASS, ELURU

21.Accused is questioned under Section 248(2) of Cr.P.C., with regard to the quantum of sentence that shall be awarded to him for the offence under Section 411 of IPC, for which accused pleaded mercy stating that he is a married person and he has two daughters. He further stated that his father is suffering from paralysis and that his family is depending upon his income.

22.Having regard to the facts and circumstances of the case and the nature of the offence committed by accused, this Court is of the view that it is not a fit case 11 CC_752_2015 24.12.2018 to invoke the benevolent provisions of either under Section 360 of Cr.P.C., or the provisions of the Probation of Offenders Act. However, in view of the nature of the offence committed by accused and keeping in view the plea of mercy pleaded by the accused and the family condition of accused, this Court is of the view that if accused is sentenced to undergo certain period as imprisonment, the ends of justice would be met.

23.Accordingly, accused is sentenced to undergo rigorous imprisonment for a period of ONE YEAR for the offence under Section 411 of IPC. The period of remand already undergone by the accused from 12.05.2015 to 18.05.2015 shall be given set off under Section 428 of Cr.P.C. The accused is informed his right to prefer appeal as against this judgment and he is also informed that he is entitled to free Legal Aid/Services, as per the Legal Services Authorities Act, if he is so interested. MO.1 which was given interim custody to Smt. Maruthi Devi (LW.1) shall be retained with her on the same terms and conditions imposed earlier till the expiry of appeal time. MO.2 knife shall be destroyed after expiry of appeal time.

MO.3 Hero Glamour motorcycle bearing No.AP37CA 7190, which was given interim custody to Mudaraboina Rama Krishna, s/o Venkateswara Rao of Jalipudi village, Eluru Rural Mandal, shall be retained with him on the same terms and conditions imposed earlier till the expiry of appeal time.

Typed to my dictation in open Court, corrected and pronounced by me in open Court, on this the 24th day of December 2018.

Sd/- G. L. V. Prasad

SPL. JUDICIAL MAGISTRATE OF I CLASS,

(EXCISE)-CUM-IV AJCJ, ELURU.

FAC/II ADDL. JUDL. MAGISTRATE OF I CLASS, ELURU

Appendix of Evidence

Witnesses examined

For Prosecution:For Defence: PW.1: Mallipoodi Markandeyulu. None. PW.2: Polisetty Tulasiram. PW.3: Kola Ramu. PW.4: Veemuri Ranga Rao @ Raja. PW.5: Smt. Anumolu Devika Rani. PW.6: Smt. Boore Lakshmi @ Appala Narasamma.

12 CC_752_2015 24.12.2018

PW.7: Kallepalli Srinivasa Rao-VRO. PW.8: Dr. K. S. Vishnu Mohan. PW.9: Mr. U. Banga Raju-CI of Police. PW.10: Mr. Allu Durga Rao-SI of Police.

Documents Marked

For Prosecution: Ex.P1: 11.05.2015: 161 Cr.P.C. statement of PW.1 Ex.P2: 11.05.2015: 161 Cr.P.C. statement of PW.2 Ex.P3: 11.05.2015: 161 Cr.P.C. statement of PW.3 Ex.P4: 11.05.2015: 161 Cr.P.C. statement of PW.4 Ex.P5: 11.05.2015: Mediators report. Ex.P6: 11.05.2015: Scene of offence observation report. Ex.P7: 26.06.2015: Wound certificate of Maruthi Devi (LW.1) Ex.P8: ---- : Rough sketch of the scene of offence. Ex.P9: 11.05.2015: Report given by Smt. Vegunta Maruthi Devi (LW.1) to police Ex.P10: 11.05.2015: Printed FIR in Crime No.207 of 2015 of Eluru II Town P.S. For Defence: Nil. Material Objects Marked. MO.1: Gold chain with locket MO.2: Knife MO.3: Hero Glamour motorcycle bearing No.AP37CA 7190

Id/- G. L.V.P.

SJMFC(E)-CUM-IV AJCJ

FAC/II AJFCM 13 CC_752_2015 24.12.2018

CALENDAR AND JUDGMENT

CALENDAR AND JUDGMENT IN C.C. No.752/2015 ON THE FILE OF THE II

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS, ELURU.

DATE OF

Offence complaintapprehensionReleaseTaken Commence-close ofOrder of or reportof accusedon bailon filement of trialtrialsentence 11.05.15 11.05.1512.05.201518.05.15 30.06.15 17.09.2018 11.12.18 24.12.2018

Explanation for delay: No avoidable delay took place. Complainant : The State : Inspector of Police, Eluru II L & O Police Station. Crime No. 207 of 2015 ------------------------------------------------------------------------------------------------------------- S.No. Name of the Father’s name Age Religion Sex Calling Village Mandal Accused Dandakonda Vamsi, s/o Narasimha Murthy, aged about 19 years, Uppara, Coolie, r/o Jalipudi village, ELuru Mandal, West Godavari District. ------------------------------------------------------------------------------------------------------------- Offence: under Sections 452 and 394 or 411 of IPC.

Crime No. 207 of 2015

Finding : Found not guilty of the offences under Sections 452 and 394 of IPC Found guilty of the offence under Section 411 of IPC.

RESULT: Accused is found not guilty of the offences under Sections 452 and 394 of IPC and he is accordingly acquitted under Section 248(1) Cr.P.C. However, accused is found guilty of the offence under Section 411 of IPC and he is accordingly convicted under Section 248(2) Cr.P.C. Accordingly, accused is sentenced to undergo rigorous imprisonment for a period of ONE YEAR for the offence under Section 411 of IPC. The period of remand already undergone by the accused from 12.05.2015 to 18.05.2015 shall be given set off under Section 428 of Cr.P.C. The accused is informed his right to prefer appeal as against this judgment and he is also informed that he is entitled to free Legal Aid/Services, as per the Legal Services Authorities Act, if he is so interested. MO.1 which was given interim custody to Smt. Maruthi Devi (LW.1) shall be retained with her on the same terms and conditions imposed earlier till the expiry of appeal time. MO.2 knife shall be destroyed after expiry of appeal time. MO.3 Hero Glamour motorcycle bearing No.AP37CA 7190, which was given interim custody to Mudaraboina Rama Krishna, s/o Venkateswara Rao of Jalipudi village, Eluru Rural Mandal, shall be retained with him on the same terms and conditions imposed earlier till the expiry of appeal time.

Sd/- G. L. V. Prasad

SPL. JUDICIAL MAGISTRATE OF I CLASS,

(EXCISE)-CUM-IV AJCJ, ELURU.

FAC/II ADDL. JUDL. MAGISTRATE OF I CLASS, ELURU

Seal Copy submitted to

The Hon’ble I Additional District and Sessions Judge,West Godavari District, Eluru.

Copy to accused.

1

CC. No.19_2018 Dated 06.12.2019

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

(EXCISE)-CUM-IV ADDITIONAL JUNIOR CIVIL JUDGE :: ELURU.

Present: Sri G. L. V. Prasad Special Judicial Magistrate of First Class (Excise) -cum-IV Additional Junior Civil Judge

Friday, the Sixth day of December 2019

C. C. No.19 of 2018

Between

State: Sub Inspector of Police, Pedavegi Police Station Crime No.226 of 2017 … Complainant

and

1. Pandi Srinivasa Rao, s/o Suryanarayana, aged about 25 years, Yadava,

2. Pandi Gangadhar Rao, s/o Suryanarayana, aged about 30 years, Yadava, A.1 and A.2 are r/o Vegiwada, Pedavegi Mandal, West Godavari District.

… Accused

This case is coming on before me for final hearing on 02.12.2019 in the presence of Sri K. Srikrishna, Assistant Public Prosecutor, for complainant and of Sri E. Srinivasa Babu, advocate for A.1 and A.2; and upon perusing the material on record; and having stood over for consideration till this day, the Court delivered the following___

JUDGMENT

The Sub Inspector of Police, Pedavegi Police Station filed this case in

Crime No.226 of 2017 of his station alleging that A.1 and A.2 have committed the offences punishable under Section 324, 354A and 506 read with 34 of the Indian

Penal Code, 1860 (for short, 'IPC').

2.The case of prosecution, in brief, is that the house of PW.1 and the house site of A.1 and A.2 are situated side by side in Vegiwada village; and that there are disputes between them with regard to boundary site between their house sites.

While so, on 29.09.2017 at 10.00 AM, again the same boundary dispute arose between PW.1 and A.1 and A.2. During the said dispute, A.1 and A.2 beat PW.1 with sticks, hands and legs and caused injuries. On seeing the same, when PW.2, who is the mother of PW.1, intervened A.1 and A.2 caught hold of the tuft of hair of PW.2, made her to fell down, kicked on her chest, outraged her modesty and also threatened PWs.1 and 2 with dire consequences. Immediately after the said 2

CC. No.19_2018 Dated 06.12.2019

incident, PW.1 was shifted to Government Hospital, Eluru. On receipt of hospital intimation, Mr. T. Brahmanandham, who is the Head Constable, attached to

Government Hospital Outpost, Eluru visited the hospital, recorded the statement of

PW.1 and forwarded the same to Pedavegi Police Station on point of jurisdiction.

On receipt of the same, PW.8, who was Head Constable of Pedavegi Police

Station, registered the statement of PW.1, as a case in Crime No.226 of 2017, under Sections 324, 354A and 506 read with 34 of IPC and took up investigation.

During investigation, PW.8 examined PWs.1 to 5, recorded their statements, visited scene of offence and prepared rough sketch of scene of offence.

Thereafter, PW.7, who was the Sub Inspector of Police, Pedavegi Police Station took up further investigation, verified the investigation done by PW.8, found it on correct lines and issued notice to A.1 and A.2, under Section 41A of Cr.P.C and received explanation from them. PW.6, who is the doctor, treated PW.1 and issued wound certificate stating that no opinion can be given as there were no external injuries to PW.1. After completion of investigation, PW.7 laid charge sheet against

A.1 and A.2.

3.On 01.02.2018, this Court took cognizance of the offences under Sections 354A, 324 and 506 read with 34 of IPC against A.1 and A.2. On appearance of A.1 and A.2, copies of case papers as required under Section 207 of Cr.P.C were furnished to them.

4.A.1 and A.2 were examined under Section 239 of Cr.P.C for which they denied the offences. Charges under Sections 324, 354A and 506 of IPC against

A.1 and A.2 are framed, read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.

5.In order to establish its case, prosecution has examined PWs.1 to 8 and got marked Exs.P1 to P8.

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CC. No.19_2018 Dated 06.12.2019

6.After closure of prosecution evidence, A.1 and A.2 were examined under

Section 313 of Cr.P.C., with regard to the incriminating material appearing in the evidence of prosecution witnesses, for which they denied.

7.Heard learned Assistant Public Prosecutor, for the complainant, Sri E.

Srinivasa Babu, learned counsel for A.1 and A.2, and perused the record.

8.Now the point that arises for determination is___

Whether prosecution has brought home the guilt of A.1 and A.2 of the offences under Sections 324, 354A and 506 of IPC beyond all reasonable doubt?

9.Point: According to prosecution, on 29.09.2017 at 10.00 AM, boundary disputes arose between PW.1 and A.1 and A.2 and during the said dispute A.1 and

A.2 beat PW.1 with sticks and caused injuries to him and when PW.2, who is the mother of PW.1, intervened, A.1 and A.2 caught hold of her hair, made her to fell down, kicked on her chest and thereby outraged her modesty and also threatened

PWs.1 and 2 with dire consequences to see their end. In view of the said case of prosecution, as already noted, charges under Sections 324, 354A and 506 of IPC were framed against A.1 and A.2; and the plea of A.1 and A.2 is one of total denial of the offences with which they are charged.

10.As already noted, in order to bring home the guilt of A.1 and A.2 of the offences with which they are charged, prosecution has examined PWs.1 to 8 and got marked Exs.P1 to P8. PW.1, who is the injured, is the author of Ex.P1 statement. PW.2 is the victim. PWs.3 to 5 are eyewitnesses to the incident. PW.6 is the doctor who treated PWs.1 and 2 and issued Exs.P4 and P5 wound certificates. PWs.7 and 8 are the investigating officers. PW.8 is the Head

Constable conducted entire investigation except filing of charge sheet and through him Ex.P6 hospital intimation, Ex.P7 printed FIR in Crime No.226 of 2017 and

Ex.P8 rough sketch of the scene of offence were marked. PW.7 is the SI of Police verified the investigation done by PW.8 found it on correct lines and on receipt of 4

CC. No.19_2018 Dated 06.12.2019

wound certificate of PW.1 laid charge sheet against A.1 and A.2. Among PWs.1 to 5, PWs.4 and 5 did not support the case of prosecution and turned hostile. In his evidence, PW.4 deposed that about two years back on one day at about 10.00 or 11.00 AM, near the house of PW.1 a galata had taken place between PW.1 and

A.1 and A.2; and that in the said galata, PWs.1 and 2 and A.1 and A.2 were quarreling with each other and that he intervened and separated both parties.

Whereas PW.5 deposed that he has not witnessed any incident between PWs.1 and 2 and A.1 and A.2 and he does not know anything about the facts of this case and that he was not examined by the police. In the cross-examination by learned

Assistant Public Prosecutor PWs.4 and 5 denied the contents of their earlier statements as required under Section 161 of Cr.P.C. and the same were marked as Exs.P2 and P3 respectively. As PWs.4 and 5 did not support the case of prosecution, in order to establish its case, prosecution has relied mainly upon the evidence of PWs.1 to 3 and 6 to 8.

11.Coming to the charge under Section 324 of IPC leveled against A.1 and

A.2, PW.1 deposed that on 29.09.2017 at about 10.00 AM surveyor left his house,

A.1 and A.2 placed cement stones in his house premises and on seeing the same when he questioned A.1 and A.2, A.1 attacked him, caught hold of his neck and

A.2 beat him with stick on the backside of his neck. He further deposed that due to the said incident, he received swelling injury and that A.2 again beat him on his backside with stick and due to which the stick was broken and at that time A.1 caught hold of him. PW.2, who is the mother of PW.1, corroborated the evidence of PW.1 with regard to PW.1 sustaining injuries in the hands of A.1 and A.2. PW.3 deposed that about two years back on one day at about 10.00 or 11.00 AM, near the house of PW.1 a galata had taken place and in the said galata A.1 and A.2 beat PW.1 and A.2 beat PW.1 with stick on his back, neck and head.

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CC. No.19_2018 Dated 06.12.2019

12.In view of the said evidence of PWs.1 to 3, now it has to be seen whether the injuries spoken to by PW.1 are tallied with medical evidence. Coming to the evidence of PW.6, who is the doctor, she deposed that on 29.09.2017 at 3.25 PM, she examined PW.1 and found no external injuries and she issued Ex.P4 wound certificate stating that no opinion can be given. She also deposed that on the same day at 3.30 PM, she examined PW.2 and found no external injuries, and as such, she issued Ex.P5 wound certificate stating that no opinion can be given.

From this, it is clear that the injuries spoken to by PW.1 are not corroborated with medical evidence. It may be mentioned here that if really the incident of beating

PWs.1 and 2 by A.1 and A.2 with sticks on 29.09.2017 at 10.00 AM as spoken by

PWs.1 and 2 is true, the said injuries might have noticed by the doctor, who is examined as PW.6, on 29.09.2017 at 3.25 PM, when she examined PWs.1 and 2.

Therefore, the evidence of PWs.1 to 3 to the effect that PWs.1 and 2 sustained injuries in the hands of A.1 and A.2 appears to be not believable. As already noted, PWs.4 and 5, who are independent eyewitnesses did not support the case of prosecution and turned hostile. Therefore, based on the interested, inconsistent and uncorroborated testimonies of PWs.1 and 2, it cannot be said that A.1 and 2 caused injuries to PWs.1 and 2 with sticks.

13.Further, it was suggested to PW.1 that he has not stated before police that

A.2 again beat him on his backside with stick and due to which the stick was broken and at that time A.1 caught hold of him, for which he denied. It was also suggested PW.1 that he has not stated before police that on seeing the same

PW.2 came in his rescue and at that time A.2 kicked PW.2 on her abdomen and due to which PW.2 fell down, for which also he denied. Similarly, in the cross- examination of PW.2, it was suggested to her that she has not stated before police that A.2 beat PW.1 with stick on the backside of his neck and as a result of which,

PW.1 sustained bleeding injury, for which she denied. It was also suggested to

PW.2 that she has not stated before police that A.2 beat PW.1 on his backside; 6

CC. No.19_2018 Dated 06.12.2019

and that A.1 and A.2 made her to fell down and kicked on her chest and flank.

Learned counsel for A.1 and A.2 when confronted the said denial portions of the evidence of PWs.1 and 2 i.e. 'omissions' to the investigating officer, who is examined as PW.7, he deposed that PWs.1 and 2 did not state the said denial portions of the evidence of PWs.1 and 2. Inasmuch as the omissions elicited in the evidence of PWs.1 and 2 and confronted to PW.7 relate to the very beating of

PWs.1 and 2 by A.1 and A.2 with sticks and hands, this Court is of the view that the said omissions are significant omissions become material contradictions.

Inasmuch as there are material contradictions in the evidence of PWs.1 and 2 with regard to the injuries sustained by them in the hands of A.1 and A.2. this Court is of the view that the evidence of PWs.1 and 2 to the effect that they sustained injuries in the hands of A.1 and A.2 appears to be not believable. In that view of the matter, this Court is of the view that prosecution has failed to bring home the guilt of A.1 and A.2 of the charge under Section 324 of IPC.

14.So far as the charge under Section 354A of IPC is concerned, PW.1 deposed that on seeing A.1 and A.2 beating him, his mother i.e. PW.2 came in his rescue and at that time A.2 kicked PW.2 on her abdomen and due to which PW.2 fell down. Coming to the evidence of PW.2, who is the victim, she deposed that on seeing A.1 and A.2 beating PW.1 when she intervened, A.1 and A.2 made her to fell down and kicked on her flank and chest. In fact, PW.2 has nowhere deposed that A.1 and A.2 used either criminal force or assault on her with an intention to outrage her modesty. As seen from the evidence of PWs.1 and 2, it is quite clear that they have nowhere stated that A.1 and A.2 assaulted or used criminal force on

PW.2 with an intention to outrage her modesty. As already noted, PW.6 has not noted any external injuries on the body of PW.2 and she issued Ex.P5 wound certificate stating that no opinion can be given. From this, it is clear that prosecution has also failed to establish that PW.2 sustained any injuries on her flank and chest. Inasmuch as there is no evidence from PW.2, who is the victim, 7

CC. No.19_2018 Dated 06.12.2019

that A.1 and A.2 used either criminal force or assault on her and did any act with an intention to outrage her modesty, it cannot be said that A.1 and A.2 are guilty of the offences with which they are charged. In that view of the matter, this Court is of the view that prosecution has failed to bring home the guilt of A.1 and A.2 of the charge under Section 354A of IPC and they are accordingly entitled to acquittal of the said charge.

15.Insofar as the charge under Section 506 of IPC leveled against A.1 and A.2 is concerned, either PW.1 or PWs.2 and 3 nowhere deposed that at the time of the alleged incident A.1 and A.2 committed criminal intimidation and threatened PWs.1 and 2 with dire consequences. In the absence of any evidence from the mouth of

PWs.1 and 2 to the effect that they were threatened by A.1 and A.2, it cannot be said that A.1 and A.2 are guilty of the offence under Section 506 of IPC. In that view of the matter, this Court is of the view that prosecution has miserably failed to bring home the guilt of A.1 and A.2 of the charge under Section 506 of IPC and they are accordingly entitled to acquittal of the said charge.

16.For the foregoing reasons, this Court is of the view that prosecution has miserably failed to bring home the guilt of A.1 and A.2 of the offences with which they are charged and they are accordingly entitled to benefit of doubt.

17.In the result, A.1 and A2 are found not guilty of the offences under Sections 324, 354A and 506 of IPC and they are accordingly acquitted under Section 248(1) of Cr.P.C. The bail bonds of A.1 and A.2 shall be in force for a period of six months from this day as provided under Section 437-A of Cr.P.C.

Dictated to the Stenographer Grade-III, transcribed by her corrected and

pronounced by me in open Court, on this the 6th day of December 2019.

Sd/- G.L.V. Prasad

SPL. JUDICIAL MAGISTRATE OF I CLASS

(EXCISE)-CUM-IV AJCJ, ELURU.

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CC. No.19_2018 Dated 06.12.2019

Appendix of Evidence

Witnesses Examined

For Prosecution:For Defence: PW.1: Pandi Siva Naga Venkateswara RaoNone PW.2: Pandi Nagamani PW.3: Ukkusuri Srinivasa Rao PW.4: Musse Naga Raju PW.5: Thaninki Srinivasa Rao PW.6: Dr.A. Dharani PW.7: Smt. V. Kanthi Priya-SI of Police PW.8: Mr. Mangayya-HC

Documents Marked

For Prosecution: Ex.P1: 29.09.2017: Statement given by PW.1 to the police. Ex.P2: 21.10.2017: 161 Cr.P.C. statement of PW.3. Ex.P3: 21.10.2017: 161 Cr.P.C. statement of PW.5. Ex.P4: 27.12.2017: Wound certificate of PW.1 issued by PW6 Ex.P5: 27.12.2017: Wound certificate of PW.2 issued by PW6 Ex.P6: 29.09.2017: Hospital intimation Ex.P7: 20.10.2017: Printed FIR in Crime No.226 of 2017 of Pedavegi P.S. Ex.P8: –- : Rough sketch of scene of offence For Defence: Nil.

Material Objects Marked

Nil.

Id/- G.L.V.

SJMFC(E)-CUM-IV AJCJ

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CC. No.19_2018 Dated 06.12.2019

CALENDAR AND JUDGMENT

CALENDAR AND JUDGMENT IN C.C. No.19 OF 2018 ON THE FILE OF THE

SPECIAL JUDICIAL MAGISTRATE OF I CLASS, (EXCISE)-CUM-IV

ADDITIONAL JUNIOR CIVIL JUDGE, ELURU.

DATE OF

OffenceComplaintApprehensionReleaseTaken Commence-Close ofOrder of or reportof accusedon bailon filement of trialtrialsentence 29.09.17 20.10.1725.10.2017–01.02.1827.08.1902.12.1906.12.19

Explanation for delay: No avoidable delay took place.

Complainant: State: Sub Inspector of Police, Pedavegi Police Station Crime No.226 of 2017

S.No. Name of the Father’s name Age Religion Sex Calling Village Mandal Accused

1. Pandi Srinivasa Rao, s/o Suryanarayana, aged about 25 years, Yadava,

2. Pandi Gangadhar Rao, s/o Suryanarayana, aged about 30 years, Yadava, A.1 and A.2 are r/o Vegiwada, Pedavegi Mandal, West Godavari District.

Offence: under Section 324, 354A and 506 of IPC .

Crime No.226 of 2017

Finding: Found not guilty

RESULT: A.1 and A2 are found not guilty of the offences under Sections 324, 354A and 506 of IPC and they are accordingly acquitted under Section 248(1) of Cr.P.C. The bail bonds of A.1 and A.2 shall be in force for a period of six months from this day as provided under Section 437-A of Cr.P.C.

Sd/- G.L.V. Prasad

SPL. JUDICIAL MAGISTRATE OF I CLASS

(EXCISE)-CUM-IV AJCJ, ELURU.

Seal

Copy submitted to The Hon’ble I Additional District and Sessions Judge, West Godavari District, Eluru.

1

CC. No.19_2018 Dated 06.12.2019

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

(EXCISE)-CUM-IV ADDITIONAL JUNIOR CIVIL JUDGE :: ELURU.

Present: Sri G. L. V. Prasad Special Judicial Magistrate of First Class (Excise) -cum-IV Additional Junior Civil Judge

Friday, the Sixth day of December 2019

C. C. No.19 of 2018

Between

State: Sub Inspector of Police, Pedavegi Police Station Crime No.226 of 2017 … Complainant

and

1. Pandi Srinivasa Rao, s/o Suryanarayana, aged about 25 years, Yadava,

2. Pandi Gangadhar Rao, s/o Suryanarayana, aged about 30 years, Yadava, A.1 and A.2 are r/o Vegiwada, Pedavegi Mandal, West Godavari District.

… Accused

This case is coming on before me for final hearing on 02.12.2019 in the presence of Sri K. Srikrishna, Assistant Public Prosecutor, for complainant and of Sri E. Srinivasa Babu, advocate for A.1 and A.2; and upon perusing the material on record; and having stood over for consideration till this day, the Court delivered the following___

JUDGMENT

The Sub Inspector of Police, Pedavegi Police Station filed this case in

Crime No.226 of 2017 of his station alleging that A.1 and A.2 have committed the offences punishable under Section 324, 354A and 506 read with 34 of the Indian

Penal Code, 1860 (for short, 'IPC').

2.The case of prosecution, in brief, is that the house of PW.1 and the house site of A.1 and A.2 are situated side by side in Vegiwada village; and that there are disputes between them with regard to boundary site between their house sites.

While so, on 29.09.2017 at 10.00 AM, again the same boundary dispute arose between PW.1 and A.1 and A.2. During the said dispute, A.1 and A.2 beat PW.1 with sticks, hands and legs and caused injuries. On seeing the same, when PW.2, who is the mother of PW.1, intervened A.1 and A.2 caught hold of the tuft of hair of PW.2, made her to fell down, kicked on her chest, outraged her modesty and also threatened PWs.1 and 2 with dire consequences. Immediately after the said 2

CC. No.19_2018 Dated 06.12.2019

incident, PW.1 was shifted to Government Hospital, Eluru. On receipt of hospital intimation, Mr. T. Brahmanandham, who is the Head Constable, attached to

Government Hospital Outpost, Eluru visited the hospital, recorded the statement of

PW.1 and forwarded the same to Pedavegi Police Station on point of jurisdiction.

On receipt of the same, PW.8, who was Head Constable of Pedavegi Police

Station, registered the statement of PW.1, as a case in Crime No.226 of 2017, under Sections 324, 354A and 506 read with 34 of IPC and took up investigation.

During investigation, PW.8 examined PWs.1 to 5, recorded their statements, visited scene of offence and prepared rough sketch of scene of offence.

Thereafter, PW.7, who was the Sub Inspector of Police, Pedavegi Police Station took up further investigation, verified the investigation done by PW.8, found it on correct lines and issued notice to A.1 and A.2, under Section 41A of Cr.P.C and received explanation from them. PW.6, who is the doctor, treated PW.1 and issued wound certificate stating that no opinion can be given as there were no external injuries to PW.1. After completion of investigation, PW.7 laid charge sheet against

A.1 and A.2.

3.On 01.02.2018, this Court took cognizance of the offences under Sections 354A, 324 and 506 read with 34 of IPC against A.1 and A.2. On appearance of A.1 and A.2, copies of case papers as required under Section 207 of Cr.P.C were furnished to them.

4.A.1 and A.2 were examined under Section 239 of Cr.P.C for which they denied the offences. Charges under Sections 324, 354A and 506 of IPC against

A.1 and A.2 are framed, read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.

5.In order to establish its case, prosecution has examined PWs.1 to 8 and got marked Exs.P1 to P8.

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CC. No.19_2018 Dated 06.12.2019

6.After closure of prosecution evidence, A.1 and A.2 were examined under

Section 313 of Cr.P.C., with regard to the incriminating material appearing in the evidence of prosecution witnesses, for which they denied.

7.Heard learned Assistant Public Prosecutor, for the complainant, Sri E.

Srinivasa Babu, learned counsel for A.1 and A.2, and perused the record.

8.Now the point that arises for determination is___

Whether prosecution has brought home the guilt of A.1 and A.2 of the offences under Sections 324, 354A and 506 of IPC beyond all reasonable doubt?

9.Point: According to prosecution, on 29.09.2017 at 10.00 AM, boundary disputes arose between PW.1 and A.1 and A.2 and during the said dispute A.1 and

A.2 beat PW.1 with sticks and caused injuries to him and when PW.2, who is the mother of PW.1, intervened, A.1 and A.2 caught hold of her hair, made her to fell down, kicked on her chest and thereby outraged her modesty and also threatened

PWs.1 and 2 with dire consequences to see their end. In view of the said case of prosecution, as already noted, charges under Sections 324, 354A and 506 of IPC were framed against A.1 and A.2; and the plea of A.1 and A.2 is one of total denial of the offences with which they are charged.

10.As already noted, in order to bring home the guilt of A.1 and A.2 of the offences with which they are charged, prosecution has examined PWs.1 to 8 and got marked Exs.P1 to P8. PW.1, who is the injured, is the author of Ex.P1 statement. PW.2 is the victim. PWs.3 to 5 are eyewitnesses to the incident. PW.6 is the doctor who treated PWs.1 and 2 and issued Exs.P4 and P5 wound certificates. PWs.7 and 8 are the investigating officers. PW.8 is the Head

Constable conducted entire investigation except filing of charge sheet and through him Ex.P6 hospital intimation, Ex.P7 printed FIR in Crime No.226 of 2017 and

Ex.P8 rough sketch of the scene of offence were marked. PW.7 is the SI of Police verified the investigation done by PW.8 found it on correct lines and on receipt of 4

CC. No.19_2018 Dated 06.12.2019

wound certificate of PW.1 laid charge sheet against A.1 and A.2. Among PWs.1 to 5, PWs.4 and 5 did not support the case of prosecution and turned hostile. In his evidence, PW.4 deposed that about two years back on one day at about 10.00 or 11.00 AM, near the house of PW.1 a galata had taken place between PW.1 and

A.1 and A.2; and that in the said galata, PWs.1 and 2 and A.1 and A.2 were quarreling with each other and that he intervened and separated both parties.

Whereas PW.5 deposed that he has not witnessed any incident between PWs.1 and 2 and A.1 and A.2 and he does not know anything about the facts of this case and that he was not examined by the police. In the cross-examination by learned

Assistant Public Prosecutor PWs.4 and 5 denied the contents of their earlier statements as required under Section 161 of Cr.P.C. and the same were marked as Exs.P2 and P3 respectively. As PWs.4 and 5 did not support the case of prosecution, in order to establish its case, prosecution has relied mainly upon the evidence of PWs.1 to 3 and 6 to 8.

11.Coming to the charge under Section 324 of IPC leveled against A.1 and

A.2, PW.1 deposed that on 29.09.2017 at about 10.00 AM surveyor left his house,

A.1 and A.2 placed cement stones in his house premises and on seeing the same when he questioned A.1 and A.2, A.1 attacked him, caught hold of his neck and

A.2 beat him with stick on the backside of his neck. He further deposed that due to the said incident, he received swelling injury and that A.2 again beat him on his backside with stick and due to which the stick was broken and at that time A.1 caught hold of him. PW.2, who is the mother of PW.1, corroborated the evidence of PW.1 with regard to PW.1 sustaining injuries in the hands of A.1 and A.2. PW.3 deposed that about two years back on one day at about 10.00 or 11.00 AM, near the house of PW.1 a galata had taken place and in the said galata A.1 and A.2 beat PW.1 and A.2 beat PW.1 with stick on his back, neck and head.

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CC. No.19_2018 Dated 06.12.2019

12.In view of the said evidence of PWs.1 to 3, now it has to be seen whether the injuries spoken to by PW.1 are tallied with medical evidence. Coming to the evidence of PW.6, who is the doctor, she deposed that on 29.09.2017 at 3.25 PM, she examined PW.1 and found no external injuries and she issued Ex.P4 wound certificate stating that no opinion can be given. She also deposed that on the same day at 3.30 PM, she examined PW.2 and found no external injuries, and as such, she issued Ex.P5 wound certificate stating that no opinion can be given.

From this, it is clear that the injuries spoken to by PW.1 are not corroborated with medical evidence. It may be mentioned here that if really the incident of beating

PWs.1 and 2 by A.1 and A.2 with sticks on 29.09.2017 at 10.00 AM as spoken by

PWs.1 and 2 is true, the said injuries might have noticed by the doctor, who is examined as PW.6, on 29.09.2017 at 3.25 PM, when she examined PWs.1 and 2.

Therefore, the evidence of PWs.1 to 3 to the effect that PWs.1 and 2 sustained injuries in the hands of A.1 and A.2 appears to be not believable. As already noted, PWs.4 and 5, who are independent eyewitnesses did not support the case of prosecution and turned hostile. Therefore, based on the interested, inconsistent and uncorroborated testimonies of PWs.1 and 2, it cannot be said that A.1 and 2 caused injuries to PWs.1 and 2 with sticks.

13.Further, it was suggested to PW.1 that he has not stated before police that

A.2 again beat him on his backside with stick and due to which the stick was broken and at that time A.1 caught hold of him, for which he denied. It was also suggested PW.1 that he has not stated before police that on seeing the same

PW.2 came in his rescue and at that time A.2 kicked PW.2 on her abdomen and due to which PW.2 fell down, for which also he denied. Similarly, in the cross- examination of PW.2, it was suggested to her that she has not stated before police that A.2 beat PW.1 with stick on the backside of his neck and as a result of which,

PW.1 sustained bleeding injury, for which she denied. It was also suggested to

PW.2 that she has not stated before police that A.2 beat PW.1 on his backside; 6

CC. No.19_2018 Dated 06.12.2019

and that A.1 and A.2 made her to fell down and kicked on her chest and flank.

Learned counsel for A.1 and A.2 when confronted the said denial portions of the evidence of PWs.1 and 2 i.e. 'omissions' to the investigating officer, who is examined as PW.7, he deposed that PWs.1 and 2 did not state the said denial portions of the evidence of PWs.1 and 2. Inasmuch as the omissions elicited in the evidence of PWs.1 and 2 and confronted to PW.7 relate to the very beating of

PWs.1 and 2 by A.1 and A.2 with sticks and hands, this Court is of the view that the said omissions are significant omissions become material contradictions.

Inasmuch as there are material contradictions in the evidence of PWs.1 and 2 with regard to the injuries sustained by them in the hands of A.1 and A.2. this Court is of the view that the evidence of PWs.1 and 2 to the effect that they sustained injuries in the hands of A.1 and A.2 appears to be not believable. In that view of the matter, this Court is of the view that prosecution has failed to bring home the guilt of A.1 and A.2 of the charge under Section 324 of IPC.

14.So far as the charge under Section 354A of IPC is concerned, PW.1 deposed that on seeing A.1 and A.2 beating him, his mother i.e. PW.2 came in his rescue and at that time A.2 kicked PW.2 on her abdomen and due to which PW.2 fell down. Coming to the evidence of PW.2, who is the victim, she deposed that on seeing A.1 and A.2 beating PW.1 when she intervened, A.1 and A.2 made her to fell down and kicked on her flank and chest. In fact, PW.2 has nowhere deposed that A.1 and A.2 used either criminal force or assault on her with an intention to outrage her modesty. As seen from the evidence of PWs.1 and 2, it is quite clear that they have nowhere stated that A.1 and A.2 assaulted or used criminal force on

PW.2 with an intention to outrage her modesty. As already noted, PW.6 has not noted any external injuries on the body of PW.2 and she issued Ex.P5 wound certificate stating that no opinion can be given. From this, it is clear that prosecution has also failed to establish that PW.2 sustained any injuries on her flank and chest. Inasmuch as there is no evidence from PW.2, who is the victim, 7

CC. No.19_2018 Dated 06.12.2019

that A.1 and A.2 used either criminal force or assault on her and did any act with an intention to outrage her modesty, it cannot be said that A.1 and A.2 are guilty of the offences with which they are charged. In that view of the matter, this Court is of the view that prosecution has failed to bring home the guilt of A.1 and A.2 of the charge under Section 354A of IPC and they are accordingly entitled to acquittal of the said charge.

15.Insofar as the charge under Section 506 of IPC leveled against A.1 and A.2 is concerned, either PW.1 or PWs.2 and 3 nowhere deposed that at the time of the alleged incident A.1 and A.2 committed criminal intimidation and threatened PWs.1 and 2 with dire consequences. In the absence of any evidence from the mouth of

PWs.1 and 2 to the effect that they were threatened by A.1 and A.2, it cannot be said that A.1 and A.2 are guilty of the offence under Section 506 of IPC. In that view of the matter, this Court is of the view that prosecution has miserably failed to bring home the guilt of A.1 and A.2 of the charge under Section 506 of IPC and they are accordingly entitled to acquittal of the said charge.

16.For the foregoing reasons, this Court is of the view that prosecution has miserably failed to bring home the guilt of A.1 and A.2 of the offences with which they are charged and they are accordingly entitled to benefit of doubt.

17.In the result, A.1 and A2 are found not guilty of the offences under Sections 324, 354A and 506 of IPC and they are accordingly acquitted under Section 248(1) of Cr.P.C. The bail bonds of A.1 and A.2 shall be in force for a period of six months from this day as provided under Section 437-A of Cr.P.C.

Dictated to the Stenographer Grade-III, transcribed by her corrected and

pronounced by me in open Court, on this the 6th day of December 2019.

Sd/- G.L.V. Prasad

SPL. JUDICIAL MAGISTRATE OF I CLASS

(EXCISE)-CUM-IV AJCJ, ELURU.

8

CC. No.19_2018 Dated 06.12.2019

Appendix of Evidence

Witnesses Examined

For Prosecution:For Defence: PW.1: Pandi Siva Naga Venkateswara RaoNone PW.2: Pandi Nagamani PW.3: Ukkusuri Srinivasa Rao PW.4: Musse Naga Raju PW.5: Thaninki Srinivasa Rao PW.6: Dr.A. Dharani PW.7: Smt. V. Kanthi Priya-SI of Police PW.8: Mr. Mangayya-HC

Documents Marked

For Prosecution: Ex.P1: 29.09.2017: Statement given by PW.1 to the police. Ex.P2: 21.10.2017: 161 Cr.P.C. statement of PW.3. Ex.P3: 21.10.2017: 161 Cr.P.C. statement of PW.5. Ex.P4: 27.12.2017: Wound certificate of PW.1 issued by PW6 Ex.P5: 27.12.2017: Wound certificate of PW.2 issued by PW6 Ex.P6: 29.09.2017: Hospital intimation Ex.P7: 20.10.2017: Printed FIR in Crime No.226 of 2017 of Pedavegi P.S. Ex.P8: –- : Rough sketch of scene of offence For Defence: Nil.

Material Objects Marked

Nil.

Id/- G.L.V.

SJMFC(E)-CUM-IV AJCJ

9

CC. No.19_2018 Dated 06.12.2019

CALENDAR AND JUDGMENT

CALENDAR AND JUDGMENT IN C.C. No.19 OF 2018 ON THE FILE OF THE

SPECIAL JUDICIAL MAGISTRATE OF I CLASS, (EXCISE)-CUM-IV

ADDITIONAL JUNIOR CIVIL JUDGE, ELURU.

DATE OF

OffenceComplaintApprehensionReleaseTaken Commence-Close ofOrder of or reportof accusedon bailon filement of trialtrialsentence 29.09.17 20.10.1725.10.2017–01.02.1827.08.1902.12.1906.12.19

Explanation for delay: No avoidable delay took place.

Complainant: State: Sub Inspector of Police, Pedavegi Police Station Crime No.226 of 2017

S.No. Name of the Father’s name Age Religion Sex Calling Village Mandal Accused

1. Pandi Srinivasa Rao, s/o Suryanarayana, aged about 25 years, Yadava,

2. Pandi Gangadhar Rao, s/o Suryanarayana, aged about 30 years, Yadava, A.1 and A.2 are r/o Vegiwada, Pedavegi Mandal, West Godavari District.

Offence: under Section 324, 354A and 506 of IPC .

Crime No.226 of 2017

Finding: Found not guilty

RESULT: A.1 and A2 are found not guilty of the offences under Sections 324, 354A and 506 of IPC and they are accordingly acquitted under Section 248(1) of Cr.P.C. The bail bonds of A.1 and A.2 shall be in force for a period of six months from this day as provided under Section 437-A of Cr.P.C.

Sd/- G.L.V. Prasad

SPL. JUDICIAL MAGISTRATE OF I CLASS

(EXCISE)-CUM-IV AJCJ, ELURU.

Seal

Copy submitted to The Hon’ble I Additional District and Sessions Judge, West Godavari District, Eluru.

1 CC_214_2018 19.06.2020

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

(EXCISE)-CUM-IV ADDITIONAL JUNIOR CIVIL JUDGE :: ELURU.

(VIDEO CONFERENCING)

Present: Sri G. L. V. Prasad Special Judicial Magistrate of First Class (Excise) -cum-IV Additional Junior Civil Judge

Friday, the Nineteenth day of June 2020

C. C. No.214 of 2018

Between:

State: Sub Inspector of Police, Pedavegi Police Station Crime No.141 of 2018 …Complainant

and

1. Pulapaka Ramulu, s/o Subba Rao, aged about 50 years, SC Madiga,

2. Pulapaka Mehel, s/o Ramulu, aged about 35 years, SC Madiga,

3. Jujjavarapu Akhil, s/o Naga Raju, aged about 21 years, SC Madiga,

4. Jujjavarapu Ranga Rao, s/o Pitchiyya, aged about 48 years, SC Madiga,

5. Jujjavarapu Naga Raju @ Nallaiah, s/o Pitchiyya, aged 43 years, SC Madiga,

6. Jujjavarapu Lazar, s/o Pitchiyya, aged about 43 years, SC Madiga,

7. Nallamothu Kumari, w/o Lakshmaiah, aged about 34 years, SC Madiga,

8. Pulapaka Bala Mary, w/o Ramulu, aged about 45 years, SC Madiga,

9. Pulapaka Renuka, w/o Michael, aged about 25 years, SC Madiga,

10. Jujjavarapu Emeliyamma, w/o Naga Raju, aged about 40 years, SC Madiga,

11. Nallamothu Balavendra, s/o Lakshmaiah, aged about 19 years, SC Madiga,

12. Katru Koteswara Rao, s/o Nageswara Rao, aged about 19 years, SC Madiga,

13. Jujjavarapu Prasad, s/o Naga Raju, aged about 19 years, SC Madiga, all are r/o Prakash Nagar, Bhogapuram village, Pedapadu Mandal, West Godavari District. …Accused

This case is coming on before me for final hearing through video conference on 12.06.2020 in the presence of Sri K. Srikrishna, Assistant Public Prosecutor, for complainant and of Sri J.V. Ramana Rao, advocate for accused and upon perusing the material on record; and having stood over for consideration till this day, the Court delivered the following___

JUDGMENT

The Sub Inspector of Police, Pedavegi Police Station filed this case in

Crime No.141 of 2018 of her station alleging that A.1 to A.13 have committed the offences punishable under Sections 448 and 506 read with 34 of the Indian Penal

Code, 1860 (for short ‘IPC)

2.The case of prosecution, in brief, is that about fourteen years prior to 02.06.2018, PWs.1 to 3 and one Veeramachaneni Nageswara Rao (LW.1) purchased house site in R.S. Nos.215/1, 216/2 and 217/2 of Bhogapuram village from one Dasika Rama Rao of Pithapuram Colony, Visakhapatnam and they 2 CC_214_2018 19.06.2020 constructed houses in the said site. It is alleged that A.1 to A.6 frequently disputing with PWs.1 to 3 and Veeramachaneni Nageswara Rao claiming that the said extent of site belongs to them and that PWs.1 to 3 and Nageswara Rao have no right on the said house site. While so, prior to 02.06.2018 during morning hours,

A.1 to A.13 criminally trespassed into the houses of PWs.1 to 3 and

Veeramachaneni Nageswara Rao, terrorized them claiming that the said site belongs to them and threatened them with dire consequences to kill and also proclaimed that they will file SC/ST case against them and thereby caused panic.

In view of the same, on the night of 02.06.2018, PWs.1 to 3 and Veeramachaneni

Nageswara Rao lodged a joint report to police and based on such report, PW.7, who was the SI of Police, registered a case in Crime No.141 of 2018, under

Sections 448 and 506 read with 34 of IPC and took up investigation. During investigation, PW.7 examined PWs.1 to 6 and Veeramachaneni Nageswara Rao (LW.1) and recorded their statements, visited scene of offence, prepared rough sketch of scene of offence. On 03.06.2018, PW.7 issued notice under Section 41A of Cr.P.C to A.1 to A.13, received explanation from them and after completion of investigation laid charge sheet against A.1 to A.13.

3.On 29.08.2018, this Court took cognizance of the offences under Sections 448 and 506 read with 34 of IPC against A.1 to A.13. On appearance of A.1 to

A.13, copies of case papers as required under Section 207 of Cr.P.C. were furnished to A.1 to A.13.

4.A.1 to A.13 were examined under Section 251 of Cr.P.C., for which they denied the offences, pleaded not guilty and claimed to be tried.

5.In order to establish its case, prosecution has examined PWs.1 to 7 and got marked Exs.P1 to P4. On 07.02.2020, police filed a Memo along with attested copy of death certificate of Veeramachaneni Nageswara Rao (LW.1), and as such, his evidence was closed.

3 CC_214_2018 19.06.2020

6.After closure of prosecution evidence, A.1 to A.13 were examined under

Section 313 of Cr.P.C., with regard to the incriminating material appearing in the evidence of prosecution witnesses, for which they denied. On behalf of defence,

Ex.D1 was contradiction was marked in the cross-examination of PW.4.

7.Heard learned Assistant Public Prosecutor, for the complainant, Sri M.

Suryanarayana, learned counsel for A.1 to A.13 and perused the material on record.

8.Now the point that arises for determination is___

Whether prosecution has brought home the guilt of A.1 to A.13 of the offences under Sections 448 and 506 read with 34 of IPC beyond all reasonable doubt?

9.Point: In order to bring home the guilt of A.1 to A.13 of the offences with which they are alleged, as already noted, prosecution has examined PWs.1 to 7 and got marked Exs.P1 to P4; per contra on behalf of defence, Ex.D1 was marked in the cross-examination of PW.4. PWs.1 to 3 are victims and authors of Ex.P1 report, PWs.5 and 6 are eyewitnesses to the incident and PW.7 is the SI of Police, who conducted entire investigation and laid charge sheet against A.1 to A.13.

PW.4, who is one of the eyewitnesses to the incident, did not support the case of prosecution and turned hostile and he deposed that he has not witnessed any incident between PWs.1 to 3, Veeramachaneni Nageswara Rao (LW.1) and A.1 to

A.13. In the cross-examination by learned Assistant Public Prosecutor, PW.4 denied the contents of his earlier statement as required under Section 161 of

Cr.P.C., and the same was marked as Ex.P2.

10.It is the contention of learned Assistant Public Prosecutor that though PW.4 did not support the case of prosecution and turned hostile, the evidence of PWs.1 to 3, 5 and 6 is consistent and cogent not only with regard to A.1 to A.13 trespassing into the houses of PWs.1 to 3 and Veeramachaneni Nageswara Rao (LW.1), but also with regard to threatening PWs.1 to 3 and Nageswara Rao with 4 CC_214_2018 19.06.2020 dire consequences to kill them, and as such,A.1 to A.13 are liable for punishment for the offences with which they are alleged.

11.On the other hand, it is the contention of learned counsel for A.1 to A.13 that except the inconsistent oral testimonies of PWs.1 to 3 and 5 to 7 prosecution has not placed any iota of either reliable oral evidence or any documentary evidence to show that at any point of time PWs.1 to 3 and Veeramachaneni

Nageswara Rao (LW.1) were in possession of the scene houses. It is also his contention that the evidence of PWs.5 and 6 that they witnessed the alleged incident appears to be not trustworthy. It is his main contention that since the evidence of PWs.1 to 3 and 5 to 7 is not consistent and cogent with regard to the alleged offences, A.1 to A.13 are entitled to acquittal of the offences with which they are alleged.

12. In view of the rival contentions raised on either side, now it has to be seen whether prosecution through the evidence of PWs.1 to 3 and 5 to 7 has placed sufficient evidence to establish that the scene of offence area belongs to PWs.1 to 3 and Veeramachaneni Nageswara Rao (LW.1) and that A.1 to A.13 criminally trespassed into the said area, threatened them with dire consequences to see their end and to file SC/ST Atrocities Act case against them.

13.Coming to the evidence of PWs.1 to 3, who are the authors of Ex.P1, they almost in similar lines while reiterating the contents of Ex.P1 joint report deposed that they and Veeramachaneni Nageswara Rao (LW.1) purchased house sites in

R.S. Nos.215/1, 216/2 and 217/2 situated in Prakash Nagar of Bhogapuram village from one Dasika Rama Rao and got constructed houses in the said sites. PW.1 further deposed that about one year back on one day all the accused came to their houses and informed that the said property belongs to them and informing so, all the accused trespassed into their houses stating that the property belongs to them; and that they also threatened them that they will file SC/ST case against them. PW.2 further deposed that on 05.11.2016 about forty persons, including the 5 CC_214_2018 19.06.2020 accused trespassed into their house sites and got removed the constructions made by them; and that when himself, PWs.1, 3 and Nageswara Rao (LW.1) questioned the acts of accused, all the accused threatened them to kill. PW.3 further deposed that in the month of June 2018 on one day at about 10.00 AM, all the accused trespassed into their houses and threatened them to remove the constructions.

14.As seen from the evidence of PWs.1 to 3, it appears that they alleged to have purchased the scene of offence property in R.S. Nos.215/1, 216/2 and 217/2 situated in Prakash Nagar of Bhogapuram village from one Dasika Rama Rao and got constructed houses in the said site. In view of the case of prosecution, if the said evidence of PWs.1 to 3 is true, PWs.1 to 3 and others were in possession of the scene property as on the date of offence. But, interestingly, in his cross- examination, PW.1 deposed that prior to lodging Ex.P1 report, himself, Tirupathi

Reddy and others questioned the accused about their possession in the property in question. He further deposed that accused were in possession of the property in question not only as on the date when they approached the SI of Police but also on the date when they approached the Deputy Superintendent of Police. Whereas

PW.2 deposed in his cross-examination that they have been complaining to police from 2016 onwards accused were in possession of the property in question. He also deposed that they made representation to the police seeking to evict the accused from the property in question; and that though they and police requested the accused, accused did not vacate the property in question. From the said evidence of PWs.1 and 2, it is quite clear that prior to lodging Ex.P1 report accused were in possession of scene property. Further, in her cross-examination,

PW.7, who is the investigating officer, deposed that Government issued patta in favour of the accused and also issued pattadar passbook in respect of the disputed property and that they are in possession of the disputed property. She further deposed that the disputed property is an extent of Ac.0.80 cents and the electricity connection in respect of the said property stands in the name of the 6 CC_214_2018 19.06.2020 accused. Therefore, the evidence of PWs.1 to 3 that A.1 to A.13 criminally trespassed into the houses of PWs.1 to 3 and threatened them with dire consequences etc. appears to be not believable.

15.Further, though it is not at all the evidence of PWs.1 to 3, PWs.5 and 6 almost in similar lines deposed that on 02.06.2018 at about 5.00 PM, A.1 to A.13 trespassed into the house of PW.3 and made galata in the said house, thrown the samans in the said house in pell-mell condition and demanded PW.3 to vacate the house, otherwise they will file SC/ST case against him. No doubt, in the cross- examination of PW.5, Ex.D1 contradiction to the effect that he did not state before police that he came to know about the alleged incident was marked. But, the said contradiction was not confronted to the investigating officer, and as such, Ex.D1 is not proved. However, in his cross-examination, PW.6 deposed that he did not visit the house of PW.3 and did not notice any galata. Therefore, inasmuch as it is not the case of prosecution and the evidence of PWs.1 to 3 that an incident had taken place on 02.06.2018 at about 5.00 PM in the house of PW.3, the said evidence of

PWs.5 and 6 that they witnessed the incident appears to be not believable.

16.For the foregoing reasons, this Court is of the view that prosecution has miserably failed to bring home the guilt of A.1 to A.13 of the offences with which they are alleged and they are accordingly entitled to benefit of doubt of the said offences.

17.In the result, A.1 to A.13 are found not guilty of the offences under Sections 448 and 506 read with 34 of IPC and they are accordingly acquitted under Section 255(1) of Cr.P.C. The bail bonds of A.1 to A.13 shall be in force for a period of six months from this day as provided under Section 437-A of Cr.P.C.

Typed to my dictation, corrected and pronounced by me in Virtual Court, on this the 19th day of June 2020.

Sd/-G.L.V.Prasad

SPL. JUDICIAL MAGISTRATE OF I CLASS

(EXCISE)-CUM-IV AJCJ, ELURU.

7 CC_214_2018 19.06.2020

Appendix of Evidence

Witnesses Examined

For Prosecution:For Defence: PW.1: Gokineni Nageswara RaoNone. PW.2: Kolati Mahesh Varma PW.3: Mula China Tirupathi Reddy PW.4: Savalam Naga Raju PW.5: Adabala Nageswara Rao PW.6: Vijju Satyanarayana PW.7: Ms. V. Kanthi Priya-SI of Police

Documents Marked

For Prosecution: Ex.P1: 02.06.2018: Common report lodged by PWs.1 to 3 and Veeramachaneni Nageswara Rao (LW.1) to the police. Ex.P2: 02.06.2018: Statement of PW.4 under Section 161 of Cr.P.C. Ex.P3: 02.06.2018: Printed FIR in Crime No.141 of 2018 of Pedavegi P.S. Ex.P4: 02.06.2018: Rough sketch of the scene of offence. For Defence: Ex.D1: 02.06.2018: Contradictory portion in 162 Cr. PC statement of PW.4.

Material Objects Marked

Nil.

I/dG.L.V.

SJMFC(E)-CUM-IV AJCJ

8 CC_214_2018 19.06.2020

CALENDAR AND JUDGMENT

CALENDAR AND JUDGMENT IN C. C. No.214 OF 2018 ON THE FILE OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS, (EXCISE), ELURU-CUM

IV ADDITIONAL JUNIOR CIVIL JUDGE, ELURU

DATE OF

OffenceComplaintApprehensionReleaseTaken Commence-Close ofOrder of or reportof accusedon bailon filement of trialtrialsentence Prior to02.06.1803.06.2018--29.08.1826.03.2019 13.02.20 19.06.2020 02.06.18

Explanation for delay: No avoidable delay took place.

Complainant: State: Sub Inspector of Police, Pedavegi Police Station Crime No.141 of 2018

S.No. Name of the Father’s name Age Religion Sex Calling Village Mandal Accused

1. Pulapaka Ramulu, s/o Subba Rao, aged about 50 years, SC Madiga,

2. Pulapaka Mehel, s/o Ramulu, aged about 35 years, SC Madiga,

3. Jujjavarapu Akhil, s/o Naga Raju, aged about 21 years, SC Madiga,

4. Jujjavarapu Ranga Rao, s/o Pitchiyya, aged about 48 years, SC Madiga,

5. Jujjavarapu Naga Raju @ Nallaiah, s/o Pitchiyya, aged 43 years, SC Madiga,

6. Jujjavarapu Lazar, s/o Pitchiyya, aged about 43 years, SC Madiga,

7. Nallamothu Kumari, w/o Lakshmaiah, aged about 34 years, SC Madiga,

8. Pulapaka Bala Mary, w/o Ramulu, aged about 45 years, SC Madiga,

9. Pulapaka Renuka, w/o Michael, aged about 25 years, SC Madiga,

10. Jujjavarapu Emeliyamma, w/o Naga Raju, aged about 40 years, SC Madiga,

11. Nallamothu Balavendra, s/o Lakshmaiah, aged about 19 years, SC Madiga,

12. Katru Koteswara Rao, s/o Nageswara Rao, aged about 19 years, SC Madiga,

13. Jujjavarapu Prasad, s/o Naga Raju, aged about 19 years, SC Madiga, all are r/o Prakash Nagar, Bhogapuram village, Pedapadu Mandal, West Godavari District.

Offence: under Sections 448 and 506 read with 34 of IPC.

Crime No.141 of 2018

Finding: Found Not Guilty.

RESULT: A.1 to A.13 are found not guilty of the offences under Sections 448 and 506 read with 34 of IPC and they are accordingly acquitted under Section 255(1) of Cr.P.C. The bail bonds of A.1 to A.13 shall be in force for a period of six months from this day as provided under Section 437-A of Cr.P.C.

Sd/-G.L.V.Prasad

SPL. JUDICIAL MAGISTRATE OF I CLASS

(EXCISE)-CUM-IV AJCJ, ELURU.

Seal

Copy submitted to The Hon’ble I Additional District and Sessions Judge, West Godavari District, Eluru.