Sri I Karuna Kumar

In the Court of the Additional Judicial Magistrate of First Class, Sompeta.

Present:- Sri. I.Karuna Kumar,

Additional Judicial Magistrate of First Class, Sompeta.

Friday, this the 6th day of November, 2015.

C.C.No.31/2015.

Between:

State, represented by the Sub-Inspector of Police, Kanchili Station House. …The Complainant. And:

Jitendara Kumar Panda, S/o Prapullakumar Panda, aged 41 years, Brahmin by caste, Aurangabad Village, Rajupur Post, Cuttack District, Odisha state.

… The Accused.

This case coming on 23.10.2015 for final hearing before me in the presence of Learned A.P.P.Grade-II for State-and of Sri S.Ramarao and Sri D.Joga Rao Learned Advocates for the accused, and upon hearing both sides; and having stood over till this day for consideration, this court delivered the following:

J U D G M E N T

I) The Sub Inspector of Police, Kanchili got registered the case in

Cr.No.68/2014, dated 13.05.2014 Under Section 304-A of the Indian Penal

Code & Under Sec. 196 of M.V.Act.

II)This First Information Report got registered by the Station

House Officer, Kanchili as per Section 154 the code of Criminal Procedure, being submitted to this court on 13.05.2014 at 11.45 p.m., through

P.C.No. 1472 of Kanchili P.S.

One Sandeep Kumar Pusti , 31 years, herein after referred as deceased, who is the son of LWs 4 and 5.

The deceased is a resident of Utkal Co-op group, Housing

Society, Plot-A, 5th floor, Abinaba Bidanasi, CDA, Cuttack, He worked during the life time as computer technician at Hyderabad. The accused is a native of Jajpur of Odisha, who is no other than the friend of the deceased.

While these facts stood thus, on 12.05.2014 evening the deceased and the accused started in the Car AP 28 DK 2645 being driven by the accused at Hyderabad to come to their home village of Odisha. On 13.05.2014 at about 7.30 hours, when reached near Baliyaputtuga junction on NH 16, road the accused drove the car with an uncontrollable speed, lost control and caused the car to the road side.

During the course, the front cabin of the car damaged while, the deceased sustained grievous injuries on the back head and chest and that the accused sustained grievous injury on left hand. So, they were shifted to the Community Health Center, Sompte in Highway Ambulance, where, the deceased died at 09.20 hous.

It was on the medical intimation, LW.12 rushed to the

Community Health Center, Sompeta, recorded the statement of the accused and registered case in Cr.No.68/2014, u/s 304-A, 338 Indian

Penal Code on 13.05.2014 at 10.30 hours and had taken up investigation.

During the course of investigation, LW.12-Head Constable observed the scene of offence in the presence of LWs 7 and 8; got photographs; drafted scene observation report; held inquest over the dead body of the deceased in the presence of LWs 7 to 9; sent to LW.11 to conduct postmortem examination, sent requisition to LW.10-Motor

Vehicle Inspector for conducting vehicle inspection, and recorded the statements of LWs 1 to 6.

LW.13-Sub Inspector of Police verified the investigation conducted by LW.12-Head Constable, served notice u/s 41-A Cr.P.C., to the accused on 29.06.2014, arrest4ed him on 02.07.2014 at 10.30 hours at Kanchili Police Station and there on released him on bail with two sureties vide bail bond No.13796.

While, LW.10, issued the accident report expressing opinion that the accident happened not due to mechanical defects of the car.

LW.11 issued the P.M. Certificate of the deceased expressing opinion that the death was on the account of ante-mortem injuries over head, brain and chest led to cardio respiratory arrest due to shock and haemorrhage.

On completion of investigation the Sub Inspector of Police filed charge sheet.

IV)Upon laying the charge sheet, the case against the accused was taken to file of this court, Under Section 304-A of the Indian Penal

Code & under Sec. 196 of M.V.Act. On 31.07.2014 Accordingly, summons were issued to the accused by posting the matter to 04.08.2014

V)On appearance of the accused, on 15.09.2014, case copies furnished as per section 207 Cr.P.C.,

VI)There after, the accused got examined under section 251

Cr.P.C., for the offence Under Section 304-A of the Indian Penal Code & u/Sec. 196 of M.V.Act. on which, he pleaded not guilty and claimed to be tried. Hence, the matter posted for trial.

VII)While so, in accordance to the proceedings of the Honourable

District Court, Srikakulam, this matter originally given C.C.No.112/2014; got transferred to this court as per docket order dated 19.12.2014 for disposal. Upon such transfer, a new C.C.No.31/2015 was given.

VIII)The prosecution in an endeavor to establish the guilty mind of accused got examined P.Ws.1 to 10. In addition, Exs.P.1 to P.9 documents marked.

IX)Upon completion of the entire prosecution case, this court proceeded to conduct 313 (1)(b) Cr.P.C., examination, to put to the accused, the incriminating material adduced by the prosecution with a desire to establish the guilty mind of the accused. In fact, to same put to the accused in his mother tongue, having understood the same, the accused denied the material adduced by the prosecution in respect of him.

No defence evidence reported. He stated nothing, when the court enquired, whether, he had anything to say in this case.

X)Heard arguments of learned APP and learned defense counsel.

XI)Hence, this matter stood before this court for judgment.

XII)Now, the points that would arise for consideration; are, as here in under;

1.Whether, the accused arrayed herein, caused the death of the deceased namely Sandeep Kumar Pusti, by driving AP 28 DK 2645 Car in a rash and negligent manner ?

2.Whether, the prosecution established the guilty mind of the accused for the offence Under Section 304-A of the Indian Penal Code & u/Sec. 196 of M.V.Act. ?

3.Whether, the accused can be convicted for the said offences ?

4.If so, to what result ?

XIII)Let this court proceed to answer: Point Nos 1 and 2, commonly to avoid repetition of discussion; thus, points 1 and 2 are;

Whether, the accused arrayed herein, caused the death of the deceased namely Sandeep Kumar Pusti, by driving AP 28 DK 2645 Car in a rash and negligent manner?

Whether, the prosecution established the guilty mind of the accused for the offence Under Section 304-A of the

Indian Penal Code & Sec. 196 of M.V.Act. ?

This is a case where in, the accused arryed herein, caused the death of Sandeep Kumar Pusti by means of driving the car bearing No. driving AP 28 DK 2645 with high speed, lost control over the car, caused this accident; during which, the deceased sustained grievous injuries on back side head, while, the accused sustained grievous injury on his left hand.

The accident allegedly happened on NH 16 Baliyaputtuga road, happened on 13.05.2014 at about 7.30 hours.

So, the prosecution alleges that the accused committed an offence u/s 304 –A I.P.C., So, section 304-A I.P.C., reads “Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.

In the case, where the death of a person is on the account of rash and negligent driving of the vehicle, in such spectrum of circumstance, the prosecution, in variably has to establish the following postulates:

1. The identity of crime vehicle;

2. The identity of driver who caused the accident;

3. That the person died was on the account of rash or negligent act of driving the vehicle.

This is a case of absolute peculiarity, where in, the investigating officer 'registered' the 'crime' based on “the statement” of one 'Jitendrakumar Panda' being recorded by PW.9.

Ex.P.6 is the statement of one 'Jitendrakumar Panda' had given the said statement in Hindi being translated into Telugu who scribed the same.

As per Ex.P.6 endorsement after recording the same, in Hindi, the deponent admitted the said statement recorded on correct lines.

The said Ex.P.6 contains an endorsement given by Civil Assistant

Surgeon, who certified there to, that the patient is conscious while recording the statement by PW.9.

Therefore, this Jitendrakumar Panda given Ex.P.6 statement before

PW.9 while in “the conscious state of mind”, as such, there is no any doubt that can be entertained as about the said statement given while under “delirium”.

The said 'Ex.P.6 statement' contains the following facts.

1. that the deceased namely Sandeep Kumar pusti is the friend of Jitendrakumar Panda;

2. that Jitendrakumar Panda and Sandeep Kumar Pusti were traveling to Jaipur;

3. that they were traveling in a car bearing No. AP 28 DK 2645 belonging to Jitendrakumar Panda;

4. they started from Hyderabad on 12.05.2014 evening;

5. they reached Baliyaputtuga road, NH 16, on 13.05.2014 at about 7.30 am.;

6. that this Jitendrakumar Panda driving the car in high speed, unable to control the said car, fell to left side;

7. during the accident, Jitendrakumar Panda sustained swelling injury on left hand arm;

8. While, his companion sustained injury on his head and All over his body and, while under going treatment, he died at about 9.30 a.m.

It is strange here that the statement given by one

Jitendrakumar Panda, is marked through PW.9, the investigating officer namely Tulasi Das, because of specific fact that this Jitendrakumar Panda arrayed herein as the accused.

The vital consideration here, would be; whether, the statement given by Jitendrakumar Panda, amounts to self incrimination? As to this aspect, this court is of considered humble view that the statement given by Jitendrakumar Panda before PW.9, cannot be considered as 'self incriminating', on the following reasons:

1. that Jitendrakumar Panda, who is the accused herein got sustained injury during the course of the alleged accident, subsequently admitted in the hospital;

2. that while this alleged accident happened, he was present in the car along with deceased during the accident;

3. it is a clear fact that the investigation officer, unaware of the occurrence accident, except on the phone information given to PW.9. Further, ExP.5 medical intimation received by PW9 through the Government Hospital, Sompeta about the car accident;

4. that PW.9 rushed to the Hospital, Sompeta where the complete details about the accident was given by the accused herein namely Jitendrakumar Panda.

Thus, all the connecting information that the accused herein knew about the accident was given to PW.9 vide his Ex.P.6 statement. So, it is not at all an anamoly to register the crime, based on the statement given by one Jitendrakumar Panda. Hence, Ex.P.6 is a document not amounting to ‘self incrimination’.

Moreover, the statement, based on which, crime registered contains the signature of one Jitendrakumar Panda. Here, there is no any positive evidence, that the accused brought, disputing his signature on

Ex.P.6 statement as well that he did not drive the car bearing No. AP 28

DK 2645.

So, marking the statement given by Jitendrakumar Panda

before one Tulasi Das, The Head Constable, holding the charge of the

Station being examined as PW.9, through whom Ex.P.6 marked, does: in no manner, amounts to deviation of the procedure.

Now the prime question that is entertainable is, whether,

Ex.P.6 statement given by one Jitendrakumar Panda is hit by section 24, 25, 26 and 27 of the Indian Evidence Act?

So, the said sections for reference are extracted to here:

section reads :24. Confession caused by inducement, thereat or promise, when irrelevant in criminal proceeding:- A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, thereat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

Sections reads :25. Confession to Police officer not to be proved:- No confession made to a Police officer shall be proved as against a person accused of any offence.

Sections reads :26. Confession by accused while in custody of

Police not to be proved against him:- No confession made by any person whilst he is in the custody of a Police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

Sections reads :27. How much of information received from accused may be proved:- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved”.

Certainly, Ex.p.6 statement given by one Jitendrakumar Panda, do not fall under the scope, ambit and purview of section 24 to 27 of

Indian Evidence Act; since, the statement given by the said Jitendrakumar

Panda is not the statement that he had given while in custody of Police.

After all, ExP.6 statement given before P.W.9 by the said Jitendrakumar

Panda, while, in the Community Health Center, Sompeta. Hence, in the considered opinion of this court, Ex.P.6 statement given by one

Jitendrakumar Panda, rather can be considered as “discloser statement”.

Having registered the crime, PW.9 taken up investigation, who, accordingly visited the scene of offence, prepared Ex.P.8 rough sketch.

Perusal of Ex.P.8 indicates the following facets:

1.that the alleged accident taken place on the National

Highway passing from Palasa to Inchapuram;

2. that it occasioned towards northern direction; 3.the rough sketch indicates that the car rolled down from national highway 493 stone the car was laying at the scene of offence at a distance of 30 feet.

PW.9 prepared Ex.P.2 scene observation report in the presence of Ragupatruni Rajagopalarao and LW.8 Viswanana Srinivasarao.

This Ex.P.2 scene observation report contains the following facts:

1. that it was observed on 13.5.2014 at 9.00 am;

2. that investigating officer PW.9, and the mediators, subscribed their respective signatures;

3. that the scene of offence located 1km away from Kanchili

Police Station;

4. that the scene is located on the left side Bund of a water channel, Balyaputtuga at the distance of 75 meters;

5. that the car bearing No. AP 28 DK 2645 was found laying on the bund of the water channel;

6. the front engine part damaged;

7. the damaged car is facing towards northern direction.

Therefore, there is corroboration between Ex.P.8 rough sketch and 'Ex.P.2 scene observation report.'

In this regard, the prosecution filed Ex.P.9 colour photograph marked through PW.9, indicates about the said car Hyundai Make 'verna' 1.6 Sx bearing its No. AP 28 DK 2645. Furhter, the said photographs relating to said car reflects about the front portion got damage, while, the other photographs reflects, a person died with blood oozed around.

So, the crime vehicle and the deceased being indicated by photographs.

Ex.P.3, is the accident inspection report given by the Motor

Vehicle Inspector PW.7, as per which, one Smt.Sagarika Panda is the owner of the crime vehicle who is no other than the wife of Jitendrakumar

Panda. So, it can be inferred positively when himself and the deceased together traveling in the car, this accident happened, more so, implies that

Jitendrakumar Panda being the holder of driving license vide bearing No.

5523/2003-04 as noted in Ex.P.3 is competent to drive the vehicle, where as, perse Ex.P.6, he drove the vehicle. So, it is conclusive that by the time of the accident and prior to it, this Jitendrakumar Panda was driving the vehicle.

Moreover, Ex.P6 statement given by Jitendrakumar Panda gives a conclusive information that car bearing No. AP 28 DK 2645, being driven by him during the course of the accident.

When, the car bearing on AP 28 DK 2645 being owned by the wife of Jitendrakumar Panda; none would be possessing the car except the owner Sagarika panda or the implied owner as her husband namely

Jitendrakumar Panda, in the specific absence of the material as about the car being bailed or lend to some other third party.

In such circumstance eventual, it must be presumed by all probable means to conclude that Jitendrakumar Panda being the husband to the owner of the said car, was in possession of the said car while driving the said vehicle; caused the accident.

Further, Ex.P.6 statement gives very vital information that one

Sandeep Kumar Pusti was traveling along with the Jitendrakumar Panda

Adding to this, Ex.P.6 statement that Jitendrakumar Panda given before

Police, makes it clear that due to the accident, one Sandeep Kumar Pusti sustained injury, as such, got admitted in the Community Health Center,

Sompeta, where, he subsequently died.

Therefore, from the afore discussion, the following facts can be concluded:

1. that the crime vehicle is Hyudai make 'verna' bearing No.

AP 28 DK 2645;

2. that the said crime vehicle driven by Jitendrakumar Panda, the accused arrayed;

3. that met with an accident on NH 16 near Baliyaputtuga.

Now, coming to the evidence, one Nageswararao being examined as PW.1; evidenced that he was on the morning walk from

Sompeta towards the National Highway, while so he heard loud noise, so he went to the place near the Church; where, he had seen the accused and Sandeep Kumar Pusti being boarded to An Ambulance. Further, he had seen the car fell to a side at the scene of offence.

PWs.2 and 3 are Ummadisingu Chandrasekhar, Kasi

Nageswararao respectively are the persons attending the calls of nature near the National Highway, as they have no toilets while so, they heard loud noise and there. On, went to the scene of offence, found a car turned to a side at the scene of offence. More so, they had seen an Ambulance carrying the injured.

Hence, PW.1 to 3 are the circumstantial “chance” witnesses.

Here, PW.1 had seen the accused and the deceased Sandeep Kurmar pusti; while, PW.2 and 3 had seen injured being carried to an Ambulance.

Moreover, the evidence of PW.1 to 3 is categorically clear that they had seen a car fell to a side at the scene of offence.

So, when the evidence of PW.1 to 3 being under stood in an intricate manner, it gives an inference that a car fell to a side is nothing but “not an ordinary course”, and it is certainly on the account of an accident. Here, PW.1 to 3 heard loud noise, went to the scene of offence, found car fell, implies that the said sound, is nothing but “An orgination”, on the account of an accident.

Further, the accused Jitendrakumar Panda and his companion

Sandeep Kumar Pusti found with injuries, by PW.1 to 3 near the scene of offence,being carried to an ambulance, is nothing but an implication that the said persons sustained injuries on their body on the account of an accident.

Here, PW.1 to 3, evidenced that near the scene of offence, there is existence of the Church; this fact corroborates with Ex.P.2 and

Ex.P.8.So, preparation of the Ex.P.2 and ExP.8 not mechanical.

The evidence deposed by P.W.1 that the had seen the accused and one Sandeep Kumar Pusti with injuries at the scene of offence, corroborates with Ex.,P.6 statement as to the fact that the accused and

Sadeep Kumar pusti were traveling in a car together prior to the accident.

The evidence of PW.1 to 3 is clear that the injured were carried in an Ambulance to an Hospital, corroborates with ExP.6 statement, given by Jitendrakumar Pada at the Community Health Center, Sompeta and also about the deceased died at the said Hospital.

The mediator to Ex.p.2 scene observation report; is one

Rajagopala Rao; who on 13.05.2014 acted as mediator went to the scene of offence i.e.,NH 16 at Baliyaputtuga at about 7.30, being left side road, passing from Palasa to Ichapuram side.

The scene of offence according to PW.6 is near the Church, where he found a car bearing No. AP 28 DK 2645. Further, he also acted as inquestdar to the inquest conducted over body of the deceased.

The material, on hand, particularly Ex.P.2; Exs.P.6 and P..8; indicates that the car at the scene of offence was found laying facing towards Ichapuram indicates to the human, “commonsense” that it met with an accident while traveling towards Ichapuram. Hence, this fact corroborate with Ex.P.6; where in, it was stated that while moving towards Ichapuram the car met with an accident.

Ex.P.3 The accident inspection report given by PW.7 is of a corroborate piece of evidence to under stand, whether the crime vehicle met with an accident or not?

Perse, the evidence of PW.7, he examined a car bearing No. AP 28 DK 2645 and found the following damages:

1.“Front bonnet completely damaged;

2.Front wind shield glass broken;

3.Rear glass broken;

4.Front bumper got damaged;

5.Rear bumper got damaged;

6.Top crushed due to accident;

7.Front axle got bend;

8.Steering rod got bend;

9.A.C condenser damaged;

10. Radiator damaged.”

So, the said damages 1 to 10 could only be caused due to impact on the body of the car that too in the course of an accident, during which, the vehicle would move in a haphazard or irregular manner.

Here, Ex.P.3 speaks about damage No.6'” “top crushed” due to an accident. It means the top could be crushed due to impact, caused due to rolling of the vehicle.

Further, PW.8 Dr.P.Duryodhana conducted postmortem and found following external and internal injuries:

External :

1.“A lacerated injury over the left forehead measuring 5 Cms

X 5 Cms scalp deep. Fresh blood is bleeded from the injury with smaller quantity of clots.

2.A lacerated injury over the left parietal region measuring 5

Cms X 5 Cms scalp deed bright red coloured blood with clots seen at the injury;

3. an abrated injury over the front of the chest extending from the back of neck to the lower end of the sternum with superficial skin field of in the center of the chest all the four limbs and spine are normal.

Internal Examination:

Scalp skin pale, Depressed fracture of the cranial vault seen at the left parietal region; Left side of the parietal region of the brain and meninges are having hacmatoma elots of blood seen. Rest of the Brain and meninges are normal. Bilaterally neck vessels are deeply congested;

Hyoid bone normal. Front of the chest skin muscles are deeply congested;

On cut section dark red coloured blood seen in these areas; Mid of the sterrol bone is fractured; Remaining ribs and cage is normal; Heart and lungs are deeply congested and having dark colour blood is seen;

Stomach empty. Liver, spleen intestines are pale, both kidneys having mitrnol congestion. Spike and external genital normal.

So, PW.8 is of the opinion that the death of the deceased namely Sandeep Kumar Pusti might have been occured between 12 to 24 hours, prior to his examination and the cause of the death to the best of his knowledge and belief is due to antimortem injuries over head, brain and chest leads to cardio respiratory arrest due to shock and hemorrhage.

So, it is a confirmity that Sandeep Kumar Pusti died as per the evidence of PW.8 vide Ex.P.4.his postmortem examination.

Adding to this, PWs 4 and 5 are the parents of the deceased, who came to down Sompeta, went to the Hospital, saw their son sustained bleeding on his back side head and also chest area. PW.4 being father of the deceased, acted as inquestdar.

Therefore, the evidence deposed by PW.9 and 10 being the investigation officers viewing at any angle is worthy of consideration, as it could establish the following aspects :

1. the identity of the crime vehicle;

2. the driver of the crime vehicle;

3. that the driver of the crime vehicle lost control over the crime vehicle and caused the accident, speaks volume as about negligence in driving the vehicle;

4. due to negligent driving the crime vehicle, the accused herein namely Jitendrakumar panda caused the death of his friend namely Sandeep kumar pusti;

5. that as a corroboration, besides the deceased sustained injuries, as per Ex.P6 statement the accused also sustained minor injuries.

Here, an entertinable aspect that must be discussed is the kind of negligence that the driver of the crime vehicle, exhibited while driving the crime vehicle.

According to the Law Lexicon written by Ramanatha Aiyer 'negligence' defined:

Negligence: Negligence in law signifies a coming short of the performance of duty.

Negligence is the absence of care according to the circumstance. The sole standard is the want of that amount of care which is required to be shown in the circumstance of each particular case by reasonable careful man. The amount of care required of a reasonable man will be different in different cases. (123 IC 301-1930 Sind 186)

What of attention to what ought to be done or looked after; lack of proper care in doing something; omission to do something which a reasonable man, guided upon the considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do (S81, ill, (a), IPC).

Negligence in common law, is a breach of duty and if there is a duty and there has been a beach of which causes loss, it matters not whether it is a venial breach or a serious breach….

Thus, negligence “connotes” want of proper care.

When Ex.P.6 statement considered; it is very clear that the accused lost control over the vehicle and thereby this accident happened; gives an inference that the accused, by loosing the control over the steer; implies that he had no proper care while driving the crime vehicle, resulted in the accident and caused the death of deceased.

Hence, this court is of the view that the prosecution is successful in establishing the “causa causans” of the death of the deceased. Accordingly this point answered.

XIV) Let this court proceed to answer point No.3 i.e.,

Whether, the accused, can be convicted for the said offence?

Finding affirmation.

XV) Let this court proceed to answer point No.4 ie.,

If so, to what result?

In the result, the accused is hereby convicted U/Sec 255 (2)

Cr.P.C. for the offence u/s 304-A of I.P.C and Sec 196 of MV Act.

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

SOMPETA.

Sentence Order: Heard on quantum of sentence.

This court had given a patient hearing as about the reasons for cause of the accident, committed by the accused/convict namely Jitendra

Kumar Panda.

During quantum of sentence, the accused/convict submitted that while he was driving the car Hyndui Make 'verna' bearing No. AP 28

D.K 2645, the time was at about 7.30 am., early in the morning and that himself and deceased wanted to have a cup of tea.

They were passing on, while, so, a truck all of a sudden had come in a wrong route, such that with a view to avert collision with the truck, he had take diversion of the car to left side, and that unperceptable to his senses, the car all of a sudden started rolling down and, went and stopped at Gadda i.e., “Bund of water channel.”

During the course of this, the lost consciousness, as well, his companion namely Sandeep Kumar Pusti, who became his friend at

Hyderabad, was in the car also, sustained injuries.

Therefore, this court of is the considered view that the accused/convict to avert greater danger of causing collision with the truck, while taken a left course of navigation, caused this accident. So, he pleads mercy.

Therefore, lenient view, can be exercised while sentencing him, because, he had given before this court, all the truth of facts happened, involved, in causing the accident.

Hence, this court convicted the accused u/sec 255(2) Cr.P.C.

for the offence u/sec 304-A of the Indian Penal Code, and, there on sentence him to pay maximum fine of Rs.10,000/- (Rupees Ten

thousand only) in default of payment of fine, the accused/convict

shall under go simple imprisonment for three months.

Further, this court directs the accused/convict tobe more careful, while driving vehicle of any nature; with care abundence; to that effect. He shall execute self bond for Rs.50,000/- and also to follow traffic

Rules, as per M.V. Act.

True copy of Judgement is given to accused convict on free of cost in the open court in the presence of the counsel for accused namely

Sri Jitendrakumar Panda. The Right of appeal informed to the accused/convict in the open court.

Accordingly, Ordered.

Typed to my dictation directly by the Personal Assistant, corrected and pronounced by me in the Open Court on this the 6th day of November, 2015.

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

SOMPETA.

APP ENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE;

P.W.1 :- Srungavarapu Nageswara Rao; P.W.2 :- Ummadisingu Chandrasekhar; --NONE-- P.W.3 :- Kasi Nageswararao; P.W.4 :- Bijayakumar Pusti; P.W.5 :- Swarnalatha Sahu; P.W.6 :- Raghupatruni Rajagopal; P.W.7 :- N.Ramesh, Motor Vehicle Inspector; P.W.8 :- Dr.P.Duryodhana; P.W.9 :- M.Thulasidas, Head Constable; P.W.10 :- K.Venkata Suresh, The Sub Inspector of Police.

DOCUMENTS MARKED

FOR PROSECUTION: - FOR DEFENCE: - NIL.

Ex.P.1/ :- Inquest Report of PW.1/dt:13.05.2014; Ex.P.2/ :- Scene Observation Report/dt:13.05.2014; Ex.P.3/ :- Motor Vehicle Inspector Report/dt:18.05.2014; Ex.P.4/ :- Postmortem Certificate/dt:13.05.2014; Ex.P.5/ :- Intimation of Accident/dt:13.05.2014; Ex.P.6/ :- Complaint Report/dt:13.05.2014; Ex.P.7/ :- First Information Report/dt:13.05.2014; Ex.P.8/ :- Rough Sketch/dt:13.05.2014; Ex.P.9/ :- Photos.

MATERIAL OBJECTS

NIL.

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

SOMPETA.

FORM No.71

CALENDAR AND JUDGMENT

District of : Srikakulam. Calendar of cases tried by the Additional Judicial Magistrate of First Class, Sompeta.

Date of: Offence : 13.05.2014

Report or complaint : 13.05.2014

Apprehension of accused : 15.09.2014

Release on bail : Station bail commencement of trial : 09.04.2015

Close of trial : 30.09.2015

Sentence of Order : 06.11.2015

Explanation of delay :The delay is caused due to non production of and remarks : witnesses in time by the prosecution.

Judgment in Calendar Case No.31/2015 on the file of the Additional Judicial Magistrate

of First Class, Sompeta.

Complainant: State represented by the Sub Inspector of Police, Kanchili Police Station.

Name of Age/years Father's Name Religion Calling Residence Taluk/

accused State

Jitendara Kumar Panda, S/o Prapullakumar Panda, aged 41 years, Brahmin by caste, Aurangabad Village, Rajupur Post, Cuttack District, Odisha state. Offence : Causing death by rash or negligent act, shall be punishable under section 304-A and Sec 198 MV Act Indian Penal Code.

Finding : Found guilty.

Sentence/Order : In the result, the accused is hereby convicted U/Sec 255 (2) Cr.P.C. for the offence u/s 304-A of I.P.C and Sec 196 of MV Act.

This court had given a patient hearing as about the reasons for cause of the accident, committed by the accused/convict namely Jitendra Kumar Panda. During quantum of sentence, the accused/convict submitted that while he was driving the car Hyndui Make 'verna' bearing No. AP 28 D.K 2645, the time was at about 7.30 am., early in the morning and that himself and deceased wanted to have a cup of tea. They were passing on, while, so, a truck all of a sudden had come in a wrong route, such that with a view to avert collision with the truck, he had take diversion of the car to left side, and that unperceptable to his senses, the car all of a sudden started rolling down and, went and stopped at Gadda i.e., “Bund of water channel.” During the course of this, the lost consciousness, as well, his companion namely Sandeep Kumar Pusti, who became his friend at Hyderabad, was in the car also, sustained injuries. Therefore, this court of is the considered view that the accused/convict to avert greater danger of causing collision with the truck, while taken a left course of navigation, caused this accident. So, he pleads mercy.

Therefore, lenient view, can be exercised while sentencing him, because, he had given before this court, all the truth of facts happened, involved, in causing the accident. Hence, this court convicted the accused u/sec 255(2) Cr.P.C. for the offence u/sec 304-A of the Indian Penal Code, and, there on sentence him to pay maximum fine of Rs.10,000/-(Rupees Ten

thousand only) in default of payment of fine, the accused/convict

shall under go simple imprisonment for three months. Further, this court directs the accused/convict tobe more careful, while driving vehicle of any nature; with care abundence; to that effect. He shall execute self bond for Rs.50,000/- and also to follow traffic Rules, as per M.V. Act. True copy of Judgement is given to accused convict on free of cost in the open court in the presence of the counsel for accused namely Sri Jitendrakumar Panda. The Right of appeal informed to the accused/convict in the open court. Accordingly, Ordered.

Note: The accused paid the fine amount of Rs.10,000/-

Additional Judicial Magistrate of First Class,

Sompeta.

The Honourable I Additional District & Sessions Judge, Srikakulam.

Copy to the Superintendent of Police, Srikakulam, concerned

1

IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS, SOMPETA.

Present :- Sri I.Karuna Kumar,

Additional Judicial Magistrate of First Class, Sompeta.

Wednesday this the 30th day of September, 2015.

Calendar Case No.54/2015

Between:

The State represented by its Sub Inspector of Police, Kanchili, Station House. …. the Complainant.

And

Guda Kurma Rao, S/o Appalaswamy, 28 years, Yadava by caste, Jennaghai colony, Kanchili Mandal, Srikakulam District. …. the Accused.

This case coming on 15.09.2015 for final hearing before me in the presence of learned A.P.P., for The State /complainant and of learned Sri D.Jagannaikulu, Advocate for accused and, upon hearing both sides and, having stood over till this day for consideration, this court delivered the following

J U D G M E N T;

I)The Station House Officer, Kanchili got registered the case in

Cr.No.72/2014, registered on 21.05.2014 for the offence under section 326 of the

Indian Penal Code.

II)Upon registering the same, the said FIR being transmitted to this court through P.C.No.2128 of Kanchili Police Station on 22.05.2014 at about 09.00 a.m.,

As per the details noted in the FIR, the said offence had taken place on 21.05.2014 i.e., on Wednesday at about 21.00 hours, while the information got given to the Station House on 21.05.2014 at 22.30 hours.

III)The story of the prosecution in gist;

The accused is a permanent resident of Jennaghai colony of Kanchili

Mandal. The offence had taken place on 21.05.2014 around 21.00 hours at

Jennaghai colony lies in the limits of Kanchili Police Station.

LW.1-Dharmana Roja is defacto complainant and injured; LW.2- 2

Dharmana Himavathi is the mother; and LW.3-Dharmana Aswini is younger sister of LW.1-Dharmana Roja and eye witness; LWs 4 to 6 (Kalla Jayamma, Guda

Kamesu, Guda Gangamma) are eye witnesses; LWs 7-Gummadi Madayya and 8-

Gudia Mohanarao are mediators; LW.9-Bendi Mallesu is the Radiographer; LW.10-

Dr.K.Rajesh is Medical Officer; LWs 11 and 12 (K.Simhachalam, Head Constable and K.VEnkata Suresh, The Sub Inspector of Police) are investigating officers.

On 21.05.2014 at 22.30 hours, LW.1-Dharmana Roja accompained by LWs2 and 3 (Dharmana Himavathi and LW.3-Dharmana Aswini) turned up

before LW.10-Head Constable at Kanchili Police Station and presented a written

report stating that on 21.05.2015 at 8.30 pm., she along with LWs2 and 3 (Dharmana Himavathi and LW.3-Dharmana Aswini) were sitting on the verandah in front of their house.

By the time, the accused came in an intoxicated state called the girl namely Sravani.

The girl did not go to him. On that the accused invited quarrel and raised cries on the plea that they objected the girl. Then brought an axe from his house and flinged towards their verandah that hit on lips of LW.1-Dharmana Roja, who sustained bleeding injury on lips and one upper and one lower incisor broken to half. The time of the incident was 9.00 pm.

Basing on the report, LW.11-The Sub Inspector of Police registered the First Information Report in Cr.72/2014, u/s 326 Indian Penal Code on 21.05.2014 at 22.30 hours and investigated into.

During the course of investigation, LW.10 observed the scene of offence in the presence of LWs 7-Gummadi Madayya and 8-Gudia Mohanarao and, there on drafted scene observation report vide which, an axe got seized and, recorded the statements of of LWs.1 to 6 ( Dharmana Roja, Dharmana

Himavathi, Dharmana Aswini, Kalla Jayamma, Guda Kamesu, Guda Gangamma)

LW.11 verified the investigation of LW.10, arrested the accsued on 27.05.2014 at 10.00 hours near Golla Kanchili village and sent him for judicial 3 remand.

LW.9 issued to wound certificate of LW.1 and noticed loss of a part of upper lateral incisor and lower central incisor and there on expressed opinion that the injuries are grievous in nature caused by a sharp and hard object.

Hence, the charge sheet.

IV)Upon laying the charge sheet, the case against accused, was taken to file of this court, under section 326 of the Indian Penal Code, Accordingly, summons issued to the accused by posting the matter to 04.08.2014.

V)In accordance to the proceedings of the Honourable District Court,

Srikakulam, this matter originally given C.C.No.89/2014; got transferred to this court as per docket order dated 15.12.2014 for disposal. Upon such transfer, a new C.C.No.54/2015 was being assigned.

On appearance of the accused, case copies furnished on 14.08.2014 as per section 207 Cr.P.C.

VI)While so, on 09.09.2014, accused got examined under section 239

Cr.P.C., for the offence under section 326 of the Indian Penal Code; on which he pleaded not guilty and claimed to be tried. Hence, the matter posted for trial.

VII. The prosecution in an endeavor to establish the guilty of mind of accused examined P.Ws.1 to 9. In addition, Exs.P.1 to P.8 documents marked, while, M.O.

1 material object marked.

VIII)Upon completion of the entire prosecution case, this court proceeded to conduct 313 (1)(b) Cr.P.C., examination, to put to the accused, the incriminating material adduced by the prosecution with a desire to establish the guilty mind of the accused. In fact, the same put to the accused in his mother tongue, having understood the same, the accused denied the material adduced by the prosecution in respect of him. No defence evidence reported. He stated nothing, when the court enquired, whether, he had anything to say in this case, except stating that that he was falsely implicated.

IX.Heard arguments of learned APP and learned defense counsel.

4

X.Hence, this matter stood before this court for judgment.

XI.Now, the points that would arise for consideration; are, as here in under;

1.Whether, the accused can be found guilty for the offence u/s 326 of the Indian Penal Code ?

2.Whether, the prosecution able to establish the guilty mind of the accused for the offence under section 326 of the Indian Penal Code?

3. Whether, the accused, can be convicted for the said offence?

4.If so, to what result?

XII. Let this court proceed to answer: Point Nos.1 i.e.,;

Whether, the accused can be found guilty for the offence u/s 326 of the Indian Penal Code ?

The prosecution alleges that the accused allegedly caused the 'grievous' hurt on the body of PW.1, as the accused flingede 'an axe' that hit the mouth of PW.1resulting in, not only the injury caused on the lips, but one upper and lower incisor of the PW.1 being broken to its half.

Therefore, it is fundamental necessity to under stand section 326 of the Indian Penal Code; which aims to punish the offender, who voluntarily causes 'grievous hurt' by dangerous weapons or means.

So, this section consists three key words ie., 'voluntarily'; 'grievous hurt'; and 'dangerous weapon'.

Before this court proceed to examine the weight of evidence, it is

essential to understand these key words.

'Chapter' II of the Indian Penal Code deals with “General explanations” where under 'section 39' of the said Act Defines clearly the word 'voluntarily' that reads “A person is said to cause an affect “voluntarily” when he causes it by means whereby he intended to cause it, or by means of which at the time of employing those means, he knew or had reason to believe to be 5 likely to cause it.” 'Section 319' of Indian Penal Code, defines 'hurt' and it reads:

“Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.” 'Section 320' of Indian Penal Code, deals with grievous hurt that reads “The following kinds of hurt only are designated as “grievous ”.

First: Emasculation.

Secondly: Permanent disfiguration of the head or face.

Thirdly: Permanent privation of the hearing of either ear.

Fourthly: Privation of any member or joint.

Fifthly: Destruction or permanent impairing of the powers of any member or joint.

Sixthly: Permanent disfiguration of the head or face.

Seventhly: Fracture or dislocation of a bone or tooth.

Eighthly: any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.

Where as dangerous weapon being defined under section 324 IPC that reads “Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or and by instrument which, used as a weapon of offence, is likely to cause death, or by means of fire, or any heated substance, or by means of any poison or any corrosive substance or by means of any explosive substance or by means of any substance which is deliterious to the human body to inhale, to swallow, or to receive into the blood or b y means of any animal.

On the afore parameters, this court has to weigh the evidence that the prosecution let in, during trial.

It is aprops, at this stage, to consider Ex.P.1 report given by PW.1 marked through her, which contains the following allegations:

6

1. on 21.5.2014, night at 8.30 pm., PW.1, her mother PW.2, her sister

P W.3 Aswini, together sat on the varandah (pial);

2. While so, the accused Guda Kurmarao belonging to their village in the drunken state of mind, called Sravani little kid but she did not go to him;

3. then thinking that PW.1 and others did not allowed the little kid, he raised an altercation and shouted;

4. during this inter val, he picked up an 'axe' available at his house then, abusing PW.1 and others, fling the said axe towards them;

5. then the said axe hit straight on the lip area of PW.1 that caused bleeding injury;

6. so, PW.1 sustained bleeding injury on her upper lip;

7. As a result of axe hitting on the lip area, upper and lower tooth broken.

The incident alleged to have commenced at 8.30 and ended at 9.00 p.m.

It is clear from the endorsement of the station house officer, that he registered the case based on the report of PW.1 on 21.5.2014 at about 22.30 hours ie., 10.30 pm. Hence, there is no any delay either in lodging the report or in registering the same as a crime.

So, it must be presumed that the information given by PW.1 vide her report is fresh with out any manipulations.

Here, the evidence of PW.1 to 3, cogently deposed that while, all of them, sat on the 'varanda' of their house, on 21st May 2014, the accused arrayed herein, in the drunken state, called the light namely Sravani, who did not go to him, as such, the accused formed an opinion, that it was PW.1 who did not send the baby when he called, so, got angry, picked up an axe, flinged it, that ultimately struck on the mouth of PW.1 resulted; on the following consequential facts. :

1. that upper and lower teeth of PW.1 partially broken; 7

2. that upper and lower lips got cut due to hit caused on the lip area by an axe;

So, the evidence of PW.1 to 3 clinches, that the accused Guda

Kurmarao caused the said injuries on the body of PW.1, by axe being flinged.

Further, all the witness PW.1 to 3 categorically deposed that MO.1 ie.

Axe used by the accused Guda Kurmarao caused injuries on PW.1.

Thus, one of the deterimental fact in the given circumstances, is:

when, the accused flinged the axe that had a hit on the lips of PW.1., whether, he had the intention to cause the injury?

As per the evidence, Guda Kurmarao the accused herein used this axe knowing very well that it would be used for cutting, and that he used it for cutting wood as per evidence of PW.1 to PW.3.

So, Kurmarao should have knowledge, that if the axe flinged, it would hit and cause injury on the other

Prior to the accused fling the axe, he had quarrel with a PW.1 to 3, thinking that they had obstructed Sravani, who did not go, when he called the little baby.

So, the 'motive' for the accused having flinged an axe towards PW.s.1 to 3 was that the little baby did not go to him,

This incident is an eye account of PW.1 to 3, happened during night

So, how PW.1 to 3 could evidence the facts happened?

With regards to this, PW.2 evidenced that it was 'not' the 'pitch dark' night, and one can see the other.

Regarding this, PW.1 evidenced that it was 'semi dark' night so also,

PW.3 deposed that it was dark night.

Though it was 'dark night', it would not insulate completely the witnesses witnessing the occurrence and other connected probable facts.

Another considerable question, is whether, the evidence of PW.3 can sustain in the eye of law, as she was of tender age being the minor?

8

The answer lies under 'Chapter 9' of the Indian evidence Act, that deals with “of witnesses”, where under, section 118 reads: “All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.”

So, considering section 118 of Indian Evidence Act, the competency of

PW.3 tested before examining her as witness. So, having satisfied with the competency, this court examined her as PW.3, Thus, there is no bar to consider the evidence of PW.3.

Concerning to this, PW.4 evidenced, while she was in front room, the accused in the drunken state called her daughter by name “Sravani, Sravani” and, that her younger sister objected her; then the accused abused, thrown an axe, due to which PW.1 sustained, cut injuries on upper and lower lips and also the left tooth of PW.1 fell due to the impact.

Here, PW.5 is the mediator to Ex.P.4 scene observation report, in whose presence an axe was seized by, scribing report, where on, he subscribed, his signature.

PW.5 identified the axe that the police seized, further being identified by PW.1 to 3. So, the prosecution, able to establish MO.1 as the weapon of instrument used by the accused, to cause injuries on PW.1.

The injury as deposed by PWs 1 to 4, are being cogently corroborated with the medical evidence ie., the Doctor who examined PW.1, given his testimony as PW.6 , who found the following injuries:

“1.An incised wound of size 3 cm X 1 cm over lower lip colour bright red;

2. An incised wound of size 1 cm X 1 cm X 0.5 cm over upper lip, colour bright red;

3. A swelling of size 5 cms X 2 cms over upper lip; 9

4. Loss of a part of upper lateral incisor and lower centrol incisor tooth.” At this juncture, the learned defence counsel argued that if the blunt side of the axe; would not cause incised wound as noted the Doctor.

Though, the submission of the learned defence counsel is such, it is not possible either by the victim or other direct eye witness to predict the probable event, how the 'axe' swirls in the air and, then, which side of the axe ie., to say whether sharp edge or the blunt side, causes the injury, because, as soon as the axe flinged, one would not be in a position to imagine its probable movement. So, it is highly unworthy to expect the witnesses speak about, which side of the 'axe' caused hit on the lips of PW.1.

Coming to the incised wounds, it is clean cut through tissues caused by sharp edged instrument which is longer than, it is deep.

Further, when the skin becomes folded under the cutting edge of the weapon, a single movement of a sharp weapon may produce a series of incised wounds, separated one from another by bridges of normal skin.

The characters and the Essentials of incised wound discussed in

Forensic Medicine and Toxicology by Dr.K.S Narayana Reddy; for reference extracted to here:

“1. Margins: The edges are clean-cut, well-defined and usually averted.

The edges may be inverted, if a thin layer of muscle fibres is adherent to the skin as in the scrotum. The edges are free from contusions and abrasions.

2. Width: the width is greater than the edge of the weapon causing it, due to retraction of the divided tissues. Shaking of the blade tends to make the wound wider than the weapon.

3. Length: the length is greater than its width and depth, and has no relation to the cutting edge of the weapon, for it may be drawn to any distance.

4.Shape: It is usually spindle-shaped due to greater retraction of the 10 edges in the center. Gaping is greater if the underlying muscle fibers have been cut transversely or obliquely, and less when cut longitudinally. The wound may take zigzag course if the skin is loosely attached as in axillary fold, because the skin is pushed in front of the blade before it is cut. If the blade is curved, the edges will be crescentic, If the surface is convex, the straight-bladed weapon may also produce a crescentic wound.”

Moreover, in the said book, chapter 8, page 144 observes “Lacerations produced without excessive skin crushing may have relatively sharp margins.

Blunt force on areas where the skin is close to bone, and the subcutaneous tissues are scanty, may produce a wound which by linear splitting of the tissues, may look like incised wound., The sites are the scalp, eyebrows, cheek bones, lower jaw, iliac crest, perineum, and shin. A wound produced by a fall on the knee or elbow with the limb flexed, and by a broken glass or sharp stone also simulates “incised wound.”

So, under the chance and occurrence that the sharp edged part of axe should have touched the lip area of PW.1 or, other wise, if the blunt side of the axe caused hit on the lip area of PW.1, appears like an incised wound, caused on the lips.

Here, another fact that needs consideration is whether, the axe caused hit on the upper or lower lip?

Here, the movement of the axe cannot be predicted as it is flinged.

Ex.P.3 are the photographs that reveals clearly the injury that PW.1 sustained on her lips more particularly in the lower area and also broken half teeth seen. Both the lips PW.1 seen with blood.

During cross examination, learned counsel elicited that PW.6 did not take the X-ray to examine of the depth of the injury caused to the teeth, by taking the opinion of the dentist. However, that need not be, because, the consideration herein is, whether, PW.1 sustained broken teeth due to hit caused 11 by the axe on her lips, and the scope is to see whether grievous injury caused.

Just because PW.7 did not supported the case of the prosecution, deposing that she was not in the village at the time of the incident, the entire story of the prosecution need not be brushed away.

The contextual point for consideration would be; whether PW.1 to 4 are to be considered as to interested witnesses? It can not be so, because, the injury on PW.1 visible as per Ex.P.3 and that 'medical' testimony corroborates with the evidence of PWs 1 to 4.

Therefore, the investigation conducted by the investigation officer particularly by PW.8 is cogently convinced that the accused herein, is the reason for causing injury on the lips of PW.1 and also responsible for broken teeth to its half Accordingly. This point No.1 answered.

XIII) Let this court proceeds to answer point No.2 ie.,

Whether the prosecution able to establish the guilty mind of the accused for the offence under section 326 of Indian Penal Code? In the light of discussion held in the point No.1 the prosecution is successful to establish the case against the accused beyond all reasonable doubts.

XIII) Let this court proceed to answer point No.3 i.e.,

Whether, the accused, can be convicted for the said offence?

Finding affirmation.

XIV) Let this court proceed to answer point No.4 ie.,

If so, to what result?

In the result, the accused is hereby convicted U/Sec 248 (2) Cr.P.C.

for the offence u/s 326 of I.P.C

The MO.1 i.e., axe, being the non-valuable property shall be destroyed after appeal time is over.

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

SOMPETA.

12

Sentence Order:

Heard on quantum of sentence.

It appears that the accused/convict has no any realisation, even at this stage. He is not pleading any mercy, even after having found him guilty, he still pleads innocence. However, this is not the stage that he pleads about innocence.

Therefore, this court proceed to hear his counsel, who submits, that the accused/convict is poor and he has minor daughter aged about 8 months.

Nevertheless, these are not fit grounds to take lenient view.

Thus, this court is of the humble view that this is not the fit case to release the accused under probation of offenders Act, since, the accused/convict abused woman i.e., PW.s 1 to 3 and, thereon, caused injuries on PW.1 who is yet to be married; due to the injury, caused, by the accused/convict namely Kurma

Rao and that she lost two teeth i.e., upper and lower incisor.

Hence, this court proceeds to convict the accused under section 248 (2) Cr.P.C. for the offence under section 326 of the Indian Penal Code, and thereon, sentenced him to under go rigorous imprisonment for the term of three years.

Further, the accused/convict is hereby ordered to pay the fine of

Rs.10,000/-; in default of payment of fine; he shall under go simple imprisonment for the term of two months.

The superintendent central prison, Visakhapatnam is hereby ordered strictly to reform the entire behavioural attitude of this accused/convict, during under going rigorous imprisonment for maximum period of 3 years, by extending counseling by way of inculcating moral and ethical values by giving necessary spiritual training by way of “Yoga and meditation” and also to keep the accused under the strict, Supervision and counselling with a qualified psychiatrist and psychologist.

The remand period for 31 days ie., from 27.05.2014 to 13 26.06.2014, under gone by the accused/convict shall be set off as per under 428 of Criminal Procedure Code.

Hence, the Superintendent Central prison is to under stand the intention of this court that the accused/convict be replanted in to the society absolutely under the “complete Reformation”.

The Superintendent Central Prison further directed to give him the entire wage that he earns, while under going rigorous imprisonment on completion imprisonment for 3 years.

The free copy of the Judgment supplied to the accused/convict, free of cost.

The Right of appeal informed to the accused/convict in the open court.

Accordingly, Ordered.

Typed to my dictation directly by the Personal Assistant, corrected and pronounced by me in the Open Court on this the 30th day of September, 2015.

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

SOMPETA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE;

P.W.1:- Dharmana Roja; Nil P.W.2:- Dharmana Himavathi; P.W.3:- Dharmana Aswani; P.W.4:- Kalla Jayamma' P.W.5:- Gummadi Madayya; P.W.6:- Dr.K.Rajesh the then Civil Assistant Surgeon, P.W.7:- Gudia Gangamma; P.W.8:- K.Simchalam The then Head Constable, Kanchili P.S.; P.W.9:- K.Venkata Suresh, The then Sub Inspector of Police, Kanchili P.S.

14

DOCUMENTS MARKED

FOR PROSECUTION: - FOR DEFENCE: -

Ex.P.1/ Report of P.W.1. Dt.21-05-2014; - Nil - Ex.P.2/ Two Photoes; Ex.P.3/ Two photoes; Ex.P.4/ Scene Observation report Dated.22-05-2014; Ex.P.5/ Wound Certificate of PW.1/ dt: 21.05.2014; Ex.P.6/ U/Sec. 161 (3) Cr.P.C. Statement of P.W.7 Dt.22-05-2015; Ex.P.7/ First Information Report in Crime No.72/2014 of Kanchili P.S. Dt.21-05-2015; Ex.P.8/ The Rough sketch Dt.22-05-2015.

MATERIAL OBJECTS

FOR PROSECUTION: - FOR DEFENCE: -

M.O.1. Axe NIL

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

SOMPETA.

15

FORM No.72

CALENDAR AND JUDGMENT

District of : Srikakulam.

Calendar cases tried by the Additional Judicial Magistrate of First Class,

Sompeta.

Date of: Offence : 21.05.2014 at 19.00 hours Report or complaint : 21.05.2014 at 22.30 hours Apprehension of accused : 27.05.2014 Release on bail : 27.06.2014 commencement of trial : 18.03.2014 Close of trial : 15.09.2015 Sentence of Order : 30.09.2015 Explanation of delay and remarks : The delay is caused due to non production of witnesses in time by the prosecution.

Judgment in Calendar Case No.54 of 2015 on the file of the Additional

Judicial Magistrate of First Class, Sompeta.

Complainant: State represented by the Sub Inspector of Police, Kanchili Police Station.

Name of Age/years Father's Name Religion Calling ResidenceTaluk accused

Guda Kurma Rao, S/o Appalaswamy, 28 years, Yadava by caste, Jennaghai colony, Kanchili Mandal, Srikakulam District.

Offence : Voluntarily causing grievous hurt by dangerous weapons or means. punishable under section 326 of the Indian Penal Code.

Finding : Found guilty.

Sentence/Order :

In the result, the accused is hereby convicted U/Sec 248 (2) Cr.P.C. for the offence u/s 326 of I.P.C The MO.1 i.e., axe, being the non-valuable property shall be destroyed after appeal time is over. Thus, this court is of the humble view that this is not the fit case to release the accused under probation of offenders Act, since, the accused/convict abused woman i.e., PW.s 1 to 3 and, thereon, caused injuries on PW.1; who is yet to be married; due to the injury, caused, by the accused/convict namely Kurma Rao and that she lost two teeth i.e., upper and lower incisor. Hence, this court proceeds to convict the accused under section 248 (2) Cr.P.C. for the offence under section 326 of the Indian Penal Code, and, thereon, sentenced him to under go rigorous imprisonment for the term of three years. Further, the accused/convict is hereby ordered to pay the fine of Rs.10,000/-; in default of payment of fine; he shall under go simple imprisonment for the term of two months. The superintendent central prison, Visakhapatnam is hereby ordered, strictly; to reform the entire behavioural attitude of this accused/convict, during under going rigorous imprisonment for maximum period of 3 years, by extending counseling by way of inculcating moral and ethical values by giving necessary 16 spiritual training by way of “Yoga and meditation “and, also to keep the accused under the strict, Supervision and counselling with a qualified psychiatrist and psychologist. The remand period for 31 days ie., from 27.05.2014 to 26.06.2014, under gone by the accused/convict shall be set off as per section 428 of the Criminal Procedure Code. Hence, the Superintendent Central prison is to under stand the intention of this court that the accused/convict be replanted into the society absolutely under “complete Reformation”. The Superintendent Central Prison further directed to give him the entire wage that he earns, while under going rigorous imprisonment on completion of the term of imprisonment for 3 years.

The free copy of the Judgment supplied to the accused/convict, free of cost. The Right of appeal informed to the accused/convict in the open court.

Accordingly, Ordered.

Note: The accused did not paid the fine amount of Rs.10,000/-

Additional Judicial Magistrate of First Class,

Sompeta.

Copy submitted to the Honourable I Additional District and Sessions Judge, Srikakulam. Copy to the Superintendent of Police, Srikakulam.

1

IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS, SOMPETA.

Present :- Sri I.Karuna Kumar,

Additional Judicial Magistrate of First Class, Sompeta.

Wednesday this the 30th day of September, 2015.

Calendar Case No.54/2015

Between:

The State represented by its Sub Inspector of Police, Kanchili, Station House. …. the Complainant.

And

Guda Kurma Rao, S/o Appalaswamy, 28 years, Yadava by caste, Jennaghai colony, Kanchili Mandal, Srikakulam District. …. the Accused.

This case coming on 15.09.2015 for final hearing before me in the presence of learned A.P.P., for The State /complainant and of learned Sri D.Jagannaikulu, Advocate for accused and, upon hearing both sides and, having stood over till this day for consideration, this court delivered the following

J U D G M E N T;

I)The Station House Officer, Kanchili got registered the case in

Cr.No.72/2014, registered on 21.05.2014 for the offence under section 326 of the

Indian Penal Code.

II)Upon registering the same, the said FIR being transmitted to this court through P.C.No.2128 of Kanchili Police Station on 22.05.2014 at about 09.00 a.m.,

As per the details noted in the FIR, the said offence had taken place on 21.05.2014 i.e., on Wednesday at about 21.00 hours, while the information got given to the Station House on 21.05.2014 at 22.30 hours.

III)The story of the prosecution in gist;

The accused is a permanent resident of Jennaghai colony of Kanchili

Mandal. The offence had taken place on 21.05.2014 around 21.00 hours at

Jennaghai colony lies in the limits of Kanchili Police Station.

LW.1-Dharmana Roja is defacto complainant and injured; LW.2- 2

Dharmana Himavathi is the mother; and LW.3-Dharmana Aswini is younger sister of LW.1-Dharmana Roja and eye witness; LWs 4 to 6 (Kalla Jayamma, Guda

Kamesu, Guda Gangamma) are eye witnesses; LWs 7-Gummadi Madayya and 8-

Gudia Mohanarao are mediators; LW.9-Bendi Mallesu is the Radiographer; LW.10-

Dr.K.Rajesh is Medical Officer; LWs 11 and 12 (K.Simhachalam, Head Constable and K.VEnkata Suresh, The Sub Inspector of Police) are investigating officers.

On 21.05.2014 at 22.30 hours, LW.1-Dharmana Roja accompained by LWs2 and 3 (Dharmana Himavathi and LW.3-Dharmana Aswini) turned up

before LW.10-Head Constable at Kanchili Police Station and presented a written

report stating that on 21.05.2015 at 8.30 pm., she along with LWs2 and 3 (Dharmana Himavathi and LW.3-Dharmana Aswini) were sitting on the verandah in front of their house.

By the time, the accused came in an intoxicated state called the girl namely Sravani.

The girl did not go to him. On that the accused invited quarrel and raised cries on the plea that they objected the girl. Then brought an axe from his house and flinged towards their verandah that hit on lips of LW.1-Dharmana Roja, who sustained bleeding injury on lips and one upper and one lower incisor broken to half. The time of the incident was 9.00 pm.

Basing on the report, LW.11-The Sub Inspector of Police registered the First Information Report in Cr.72/2014, u/s 326 Indian Penal Code on 21.05.2014 at 22.30 hours and investigated into.

During the course of investigation, LW.10 observed the scene of offence in the presence of LWs 7-Gummadi Madayya and 8-Gudia Mohanarao and, there on drafted scene observation report vide which, an axe got seized and, recorded the statements of of LWs.1 to 6 ( Dharmana Roja, Dharmana

Himavathi, Dharmana Aswini, Kalla Jayamma, Guda Kamesu, Guda Gangamma)

LW.11 verified the investigation of LW.10, arrested the accsued on 27.05.2014 at 10.00 hours near Golla Kanchili village and sent him for judicial 3 remand.

LW.9 issued to wound certificate of LW.1 and noticed loss of a part of upper lateral incisor and lower central incisor and there on expressed opinion that the injuries are grievous in nature caused by a sharp and hard object.

Hence, the charge sheet.

IV)Upon laying the charge sheet, the case against accused, was taken to file of this court, under section 326 of the Indian Penal Code, Accordingly, summons issued to the accused by posting the matter to 04.08.2014.

V)In accordance to the proceedings of the Honourable District Court,

Srikakulam, this matter originally given C.C.No.89/2014; got transferred to this court as per docket order dated 15.12.2014 for disposal. Upon such transfer, a new C.C.No.54/2015 was being assigned.

On appearance of the accused, case copies furnished on 14.08.2014 as per section 207 Cr.P.C.

VI)While so, on 09.09.2014, accused got examined under section 239

Cr.P.C., for the offence under section 326 of the Indian Penal Code; on which he pleaded not guilty and claimed to be tried. Hence, the matter posted for trial.

VII. The prosecution in an endeavor to establish the guilty of mind of accused examined P.Ws.1 to 9. In addition, Exs.P.1 to P.8 documents marked, while, M.O.

1 material object marked.

VIII)Upon completion of the entire prosecution case, this court proceeded to conduct 313 (1)(b) Cr.P.C., examination, to put to the accused, the incriminating material adduced by the prosecution with a desire to establish the guilty mind of the accused. In fact, the same put to the accused in his mother tongue, having understood the same, the accused denied the material adduced by the prosecution in respect of him. No defence evidence reported. He stated nothing, when the court enquired, whether, he had anything to say in this case, except stating that that he was falsely implicated.

IX.Heard arguments of learned APP and learned defense counsel.

4

X.Hence, this matter stood before this court for judgment.

XI.Now, the points that would arise for consideration; are, as here in under;

1.Whether, the accused can be found guilty for the offence u/s 326 of the Indian Penal Code ?

2.Whether, the prosecution able to establish the guilty mind of the accused for the offence under section 326 of the Indian Penal Code?

3. Whether, the accused, can be convicted for the said offence?

4.If so, to what result?

XII. Let this court proceed to answer: Point Nos.1 i.e.,;

Whether, the accused can be found guilty for the offence u/s 326 of the Indian Penal Code ?

The prosecution alleges that the accused allegedly caused the 'grievous' hurt on the body of PW.1, as the accused flingede 'an axe' that hit the mouth of PW.1resulting in, not only the injury caused on the lips, but one upper and lower incisor of the PW.1 being broken to its half.

Therefore, it is fundamental necessity to under stand section 326 of the Indian Penal Code; which aims to punish the offender, who voluntarily causes 'grievous hurt' by dangerous weapons or means.

So, this section consists three key words ie., 'voluntarily'; 'grievous hurt'; and 'dangerous weapon'.

Before this court proceed to examine the weight of evidence, it is

essential to understand these key words.

'Chapter' II of the Indian Penal Code deals with “General explanations” where under 'section 39' of the said Act Defines clearly the word 'voluntarily' that reads “A person is said to cause an affect “voluntarily” when he causes it by means whereby he intended to cause it, or by means of which at the time of employing those means, he knew or had reason to believe to be 5 likely to cause it.” 'Section 319' of Indian Penal Code, defines 'hurt' and it reads:

“Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.” 'Section 320' of Indian Penal Code, deals with grievous hurt that reads “The following kinds of hurt only are designated as “grievous ”.

First: Emasculation.

Secondly: Permanent disfiguration of the head or face.

Thirdly: Permanent privation of the hearing of either ear.

Fourthly: Privation of any member or joint.

Fifthly: Destruction or permanent impairing of the powers of any member or joint.

Sixthly: Permanent disfiguration of the head or face.

Seventhly: Fracture or dislocation of a bone or tooth.

Eighthly: any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.

Where as dangerous weapon being defined under section 324 IPC that reads “Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or and by instrument which, used as a weapon of offence, is likely to cause death, or by means of fire, or any heated substance, or by means of any poison or any corrosive substance or by means of any explosive substance or by means of any substance which is deliterious to the human body to inhale, to swallow, or to receive into the blood or b y means of any animal.

On the afore parameters, this court has to weigh the evidence that the prosecution let in, during trial.

It is aprops, at this stage, to consider Ex.P.1 report given by PW.1 marked through her, which contains the following allegations:

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1. on 21.5.2014, night at 8.30 pm., PW.1, her mother PW.2, her sister

P W.3 Aswini, together sat on the varandah (pial);

2. While so, the accused Guda Kurmarao belonging to their village in the drunken state of mind, called Sravani little kid but she did not go to him;

3. then thinking that PW.1 and others did not allowed the little kid, he raised an altercation and shouted;

4. during this inter val, he picked up an 'axe' available at his house then, abusing PW.1 and others, fling the said axe towards them;

5. then the said axe hit straight on the lip area of PW.1 that caused bleeding injury;

6. so, PW.1 sustained bleeding injury on her upper lip;

7. As a result of axe hitting on the lip area, upper and lower tooth broken.

The incident alleged to have commenced at 8.30 and ended at 9.00 p.m.

It is clear from the endorsement of the station house officer, that he registered the case based on the report of PW.1 on 21.5.2014 at about 22.30 hours ie., 10.30 pm. Hence, there is no any delay either in lodging the report or in registering the same as a crime.

So, it must be presumed that the information given by PW.1 vide her report is fresh with out any manipulations.

Here, the evidence of PW.1 to 3, cogently deposed that while, all of them, sat on the 'varanda' of their house, on 21st May 2014, the accused arrayed herein, in the drunken state, called the light namely Sravani, who did not go to him, as such, the accused formed an opinion, that it was PW.1 who did not send the baby when he called, so, got angry, picked up an axe, flinged it, that ultimately struck on the mouth of PW.1 resulted; on the following consequential facts. :

1. that upper and lower teeth of PW.1 partially broken; 7

2. that upper and lower lips got cut due to hit caused on the lip area by an axe;

So, the evidence of PW.1 to 3 clinches, that the accused Guda

Kurmarao caused the said injuries on the body of PW.1, by axe being flinged.

Further, all the witness PW.1 to 3 categorically deposed that MO.1 ie.

Axe used by the accused Guda Kurmarao caused injuries on PW.1.

Thus, one of the deterimental fact in the given circumstances, is:

when, the accused flinged the axe that had a hit on the lips of PW.1., whether, he had the intention to cause the injury?

As per the evidence, Guda Kurmarao the accused herein used this axe knowing very well that it would be used for cutting, and that he used it for cutting wood as per evidence of PW.1 to PW.3.

So, Kurmarao should have knowledge, that if the axe flinged, it would hit and cause injury on the other

Prior to the accused fling the axe, he had quarrel with a PW.1 to 3, thinking that they had obstructed Sravani, who did not go, when he called the little baby.

So, the 'motive' for the accused having flinged an axe towards PW.s.1 to 3 was that the little baby did not go to him,

This incident is an eye account of PW.1 to 3, happened during night

So, how PW.1 to 3 could evidence the facts happened?

With regards to this, PW.2 evidenced that it was 'not' the 'pitch dark' night, and one can see the other.

Regarding this, PW.1 evidenced that it was 'semi dark' night so also,

PW.3 deposed that it was dark night.

Though it was 'dark night', it would not insulate completely the witnesses witnessing the occurrence and other connected probable facts.

Another considerable question, is whether, the evidence of PW.3 can sustain in the eye of law, as she was of tender age being the minor?

8

The answer lies under 'Chapter 9' of the Indian evidence Act, that deals with “of witnesses”, where under, section 118 reads: “All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.”

So, considering section 118 of Indian Evidence Act, the competency of

PW.3 tested before examining her as witness. So, having satisfied with the competency, this court examined her as PW.3, Thus, there is no bar to consider the evidence of PW.3.

Concerning to this, PW.4 evidenced, while she was in front room, the accused in the drunken state called her daughter by name “Sravani, Sravani” and, that her younger sister objected her; then the accused abused, thrown an axe, due to which PW.1 sustained, cut injuries on upper and lower lips and also the left tooth of PW.1 fell due to the impact.

Here, PW.5 is the mediator to Ex.P.4 scene observation report, in whose presence an axe was seized by, scribing report, where on, he subscribed, his signature.

PW.5 identified the axe that the police seized, further being identified by PW.1 to 3. So, the prosecution, able to establish MO.1 as the weapon of instrument used by the accused, to cause injuries on PW.1.

The injury as deposed by PWs 1 to 4, are being cogently corroborated with the medical evidence ie., the Doctor who examined PW.1, given his testimony as PW.6 , who found the following injuries:

“1.An incised wound of size 3 cm X 1 cm over lower lip colour bright red;

2. An incised wound of size 1 cm X 1 cm X 0.5 cm over upper lip, colour bright red;

3. A swelling of size 5 cms X 2 cms over upper lip; 9

4. Loss of a part of upper lateral incisor and lower centrol incisor tooth.” At this juncture, the learned defence counsel argued that if the blunt side of the axe; would not cause incised wound as noted the Doctor.

Though, the submission of the learned defence counsel is such, it is not possible either by the victim or other direct eye witness to predict the probable event, how the 'axe' swirls in the air and, then, which side of the axe ie., to say whether sharp edge or the blunt side, causes the injury, because, as soon as the axe flinged, one would not be in a position to imagine its probable movement. So, it is highly unworthy to expect the witnesses speak about, which side of the 'axe' caused hit on the lips of PW.1.

Coming to the incised wounds, it is clean cut through tissues caused by sharp edged instrument which is longer than, it is deep.

Further, when the skin becomes folded under the cutting edge of the weapon, a single movement of a sharp weapon may produce a series of incised wounds, separated one from another by bridges of normal skin.

The characters and the Essentials of incised wound discussed in

Forensic Medicine and Toxicology by Dr.K.S Narayana Reddy; for reference extracted to here:

“1. Margins: The edges are clean-cut, well-defined and usually averted.

The edges may be inverted, if a thin layer of muscle fibres is adherent to the skin as in the scrotum. The edges are free from contusions and abrasions.

2. Width: the width is greater than the edge of the weapon causing it, due to retraction of the divided tissues. Shaking of the blade tends to make the wound wider than the weapon.

3. Length: the length is greater than its width and depth, and has no relation to the cutting edge of the weapon, for it may be drawn to any distance.

4.Shape: It is usually spindle-shaped due to greater retraction of the 10 edges in the center. Gaping is greater if the underlying muscle fibers have been cut transversely or obliquely, and less when cut longitudinally. The wound may take zigzag course if the skin is loosely attached as in axillary fold, because the skin is pushed in front of the blade before it is cut. If the blade is curved, the edges will be crescentic, If the surface is convex, the straight-bladed weapon may also produce a crescentic wound.”

Moreover, in the said book, chapter 8, page 144 observes “Lacerations produced without excessive skin crushing may have relatively sharp margins.

Blunt force on areas where the skin is close to bone, and the subcutaneous tissues are scanty, may produce a wound which by linear splitting of the tissues, may look like incised wound., The sites are the scalp, eyebrows, cheek bones, lower jaw, iliac crest, perineum, and shin. A wound produced by a fall on the knee or elbow with the limb flexed, and by a broken glass or sharp stone also simulates “incised wound.”

So, under the chance and occurrence that the sharp edged part of axe should have touched the lip area of PW.1 or, other wise, if the blunt side of the axe caused hit on the lip area of PW.1, appears like an incised wound, caused on the lips.

Here, another fact that needs consideration is whether, the axe caused hit on the upper or lower lip?

Here, the movement of the axe cannot be predicted as it is flinged.

Ex.P.3 are the photographs that reveals clearly the injury that PW.1 sustained on her lips more particularly in the lower area and also broken half teeth seen. Both the lips PW.1 seen with blood.

During cross examination, learned counsel elicited that PW.6 did not take the X-ray to examine of the depth of the injury caused to the teeth, by taking the opinion of the dentist. However, that need not be, because, the consideration herein is, whether, PW.1 sustained broken teeth due to hit caused 11 by the axe on her lips, and the scope is to see whether grievous injury caused.

Just because PW.7 did not supported the case of the prosecution, deposing that she was not in the village at the time of the incident, the entire story of the prosecution need not be brushed away.

The contextual point for consideration would be; whether PW.1 to 4 are to be considered as to interested witnesses? It can not be so, because, the injury on PW.1 visible as per Ex.P.3 and that 'medical' testimony corroborates with the evidence of PWs 1 to 4.

Therefore, the investigation conducted by the investigation officer particularly by PW.8 is cogently convinced that the accused herein, is the reason for causing injury on the lips of PW.1 and also responsible for broken teeth to its half Accordingly. This point No.1 answered.

XIII) Let this court proceeds to answer point No.2 ie.,

Whether the prosecution able to establish the guilty mind of the accused for the offence under section 326 of Indian Penal Code? In the light of discussion held in the point No.1 the prosecution is successful to establish the case against the accused beyond all reasonable doubts.

XIII) Let this court proceed to answer point No.3 i.e.,

Whether, the accused, can be convicted for the said offence?

Finding affirmation.

XIV) Let this court proceed to answer point No.4 ie.,

If so, to what result?

In the result, the accused is hereby convicted U/Sec 248 (2) Cr.P.C.

for the offence u/s 326 of I.P.C

The MO.1 i.e., axe, being the non-valuable property shall be destroyed after appeal time is over.

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

SOMPETA.

12

Sentence Order:

Heard on quantum of sentence.

It appears that the accused/convict has no any realisation, even at this stage. He is not pleading any mercy, even after having found him guilty, he still pleads innocence. However, this is not the stage that he pleads about innocence.

Therefore, this court proceed to hear his counsel, who submits, that the accused/convict is poor and he has minor daughter aged about 8 months.

Nevertheless, these are not fit grounds to take lenient view.

Thus, this court is of the humble view that this is not the fit case to release the accused under probation of offenders Act, since, the accused/convict abused woman i.e., PW.s 1 to 3 and, thereon, caused injuries on PW.1 who is yet to be married; due to the injury, caused, by the accused/convict namely Kurma

Rao and that she lost two teeth i.e., upper and lower incisor.

Hence, this court proceeds to convict the accused under section 248 (2) Cr.P.C. for the offence under section 326 of the Indian Penal Code, and thereon, sentenced him to under go rigorous imprisonment for the term of three years.

Further, the accused/convict is hereby ordered to pay the fine of

Rs.10,000/-; in default of payment of fine; he shall under go simple imprisonment for the term of two months.

The superintendent central prison, Visakhapatnam is hereby ordered strictly to reform the entire behavioural attitude of this accused/convict, during under going rigorous imprisonment for maximum period of 3 years, by extending counseling by way of inculcating moral and ethical values by giving necessary spiritual training by way of “Yoga and meditation” and also to keep the accused under the strict, Supervision and counselling with a qualified psychiatrist and psychologist.

The remand period for 31 days ie., from 27.05.2014 to 13 26.06.2014, under gone by the accused/convict shall be set off as per under 428 of Criminal Procedure Code.

Hence, the Superintendent Central prison is to under stand the intention of this court that the accused/convict be replanted in to the society absolutely under the “complete Reformation”.

The Superintendent Central Prison further directed to give him the entire wage that he earns, while under going rigorous imprisonment on completion imprisonment for 3 years.

The free copy of the Judgment supplied to the accused/convict, free of cost.

The Right of appeal informed to the accused/convict in the open court.

Accordingly, Ordered.

Typed to my dictation directly by the Personal Assistant, corrected and pronounced by me in the Open Court on this the 30th day of September, 2015.

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

SOMPETA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE;

P.W.1:- Dharmana Roja; Nil P.W.2:- Dharmana Himavathi; P.W.3:- Dharmana Aswani; P.W.4:- Kalla Jayamma' P.W.5:- Gummadi Madayya; P.W.6:- Dr.K.Rajesh the then Civil Assistant Surgeon, P.W.7:- Gudia Gangamma; P.W.8:- K.Simchalam The then Head Constable, Kanchili P.S.; P.W.9:- K.Venkata Suresh, The then Sub Inspector of Police, Kanchili P.S.

14

DOCUMENTS MARKED

FOR PROSECUTION: - FOR DEFENCE: -

Ex.P.1/ Report of P.W.1. Dt.21-05-2014; - Nil - Ex.P.2/ Two Photoes; Ex.P.3/ Two photoes; Ex.P.4/ Scene Observation report Dated.22-05-2014; Ex.P.5/ Wound Certificate of PW.1/ dt: 21.05.2014; Ex.P.6/ U/Sec. 161 (3) Cr.P.C. Statement of P.W.7 Dt.22-05-2015; Ex.P.7/ First Information Report in Crime No.72/2014 of Kanchili P.S. Dt.21-05-2015; Ex.P.8/ The Rough sketch Dt.22-05-2015.

MATERIAL OBJECTS

FOR PROSECUTION: - FOR DEFENCE: -

M.O.1. Axe NIL

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

SOMPETA.

15

FORM No.72

CALENDAR AND JUDGMENT

District of : Srikakulam.

Calendar cases tried by the Additional Judicial Magistrate of First Class,

Sompeta.

Date of: Offence : 21.05.2014 at 19.00 hours Report or complaint : 21.05.2014 at 22.30 hours Apprehension of accused : 27.05.2014 Release on bail : 27.06.2014 commencement of trial : 18.03.2014 Close of trial : 15.09.2015 Sentence of Order : 30.09.2015 Explanation of delay and remarks : The delay is caused due to non production of witnesses in time by the prosecution.

Judgment in Calendar Case No.54 of 2015 on the file of the Additional

Judicial Magistrate of First Class, Sompeta.

Complainant: State represented by the Sub Inspector of Police, Kanchili Police Station.

Name of Age/years Father's Name Religion Calling ResidenceTaluk accused

Guda Kurma Rao, S/o Appalaswamy, 28 years, Yadava by caste, Jennaghai colony, Kanchili Mandal, Srikakulam District.

Offence : Voluntarily causing grievous hurt by dangerous weapons or means. punishable under section 326 of the Indian Penal Code.

Finding : Found guilty.

Sentence/Order :

In the result, the accused is hereby convicted U/Sec 248 (2) Cr.P.C. for the offence u/s 326 of I.P.C The MO.1 i.e., axe, being the non-valuable property shall be destroyed after appeal time is over. Thus, this court is of the humble view that this is not the fit case to release the accused under probation of offenders Act, since, the accused/convict abused woman i.e., PW.s 1 to 3 and, thereon, caused injuries on PW.1; who is yet to be married; due to the injury, caused, by the accused/convict namely Kurma Rao and that she lost two teeth i.e., upper and lower incisor. Hence, this court proceeds to convict the accused under section 248 (2) Cr.P.C. for the offence under section 326 of the Indian Penal Code, and, thereon, sentenced him to under go rigorous imprisonment for the term of three years. Further, the accused/convict is hereby ordered to pay the fine of Rs.10,000/-; in default of payment of fine; he shall under go simple imprisonment for the term of two months. The superintendent central prison, Visakhapatnam is hereby ordered, strictly; to reform the entire behavioural attitude of this accused/convict, during under going rigorous imprisonment for maximum period of 3 years, by extending counseling by way of inculcating moral and ethical values by giving necessary 16 spiritual training by way of “Yoga and meditation “and, also to keep the accused under the strict, Supervision and counselling with a qualified psychiatrist and psychologist. The remand period for 31 days ie., from 27.05.2014 to 26.06.2014, under gone by the accused/convict shall be set off as per section 428 of the Criminal Procedure Code. Hence, the Superintendent Central prison is to under stand the intention of this court that the accused/convict be replanted into the society absolutely under “complete Reformation”. The Superintendent Central Prison further directed to give him the entire wage that he earns, while under going rigorous imprisonment on completion of the term of imprisonment for 3 years.

The free copy of the Judgment supplied to the accused/convict, free of cost. The Right of appeal informed to the accused/convict in the open court.

Accordingly, Ordered.

Note: The accused did not paid the fine amount of Rs.10,000/-

Additional Judicial Magistrate of First Class,

Sompeta.

Copy submitted to the Honourable I Additional District and Sessions Judge, Srikakulam. Copy to the Superintendent of Police, Srikakulam.

1

IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

SOMPETA.

Present :- Sri I.Karuna Kumar,

Additional Judicial Magistrate of First Class, Sompeta.

Wednesday, this the 28th day of October, 2015.

Calendar Case No.44/2015

Between:

The State represented by its Sub Inspector of Police, Mandasa, Police Station.

…. the Complainant. And: Kamala Behara W/o Damodhar Behara, aged about 40 years, Hindu, Kandraby caste, labour, Kanchumayya colony, Mandasa Village and Mandal, Srikakulam District. …. the Accused.

This case coming on 08.10.2015, on this day for final hearing before me in the presence of learned A.P.P., for The State/complainant and of learned Sri G.Yogesh, Advocate for accused and upon hearing both sides and having stood over till this day for consideration, this court delivered the following;

J U D G M E N T;

I.The Station House Officer, Mandasa, got registered the case in

Cr.No.94/2014 dated 31.07.2014, for the offence under section 324 of the Indian

Penal Code.,

II.This First Information report got registered by the Station House officer, Mandasa as per section 154 the code of Criminal Procedure., being submitted to this court on 31.07.2014 at 04.30 pm.,

III.The story of the prosecution in gist:

The accused is the resident of Kanchumayya Colony of Mandasa village and Mandal. The offence has taken place on 31-07-2014 around 08.00 hours; at Kanchumayya Colony Mandasa lies in the limits of Mandasa Station

House.

L.W.1 (Kanaka Behara) is de-facto complainant and injured; L.W.2 (Laxmana Behara) is the husband of L.W.1 and independent witness; L.Ws (Budiya Behara, Purushottam Behara and Padmanabha Behara) are the eye witnesses; L.Ws 6 and 7 (Puvvada Gowriprasad and Donkuru Tirupathi) are the 2 mediators; L.W.8 (Dr.Vivek Anandala Patnala) is the Medical Officer and L.Ws 9 and 10 (J.Jagannadha Rao and V.Ravi Varma) are the investigating Officers.

On 31-07-2014, at about 14.00 hours, L.W.1 accompanied by L.W.2 turned up before L.W.9 Head Constable at Mandasa Police Station had given report stating that they are eking out livelihood by doing labour works. They purchased a house site to an extent of one cent from Gopal Behara of

Kanchumayya Colony in the year, 1988 and obtained D-Form Patta in favour of her husband. Then, constructed a house in the place and resided. As collapsed the house due to cyclone; constructed a shed in the vacant place. Thereafter, constructed A.C. Sheets house in their place about three months prior to the incident back. The accused is the daughter in law of Gopal Behara, who tried to break the house who beat the complainant on forehead with a knife and, caused bleeding injury.

So, L.W.9 registered the statement of L.W.1 as FIR in Cr.No. 94/2014,

U/sec.324 of the Indian Penal Code, on 31-07-2014 at 14.00 hours and investigated. During the course of investigation, L.W.9 recorded the statements of

L.Ws 1 and 2 at Police Station, observed the scene of offence in the presence of

L.Ws 6 and 7; seized the knife under the cover of scene observation report and there on recorded the statements of L.Ws 3 to 5.

L.W.10 verified the investigation of L.W.9 on 14-08-2014 and, served notice U/Sec. 41-A of Cr.P.C. to the accused.

During course of investigation, L.W.10 arrested the accused on 19-08- 2014 at 10.45 hours, at Mandasa Police Station and sent him for judicial Remand.

L.W.8 issued the wound certificate of L.W.1 expressing opinion that the injury is simple in nature caused due to contact with firm object.

So,L.W.10 filed charge sheet after completion of investigation.

Investigation of Lws 9 and 10 disclosed that on 31-07-2014 at about 08.00 hours; the accused armed with a knife went to the house of Lws 1 and 2 which is in dispute and tried to break the A.C. Sheets and, when questioned by

L.W.1., beat with knife and, caused simple injury on the forehead.

3

Thus, the accused is liable for punishment U/Sec. 324 of the Indian

Penal Code.

Hence, charge sheet.

IV.Upon laying the charge sheet, the case against accused was taken to file of this court under section 324 of the Indian Penal Code, on 25.09.2014

Accordingly, summons were issued to the accused by posting the matter to 07.10.2014.

V.On appearance of the accused on 07.10.2014, case copies furnished on him as per section 207 Cr.P.C.

VI.After furnishing case copies to the accused, she is examined under section 239 Cr.P.C., for the offence under section 324 of Indian Penal code., on which, she pleaded not guilty and claimed to be tried. Hence, the matter posted for trial.

VII.While so, in accordance to the proceeding of the Honourable District

Court, Srikakulam, this matter originally given CC.No. 183/2014; got transferred to this court as per docket order dated 18.12.2014 for disposal. Under such transfer, a new C.C No. 44/2015., being assigned.

VIII.The prosecution in an endeavor to establish the guilty of mind of accused got examined P.Ws.1 to 9, Exs.P.1 to P.6 documents, Ex.D.1 and MO.1 marked.

IX.Upon completion of the entire prosecution case, this court proceeded to conduct 313 (1)(b) Cr.P.C., examination, to put to the accused, the incriminating material adduced by the prosecution with a desire to establish the guilty mind of the accused. In fact, the incriminating material have been put to the accused in her mother tongue, being understood the same, the accused denied the material adduced by the prosecution in respect of her. No defence evidence reported.

X.Heard arguments of learned APP and learned defense counsel.

XI.Hence, this matter stood before this court for judgment.

XII.Now, the points that would arise for consideration; are, as here in under; 4

1.Whether, the accused can be found guilty for the offences U/s 324, of IPC?

2Whether, the prosecution is successful in establishing

the guilt mind of the accused beyond all reasonable

doubts?

3.Whether the accused can be convicted for the said offence U/s 324 of IPC?

4. If so, to what result?

XIII.Let this court proceed to answer point No.1 i.e.,

Whether the accused can be found guilty for the offences U/s 324 of IPC?

In the cases, where the prosecution alleges that the accused herein committed an offence u/s 324 of IPC It has to invariable has to establish that the accused caused 'hurt' on the injured and more so, particularly u/s 324 IPC., the prosecution further has to establish that 'hurt' caused on the injured, by employing dangerous weapon of instrument. The characteristic features of dangers weapon defined u/s 324 IPC that reads; “Whoever, except in the case provided for by Section 334, voluntarily case hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire, or any heated substance, or by means of any poison or any corrosive substance or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both”.

Under this backdrop, the case of the prosecution has to be examined.

This is a case of voluntarily causing allegedly 'simple hurt' by accused herein on the defecto complainant with the help of knife occurred on 31.07.2014 at about 8.00 a.m., at Kanchumayya colony of Madasa Mandal, vowing to a dispute with regard to house site.

Ex.P.2 is the report given by PW.1 wherein, it was alleged that Kamala

Behara the accused herein beat the PW.1 on her forehead with knife.

5

PW.1 is no other than the wife of PW.2. PW.1 and 2 in their 161 (3)

Cr.P.C., statement stated before the investigating officer that the husband of the defecto complainant was not present at the scene of offence while the alleged offence had taken place at Kanchumayya colony.

However, PW.2 evidenced that he was present at the time of galata happened at Kanchumayya colony, because he was laying roof with bamboo sticks. However,this was not stated by PW.2 in his 161 (3) Cr.P.C statement. So, there is variance of fact between 161 (3) Cr.P.C., given before the Police and, the evidence deposed on oath. Hence, Ex.D.1 contradiction marked through PW.2.

Further, According to the evidence of PW.1, the 161 (3) Cr.P.C.

statement deposed by PW.1 and before the police, the dispute arose, when the tin roofed structure being erected in the site, nevertheless coming to the evidence of

PW.2 in chief, the dispute said to have arosed when PW.2 was laying the roof with bamboo sticks.

According to PW.1, the dispute arose when PW.1 laying the roof with bamboo sticks.

So, the fundamental contradiction is; as per PW.1 she was laying the roof while, as per PW.2, he was laying the roof.

Coming to Ex.p.2 report given by PW.2 the dispute arose, when the accused tried to dismantle tin roofed structure.

Thus, from Ex.P.3 report, the version of PW.1 and 2 have had a drift to say, clearly that according to 161 (3) Cr.P.C., statement and evidence in their chief, the dispute arose, when they tried to lay the roof, however, as per Ex.P.2 report, the dispute arose, when the accused tried to dismantle the tin roofed structure.

Therefore, the evidence deposed by PW.1 and 2 unable to make out to clarity the following aspects:

1. whether the tin roofed structure was already in existence the dispute arose;

2. whether, the defecto complainant laying the roof at the time of the 6 incident;

3. whether, the accused tried to disturb tin roofed structure or laying of the roof, is not clarified.

While so, PW.3, 5, who are said be the direct eye witness to the occurrence turned hostile to the of the prosecution, because as per the PW.2 he was not present at the time of dispute; while, as per PW.5, he was not aware of the facts. But, according to PW.4., he was present in his house when this incident happened, and that he did not see between whom and whom the galata had taken place. Albeit, he had seen PW.1 with injury on the forehead at PHC

Mandasa.

So, PW.4 is not in position to deposed at whose hands PW.1 received injury. Hence, the evidence of PW.3 to 5 not use to the case of the prosecution.

Further, the evidence of PW.6 being mediator he is the police depute wooden fisted knife in his presence and LW.6. However, the specific contradiction of the fact between the version of PW.1 and 2, the evidence of PW.6 becomes barren, and, in such evidence of PW.7 Dr Vivekanandapatnala is not useful though, he testified that PW.1 was found injury on mid scalp forehead area.

Moreover, according PW.2 there are civil disputes between the accused and PW.1 and 2. So, the fact of implicating the accused cannot be ruled out.

In the said of facts, the evidence of the investigation offiers i.e., PW.8 and9 is of no help to the case of the prosecution to achieve conviction.

It is thus, the benefit of doubt goes to the accused Accordingly point

No.1 answered.

XIV) Let this court proceed to answer point No.2 i.e.,

Whether the prosecution is successful in

establishing guilty mind of the accused, beyond

all reasonable doubts?

Finding negation:

XV)Let this court proceed to answer point No.3 i.e.,

Whether, the accused can be convicted for the

7 said offences U/s 324 of IPC?

Finding negation:

XVI) Let this court proceed to answer point no.4 i.e.,

If so, to what result?

In the result, the accused is acquitted u/s 248 (1) Cr.P.C for the offence U/s 324 of Indian Penal Code, However, since the acquittal is based on benefit of doubt, the accused is warned to be more careful in the future and that she is directed to execute a bond for Rs 5000/- for future good behavior.

The bail bonds of the accused shall stands cancelled after appeal time is over. The M.O.1 i.e. wooden handle knife shall be destroyed after appeal time is over.

Accordingly, Ordered.

Dictated to typist, typed by him, corrected by me and pronounced in the

open court on 28th October, 2015.

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

SOMPETA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE; P.W.1 :- Kanaka Behara; NIL P.W.2 :- Laxmana Behara; P.W.3 :- Budiya Behara; P.W.4 :- Purushottam Behara; P.W.5 :- Padmanabha Behara; P.W.6 :- Donkuru Tirupathi; P.W.7 :- Dr.P.Vivek Anandala Patnala the then Civil Assistant Surgeon, Community Health Center, Baruva; P.W.8 :- J.Jagannadha Rao, the then Head Constable, Mandasa P.S.; P.W.9 :- V.Ravi Varma the then Sub Inspector of Police, Mandasa P.S.

DOCUMENTS MARKED

FOR PROSECUTION: -

Ex.P.1/31-07-2014: U/Sec.161 Cr.P.C. Statement of P.W.5; Ex.P.2/31-07-2014: Report of P.W.1; Ex.P3/31-07-2014: Scene observation report ; Ex.P.4/31-07-2014: Wound certificate of P.W.1; Ex.P.5/ 31-07-2014:The Original F.I.R. In Crime No.94/2014 of Mandasa P.S; Ex.P.6/ 31-07-2014: The Rough sketch.

FOR DEFENCE: - Ex.D.1: u/sec 161(3) Cr.P.C., statement of PW.2 in 18th and 19th lines.

8

MATERIAL OBJECTS

FOR PROSECUTION: - FOR DEFENCE: -

MO.1: Wooden handle knife Nil

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

SOMPETA.

9

FORM No.72

CALENDAR AND JUDGMENT

District of : Srikakulam.

Calendar of cases tried by the Additional Judicial Magistrate of First

Class, Sompeta.

Date of Offence : 31.07.2014 at 08.00 hours. Report or complaint : 31.07.2014 at 14.00 hours. Apprehension of accused : 19.08.2014 Release on bail : 19.08.2004 commencement of trial : 19.03.2015 Close of trial : 01.10.2015 Sentence of Order : 28.10.2015 Explanation of delay and remarks : The delay is caused due to non production of witnesses in time by the prosecution.

Judgment in Calendar Case No.44 of 2015 on the file of the Additional

Judicial Magistrate of First Class, Sompeta.

Complainant: State represented by the Sub Inspector of Police, Mandasa Police Station.

Name of Age/Father's NameReligion CallingResidenceTaluk accusedyears

Kamala Behara 40 W/o Damodhara HinduLabour Kanchamayya Mandasa yearsBeharacolony

Offence :voluntarily caused hurt by dangerous weapons or means punishable under section 324 of the Indian Penal Code.

Finding : Found not guilty. Sentence/Order :

In the result, the accused is acquitted u/s 248 (1) Cr.P.C for the offence U/s 324 of Indian Penal Code, However, since the acquittal is based on benefit of doubt, the accused is warned to be more careful in the future and that she is directed to execute a bond for Rs 5000/- for future good behavior. The bail bonds of the accused shall stands cancelled after appeal time is over. The M.O.1 i.e. wooden handle knife shall be destroyed after appeal time is over. Accordingly, Ordered.

Additional Judicial Magistrate of First Class,

Sompeta.

Copy submitted to the Honourable I Additional District and Sessions Judge, Srikakulam. Copy to the Superintendent of Police, Srikakulam.

10

IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

SOMPETA.

Present :- Sri I.Karuna Kumar,

Additional Judicial Magistrate of First Class, Sompeta.

Wednesday, this the 30th day of September, 2015.

Calendar Case No.30/2015

Between:

The State represented by its Sub Inspector of Police, Kanchili, Police Station. …. the Complainant.

And

Madina Krishnamurty, S/o Narayanarao @ Narayana, 39 years, Kalinga by caste, Banjeerunarayanapuram

(v), Kanchili (M),Srikakulam District. …. the Accused. This case coming on 15.09.2015 for final hearing before me in the presence of learned A.P.P., for The State/complainant and of learned Sri S.Rama Rao and D.Jogarao, Advocates for accused and upon hearing both sides and having stood over till this day for consideration, this court delivered the following;

J U D G M E N T;

I.The Station House Officer, Kanchili, got registered the case in

Cr.No.61/2014 dated 03.05.2014 for the offences under sections 448, 506(2) of the Indian Penal Code.

II.This First Information report was registered by the Station House officer, Kanchili as per section 154 the code of Criminal Procedure, being submitted to this court on 04.05.2014 at 9.30 am,,

III.The story of the prosecution in gist:

The accused is a resident of Banjeerunarayanapuram village of Kanchili

Mandal. The offence had taken place on 03.05.2014 at about 10.00 hours at

Banjeerunarayanapuram (v) Kanchili (M) lies in the limits of Kanchil Police Station.

LW.1-Pandi Dharmarao is de-facto complainant; LWs 2 and 3-Pandi

Venkatesam, Pandi Rangamma are parents of LW.1 Pandi Dharmarao and eye witnesses; LWs 4 to 6 (Pandi Chalapathirao, Dikkala Vasu, Noliya Bhimmo) are eye witness; LWs 7 and 8-Madina Narayanarao and Madina Dhanunjayarao @ Dhanam are mediators and LW.9 K.Venkata Suresh, Sub Inspector of Police is investigating officer.

On 3.5.2014 at 17.30 hours, LW.1 turned up before LW.9 at Kanchili

Police Station and presented a report stating that a 'field' dispute is going on in between the accused and his elder brother. His father is a village elder assured them to settle the dispute after the general elections. On 03.05.2014 at about 9.00 am., the accused came in a drunken state, abused as dispute was not settele. On that, informed him to settle the dispute if he likes.

At about 10.00 am., while his father returning from the field and when reached near to the house of the accused abused his father as he did not settle the dispute. His father then had come down to home. Then the accused armed with a knife, entered into the house and threatened to kill the inmates. So, they became frightened and ran away from the house. Then, the accused fell on the road as I the drunken state. His wife had come came and took him to their house.

Basing on the report, LW.9 registered the FIR in Cr.No.61/2014, u/sec 448, 506 (2) IPC and investigated. During course of investigation, observed the scene of offence in the presence of LWs 7 and 8 Madina Narayanarao and Madina

Dhanunjayarao; drafted scene observation report; recorded the statements of LWs 1 to 6 (Pandi Dharmarao, Pandi Venkatesam, Pandi Rangamma, Pandi

Chalapathirao, Dikkala Vasu, Noliya Bhimmo)

During of investigation, LW.9 arrested the accused on 31.5.2014 at

Kanchili Police Station and sent him for judicial remand. Now, he is on bail.

It was LW.9 who filed charge sheet on completion of investigation.

Hence, the charge.

IV.Upon laying the charge sheet, the case against accused was taken to file of this court under section 448, 506 (2) of the Indian Penal Code against accused. Accordingly, summons issued to the accused by posting the matter to 30.09.2014.

V.On appearance of the accused on 25.09.2014, case copies furnished on him as per section 207 Cr.P.C,.

VI.While so, the accused got examined under section 251 Cr.P.C., for the offence under section 448, 506 (2) of the Indian Penal Code; on which, he pleaded not guilty and claimed to be tried.

VII.The prosecution in an endeavor to establish the guilty of mind of accused got examined P.Ws.1 to 8. In addition, Exs.P.1 to P.3 documents marked.

VIII.While so, in accordance to the proceeding, of the Honourable District

Court, Srikakulam, this matter originally given CC.No.110/2014; got transferred to this court as per docket order dated 15.12.2014 for disposal. Under such transfer, a new C.C No. 30/2015., being assigned.

IX.Upon completion of the entire prosecution case, this court proceeded to conduct 313 (1)(b) Cr.P.C., examination, to put to the accused, the incriminating material adduced by the prosecution with a desire to establish the guilty mind of the accused. In fact, the incriminating material have been put to the accused in his mother tongue, having understood the same, the accused denied the material adduced by the prosecution in respect of them. No defence evidence reported. He stated nothing, when the court enquired whether he have anything to say in this case.

X.Heard arguments of learned APP and learned defense counsel.

XI.Hence, this matter stood before this court for judgment.

XII.Now, the points that would arise for consideration; are, as here in under;

1. Whether, the accused can be found guilty for the offence

u/s 448, 506 (2) of the Indian Penal Code ?

2. Whether, the prosecution able to establish the guilty mind of the accused for the offence under section 448, 506 (2) of Indian Penal Code beyond reasonable doubt?

3. Whether, the accused, can be convicted for the said offence?

4. If so, to what result?

XIII. Let this court proceed to answer: Point Nos.1;

This is the case, where, the complainant alleges about the accused trespassed in to the house of the defecto complainant and threatened him and his family members with dare consequence on refusal about settling,land dispute between accused and his brother.

So, the prosecution as to establish that the accused herein committed house trespass and threatened the defecto complaint and family members.

In fact , house trespass is the part and parcel of criminal trespass and that the distinction between the criminal trespass and house trespass is that the later is about entering in to or remaining in any building or vessel used as human dwelling.

So, before proceedings to considered “house tress-pass” it is relevant to consider section 441 of the Indian Penal Code that defines about criminal tress- pass.

Hence, the said section 441 reads “Whoever enters into or upon property in the possession of another with intent or commit an offence or to intimidate, insult or annoy any person in possession of such property. Or having lawfully entered into upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence”. is said to commit “Criminal trespass”.

Further, according to section 442 of the Indian Penal Code “house trespass” defined as “ whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling, or any building used as a place for worship, or as a place for the custody of property, is said to commit ‘house-trespass’. The introduction of any part of the criminal trespasser’s body is entering is sufficient to constitute house-trespass”.

So, to constitute the house trespass as defined U/Sec. 442 of the

Indian Penal code, the prosecution must have to prove, fundamentally that the house in which the accused allegedly trespassed belongs to P.Ws.1 to 3 and that they are the custodians of the house.

However, on the careful understanding of the material on hand, the prosecution did not brought sufficient material to convince this court that the house belongs to P.W.1.,

Except that P.Ws 1 to 4 deposed that the accused tress-passed into the schedule property.

So, unless the prosecution establishes as about the house that P.Ws 1 to 3 have, it cannot be said that the accused committed house tress pass.

Moreover, the prosecution did not chosen to lift the knife with which the accused threatened P.W. 1 and his family member and that unless the said instrument seized., it cannot be concluded, that the accused threatened the defacto complainant and his family members.

Hence, the ingredients necessary to attract the offence under section 448 and 506 (2) of the Indian Penal code., not vividly present. Particularly when

P.W.4 being the brother of P.W.2 deposed that the accused had come to the house of P.W.2. holding his knife.; P.W.5 deposing that P.W. 2 and the accused Krishna

Murthy, altercating; P.W.6 deposing that P.Ws 1 and 2 and the accused had a fight with each other.

So, the ingredients required to convict the accused U/Sec.448 and 506 (2) of the Indian Penal Code is absent and the circumstances, benefit of doubt goes in favour of the accused. Accordingly point No.1

XIV) Let this court proceed to answer point No.2 ie.,

Whether, the prosecution able to establish the guilty mind of the accused for the offence under section 448, 506 (2) of Indian Penal Code beyond reasonable doubt? Finding :Negation.

XV) Let this court proceed to answer Point No.3 i.e.,

Whether, the accused, can be convicted for the said offence?

Finding :Negation.

XVI) Let this court proceed to answer Point No.4 i.e.,

If so, to what result ?

In the result, the accused are hereby acquitted U/Sec 248 (1) Cr.P.C.

for the offence u/s 448 and 506 (2) of the Indian Penal Code.

The bail bonds of the accused if any shall be canceled after appeal time is over.

The marked (or) unmarked non-valuable property if any shall be destroyed after appeal time is over. since, the prosecution, neither produced nor marked the same during trial. The accused hereby strictly warned to be more and more careful in future and lead his life in accordance to law, values, ethics and societal accepted norms, to that effect is ordered to execute personal bond for

Rs.10,000/- for his future good behavior.

Accordingly, Ordered.

Typed to my dictation directly to the Personal Assistant, corrected and

pronounced by me in Open Court, this the 30th day of September, 2015.

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

SOMPETA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE;

P.W.1:- Pandi Dharmarao; NIL P.W.2:- Pandi Venkatesam; PW.3:- Pandi Rangamma; PW.4:- Pandi Chalapathirao; PW.5:- Noliya Bhimmo; PW.6:- Dikkala Vasu; PW.7:- Madina Narayanarao; PW.8:- K.Venkata Suresh, Sub Inspector of Police.

DOCUMENTS MARKED

FOR PROSECUTION: - FOR DEFENCE: -

Ex.P.1/ Signature of PW.1 on report /dt.03.05.2014; - Nil - Ex.P.2/ Scene Observation Report/ dt.04.05.2014; Ex.P.3 First Information Report/ dt.03.05.2014;

MATERIAL OBJECTS

Nil

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

SOMPETA.

FORM No.72

CALENDAR AND JUDGMENT

District of : Srikakulam. Calendar of cases tried by the Additional Judicial Magistrate of First Class, Sompeta.

Date of: Offence : 03.05.2014 at 13.30 hours. Report or complaint : 03.05.2014 at 17.30 hours. Apprehension of accused : 31.05.2014 at 11.30 hours. Release on bail : 31.05.2014 commencement of trial : 08-04-2015 Close of trial : 03.09.2015 Sentence of Order : 30.09.2015 Explanation of delay and remarks : The delay is caused due to non production of witnesses in time by the prosecution.

Judgment in Calendar Case No.30 of 2015 on the file of the Additional

Judicial Magistrate of First Class, Sompeta.

Complainant: State represented by the Inspector of Police, Kanchili Police Station. Name of Age/years Father's Name Religion Calling ResidenceTaluk accused Madina Krishnamurty, S/o Narayanarao @ Narayana, 39 years, Kalinga by caste, Banjeerunarayanapuram (v), Kanchili (M),Srikakulam District. Offence :House trespass and Criminal intimidation shall be punishable under sections 448 and 506 (2) of the Indian Penal Code.

Finding : Found not guilty.

Sentence/Order : In the result, the accused are hereby acquitted U/Sec 248 (1) Cr.P.C.

for the offence U/sec. 448 and 506 (2) of the Indian Penal Code.

The bail bonds of the accused if any shall be canceled after appeal time is over. The marked (or) unmarked non-valuable property if any shall be destroyed after appeal time is over. since, the prosecution, neither produced nor marked the same during trial. The accused hereby strictly warned to be more and more careful in future and lead his life in accordance to law, values, ethics and societal accepted norms, to that effect is ordered to execute personal bond for

Rs.10,000/- for his future good behavior.

Accordingly, Ordered.

Additional Judicial Magistrate of First Class,

Sompeta.

Copy submitted to the Honourable I Additional District and Sessions Judge, Srikakulam. Copy to the Superintendent of Police, Srikakulam.