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IN THE COURT OF THE I-ADDL. SESSIONS JUDGE: KRISHNA: AT
MACHILIPATNAM
Present:- Sri E.Bhima Rao,
I Addl. Sessions Judge
Tuesday, this the 10th day of March, 2020
CRIMINAL APPEAL NO.51/2015
From what court the : The Prl. Asst. Sessions Judge’s Appeal is preferredCourt, Machilipatnam
Number of the case in that :: S.C.No.169/2014 Court
Number of Criminal :: Crl.A.No.51/2015 Appeal
Name and descriptive :: 1. Puppala Sri Rama Murthy, S/o Particulars of the Veera Venkateswara Rao, Aged appellant/s36 yrs, Kapu, Kavipuram.
2. Puppala Veeranjaneyulu @ Swamy, S/o Venkateswara Rao, 28 yrs, Kapu, Kavipuram.
3. Puppala Sesi Kumar, S/o Sri Rama Murthy, 18 yrs, Kapu, Kavipuram.
Name and descriptive :: The State, Sub-Inspector of Police, particulars of respondentRobertsonpeta P.S., Rep. By Public Prosecutor, Krishna.
The Sentence and Law :: (1) The accused 4 to 32 were found under which it was not guilty for the charges u/s 452, imposed in the Lower 323, 332, 353, 354 r/w 149, 379 Courtr/w 149, 143, 147 and 136 r/w 225 of Panchayat Raj Act and as such they were acquitted u/s 235 (1) of Cr.P.C., for the said charges.
(2) The accused 1 to 3 were found not guilty for the charges u/s 354 r/w 149, 379 r/w 149, 143, 147, 136 r/w 225 of Panchayat Raj Act and as such they were acquitted u/s 235 (1) of Cr.P.C., for the said charges. (3) The accused 1 to 3 were found guilty for the charges u/s 332, 353 and 323 of IPC and they were convicted u/s 235 (2) of Cr.P.C., for 2 the said charges and sentenced to undergo R.I., for a period of two years each for the charge u/s 332 of IPC, R.I., for a period of one year each for the offence u/s 353 of IPC and further they were sentenced to undergo R.I., for six months for the offence u/s 323 of IPC. The remand period of the accused was given set off u/s 428 of Cr.P.C.,
Whether confirmed, :: In the result, the appeal is hereby modified or Reversed and allowed. The judgment of the trial if modified the Court in21 S.C.No.169/2014, modificationdt.23.02.2015 on the file of Prl. Asst. Sessions Judge’s Court, Machilipatnam is set aside. The appellants/A1 to A3 are found not guilty of the charges u/s 332, 353 and 323 of IPC and accordingly they are acquitted u/s 386 (b) (i) of Cr.P.C., of the said charge. The bail bonds executed by the accused 1 to 3 shall remain in force for a period of six months in terms of Sec.437-A of Cr.P.C., The fine amount, if any, paid by the appellants is ordered to be refunded to them, after the revision time is over. The property order passed by the trial Court stands confirmed.
DATE ON WHICH
Filing Notice Bail bond if Appellant Hearing
Presen- tation Issued by Appellant Ordered to Judgment
Court to appear
Has been
appear let
Out on bail
13.3.201510.3.201510.3.201523.2.201516.4.201524.2.202010.3.2020
This appeal is coming up before me on 24.02.2020 for final hearing in the presence of Sri S.Santi Prasad and Sri B.Ashok Kumar, Advocates for Appellants/Accused and of Sri Sk.Mohammed Rafi, in- charge Addl. Public Prosecutor for respondent/State and upon perusing the entire material papers on record and the matter having stood over for consideration till this day, the court delivered the following:-
JUDGMENT
This is an appeal preferred by the appellants/accused 1 to 3
U/Ss.374(3), 381, 386 and 391 of Code of Criminal Procedure, 1973 challenging the conviction and sentence passed by the Judgment dated 3 23.02.2015 passed in S.C.No.169/2014 by the learned Prl. Asst.
Sessions Judge, Machilipatnam, where under the appellants were
convicted for the charges punishable u/s 332, 353 and 323 of IPC and sentenced to undergo R.I., for a period of two years each for the charge u/s 332 of IPC, R.I., for a period of one year each for the offence u/s 353 of IPC and further sentenced to undergo R.I., for six months for the offence u/s 323 of IPC. The trial Court ordered that all the sentences shall run concurrently.
The accused 1 to 3 were found not guilty of the charges u/s 354 r/w 149, 379 r/w 149, 143, 147, 136 r/w 225 of Panchayat Raj Act and they were acquitted u/s 235 (1) of Cr.P.C., of the said charges.
The accused 4 to 32 were found not guilty of the charges u/s 452, 323, 332, 353, 354 r/w 149, 379 r/w 149, 143, 147 and 136 r/w 225 of Panchayat Raj Act and they were acquitted u/s 235 (1) of Cr.P.C., of the said charges.
But no appeal is preferred by the respondent/State challenging the acquittal of the appellants for certain offences and the other accused for the above mentioned offences. Hence, the scope of the present appeal is only confined with regard to the conviction and sentence passed against the accused 1 to 3 for the offences punishable u/s 332, 353 and 323 of IPC.
2) The appellants herein will hereinafter be referred as accused 1 to 3 in the discussion below, for sake of clarity, as arrayed before the trial court.
3) The appellants challenged the judgment of the trial court on various grounds mentioned in the memorandum of appeal, which are briefly stated as, the Judgment of the trial court is contrary to law, weight of evidence and probabilities of the case. The trial Court erred in 4 opining that there was consistency and corroboration in the prosecution witnesses about the participation of A1 to A3 and their overt acts, but there is no iota of evidence on record. The trial Court erroneously opined that there was no cross-examination of the prosecution witnesses to disbelieve their evidence. The trial Court on the assumed grounds of evidence convicted the appellants. The trial Court failed to appreciate the contention of the accused that the incident occurred was not because of the accused, but due to participation of other persons and the accused were not at all connected with the crime in question. The trial Court erred in giving much weight to the evidence of P.Ws.2 and 3 as to the names of the accused and filed to observe that the said witnesses failed to observe the accused. The trial Court failed to appreciate the fact of non conducting Test Identification Parade of the accused is fatal to the case of the prosecution. The trial Court failed to observe that the witnesses identified A1 only because he was the contesting candidate.
The finding of the trial Court at para No.23 of its judgment is totally imaginary and presumptive. The trial Court was under an erroneous impression that P.Ws.1 to 8 were the official witnesses and they do not have any animosity against the accused. The trial Court inspite of observing that P.Ws.1 to 3 did not state that A1 to A3 beat P.W.1 and other polling staff and took away the ballot boxes, but erroneously observed that A1 to A3 were in the mob of 30 to 40 persons, who assaulted P.W.1 and other polling staff apart from taking away the ballot boxes and other election material. The trial Court failed to observe that the FIR in this case is hit by Sec.161 of Cr.P.C., The trial Court failed to observe that P.Ws.1 to 8 are the eye witnesses and P.Ws.11, 13, 14,15 and 16 are the villagers and also eye witnesses for the occurrence.
Hence he prays to set aside the conviction and sentence passed by the trial Court against the appellants.
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4) The case of the prosecution as alleged in the charge sheet, in brief, is that the scene of offence was situated in the M.P.U.P. School,
Gurivindagunta village of Pedana Mandal, where Gram Panchayat
Elections were held. In the said elections one Tikkisetti Venkata
Seetharama Prasad Babu, who belongs to YSR Congress Party and one
Puppala Sriramamurthy, who belongs to Telugu Desam Party were the contesting candidates for the post of President of Gurivindagunta village.
The said village has 08 Wards, out of which for Ward Nos.1, 2 and 3 the candidates were unanimously declared, so elections were conducted for the remaining 05 Wards and also for the President post.
The Stage-II Officer L.W.8/Md.Masood Ahmad Siddiqui has conducted elections and declared the winning candidates after completion of counting of votes and issued notice to all the candidates for Upa-Sarpanch election. Out of the 08 Ward Members and one
Sarpanch, only 05 Members including Sarpanch had attended for Upa-
Sarpanch election. Since the quorum was sufficient, Upa Sarpanch election was conducted and Sri Dokku Nageswara Rao was elected to the said post. Then the polling staff closed all the material and waiting for transportation.
While the matter stood thus, the accused Puppala Srirama
Murthy and his sympathizers formed themselves into an unlawful assembly and stated blaming the Polling staff as if they supported to the
YSR Congress Party Members and they criminally trespassed into the
Counting Station and beat the polling staff with hands and committed theft of ballot boxes, ballot papers, Election material and declaration papers of the Elected President and other Ward Members by force and they used unparliamentary language, torn the ballot papers and statutory forms in the presence of the Police personnel, who were drafted for Election Duty. The Police personnel tried to save the Polling staff, but 6 all the accused deter the public servants from discharging their duties, voluntarily caused hurt with hands, used criminal force on them and outraged the modesty of a Woman Officer and attacked the police personnel.
On 31.07.2013 at 11.30 p.m., L.W.22/P.Sivaramakrishna,
Sub-Inspector of Police, Pedana P.S., received complaint from
Chittipothula Seetha Mahalakshmi and basing on the same registered
FIR in Cr.No.97/2013 u/s 332, 323, 353, 354, 379, 452, 143, 147 r/w 149 of IPC and Sec.136 of the Representation of Peoples Act, 1951 and sec.225 of Panchayat Raj act, 1994 and submitted FIR to all the concerned. During the course of investigation the Sub-Inspector of
Police secured mediators L.Ws.20 and 21 Parasa Govindaraju and
Bommasani Venkata Subbarao, including the complainant, visited the scenes of offence, got drafted observation reports in the presence of mediators, seized three empty ballot boxes at the 2nd scene of offence, one ballot box containing some election material at the 3rd scene of offence, by covering the same under videography and also took photographs of the scenes of offence. He examined the witnesses and recorded their statements.
A3 and A4 were arrested on 08.08.2013; A5, A18 and A31 were arrested on 18.08.2013; A1, A2, A7, A8, A9, A10, A17, A19, A20,
A25, A26 and A27 surrendered before the Court; A6, A12 to A15, A21 to
A24 and A28 were surrendered before the SHO, Pedana on 22.08.2013 as per the directions of the Court and after producing sureties released on bail. A32 was arrested and sent for judicial custody. On 03.09.2013
A11 and A16 obtained anticipatory bail from Sessions Court, Krishna dt.19.10.2013. A29 and A30 also obtained anticipatory bail from the
Sessions Court. Hence the charge sheet.
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5) The learned Judl. Magistrate of I Class, Spl. Mobile Court,
Machilipatnam on perusal of the charge sheet took cognizance of the offences u/s 323, 332, 353, 354, 379, 452, 143, 147 r/w 149 of IPC and
Sections 136 (1) (b) (c) (d) of Representation of Peoples Act and Sec.225 of
Panchayat Raj Act against accused 1 to 32 and numbered the same as
PRC.5/2014 and by the order dt.04.07.2014 committed the case to the
Court of Sessions as the offences levelled against the accused are exclusively triable by the Court of Session. The Court of Sessions numbered the same as S.C.No.169/2014 and made over to the trial
Court for disposal according to law.
6) On appearance of the accused before the trial Court, it has examined them u/s 228 of Cr.P.C., and charges u/s 323, 332, 353, 354, 379, 452, 143, 147 of IPC and Sections 136 (i) (ii) (f) of Representation of
Peoples Act r/w Sec.225 of Panchayat Raj Act were framed against the accused, read over and explained the contents of the charges to them in
Telugu, for which they pleaded not guilty and claimed to be tried.
7) During trial, the prosecution examined P.Ws.1 to 20 and got marked Exs.P1 to P20 and M.Os.1 to 11.
8) After closure of trial, the accused were examined u/s 313 of
Cr.P.C., with regard to the incriminating circumstances appearing in the evidence of the prosecution witnesses, for which the accused denied the same and A1 submitted that on 31.07.2013 elections were held to the
Gurivindagunta Gram Panchayat and he contested for the Sarpanch Post on behalf of Telugu Desam Party. Out of the polled votes, eight votes were thumb mark votes, which were rejected. If the eight votes were counted, he would have won the election with five votes. As his request was not considered, he was defeated behind three votes. He requested for recounting and he was asked to give a complaint and his signature 8 was also obtained. When the Panchayat President candidate was declaring, he objected for the same and he was told that it was enough when he gave complaint. He came to Machilipatnam along with A2 to A6 to give representation and they reported no defence evidence.
9) The trial Court, after full-fledged trial and considering the material available on record, the trial Court acquitted accused 1 to 3 of the charges u/s 354 r/w 149, 379 r/w 149, 143, 147, 136 r/w 225 of
Panchayat Raj Act; further acquitted the accused 4 to 32 of the charges u/s 452, 323, 332, 353, 354 r/w 149, 379 r/w 149, 143, 147 and 136 r/w 225 of Panchayat Raj Act; but found the accused 1 to 3 guilty of the charges u/s 332, 353 and 323 of IPC, accordingly they were convicted sentenced as stated supra. Aggrieved by the same, the present appeal is preferred by the accused 1 to 3 challenging their conviction and award of sentence.
10) Heard the learned counsel for the appellant/accused and the learned Addl. Public Prosecutor.
11) Now the points that arise for consideration in the present appeal are:- (1) Whether the prosecution could successfully bring home the guilt of the appellants/A1 to A3 for the offences punishable U/s 332, 353 and 323 of IPC beyond all reasonable doubt? (2) Whether Judgment of the trial court is sustainable in law and on facts, or whether it warrants any
interference by the appellate court?
(3) To what relief?
POINT NOs. 1 & 2:-
12) The learned counsel for the appellants/accused has reiterated the grounds of appeal in the course of his arguments. He further contended that P.W.1 failed to identity the accused persons.
P.W.1 was declared hostile. According to the cross-examination of P.W.1 9 the accused are residents of Gurivindagunta Village, but in the case on hand the accused are residents of Kavipuram village. P.W.1 failed to identify the material objects. There are contradictions in the evidence of
P.W.1. According to her she came to the police station at 6.00 p.m., but the FIR was registered at 10.30 p.m., According to P.W.3, 30 to 40 persons came with sticks and took away the ballot boxes and election material. P.W.2 identified A1 because he is contesting candidate. P.W.2 gave evidence by looking into Sec.161 Cr.P.C., statement. The election staff were given accommodation and hospitality by the winning candidate, as such counting process was done in biased manner. The police tutored the witnesses before entering into the witness box. P.W.4 except identifying the defeated contesting candidate, he could not say the names of other accused. He did not do any duty at Polling Booth No.3.
As per P.W.5 they went to the police station at 12.00 mid night, but the
FIR was registered at 10.30 p.m., Police noted down the information at 6.00 p.m., but there was delay in registering the FIR. According to P.W.8 police could retrieve the ballot boxes alleged to have been taken away the accused, but as per the scene observation reports, the same were recovered in the mid night. The scene observation reports were fabricated with concocted story. The defeated candidate went to the
District Collector office to give representation. He sent another representation to the Chief Election Officer of the Andhra Pradesh State by Fax. P.W.11 was declared hostile. P.W.12 did not receive any written complaint from P.W.8. Through media he came to know about the alleged galata. P.W.14 is the interested witness because he was the henchmen of the winning candidate. In the mediators reports it was written that the ballot boxes are black in colour and panch slips were affixed on the boxes, but the boxes shown to the witnesses are green in colour and no panch slips were found on the same. P.W.19 VRO after 10 election left the village, but he deposed as if he witnessed the entire incident. As the election process was completed, there was no discharge of official duty by P.W.1 and hence the ingredients of Sec.353 of IPC are not attracted, so also the ingredients of Secs.332 and 323 of IPC are not attracted. Hence, he prays to allow the appeal.
13) The learned Addl.P.P. has submitted that the prosecution to prove its case examined P.Ws.1 to 20 and got marked Exs.P1 to P20 and
M.Os.1 to 11 and the trial court has properly appreciated each and every minute aspect and the oral and documentary evidence placed by the prosecution on record and it has rightly come to conclusion that the accused were found guilty for the offences punishable U/s 332, 353 and 323 of IPC and thereby they were convicted and sentenced of the said charges. Thus, the learned Addl.P.P., has requested the court to confirm the conviction and sentence passed by the trial court and dismiss the appeal.
14) Among the witnesses examined by the prosecution, P.Ws.1 to 8 are the Polling Staff who attended the election duty on 31.07.2013 for conducting Gram Panchayat Elections at Gurivindagunta and
Kavipuram Villages. The elections were headed by P.W.8, who is the
Stage-II Officer and his duty was to conduct the elections, to announce the winning candidates and to submit the entire report to the Mandal
Development Officer. P.Ws.1 to 7 are the Presiding Officers of respective polling booths. The admitted facts are that election was conducted for 08 Ward Members and one President Post. Out of the 08 Ward
Members, three Ward Members were unanimously elected and thus elections were conducted for five Ward Member posts and one President post. From morning 7.00 a.m., to 1.00 p.m., elections were conducted and from 2.00 p.m., to 4.30 p.m., counting process was commenced and 11 by 4.30 p.m., results were announced. Then P.W.8 issued Notification for the election of Vice President which was scheduled at 5.15 p.m., on the same day, at which time the winning President Tikkisetty Venkata
Seetharama Prasad Babu and four Ward Members present. As there was sufficient quorum to proceed further, P.W.8 conducted election process for the post of Vice President and declared the winning candidate.
During the above process out of the polled votes, eight votes were rejected and hence having undigested with the fact of defeating, A1, who was the contesting candidate for the post of President along with a large group of persons entered into the counting hall, beat the polling staff, deter them from discharging their official duties and took away the polling boxes and other election material. On the information furnished by P.W.8 over phone, the police personnel came to the scene of offence and took the situation into their control.
15) Out of all the witnesses examined by the prosecution,
P.Ws.1, 2, 4, 6 and 7 partly turned hostile and P.Ws.11, 13, 15 and 16 completely turned hostile and they did not support the case of the prosecution and during their cross-examination the relevant portion in the Sec.161 Cr.P.C., statements of P.Ws.1, 4, 6 and 7 were marked as
Exs.P2 to P.5 and the entire Sec.161 Cr.P.C., statements of P.Ws.1, 11, 13,15 and 18 were marked by the prosecution. It is settled law that the statements of the witnesses recorded during the course of investigation by the investigating officer u/s 161 of Cr.P.C., can only be used for marking contradictions and omissions and they cannot be used to corroborate the evidence of the witnesses. P.Ws.9, 10 and 12 are the circumstantial witnesses to speak about the galata took place in the
M.P.P.School, Gurivindagunta and the damage caused to the furniture of the school, submission of Ex.P6 complaint made by P.W.12 Head Master of the School to that effect, forwarding the same to the police along with 12
Ex.P7 complaint by P.W.9, Mandal Educational Officer after inspecting the said school. Hence, their evidence only confined and supports the prosecution case to the extent that some rioting was committed by some assailants in the school where elections were conducted on 31.07.2013 and in the said incident the furniture, books and other material belongs to the school was damaged. P.W.14 is the villager and P.Ws.18 and 19 acted as mediators for the scenes of offence observation reports and
P.W.20 is the investigating officer. Therefore, in order to prove the charges levelled against the accused, the evidence of P.Ws.1 to 8 is crucial and it has to be scrutinised to give a finding whether the prosecution could able to prove the guilt of the accused beyond all reasonable doubt.
16) As seen from the evidence of P.Ws.1 to 8, who are the eye witnesses, it is very clear that after completion of entire election process at about 5.30 p.m., when they were about to leave the village and waiting for transportation, all of sudden 30 to 40 persons who belong to the group of A1, who was the defeated candidate for the post of President, came there, beat them with hands and legs and took away ballot boxes and other polling material from their custody and thereby committed criminal force on the public servants in order to prevent them from discharging their official duties and also voluntarily caused hurt to them.
In this connection it is pertinent to mention that none of the above witnesses filed the proceedings issued by the District Collector or the other Authority deputing them to conduct the election proceedings, though P.W.1 admitted in her evidence that two days prior to the election she was given with such proceedings but she did not hand over the same to the police. It is not in dispute that in the said incident P.W.1 received lacerated injuries on the left hand and left leg, which was deposed by almost all the witnesses corroboratively, and according to her evidence 13 she was admitted in Government General Hospital, Machilipatnam for treatment, but P.W.20 the investigating officer in his evidence deposed that he did not notice any such injury on her person and he did not send her to the hospital and on the other hand the prosecution failed to produce the wound certificate issued by the hospital authorities.
Therefore, the oral evidence of P.Ws.1 to 8 is not corroborated by any documentary evidence and there is a contradiction on this aspect from the mouth of P.W.20, the investigating officer as to the receipt of the injuries by P.W.1 in the hands of the accused.
17) Regarding the other aspects are concerned, the said mob took away the polling boxes and other election material. Out of the polling staff some witnesses deposed that the mob took away the ballot boxes and papers, but they did not take away the stamp pads and other material. According to P.W.8 immediately after the incident he informed about the galata to the police over phone. and within half an hour the police personnel including, Dy.S.P., Circle Inspector of Police and Sub-
Inspector of Police etc., came to the spot and within one hour they could retrieve the ballot boxes that were taken away by the accused. The investigating officer has conducted scenes of observation during 11.00 p.m., to 12.00 mid night of 31.07.2013 and according to him he took the assistance of P.Ws.18 and 19 as mediators at the time of scene observation report and in their presence he detected three ballot boxes at the 2nd scene of offence i.e., in the vacant site situated in between the school and Panchayat Office and he also detected one ballot box at the 3rd scene of offence situated towards East of Kattalamma Cheruvu and he seized all the four ballot boxes. It is the evidence of P.W.18,
Panchayat Secretary of Gurivindagunta village that at the time of scene observation they also seized stamps pads, seal and some other election material. P.W.19 another mediator deposed that in his presence the 14 police seized M.O.5 two stamp pads, M.O.6 two saw blades, M.O.7 four
Wax Candles, M.O.8 Gum Bottle, M.O.9 Sketch pen, M.O.10 wooden seals, M.O.11 white tag. P.W.20, the investigating officer got photographed the first scene of offence, but he failed to get photograph the 2nd and 3rd scenes of offence, as admitted by him in his cross- examination, where according to Exs.P15 and P16 observation reports the police recovered the four ballot boxes. On one hand, as per the evidence of P.W.8 Polling Officer, the ballot boxes were retrieved within one hour after arrival of the police personnel, but according to P.Ws.18 to 20 the said boxes were recovered during the course of scene observation reports at the might night. In the cross-examination P.W.18 deposed that he did not observe that in Ex.P14 mediators report the colour of the ballot boxes was mentioned as black, but during his evidence he deposed that the ballot boxes shown to him are green in colour. P.W.19 in his cross examination deposed that the three ballot boxes seized from the 2nd scene of offence are black in colour. In her cross-examination P.W.1 deposed that she cannot identify the ballot boxes and other election material. She further admitted that she put her signature on the papers affixed to election boxes. She could not identity her box when the boxes were shown to her. According to P.Ws.18 and 19 slips containing their signatures were affixed on the ballot boxes, but
P.W.19 in his cross-examination clearly admitted that presently slips were not there on the ballot boxes. Therefore, with regard to the seizure of the ballot boxes, their colour, affixing panch slips containing the signatures of investigating officer and mediators on the boxes and identification of the ballot boxes by the witnesses during the course of evidence, there are vital contradictions in between the evidence of
P.Ws.1, 8 and 18 to 20.
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18) On the aspect of setting the law into motion regarding the present crime is concerned, P.W.1 deposed that they went to the Pedana
Police Station and lodged a report. Ex.P1 is the report given by her. In her cross-examination she deposed that she mentioned in the report that defeated person/A1 and his followers belonging to Gurivindagunta village came upon them and assaulted. She did not state in Ex.P1 that
Kavipuram people also participated. But a perusal of the addresses of the accused mentioned in the cause title of the trial Court Judgment except three or four persons all the accused belong to Kavipuram village.
With regard to the preparation of Ex.P1, initially she deposed that she scribed Ex.P1, but again she deposed that somebody scribed it and she put her signature and in the immediate sentence she deposed that constable drafted Ex.P1 report. According to her there are no struck offs in Ex.P1. But a perusal of Ex.P1 there are some struck offs and also some insertions with regard to the time of the incident and caught hold of her tuft of hair by the accused, where no initials of either P.W.1 or the investigating officer are there, as admitted by P.W.20 in his cross- examination. She admitted that there is a gap between the matter and her signature, which was on the corner towards right side. She admitted that one has to report to the Election Officer/P.W.8 with regard to any problem occurred in respect of the elections. But in the present case
P.W.1 straight away gave report to the police and the report submitted by
P.W.8 to the police through the M.D.O., i.e., Exs.P6 and P7 are available in the case diary and they were produced before the Court during the course of evidence only and no action has been taken on them and on the other hand they were not considered as the statements of the witnesses.
19) P.W.2 in her evidence deposed that all the Presiding Officers gave report to the police. In her cross-examination she deposed that C.I., 16 and other police, including S.I., came at the time of counting. P.W.5 in her cross examination deposed that all the staff went to Pedana P.S., after 12.00 mid night, including P.W.1. They were at the counting hall till 10.00 p.m., including P.W.8. Police arrived there at 6.00 p.m., in two or three vans on receipt of phone call from P.W.8. They informed the incident to the police and they also noted down the same. It is the evidence of P.W.8 that he made phone call to the Vigilance police.
Dy.S.P., and other police came there and they were taken to the M.D.O.
office. P.W.1 lodged a report in the police station. In his cross- examination P.W.8 deposed that he cannot say whether he was only competent to lodge report in respect of the said incident. He telephoned to the police around 5.30 p.m., and they came after half an hour. S.I., was also there at the time of incident. DSP, CI and other police came on his phone call. M.D.O., Pedana was his immediate officer. He gave complaint to the M.D.O., at 12.00 in the mid night, but he did not state the same to the police. P.W.1 did not give report through him. All the
Presiding Officers were under his control on that day. The above incident was noted down in the Panchayat minutes and he put his signature, but the said minutes copy was not given to the police. But he again admitted that in the said minutes the present incident was not mentioned. With regard to giving Ex.P1, it is the evidence of P.W.20, the
Sub-Inspector of Police that on 31.7.2013 at about 10.30 p.m., while he was in the station, P.W.1 came to the police station and presented Ex.P1 report and then he registered the case vide Ex.P16 original FIR and conducted investigation. In his cross-examination he deposed that he never received any phone call from P.W.8 with regard to the galata. He only came to know about the galata on receipt of Ex.P1 report. He did not go to Gurivindagunta before receiving the report and that subsequent 17 to Ex.P1 himself and the CI visited the scene of offence. DSP and MRO also visited the scene of offence.
20) So, as per the evidence available on record regarding first information report, P.W.8 called the police immediately after the rioting made by the mob of 30 to 40 people, among them A1 and his followers have participated, and within half an hour police personnel came there and among them from the rank of Dy.S.P., to Sub-Inspector of Police were there. Admittedly, at the time of election and counting proceedings, number of police were on duty. It is the evidence of P.W.5 that at 6.00 p.m., they informed the entire incident to the police and the same was noted down. So, the first information was received by the police at 6.00 p.m., itself. But the said report has not seen the light of the day. If the evidence of P.W.5 is believed that the first information was received by the police at 6.00 p.m., the report given by P.W.1 to P.W.20 at 10.30 p.m., must be a Sec.161 Cr.P.C., statement, hence the contention of the learned defence counsel that Ex.P16 FIR is hit by Sec.161 of Cr.P.C., has some force. Further, if the evidence of P.W.5 is taken into consideration, they were at the counting hall till 10.00 p.m., and they went to the police station 12.00 p.m., and gave report. So, with regard to reporting the matter to the police is concerned, there are three versions according to the prosecution witnesses, the first one at 6.00 p.m., the 2nd one at 10.30 p.m., and the final one at 12.00 in the mid night. Further, the version of
P.W.1 is not clear as to who prepared Ex.P1. According to her evidence, it appears that her signature was taken on a blank paper at the right bottom of the page and then the report was prepared, thus as admitted by her, there is a gap between the matter and her signature. Further, neither P.W.1 nor P.W.8 followed the procedure to submit the first information report to the police. P.W.8 being the Polling Officer, P.W.1 ought to have submitted the report through P.W.8 and then through the 18
Mandal Development Officer to the concerned police. P.W.8 in his evidence deposed that he gave report to the M.D.O., at 12.00 in the might, but as stated above the said report was safely kept in the case diary.
21) With regard to the identification of the accused persons by the prosecution witnesses is concerned, P.W.1 deposed that about 30 to 40 persons arrived there, but she cannot identify the said persons. At the time of her evidence also she could not say whether the said persons were there in the Court hall. She cannot say the names of the said persons. She cannot say specifically who came upon her and beat, as mob of persons came all of sudden. In her cross-examination she denied having stated before the police as in Ex.P2 to the effect that the defeated person and his followers belonging to Gurivindagunta came upon them and assaulted. P.W.2 deposed that all of sudden a group of 30 to 40 persons arrived there and created galata. She cannot say the names of the said persons. She also could not identify them. She can say the name of A1, who contested as President. A1 was there in the said mob.
In her cross examination made on behalf of the prosecution she deposed that she stated the names of A1 to A6 and followers of A1 to the police.
At the time of her evidence, some papers were in her hands and out of them one paper was Sec.161 Cr.P.C., statement. She deposed that police gave the said statement to go through it, but she did not go through the same. Police gave the same to her half an hour prior to her evidence.
She does not know the villages of said 30 to 40 persons. A perusal of her
Sec.161 Cr.P.C., statement, it contains the names of some of the accused among the mob. But having stated before the police P.W.2 testified that she cannot say the names of the accused and she failed to identify them
before the Court. As stated supra, Sec.161 Cr.P.C., statement cannot be
taken for corroboration.
19
22) P.W.3 deposed that at that time the followers of defeated
Sarpanch around 30 to 40 persons came there and manhandled the election staff. She said the names of A1 to A3, A5, A6, but out of them she only identified A1 and could not identify other persons. In her cross- examination she deposed that A1 was there throughout the counting.
The counting hall is a medium one and it accommodates 30 to 40 persons. She admitted that she did not state to the police that 30 to 40 persons attacked and beat them. P.W.4 deposed that around 30 to 40 persons entered into the counting hall and attacked them. She can only identify the defeated contesting candidate. A1 was there among the mob who attacked them. The said mob is A1 and his followers. She identified
A1 in the court hall. She cannot say the names of remaining persons.
She can say the name of Subrahmanyam, but she cannot identify him.
She cannot identify the remaining persons. She admitted during cross- examination that she could identify the contesting candidates. As A1 contested his face was familiar to her. P.W.5 deposed that a group of people entered into the counting hall by break open the doors, which is a new version spoken by this witness for the first time and this aspect is not deposed by any of the other witnesses. All the accused were present outside the hall and some of them entered into the counting hall. More than 100 people gathered at that time. She admitted that among the mob, candidates of both groups would be present. In her cross she deposed that one cannot see outside persons by sitting inside the counting hall. She cannot say the names of the persons who entered into the counting hall. P.W.6 deposed that after completion of election a group of people entered into the counting hall. She cannot identify the accused and she cannot say who entered into the counting hall and took away the ballot boxes. In her cross she deposed that she did not say the names of any persons to the police when she was examined. P.W.7 20 deposed that a group of people entered into the counting hall. She cannot identity those persons who entered into the polling both.
23) P.W.8 Polling Officer deposed that at about 5.30 p.m., about 150 to 200 persons gathered and about 50 persons entered into the counting hall. He cannot say the names of said persons, but he can identify some of them and so saying he identified A1 to A3. In his cross- examination he deposed that one K.Bala Bhaskar was the Senior
Inspector in their office, who is son-in-law of the winning candidate. But he voluntarily said that his marriage took place subsequent to elections.
To a question he deposed that he does not know whether betrothal ceremony was already taken place prior to the election. Police did not conduct any test identification parade of the accused.
24) All the P.Ws.1 to 8 belong to Vijayawada and surrounding school Teachers etc., They have no prior acquaintance with
Gurivindagunta and Kavipuram villages and they have no even facial acquaintance with the accused or they never saw the accused in their daily life. On the date of the offence, as a mob of persons about 30 to 40 came all of a sudden into the counting hall it is not possible for a normal human being to identify each one among the mob and that is why P.Ws.1 to 8 did not state about the names of the accused who took away the ballot boxes and other election material and who caused injuries on the person of P.W.1. Among them P.W.3 stated the names of A1 to A3, A5 and A6, but having said their names he only identified A1, who being the defeated candidate. Moreover, P.W.8 identified A1 to A3 among the mob, according to him who took away the ballot boxes. But there is no corroboration to the evidence of P.W.8 from the other prosecution witnesses that A1 to A3 took away the ballot boxes. Some of the prosecution witnesses except identifying A1, who being the defeated 21 contesting candidate for the post of President, to be present in the mob, did not specifically depose about the acts committed by him or any other accused. So, there are no specific overt acts against any of the accused, more particularly A1 except his presence in the mob.
25) On this context, the Hon’ble Supreme Court in Kantha
Prasad Vs. Delhi Administration reported in AIR 1958 SC 380 held that failure to hold the test identification parade does not make the evidence of identification at the trial inadmissible. But in Ashok
Debbarama reported in 2014 (1) ALD (Cri) 883 at para 16 the Hon’ble
Supreme Court it was held that, “We are of the view that since the accused persons known to the witnesses and they were identified by face, the fact that no identification was conducted at the time of investigation is of no consequence.”
In the very same para it was held that “The primary object of test identification parade is to enable the witness to identify the persons involved in the commission of offence, if the offenders are not personally known to the witnesses.
The whole object behind the test identification parade is really to find whether or not, suspect is the real offender.”
As discussed in the above paragraph none of the eye witnesses i.e.,
P.Ws.1 to 8 have prior facial acquaintance or personally known to the accused except seeing them on the date of the election at the time of rioting in the mob. When such is the situation as per the above decision in Debbarama case when the offenders are not personally known to the witnesses conducting identification parade is essential. But P.W.20 failed to take any steps to conduct the test identification parade for the reasons best known to him. If such step was taken the witnesses have a chance to identify the assailants who committed criminal force on the public servants deterring them from discharging their official duties and who voluntarily caused hurt to P.W.1, soon after the incident, as alleged 22 by the prosecution. This is a material irregularity in the investigation conducted by P.W.20.
26) Regarding the other aspects are concerned, P.W.1 deposed in her evidence that she does not remember when police examined her, but they examined her on one working day at her school at about 1.00 p.m., but P.W.20 the investigating officer deposed in his evidence that he examined P.W.1 immediately after presentation of Ex.P1 report, that too in the police station and then he went to the scene of offence. A perusal of the Sec.161 Cr.P.C., statement of P.W.1 it was dt.31.07.2013. So, the evidence of P.Ws.1 and 20 and the statement of P.W.1 recorded by the police are contradicting with each other. P.Ws.2, 5 deposed that they were examined by the police, but they failed to mention the date when they were examined and their statements u/s 161 of Cr.P.C., were recorded. A perusal of the said statements no date when such statements were recorded is mentioned by the investigating officer.
P.W.3 deposed in his cross-examination that police examined him on the date of the incident in the school. When P.Ws.1 to 8 went to the police station at about 10.30 p.m., or 12.00 in the mid night, how the police could examine her in the school itself even before lodging the FIR. If this part of evidence is taken into consideration, it can be inferred that at 6.00 p.m., the police might have started the investigation on being noted down the information given by P.W.8 it being FIR, but as stated above such report is not tagged with Ex.P16 FIR or produced before the Court by the prosecution. P.Ws.4, 6 and 7 were declared hostile and they denied having stated before the police as in Exs.P3 to P5. P.W.8 deposed that he was examined by the police at M.D.O. Office on the night of the offence. But as per the evidence of P.W.20, he deposed that he only examined P.W.1 and then proceeded to the scene of offence. He did not depose about examination of P.Ws.2 to 8 and recording their statements 23 in his entire evidence. Admittedly, Gurivindagunta and Kavipuram villages come within the jurisdiction of Pedana Police Station. Gram
Panchayat elections were going on 31.07.2013. So, it is the bounden duty of the Sub-Inspector of Police being the Station House Officer of the
Police Station in whose jurisdiction the elections were going on. In his evidence he deposed that he was looking after throughout the Mandal on 31.07.2013 and he returned to the station at about 7.00 p.m., on that day and the general diary entries reveals the same. When such is his evidence, in his chief examination he deposed that till receipt of Ex.P1 report he did not know anything about the galata took place at the counting station. When the evidence of the polling officers go to show that the Sub-Inspector of Police and other police officials came to the scene of offence at about 6.00 p.m., but it is the evidence of P.W.20 that he was in the Mandal till 7.00 p.m., In such circumstances what prevented him to proceed on the information given by P.W.8 at 6.00 p.m., and why he was in the police station till receipt of Ex.P1 when a big galata was going on and the accused and a big mob of people took away the ballot boxes and the other election material preventing the polling staff from discharging their duties.
27) Further, as per the material available on record there were police force throughout the day of the elections and it is the evidence of
P.W.20 that during election time striking force and special force were allotted. Why the said force failed to control the situation or arrest even some of the accused or to inform the concerned police over the wireless set available in the vehicle of the Mandal Revenue Officer, as admitted by
P.W.20 and when the MRO was very much present at the counting station even before the arrival of the police personnel. It is the evidence of the polling officers that the accused even beat some of the police force, but no one is cited as a witness in the list of witnesses and no such 24 person was examined by the police for the reasons best known to the prosecution. In Takhaji Hiraji v. Thakore Kubersing Chamansing and others reported in (2001) 6 SCC 145, the Hon’ble Supreme Court held that, “It is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material.”
As discussed above, there are lot of discrepancies in the evidence of the prosecution witnesses, hence there is no overwhelming evidence on record to find out the guilt of the accused. In such circumstances examination of police force who were on election duty being the eye witnesses is very much essential, but they were neither cited nor examined by the prosecution. Further, there was delay in registration of the crime from 6.00 p.m., to 10.30 p.m., when the distance between the police station and Gurivindagunta village is 10 k.ms., Further, the FIR reached the jurisdictional Magistrate at 1.05 p.m., on 01.08.2013. The distance between Pedana Police Station and the concerned Court is at a distance of 08 k.ms., It is the usual practice that every day a constable from the station will attend to the concerned Court around 10.30 a.m.,
If no constable attended the Court on that particular day in view of the election bundobust and dispute took police within the jurisdiction of that 25 particular police station, the investigating officer ought to have sent the
FIR to the Court even during morning hours, but there was some delay in the FIR reaching the Court. These two delays were not explained by the prosecution, as admitted by P.W.20 in his evidence.
28) It is the contention of the learned defence counsel that when 08 votes of the Ward Members were rejected, A1 raised an objection
before P.W.8, for which he advised A1 to give a representation and
accordingly A1 gave a representation and P.W.8 obtained his signature on the same, but without taking any steps on the same for recounting
P.W.8 announced the Vice President candidate and then having aggrieved by the same A1 to A6 came to Machilipatnam to give a representation to the District Collector and it is his further contention that A1 also sent a representation to the State Election Officer,
Hyderabad through Fax, but no such copy of representation is filed
before the Court to prove the same or the accused failed to file the fax
receipt. So, the alibi pleaded by the accused is not proved by the accused by adducing any oral or documentary evidence that at the time of the alleged offence some of the accused were at Machilipatnam. The learned counsel for the accused put this suggestion to each and every polling officers i.e., P.Ws.1 to 8 but all of them bluntly denied the said suggestion and it is the evidence of P.Ws.3 and 8 that A1 to A3, A5 and
A6 were available in the mob of persons. So, this contention of the defence has no legs to stand. Further, it is the contention of the learned counsel for the accused that the election process was completed and hence it cannot be treated that P.Ws.1 to 8 were on election duty and thus ingredients of Sec.353 of IPC are not attracted. It is true that all the witnesses deposed that election process was completed and candidates were declared and when were about to leave the place, the accused committed criminal force on them. But, by announcing the 26 winning candidates their duty was not completed. They have to hand over the election material at the Mandal Development Office and till such time they were said to be in such duty. So, the contention of the learned defence counsel has no force.
29) Therefore, in view of the evidence available on record there is no dispute about the occurrence of incident as alleged by the prosecution and in the said incident about 30 to 40 persons, among them A1 and his followers have participated and they made criminal force on the Polling
Staff i.e., P.Ws.1 to 8 and the police force and took away the ballot boxes and other election material. But, except P.W.5 deposing that A1 to A3,
A5 and A6 and P.W.8 deposing that A1 to A3 were there in the mob, none of the prosecution witnesses deposed about the presence of the accused in the mob and even P.Ws.5 and 8 failed to depose anything about the acts committed by A1 to A3, A5 and A6 specifically and even during the evidence P.W.5 only identified A1 but not give any specific overt that who beat P.W.1 and who took away the ballot boxes and who took away the other election material. Further, it is the evidence of
P.Ws.18 to 20 that they recovered the ballot boxes and other material objects from the scenes of offence 1 to 3, but not from any of the accused, even Exs.P14 to P16 mediators do not tag any of the accused with the present crime.
30) A careful perusal of the judgment of the trial Court, the trial
Court having observed that some police officials came to the scene of offence on knowing the incident and noted down the statement of P.W.8, it erroneously held that it cannot be said that Ex.P1 is hit by Sec.161 of
Cr.P.C.. The trial Court find the contention of the learned counsel for the accused that there was discrepancy with regard to recovery of M.Os.1 to 11 from the alleged three scenes of offence under Exs.P14 to P16 as 27 correct, but find that it believed the recovery of material objects.
Further, the trial Court having find that the evidence on record clinchingly established the fact that around 30 to 40 persons including
A1 to A3 entered into the counting hall, erroneously convicted the accused 1 to 3 without there being any evidence with regard to the specific overt acts against them in respect of any of the charges leveled against them. The trial court without considering the evidence to prove the guilt against the accused beyond all reasonable doubt, found the appellants guilty of the offence on an erroneous view that P.Ws.1 to 8 were the official witnesses and they do not have any animosity against the accused. Hence, the judgment of the trial Court suffers from material infirmity and irregularity and it warrants interference by this
Court by invoking the appellate jurisdiction. Consequently, the appeal is liable to be allowed and the accused are entitled for acquittal by extending them the benefit of doubt.
POINT NO.3:-
31) In the result, the appeal is hereby allowed. The judgment of the trial Court in S.C.No.169/2014, dt.23.02.2015 on the file of Prl.
Asst. Sessions Judge’s Court, Machilipatnam is set aside. The appellants/A1 to A3 are found not guilty of the charges u/s 332, 353 and 323 of IPC and accordingly they are acquitted u/s 386 (b) (i) of
Cr.P.C., of the said charge. The bail bonds executed by the accused 1 to 3 shall remain in force for a period of six months in terms of Sec.437-A of
Cr.P.C., The fine amount, if any, paid by the appellants is ordered to be refunded to them, after the revision time is over. The property order passed by the trial Court stands confirmed.
Typed to my dictation by the Grade I Stenographer of this Court, corrected and pronounced by me in the open Court, this the 10th day of March, 2020.
Sd/- E.Bhima Rao,
I ADDL. SESSIONS JUDGE,
KRISHNA, MACHILIPATNAM.