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IN THE COURT OF THE PRINCIPAL ASSISTANT SESSIONS JUDGE
KAKINADA
Present: K.Venkateswara Rao, Prl.Asst.Sessions Judge, Kakinada
Friday, this the 22nd day of December, 2023.
SESSIONS CASE No.346/2023
Between: The State represented by the Sub-Inspector of Police, II Town L&O P.S., Kakinada.… Complainant.
And
Kurakula Srinivas @ Sreenu, S/o Krishna @ Kurakula Venkanna @ Venkataramana, Aged 40 years, Gavara Komati, Kesanavari Doddi, Muggupeta, Jagannadhapuram, Kakinada. …Accused.
This case has come before me on 18-12-2023 for final hearing in the presence of Additional Public Prosecutor on behalf of the Prosecution and of Sri P. Satish Kumar, Legal Aid Counsel for the accused. Upon perused the material on record and upon having stood over the matter till this day, this Court made the following:-
J U D G M E N T
The State represented by the Sub-Inspector of Police, II Town L&O
Police Station filed charge sheet against the accused in Cr.No.294/2022 for offecnes punishable under Sec.427, 436 of Indian Penal Code.
2.The brief facts of the case of prosecution is that,
The defacto complainant LW1-Chittavarjula Sri Naga Subrhamanya
Srinivas is working as Joint Executive Officer of Lord Sri Venkateswara Swamy
Temple, Gandhinagar, Kakinada and Lord Sri Krishna Mandiram,
Dwarakanagar, Kakinada. L.W.2-Adiraju Srinivasa Varma has been working as Priest of Lord Sri Krishna Mandiram, Dwarakanagar, Kakinada for last 12 years. On 24-12-2022 during morning time one devotee made phone call to
L.W.2-Adiraju Srinivasa Varma and informed that on the previous day i.e., on 23-12-2022 night, one unknown person poured petrol on the Anjaneya
Swamy cement statue, lit fire and damaged it and on seeing the same, some passers tried to catch him, but the said unknown person absconded from there and that it became viral in Televisions. On receipt of said information,
L.W.2- Adiraju Srinivasa Varma informed the same to L.W.1- Chittavarjula Sri
Naga Subrhamanya Srinivas over phone and immediately L.W.1-
Chittavarjula Sri Naga Subrhamanya Srinivas came to Sri Krishna Mandiram, caused enquiry about the incident and he came to know that the accused 2 who is moving in and around Kakinada Town by begging money and food and has committed the said offence and L.W.2-AdiRaju Srinivas submitted written report to L.W.1-Chittavarjula Sri Naga Subrahmanyam Srinivas and in turn he submitted the same to the Station House Offier, II Town L&O P.S., Kakinada.
Based on that report the Sub-Inspector of Police, II Town L&O P.S,
Kakinada registered a case in Cr.No.294/2022 for offences punishable under
Section 427, 435 of Indian Penal Code. During the course of investigation, he examined the witnesses and recorded their detailed statements, visited the scene of offence and observed the same in the presence of mediators. He seized material objects from the scene and got drafted the scene observation report and rough sketch for the scene of offence. Later he arrested the accused on 26-12-2022 at 9-00 AM in the presence of mediators and got recorded his confessional statement. In pursuance of the confessional statement of the accused, he seized red colored BSA Photon bicycle, white colored plastic bottle, red and yellow colored three mangoes labeled match box and cash Rs.7,672/-. Later he produced the accused
before the court for remand and thereafter due to his transfer, he handed
over the case record to L.W.17-N.Lakshmana Swamy, SI of Police who conducted further investigation in this case and prepared preliminary charge sheet and that he was also transferred and handed over the case record to
L.W.18-B.Sankara Rao who conducted further investigation and after completion of entire investigation, he filed charge sheet against the accused for the offence under section 427 and 436 of Indian Penal Code.
3.The learned II Additional Junior Civil Judge-cum-II Judicial First Class
Magistrate, Kakinada had taken cognizance for the offences under Sec.427
and Sec.436 of Indian Penal Code against the accused. Among the said offences, sec.436 Indian Penal Code is exclusively triable by Court of
Sessions, hence the case was committed to the Hon'ble Principal District &
Sessions Court, Kakinada under Sec.209 (a) of Code of Criminal Procedure
after furnishing copies of the case to the accused as required under Sec.207 of Code of Criminal Procedure. Subsequently, the Hon'ble Principal District and Sessions Judge, Kakinada registered it as Sessions Case No.346/2023 and made over the case to this Court for trial. As per request of accused Sri
P.Satish Kumar, Advocate Kakinada was appointed as legal aid counsel by the
Hon’ble District Mandal Legal Services Authority, Kakinada.
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4.On hearing both sides, the charges were framed for the offences punishable under Sec.427 and Sec.436 of Indian Penal Code, read over and explained to the accused in Telugu. The accused pleaded not guilty and claimed to be tried.
5.During the trial of the case, the prosecution examined P.W.1 to P.W.10 and got marked Ex.P1 to Ex.P17 and M.Os.1 to 11.
6.After closure of trial, the accused was examined under Sec.313 Code of
Criminal Procedure by explaining incriminating material available on record in Telugu. The accused denied the same and reported no defence evidence.
7.Heard the counsel for the prosecution i.e., Additional Public Prosecutor and the Counsel for the accused.
The learned Additional Public Prosecutor argued that the prosecution established the presence of accused at the scene of offence at relevant point of time through M.O.10 and M.O.11. He further argued that the corresponding video in showing the presence of accused while committing the offence which is in existence in the social media as on today also in which the date and time of offence is also appearing specifically. He further argued that though the Investigating Officer failed to collect the original
Videograph relating to the said offence and failed to send the same to the expert, it is settled law that the fault of investigating officer is not a ground
for the accused to get acquittal. He further argued that the prosecution
established the preparation of accused in committing offence through the evidence of P.Ws.5, 7 and 8. He argued that P.W.5 who is the owner of a shop located at the surroundings of place of incident categorically deposed that the accused came to his shop and secured the M.O.1-plastic empty bottle from the dustbin with his permission. He argued that P.W.7 who is employee of petrol bunk categorically identified the accused stating that he purchased petrol in white colour bottle which is marked as M.O.1 on the date of incident at about 9 p.m. He further argued that P.W.8 also deposed that the accused purchased M.O.2-Match box from his pan shop at about 9 p.m., on the date of incident. He further argued that in M.O.11 compact disk, the presence of accused is clearly appearing while committing the offence in the temple. He further argued that the above witnesses had no need to depose falsehood against the accused. He further argued that it is not the case of accused also that there is any enmity to him with the above witnesses. He 4 further argued that the prosecution collected M.O.8 T-shirt and M.O.9-Black colour shot from the possession of the accused after taking him ito their custody which were sent to Regional Forensic Science Laboratory. He further argued that the Regional Forensic Science Laboratory authorities found the traces of petrol on it. He further argued that the oral evidence of above witnesses cannot be thrown out merely on the ground that the Investigating officer did not send the CC TV footage to the expert and finally prayed to convict the accused.
The learned legal Aid counsel for the accused argued that there is no direct evidence from the side of prosecution to say that the accused set fire the idol of Lord Anjaneyaswamy on the alleged date. He further argued that as per the evidence of P.W.6, he received the alleged video into his phone from the others. But there is no explanation from P.W.6 that why he did not give M.Os 10 and 11 to the police by the time of his examination. He further argued that the prosecution miserably failed to prove the genuineness of
M.Os 10 and 11 which are electronic devices by sending the same to the electronic expert. He further argued that the Investigating Officer failed to collect the digital video record while collecting CCTV footage relating to alleged incident for which no reasons are assigned by him. He further argued that if really the said CCTV footage is a genuine one, the
Investigating Officer would have collected the digital video record also which shows the exact time and date. He further argued that when the prosecution failed to produce any eye witness relating to the said incident, the prosecution cannot say that the accused committed the said offence. He further argued that in Ex.P.1, it is mentioned that one unknown offender committed the said offence and as per the report of Regional Forensic
Science Laboratory, no petrol traces were found on any material objects sent to them. He further argued that to attract the ingredients of Sec.427 of
Indian Penal Code, the prosecution has to assess the value of damage caused in the said incident which should be the amount of Rs.50/- or upwards. But no such assessment was done by the prosecution. He further argued that when there is no direct evidence to show the presence of accused by the time of alleged incident, he is entitled to get benefit of doubt.
He further argued that due to breaking of coconut by devotees and due to lighting of oil lamps in the temple by the devotees, the said fire accident would have been occurred and that the accused is no way concerned with the said offence and finally prayed to acquit the accused..
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Now the Point for determination is:
Whether the prosecution could establish the guilty of the accused for the offences punishable under Sec.427 and Sec.436 of Indian Penal Code beyond reasonable doubts?.
8.Coming to the burden of proof, it lies on the prosecution under Sec.101 of Indian Penal Code to prove the guilt of the accused beyond all reasonable doubts. To punish the accused for offence under Sec.427 of Indian Penal
Code, the prosecution has to prove the ingredients of Sec.427 of Indian Penal
Code which reads as follows….
Section 427 Indian Penal Code: Mischief causing damage to the amount of fifty rupees.—Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
9.Coming to the evidence of P.Ws.1 and 2, they never stated that what was the value of damage caused due to above incident. Further Ex.P.1 and
P.2 reports are also silent about the said damage. P.W.3 and 4 who are the alleged devotees also never deposed that what was the value of damage caused due to the said incident. The evidence of P.Ws 5, 7 and 8 is no way related to the damage caused in the said temple and that they also never deposed about the assessment of the value of damage caused in the said temple due to setting fire to the idol of Lord Anjaneyaswamy. P.W.6 who found the video relating to the alleged incident in social media about burnt of
Hanuman statue also never deposed about the value of the damage caused to the said statue.
10.P.W.9 is the Village Revenue Officer and mediator who observed the scene of offence as per the request of the Investigating Officer on 24-12- 2022. He also never stated about the value of damage caused to the
Hanuman statue. P.W.10 is the Investigating Officer who conducted Ex.P.5 scene observation report by seizing M.Os 3 to 5 burnt material from the scene. But surprisingly P.W.10 also failed to assess the value of the damage caused to the idol of Hanuman for which no reasons assigned. Even as per
Ex.P.5 scene observation report also, no observation is made at the scene of offence regarding value of damage caused at the scene and they have observed only some black coloured burnt marks on the chest and legs of statue of Hanuman and except that they have not found any damage to the 6 statue. In the absence of any such specific assessment to show that there was damage of value of Rs.50/- or upwards to the idol of Lord Hanuman due to the said incident, certainly the prosecution cannot say that they have proved the ingredients of Sec.427 of Indian Penal Code. In these circumstances, this court feels that there is no sufficient evidence from the side of prosecution to prove the ingredients of Sec.427 of Indian Penal Code and as such the accused is entitled to get benefit of doubt for the said charge.
11.Coming to ingredients of Sec.436 of Indian Penal Code, it reads as follows:
Section 436 of Indian Penal Code:- Mischief by fire or explosive
substance with intent to destroy house, etc.—
Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
12.Coming to the evidence of P.W.1 who is the defacto complainant, he deposed that he worked as Executive Officer of Sri Krishna Mandiram,
Dwaraka Nagar, Kakinada from July, 2022 to June 2023 and that L.W.2
Srinivasa Varma @ Sarma was priest of said Mandiram by that time. On 24- 12-2022 the said Srinivas Varma @ Sarma informed him by phone that on 23-12-2022 between 11-30 p.m., to 12-00 mid night, some unknown offender burnt Hanuman statue located in Krishna Mandiram with petrol and on that on 24-12-2022 at morning hours, he visited the temple and found burnt black stains on the chest and legs of Anjaneya Swamy statue. Then he reported the matter to the police II Town PS, Kakinada along with the report given by devotees to L.W.2-Varma. He further deposed that somebody informed to him that one Kurakula Srinivas is the person who burnt the said statue.
13.Coming to the evidence of P.W.2 who is Priest of Sri Krishna Mandiram,
Dwaraka Nagar, he deposed that on 24-12-2022 he went to the temple at morning hours and found burnt Hamuman statue. He further deposed that the devotees also found the same and presented a report to him and on 7 arrival of P.W.1 he handed over Ex.P.2 report to him. P.W.2 presented report to the police. He further deposed that the devotees informed him that one
Kurakula Srinivas is the person who burnt the statue and he identified the accused stating that he is the said Srinivas.
14.P.W.3 and P.W.4 who are devotees deposed that on 24-12-2022, at morning hours, they went to the temple and found burnt Hanuman statue and that they reported the same to PW.2 along with other devotees under
Ex.P.2 report.
15.Coming to the evidence of P.W.5 who is running pan shop near
Atchuthapuram Railway gate, Dwaraka Nagar, Kakinada has deposed that he knows the accused and the accused used to visit his shop with coins to exchange the same into currency notes. He further deposed that in the month of December, two days prior to Christmas festival in the year, 2022, the accused came to his shop and asked empty bottle and on that he permitted the accused to take empty bottle and on that the accused took the empty bottle i.e., M.O.1 from the dust bin. He further deposed that later he came to know about the alleged incident through social media.
16.Coming to the evidence of P.W.6 who is an advocate at Kakinada Bar
Association has deposed that on 24-12-2022 at morning hours, he found one video in social media about burnt of Hanuman Statue located in Sri Krishna
Mandir near Atchutapuram gate of Kakinada. As per video, the accused did the same by pouring petrol and the local people caught hold of the accused redhandedly. He further deposed that he used to visit the said temple frequently and on that he went to the said temple and informed about the particulars of the said person in the videograph to the local people. He further stated that he prepared one DVD and gave it to the police keeping another DVD with him. He produced his cell phone in which the said video is there and the same is marked as M.O.10 and also M.O.11 corresponding CD along with the certificate u/sec.65-B of Evidence Act through him.
17.Coming to the evidence of P.W.7 who is worker in Petrol bunk has deposed that on 23-12-2022 at about 9 p.m., the accused came to the petrol bunk and purchased the petrol in a white colour plastic bottle. He further stated that the police came to the bunk along with the accused on 26-12- 2022 and on enquiry he stated before the police that the accused purchased 8 petrol on 23-12-2022 during night and on that the Police obtained his photograph along with L.W.10-Veerababu and accused. L.W.10-Veerababu collected the money for the petrol purchased by the accused on 23-12-2022.
18.Coming to the evidence of P.W.8 who is running pan shop at temple street, Kakinada has deposed that on 23-12-2022 at 9 p.m., the accused came to his pan shop and purchased match box i.e., M.O.2. He further deposed that on 26-12-2022 the police came to his pan shop along with the accused and on that he stated before the police that the accused purchased match box on 23-12-2022 night from his shop and on that he had shown his
CC TV footage available in his shop to the police and the same was obtained by the police in a pendrive. Police obtained his photograph along with the accused which is marked as Ex.P.3.
19.Coming to the evidence of P.W.9 who is working as Village Revenue
Officer of 45th ward of Kakinada has deposed that on 24-12-2022 as per the request of the police, he accompanied with the police and reached to Sri
Krishna Mandiram situated near Atchutapuram Railway gate of Kakinada and
L.W.14-Pilli Syam Prasad Bharat, Village volunteer also accompanied them and the Police observed the scene of offence at the said place in their presence. They found burnt Hanuman statue at Sri Krishna Mandiram. Police collected black burnt material from the statue with a cotton pieces. M.O.3 cotton pieces having black marks, M.O.4-Burnt cloth piece, M.O.5-White colour ordinary cloth piece were marked through him. He further deposed that L.W.14-Pilli Syam Prasad Bharat drafted the scene observation report which is marked as Ex.P.5 and that they both signed on it.
20.P.W.9 further deposed that on 26-12-2022 at 9 a.m., again both of them accompanied with the police as per their request and reached to Gatilamma temple situated near flyover bridge at II Town Police Station and police took the custody of the accused in their presence. Based on the confessional statement of accused police seized one cycle i.e., M.O.6 and cash of
Rs.7,672/- i.e., M.O.7 from the possession of the accused under the cover of mediators report drafted by L.W.14-Pilli Syam Prasad Bharat. They both signed on it and that Police obtained photographs i.e., Ex.P.7 near Gatilamma temple at the time of arrest of accused. Ex.P.6 is the mediators report relating to arrest and said seizure. He further deposed that on the same day at 11-30 a.m., the accused led them to Atchutapuram railway gate and he 9 had shown white colour bottle i.e., M.O.1 and one match box i.e., M.O.2 near bushes at Atchutapuram railway gate. Police seized the same under the cover of mediators report i.e., Ex.P.8 which was drafted by L.W.14-Pilli Syam
Bharat.
21.P.W.9 further deposed that as per the information given by the accused, they went to the petrol bunk, dry fruit shop and pan shop and that
Police obtained the photographs i.e., Ex.P.9 with the accused and respective employees and owners of above shops respectively. He further deposed that on 30-12-2022 at 11 a.m., on the request of the police, they both went to II
Town Police Station and Police interrogated the accused in their presence. As per the statement of the accused, they went to Kondayyapalem, near
Railway bridge and that the accused handed over yellow colour T shirt i.e.,
M.O.8 and black colour short i.e., M.O.9 and police seized the same under the cover of mediator report.
22.Coming to the evidence of P.W.10 the then SI of Police, II Town L&O P.S.,
Kakinada, he deposed in his chief examination about the chronological events done by him. He deposed that on 24-12-2022 at 10.30 am, PW1 came to police station and presented Ex.P1 report. Basing on contents of the said report, he registered a case in Cr.No.294/2022 for the offence punishable under section 427, 435 of Indian penal code by issuing FIR i.e.,
Ex.P.11 and he recorded the statement of PW1 in the police station and that he gave requisition to the superintendent of police to provide clues team. He further deposed that later he rushed to the scene of offence situated at
Dwarakanagar, Kakinada. He secured the presence of PW9 and LW14 P.S.P.
Bharath as mediators and observed the scene of offence in their presence and drew a rough sketch i.e., Ex.P.12 for the scene and got drafted scene observation report i.e., Ex.P.5 and he seized Mos 3 to 5 also under the cover of Ex.P5 mediators report. Further he took the photograph i.e., Ex.P.13 for the scene and examined PWs2 to 4, PW6, LW6 Ramayamma, LW7 Alisha and
LW8 Subramanyam and recorded their statements at the scene of offence.
23.P.W.10 further deposed that on the next day, he verified the CC TV footage available at the surroundings, but he could not found any material in it. On 26-12-2022, on receipt of reliable information, he secured the presence of PW9 and LW14 P.S.R. Bharath and proceeded to Gatilamma temple situated at Suryaraopeta where he found the presence of accused and took 10 him into custody in the presence of mediators at 9.00 a.m., and that the accused confessed about committing of present offence in this case and on that he seized MOs.6 and Mo.7 as discovered by the accused under the cover of Ex.P6 mediators report. He took photograph i.e., Ex.P.7 also by the time of arrest of accused and thereafter, the accused led them to Atchutapuram railway gate at where the accused discovered about availability of Mos 1 and 2 in the bushes and on that he has seized the same under the cover of
Ex.P8 mediators report. Later, the accused led them to petrol bunk situated at Salipeta of Kakinada at where he took the CC TV footage available at the said petrol bunk and that he retrieved the said CC TV footage into Pen drive and he secured the photographs of accused and pump boy at the said petrol bunk from the CC TV footage i.e., Ex.P.14. Thereafter the accused led them to pan shop situated at temple street stating that the accused purchased match box from Sri Venkateswara pan shop and that he verified CC TV
Footage available at the said pan shop and retrieved the said footage into another pen drive.
24.P.W.10 further deposed that he has secured the photographs i.e.,
Ex.P.15 of accused appearing in the said CC TV footage and later he secured the presence of PW5 who is the owner of dry fruit shop, LW10 Baki
Veerababu and PW7 who are the petrol bunk employees and PW8 who is the owner of pan shop and examined them by recording their statements.
Thereafter he produced the accused before concerned Hon’ble court seeking remand. Later, he took the custody of accused with the permission of
Hon’ble court. He further deposed that on 30-12-2022, he examined the
accused at the police station in the presence of PW9 and LW14 P.S.P.Bharath about involvement of any other person in the incident apart from the accused and on being led by the accused, they proceeded to Kondayyapalem railway over bridge at where he seized Mos 8 and 9 at the instance of the accused in the presence of mediators under the cover of Ex.P10 mediators report. He forwarded the material objects to Regional Forensic Science
Laboratory, Vijayawada with a letter of advise i.e., Ex.P.16. Later, he was transferred and handed over the CD file to LW17 N. Lakshmana Swamy and in turn LW18 B.Shankar Rao received the report from Regional Forensic
Science Laboratory and filed charge sheet. He further deposed that he can identify the signatures of LW17 Lakshmana swamy and LW18 B.Shankar Rao.
Ex.P17 is the Regional Forensic Science Laboratory report received by LW18
Shankar Rao. After completion of investigation, LW18 filed charge sheet 11 against the accused and the charge sheet in this case contains the signature of L.W.18 Sankara Rao.
25.Coming to the cross of P.W.1 it is elicited that the pooja will be performed in the temple during morning and evening hours also. It is further elicited that the devotees used to offer coconuts and bananas. The learned counsel for accused gave suggestion to P.W.1 stating that the name of accused is implicated in Ex.P.1 report and witness denied the said suggestion.
26.The learned counsel for accused gave suggestion to P.W.2 stating that he did not see the accused previously and witness denied the same and added voluntarily stating that the accused used to visit the temple for lunch.
He gave another suggestion to P.W.2 stating that the fire accident took place in the temple as a result of breaking of coconut by devotees and the statue was burnt, but the witness denied the said suggestion. He gave suggestion to P.W.3 and 4 also stating that the fire accident took place due to breaking of coconuts by devotees and witnesses denied the said suggestion.
27.Coming to the cross of P.W.5, he deposed that there is no proof to show that the accused took away M.O.1 bottle from the shop. P.W.6 deposed that he is the member of Rastriya Swayam Sevak. He deposed that he does not know who uploaded the original video in the social media and who recorded the said Video originally. He further deposed that Ex.P.11 video CD does not disclose specifically that the accused was pouring petrol and setting fire to the idol of Hanuman.
28.Coming to the cross of P.W.7, he deposed that he does not know about the alleged offence. He further deposed that Ex.P.3 photograph was not taken by the time of purchasing petrol by the accused. Coming to the cross of P.W.8, it is elicited that he is not having habit of giving bills. It is elicited that the accused used to visit his pan shop frequently.
29.Coming to the cross of P.W.9, he deposed that he used to visit Sri
Krishna Mandiram for 4 times in a week. It is elicited that he attended as a mediator in 15 to 20 cases. The learned counsel for accused gave suggestion to P.W.9 stating that Ex.P.5, P.6, P.8 and P.10 mediators were drafted at the police station and witness denied the said suggestion.
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30.Coming to the cross of P.W.10, it is elicited that he drafted Section 161
Criminal Procedure Code statements of the witnesses with his own handwriting. He admitted that P.W.6 did not produce M.Os 10 and 11 before him during his investigation. He admitted that the photographs filed by him in this case are not containing any dates. He admitted that he has to collect the digital video record while collecting CCTV footage relating to any incident and that he has not collected any digital video record in this case. The learned counsel for accused gave suggestion to P.W.10 stating that he took the photographs of the accused after taking him into his custody and witness denied the said suggestion. He gave another suggestion stating that the said fire incident was happened accidentally due to oil light in the temple and witness denied the said suggestion.
31.As per the defence taken by the accused based on suggestions given by his counsel to P.Ws 1 and 2, the fire incident took place due to breaking of coconuts in the temple. Further as per the suggestions given to P.W.10 who is the investigating Officer, the said fire incident took place due to oil lamps in the temple. It clearly shows that the accused is not denying the happening of firing in the temple or firing of Hanuman statue on that day and his contention is that he is no way concerned with the said incident. In fact the evidence of P.W.6 is crucial since he stated before the police in his statement which was recorded on 24-12-2022 i.e., on immediate day of incident in which he stated that he found video in social media during morning hours on 24-12-2022 about burnt of Hanuman statue. P.W.6 further deposed that as per the said video, the accused poured petrol and lit fire to the Hanuman statue and that the local people caught hold him redhandedly. He further deposed that he prepared one DVD and gave it to the police keeping another
DVD with him. He produced M.o.10 which is his cell phone before the court and M.O.11 which is corresponding CD before the court. This court carefully perused the M.O.11 corresponding CD and found that it was received through whatsapp. Further it shows that the accused wore yellow colour T-shirt and black colour shot in the said video which are tallying with M.Os No.8 and 9 respectively. But surprisingly the Investigating officer failed to produce any such DVD said to have been given by P.W.6 to him for which no reasons assigned by the prosecution. Further P.W.6 deposed that the local people caught hold the accused redhandedly as appearing in M.O.11 CD. But the
Investigating Officer failed to secure the presence of those local people even 13 though those people are appearing specifically in M.O.11 CD. Further the
Investigating Officer failed to trace out the person that who recorded the said video originally and it seems that no attempt was made by the Investigating
Officer in that line. In these circumstances the Investigating Officer failed to produce primary evidence relating to said incident even though the video was viral in the social media. Further he failed to produce the secondary evidence also for the reasons best known to him. However, the learned APP contended that the oral evidence of P.W.6 cannot be thrown out in that aspect even though the electronic evidence was not strictly proved by the prosecution.
32.It is true that P.W.6 specifically stated in his Sec.161 Cr.P.C statement itself said to have been recorded by P.W.10 that he found the said Video during morning hours on 24-12-2022. But the Investigating officer did not make any attempt to trace out the persons that who recorded the said video originally or to trace out the persons that who caught hold the accused redhandedly as appearing in the said video. As such the evidence given by
P.W.6 before the court is not an improvement since he stated the same
before the Investigating Officer on immediate day of incident. Further it is
not case of accused that there is any enmity to him with P.W.6. As such due to fault of Investigating Officer in securing the original video is not a ground to thrown out the entire evidence of P.W.6.
33.Coming to evidence of P.Ws 1 to 4 they deposed that the statue of Lord
Hanuman was burnt by some unknown person during mid night on 23-12- 2022. Further P.Ws 1 and 2 stated that they came to know that the accused namely Kurakula Srinu is person who caused said incident. Though they are not the eye witnesses to the said incident personally, the accused never denied the fact that P.Ws 1 to 4 observed the said temple on the next day morning and found the burning of statue of Hanuman. Further even as per the version of accused also, it is not his case that there was no such incident and his counsel also gave suggestion stating that the said incident was occurred due to breaking of coconuts or due to oil lamp. As such the evidence of P.Ws 1 to 4 proves to the extent of burning of statue of
Hanuman. Further even as per Ex.P.5 scene observation report also it is found that there are black colour burnt marks on the chest and legs of
Hanuman statue.
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34.Coming to the evidence of P.W.5, the accused used to visit his shop with coins to exchange the same into currency notes. Further in the month of
December, 2022, the accused came to his shop prior to two days of
Christmas and took one empty bottle with his permission. He identified the said bottle as M.O.1. Further P.W.7 deposed that on 23-12-2022 at 9 p.m., the accused came to the petrol bunk at where he was working by that time and purchased petrol in a plastic white colour bottle. P.w.7 also identified
M.O.1 bottle stating that the accused purchased petrol in it. P.W.8 deposed that the accused came to his pan shop on 23-12-2022 at 9 p.m., and purchased the match box. He identified M.O.2 match box stating that the accused purchased the same from him. Further he deposed that the said incident was recorded in his CCTV footage. He further stated that on 26-12- 2022 the police came to his panshop along with the accused and obtained the said CCTV footage into a pendrive also. It clearly shows that the evidence of P.Ws 5, 7 and 8 is corroborating with each other since all those transactions are forming part of same issue which was happened just prior to happening of fire incident in the said temple. Though P.Ws 5, 7 and 8 are not eye witnesses to the incident happened in the temple, their evidence is relevant in view of Sec.6 of Indian Evidence Act which reads as follows:
Sec.6 of Indian Evidence Act:- Relevancy of facts forming part
of same transaction.––Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
35.It is true that the Investigating Officer failed to produce the CCTV footage relating to purchase of petrol or relating to purchase of match box knowingfully that the CCTV footages are very much available there. But the oral evidence of P.W.6 and 8 cannot be thrown out for the fault of
Investigating Officer. It is not the case of accused that there is any enmity to him with the above witnesses to say that they gave false evidence against him. As such the evidence of P.Ws 5, 7 and 8 is proving the link of securing empty bottle from the shop of P.W.5, purchasing of petrol from P.W.7 and purchasing of match box from P.w.8 by the accused just prior to the said incident. The Hon’ble Supreme court held in case between State of
Rajastan Vs. Kishore reported in JT 1996 (2) 595 that merely on the ground that the Investigating Officer committed irregularity or illegality 15 during investigation would not and does not cast doubt on the case of the prosecution. In the present case also there is sufficient oral evidence to prove the facts of same transaction which are connected to each other through the evidence of P.Ws 1 to 8 which is corroborated with one transaction after the other even after excluding the photographs and other electronic evidence produced by prosecution also. Further as per the evidence of P.W.9, M.O.8-Yellow colour T-shirt, M.O.9-Black colour shot were seized at the instance of the accused. Further as per the Ex.P.7 Regional
Forensic Science report, they found traces of petrol on M.O.9-Black colour short. It clearly establishes through evidence of P.W.5 that the accused secured empty white colour bottle i.e., M.O.1 and as per the evidence of
P.W.7 he purchased petrol from the petrol bunk. Further he purchased the
M.O.2-Match box from the shop of P.W.8 just before the said incident. It is not the case of the accused that he purchased petrol for the purpose of using of the sale for his motor bike if any. Further it is not the case of the accused that he is having habit of smoking to say that he purchased the match box for the said purpose. When there is sufficient evidence through P.W.7 and 8 that the accused purchased petrol and match box just prior to the said incident, it is for the accused to explain that for what purpose he purchased the same in view of Sec.106 of Indian Evidence Act which are especially within his knowledge only, but the learned counsel for the accused failed to give any suggestion to the witnesses that for what purpose the accused purchased the same just before the incident. Further as per the evidence of
P.w.6, he found the video relating to firing of Hanuman statue in the morning of immediate day in which it is appearing presence of the accused at the temple by wearing M.O.8-Yellow colour T-shirt and m.O.9-Black colour short.
36.Further as per the evidence of P.W.9, M.O.1 white colour bottle and
M.O.2-Match box were seized at the instacne of the accused. Further M.O.8-
Yellow colour T-shirt and M.O.9-Black colour short were also seized at the instance of the accused only. Further P.w.9 is a government servant who is working as Village Revenue Officer. As such P.W.9 had no need to depose falsehood against the accused. Further as per Sec.8 of Indian evidence Act the preparation and previous or subsequent conduct is also relevant to prove any fact. In the present case the previous conduct of the accused in securing M.O.1 bottle, purchase of petrol and match box shows his previous conduct prior to committing the said offence. Further the police apprehended the accused on 26-12-2022 as he was absconded from that 16 locality of the incident. P.W.2 deposed that the accused used to visit the temple for lunch which is not denied by the accused. If really the accused has not committed the said incident, there is no explanation from him that what is necessity for him to abscond from that locality. It shows his subsequent conduct also which is relevant to prove the present case. In these circumstances, this court feels that the evidence placed by the prosecution is sufficient to prove the guilty of the accused for the offence punishable under section 436 of Indian Penal Code beyond all reasonable doubt. As such the accused is liable for punishment for the offence u/sec.436 of Indian Penal Code.
37.The Investigating Officer has seized M.O.6-BSA Photon cycle and M.O.7-
Cash of Rs.7,672/- from the possession of the accused. As per Ex.P.6 mediators report prepared by Investigating Officer the accused was surviving his life as a vagabond without doing any work by begging at
Kakinada for the last one year. Further as per the said statement, he developed grudge against god since his parents, his wife and children deserted him. Further as per the evidence of P.W.5, the accused used to visit his shop with coins to exchange the same into currency notes. It is not the case of the prosecution that the accused involved in any other cases like theft etc. Further M.O.6 Photan cycle or M.O.7 cash of Rs.7,672/- are no way related in committing the present offence by the accused. Further it is not case of the prosecution that the accused secured the M.O.6-Photon cycle and
M.O.7-cash of Rs.7,672/- in any illegal means. As such certainly the accused is only entitled to get back M.O.6 cycle and M.O.7 cash of Rs.7,672/-.
M.O.10-I phone was already given to P.W.6 for interim custody through orders
dated 05-12-2023 passed in Crl.M.P.No. 08/2023. As such the said order
holds good after expiry of appeal time of this case.
38.In the above circumstances, this Court feels that the prosecution failed to prove the guilt of the accused for the offence under Sec.427 of Indian
Penal Code beyond reasonable doubt. But there is sufficient evidence produced by the prosecution to prove that the accused committed the offence punishable under Sec.436 of Indian Penal Code. Accordingly, this point is answered.
39.In the result, the accused is found not guilty for offence under Sec.427 of Indian Penal Code and that he is acquitted under Sec.235 of Criminal Code 17 of Procedure. But he is found guilty for offence punishable under Sec.436 of
Indian Penal Code, as such the accused is liable for conviction under
Sec.235(2) of Criminal Procedure Code.
Typed to my dictation by the Stenographer-Grade-I, corrected and
pronounced by me in the Open Court, this the 22nd day of December, 2023.
Sd/-K.Venkateswara Rao
Principal Assistant Sessions Judge,
Kakinada.
Heard the accused with regard to quantum of punishment. The accused stated that he is lonely person and that there are no any other family members to look after his welfare. He further stated that he will not repeat this type of offences in future andrequested the Court to take lenient view. But when the manner of committing the offence by the accused is observed, this Court feels that the he is not entitled to get any benefit either under the provisions of Probation of Offenders Act or under the provision of
Sec.360 of Code of Criminal Procedure. Howeveras per the judgment of
Hon’ble High Court of Judicature at Alahabad in case between Chauthi Ram
Vs. State of U.P., reported in 2017 ALL 3267 that there is no minimum punishment provided for the offence punishable under section 436 of Indian
Penal Code. Further no previous criminal antecedents are brought on record against the accused by the prosecution and except causing some black marks on the cement statue of Lord Hanuman, no other damage was caused in the temple. However the sentiment of the people at large is involved in the said incident.
Hence, after considering the entire facts and circumstances of the case, the accused is sentenced to under go simple imprisonment for a period of 18(Eighteen) months and also imposed fine of Rs.500/- for the offence punishable under Sec.436 of Indian Penal code. In default of payment of fine, he shall undergo simple imprisonment for a period of one month. The accused is informed about his right of appeal before Hon’ble District Court and also informed that he can get free legal aid if required to prefer appeal.
The remand period of accused for the period from 26-12-2022 to till date i.e., 11 months 26 days shall be given set off under section 428 of Criminal
Procedure Code. M.Os.1 to 5, M.O.8, 9 and 11 shall be destroyed after expiry appeal time. M.O.6- BSA photon cycle and M.O.7 cash of Rs.7,672/- shall be given to the accused after expiry of appeal time. M.O.10-I-phone was already given to P.W.6 for interim custody through orders dated 05-12-2023 passed 18 in Crl.M.P.No. 08/2023. As such the said order holds good after expiry of appeal time of this case.
Typed to my dictation by the Stenographer-Grade-I, corrected and
pronounced by me in the Open Court, this the 22nd day of December, 2023.
SD/-K.Venkateswara Rao
Principal Assistant Sessions Judge,
Kakinada.
APPENDIX OF EVIDENCE
Oral Evidence
For Complainant: For Accused:
P.W.1: Ch.S.N.S.Srinivas.- None - P.W.2: Adiraju Srinivasa Varma. P.W.3: G.Gangadhara Rao P.W.4: Mugulla Baburao. P.W.5: Reddy Subbaraju P.W.6: Ch.S.K.Rao. P.w.7: D.Veera Vamsi. P.W.8: Aketi Chandra Sekhar. P.W.9: Kovvuri Satish Siva Reddy. P.W.10: M.Pavan Kumar (I.O)
Documentary Evidence
For Complainant: Accused : Nil.
Ex.P1: Report given by P.W.1 to the police. Ex.P2: Report given by devotees Ex.P3: One photograph along with CD Ex.P4: One photograph along with CD. Ex.P5: Scene observation report. Ex.P6: Arrest cum seizure report. Ex.P7: Photograph along with CD. Ex.P.8: Mediators report. Ex.P.9: Photograph along with CD obtained near dry fruit shop. Ex.P.10: Mediators report dated 30-12-2022 at 1-00 p.m. Ex.P.11: First Information Report. Ex.P.12: Rough sketch. Ex.P.13: Photograph of the scene. Ex.P.14:Photograph of the accused at petrol bunk. Ex.P.15: Two photographs of accused at Pan shop. Ex.P.16:Letter of advise. Ex.P.17: Regional Forensic Science Laboratory report. Material Objects:: M.O.1: Empty bottle. M.O.2: Match Box. M.O.3:Cotton pieces. M.O.4:Burnt cloth pieces. M.O.5:White colour ordinary cloth piece. M.O.6:BSA photon cycle. M.O.7:Cash of Rs.7,672/-. M.O.8:Yello colour T-shirt. M.O.9: Black colour shot. M.O.10:I.Pone. M.O.11:Compact disk. Sd/-K.Venkateswara Rao
P.A.S.J, KKD
19