Sri M.Sreedhar, B.Com., L.L.M.,

In the Court of the Judicial Magistrate of I Class : Udayagiri

Present: Sri Marpu Sreedhar,

Judicial Magistrate of I Class,Udayagiri.

Tuesday, this the 06 th day of February, 2018.

Calendar Case No.341/2016

Between: State rep. by Sub-Inspector of Police,

Varikuntapadu Police Station. ... Complainant

A n d:

1.Shaik Khaja Vali, S/o. Hazarath Saheb, aged about 66 yrs.

2. Shaik Bade, S/o. Khaja Vali, aged about 32 yrs. Both are Muslims by caste and residents of Thimmareddipalli village,

Varikuntapadu Mandal, SPSR Nellore District. ... Accused.

This case coming on for final hearing before me in the presence of complainant and of Sri K. Sudhakar Rao, Advocate for the accused and the matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

The Sub-Inspector of Police, Varikuntapadu P.S. filed charge sheet against the accused Nos.1 and 2 for the offences under Section 448 and 427 r/w 34 of IPC in Crime

No.65/2016 of Varikuntapadu P.S.

2.The case of the prosecution is as follows:

The accused Nos. 1 and 2 are the residents of Thimmareddypalli village who are father and son. P.W.1 Sk. Basha and P.W.2 Sk. Vali are also son and father who are residing at Visakhapatnam. P.W.3 is none other than the brother of the accused No.1 and

P.W.2. At about 20 years back, the accused No.1 sold away the demolished house to his brother/P.W.2. Since then he was staying in the said house and paying house tax. Later he went to Visakhapatnam along with his family members. Subsequently it was given for rent, but presently nobody are residing in the house. Recently National High way was formed and as such the accused No.2 hatched up a plan to grab the house with an intention to sell away for more prices and demanded P.w.2 to vacate the house. On 24.09.2015afternoon accused

Nos.1 and 2 both brought JCB and demolished their house with the assistance of JCB and caused loss to P.W.1. On the report given by P.W.1 Sk. Basha a case in Cr.No.65/2015 was registered under Sec.448 and 427 r/w 34 of IPC on 02.10.2015 at 8 p.m., The Sub-Inspector of Police examined the witnesses and scene of offence and seized the broken stone pieces at

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the scene of offence under the cover of mediators report in the presence of mediators zon 10.10.2015 the Sub-Inspector of Police served notices to the accused under Sec.41 of Cr.P.C.

After completion of investigation, this charge sheet was laid against the accused for the offences under Sec.448 and 427 r/w 34 of IPC.

3.This Court took cognizance of offences under Section 448 and 427 r/w 34 of

IPC and issued summons to the accused. On receipt of summons, the accused appeared

before this Court.

4.On appearance of accused before this Court, case copies were furnished to the accused as contemplated under Sec.207 Cr.P.C and when they were examined under Sec.

251 Cr.P.C. about the substance of the allegations in the charge sheet, they denied the same.

They pleaded not guilty and claimed to be tried.

5.During the trial, the prosecution examined P.Ws.1 to 6 and got marked Exs.P.1 to P.4. Ex.P.1 is the report given by P.W.1 dated 02.10.2015. Ex.P.2 is the mediators report

dated 03.10.2015. Ex.P.3 is the F.I.R in Cr.No.65/2015. Ex.P.4 is the rough sketch of scene

of offence. MO.1 piece of tiles were admitted through the prosecution witnesses. The evidence of L.W.3 Shaik Beebi, L.W.5 Sk. Khajabee, L.W.8 Audireddy Ramireddy and L.W10

K. Nagarjuna was given up by the prosecution as not necessary.

6.The P.W.1 who is the informant and victim in this crime deposes about the damage caused by the accused and submission of the report to the police. The P.W.2 who is father of P.W.1 deposes about the damage of his house property and involvement of the accused in this case. The P.W.3 who is the brother of the P.W.1 and accused deposes about the possession and ownership of the P.W.1 and P.W.2. The P.W.4 who is the elder for the village deposes about the commission of offence by the accused and his intervention to stop the said act. The P.W.5 who is the mediator for preparation of scene observation report and seizure of the property deposes about his presence at the time of preparation of report and seizure of MO1. P.W.6 who conducted investigation deposes about the registration of the crime, examination of witnesses, examination of scene of offence and seizure of the property at the scene of offence and filing of the charge sheet by his successor.

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7.After closure of prosecution evidence, the accused was examined under

Sec.313 Cr.P.C and they denied the incriminating substance put to them as false. They reported that there is no evidence to adduce on their behalf, hence defence evidence was closed. The accused No.1 stated that this property purchased by him from one Muppavarapu

Dibbaiah @Malakondiaha.

8.Heard.

9.The learned A.P.P contends that the evidence of the prosecution witnesses clearly shows that the accused damaged the house of P.W.1 and P.W.2 and they caused loss to them and as such they are liable for punishment for the offences leveled against them. Per contra, the learned counsel for the accused contends that the prosecution fails to establish that the disputed house exclusively belongs to P.W.1 and admission made y the witnesses clearly shows that the accused No.1 is the owner of this property. It is further contended that no iota of evidence is placed by the prosecution to establish the damage caused to the disputed property and as such the accused are entitled for acquittal.

10.Now, the points for determination are:

(1) Whether the prosecution is able to prove the guilt of the accused Nos.1

and 2 for the offence under Sec.448 of IPC beyond all reasonable doubt?

(2) Whether the prosecution is able to prove the guilt of the accused Nos.1

and 2 for the offence under Sec.427 r/w 34 of IPC beyond all reasonable doubt?

Since both the offences took place in the same transaction, this Court is inclined to discuss both the offences in one stretch.

11.To prove the case of the prosecution under sec.448 of I.P.C., the prosecution shall establish their case that the accused entered into the house of the victim with an intention to commit the offence or to intimidate or to insult or to annoy the victim. To prove the case of the prosecution under Sec.427 of IPC they shall establish their case that the accused caused mischief over the property of the victim. To prove the offence under Sec.34 of IPC they shall establish that the accused caused the said offence with their common intention.

12.The case of the prosecution is that this property is the joint family property of

P.W.1 and accused No.1 as per the report in Ex.P.1. But as per the evidence of the prosecution is that at about 20 years back the accused No.1 sold away the said demolished C.C.341/2016, J.M.F.C. Court, Udayagiri.

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house to P.W.2 The accused contends that the disputed property exclusively belongs to the accused No.1. To prove the case of the prosecution under Sec.448 o IPC they shall establish that the disputed property is in the possession and enjoyment of the P.W.1. Ofcourse, this

Court being the criminal Court cannot decide the rights of the parties over the disputed property. When the accused claims this property it is the duty of the prosecution to bring the evidence to say that this property exclusively belongs to P.W.2 and it is in their possession and enjoyment. Now let us see the evidence let in by the prosecution to establish the above said aspect to proceed further in this matter.

13.P.W1. stated that they are having two portion tiled house at Thimmareddipalli village and the same was existed in five ankanams site and it is worth of Rs.3 lakhs. He further stated that he has been residing at Visakhapatnam. From his evidence it was elicited that this house property was constructed at about 40 years back. Then the accused suggested him that the said house was constructed by the accused No.1 and that suggestion was denied by him as false. But he categorically admitted that as per the panchayat records the said property stands n the name of the accused No.1 and he purchased the same from

Malakondaiah son of Rosaiah in the year 1968. Then the accused No.1 suggested him that he never executed any document in his favour. Admittedly, there is no whisper in the evidence of the P.W.1 about the mode of acquisition of the property from the accused No.1.

Moreover, no particulars were given by the P.W.1 about the ownership and exclusive possession of said property by him. There is no whisper in the evidence of P.W.1 u the ownership and possession of the property. On the other hand, he admitted that this property purchased by his brother, who is accused No.1 and he constructed tiled a tiled house and they were brought to Thimmaredidpalli from Hasanapuram by the accused No.1 during their childhood. He further deposed that they left to Vizag in the year 1985. Then the accused suggested him that this house property is the self acquired property of accused No.1. To prove the possession of P.W.1 and P.W.2 over the property, the P.W.3 deposed that he relinquished his right over the portion of disputed house in favour of accused No.1 and P.W.2

Vali on receipt of consideration of Rs.20,000/- and P.W.1 and P.W.2 are residing in the said house and it is in their possession and enjoyment. He further stated that the accused No.1 and P.W.2 used to visit the said house from Visakhapatnam now and then. He admitted that at first instance the disputed house property purchased by accused No.1 Khajavali while he was

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aged about 14 years. He stated that he executed a document in favor of Vali and the same is in the custody of Vali and the said document is not in his custody and the said agreement was not registered. He has given different version about the how the P.W.1 and P.W.2 acquired this property. Moreover, in the chief examination he stated that he relinquished his right in faovur of the accused No.1 an P.W.2 Vali and as such I am unable to accept the contention of the prosecution that disputed property was in exclusive possession of P.W.1 and P.W.2. The

Investigating Officer also categorically admitted in his cross-examination that he has not secured any documentary evidence from P.W. 1 and P.W.2 to say that this house property belongs to them. In view of the admissions made by the P.W.1 and P.W.2 about the mutation of the name of the accused No.2 in the Panchayat Record and his ownership, it is the duty of

P.W.1 and P.W.2 to depose before this Court about mode of acquisition of this property from the accused No.1 when both parties claims possession over the disputed property. But the admissions made by the P.W.1 and P.W.2 created suspicion over the case of the prosecution about the possession and enjoyment of P.W.1 and P.W.2 over the disputed property. It is an admitted fact that P.W.1 and P.W.2 are residing at Visakhapatnam and the disputed property was not in their actual possession. In those circumstances, the evidence let in by the prosecution through P.W.1 to P.W.3 is not sufficed to say that the disputed site is in their possession and enjoyment by the time of this incident.

14.With regard to the factum of demolition made by the accused, the P.W.1 stated that he received information on 24.09.2015 through phone from Shaik Hussain that the accused Nos.1 and 2 damaged their house by using JCB and then he requested L.W.6 Ali

Ahhamed to help them to restrain the accused in damaging the said property. He further stated that L.W.2 Vali and L.W.3 Shaik Beebi and he himself came to Thimmareddipalli on the next day and by that time the house property was damaged. He admitted that he was present in the village by the date of alleged incident and admitted that this property was constructed at about 40 years back. On that it is suggested to him that the said house property was in dilapidated condition and collapsed on its own. P.W.2 also stated that they received information on 24.09.2015 from his brother Husain that the accused damaged house property and they immediately contracted Sarpanch of their village, but the accused did not stop their work and on that they visited the village and found damage of the house property. The same aspect was denied by them as false. It is an admitted fact that P.W.2 also is not a direct

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witness to the incident. He stated that he came to know from the villager that the accused demolished the said house on 24.09.2015 and on that he visited the house at 4 p.m., Then the accused suggested him that the said house was in dilapidated condition and collapsed on its own. It is an admitted fact that P.W.1 to P.w.3 are not the direct witness to the incident.

15.P.W.4 who is the villager deposed that on 24.09.2015 he received phone call from P.W.2 Vali by complaining that the accused Nos.1 and 2 demolished their house situated at Thimmareddipalli village and he visited the scene of offence and he called the accused

No.1 and requested to stop demolisition as the owners of the said house are not available in the village. He further stated that the accused No.1 refused to hear his words and the house property was demolished by JCB. He admitted that he has not noted the registration number of the JCB and cannot say the name of the driver of the JCB. Admittedly, there is no whisper in the evidence of prosecution witnesses about particular of name and owner of JCB the demolition of the said house. But P.W.4 stated that he received phone call on 24.00.2015 and he visited the scene of offence. But there is no whisper in his evidence about time of offence.

As per his admission in cross-examination he received phone intimation about damage at 10

A.M. whereas the incident occurred at afternoon Ofcourse, nothing was elicited from his evidence to say that there was enmity between P.W.4 and accused though the accused suggested to P.W.2 that this report was given at the instance of Sarpanch of the village.

However, if at all he really witnessed the incident, he might be in a position to give the name of driver of JCB and other particulars. Ofcourse, he may not be in a position to give the registration of the JCB, but he able to give name of the driver. But based on his version we cannot come to conclusion that the accused caused damage to the said house in the absence of material particulars about the time of offence and particulars of the JCB. However, he is the only witness examined by the prosecution to prove the involvement of the accused in this offence. The prosecution examined P.W.5 who was present at the time of preparation of scene observation report. He deposed that police prepared scene observation report at the house of P.W.2 Vali and seized Mo.1 piece of tiles. He admitted that he does not know the name of the scribe of the report. He further admits that he do not remember whether the scribe is native of Varikuntapadu or not and no identification slip affixed to M.O1 pieces of tiles. This Court can believe his version as far as the MO1 from the scene of offence and preparation of the report in Ex.P.2. But it is itself is not sufficient to establish the guilt of the

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accused and about their involvement and manner of incident. But based on MO.1 we can believe his version about the damage of the house property as tiles will be available at any dilapidated house. The prosecution examined the Investigating Officer as P.W.6. He categorically stated that on 02.10.2015 at 8-00 p.m., he received report from P.W.1 in Ex.P.1 and that was registered by him as a case in Cr.No.65/2016 for the offences under Sec.448, 427 r/w 34 of IPC and he submitted Ex.P.3 F.I.R before this Court. He further deposed about the examination of witnesses and seizure of MO.1 pieces of tails in the presence of mediators under the cover of mediators report. But he categorically admitted that witnesses have not stated before him about the name of the driver of JCB and its registration number. Admittedly, the Investigating Officer did not choose to secure any evidence about the particulars of the

JCB and it’s driver to connect the accused with this crime. Furthermore, the Investigating

Officer categorically admitted that he has not affixed any identification slips to MO.1 and not examined the persons whose names referred in the rough sketch. Atleast the Investigating

Officer did not choose to take photographs of the scene of offence to say that the house property was damaged. When the accused has taken a specific plea that this property was damaged due to dilapidated condition it is the duty of this Court to quest for corroboration from the prosecution about the damage cause to the property. Furthermore, the Investigating

Officer categorically admitted that there is a delay of 9 days in submission of the report and he has mentioned in column No.8 of F.I.R that there is no delay. For which P.W.1 stated that they tried to settle the issue through elders, but the same was failed. But there are no particulars in his testimony about the persons to whom he approached for settlement of the dispute. The elder for the village was examined as P.w4. But there is no such whisper in his evidence about the mediation between both parties and their efforts to settle the matter. The

Investigating Officer did not choose to produce any evidence to substantiate the reason for the delay in submission of the report. In view of the disputes between both parties with regard to the property and due to in ordinate delay of 9 days, there is every chance of coloured version in the case of the prosecution. It is also fatal to the case of the prosecution.

16.In the light of above discussion, the prosecution fails to establish that the disputed house property is in possession and enjoyment of P.W.1 and P.W.2 and they also failed to establish the involvement of accused Nos.1 and 2 in this case to say that they damaged the house property. Moreover, the prosecution miserably failed in establishing the

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damage of the property. Seizure of MO.1 pieces of title from the disputed property. It is itself is not sufficient to prove the damage caused to the property. Furthermore, the prosecution miserably ailed in establishing the reason for the delay in submission of the report. All the above circumstances forced me to come to conclusion that the prosecution failed to establish the guilt of the accused beyond all the doubt for the offence under Sec.448 of IPC. Moreover, there is no whisper in the evidence of prosecution witnesses about the quantum of damage caused to P.W.1 due to mischief to prove their case under Sec.427 of IPC. Furthermore, the prosecution failed to prove the damage to the property and as such this Court cannot find guilty of the accused for the offence under Sec.427 of IPC.

17. In the result, the accused Nos.1 and 2 are found guilty for the offences under

Sec.448 and 427 r/w 34 of IPC and he is acquitted under Sec. 255 (1) of Cr.P.C. The bail bonds of the accused and sureties of the accused shall remain in force for a period of six months under Sec.437-A of Cr.P.C. The sureties have complied Sec.437-A of Cr.P.C. on 02.02.2018. MO.1 i.e., piece of tiles in CPR.No.112/2017 shall be destroyed after appeal time is over.

Dictated to the Senior Superintendent acting as Personal Assistant, transcribed

by her, corrected and pronounced by me in open Court, this the 06th day of February, 2018.

Judicial Magistrate of I Class,

Udayagiri.

Appendix of Evidence

No. of witnesses examined for

Prosecution:

P.W.1: Sk. Basha P.W.2: Sk. Vali P.W.3:Shaik Peera P.W.4: Sk. Ali Ahamed. P.W.5:Yaganti Narasaiah. P.W.6: K. Kondapa Naidu,Sub-Inspector of Police..

For Defence: None

No. of exhibits marked for

Prosecution:

Ex.P.1/ Report of P.W.1 to police dated 02.10.2015. Ex.P.2/ Scene observation report date 03.10.2015. Ex.P.3/ Original F.I.R in Cr.No.65/2015 of Varikuntapadu P.S. Ex.P4/ Rough sketch of the scene of offence.

Defence:

M.O.s mark

MO.1: Piece of tiles. J.M.F.C., Udayagiri. C.C.341/2016, J.M.F.C. Court, Udayagiri.