1
IN THE COURT OF I ADDITIONAL JUNIOR CIVIL JUDGE CUM I
ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS CUMXIV
ADDITIONAL METROPOLITAN MAGISTRATE, NANDIGAMA
Present: Sri N. Jesu Ratna Kumar, FAC.Addl. Judicial Magistrate of First Class, Nandigama.
Monday, this the 30th day of December, 2019.
C.C.No. 128/2018
Between :
The Station House Officer, Nandigama Police station. :: Complainant.
And
1. VAdde Anil Kumar, S/o.Koteswara Rao, 27 yrs, New Water Tank,
2. Seelam Gopi Reddy, S/o.Srinivasa Reddy, 25 yrs, Near Mosque Center,
3. Kurakula Nagaraju, S/o.Venkateswara Rao, 22 yrs, New Water Tank, (All are R/o.Gottimukkala Village, Kanchikacherla Mandal) :: Accused.
This case is coming before me on 27.12.2019 for final hearing in the presence of learned Assistant Public Prosecutor for the State/Complainant and of Sri K.Satyanarayana, Advocate for accused and the matter having stood over till this day for consideration, this court delivered the following:
J U D G M E N T
1.The SubInspector of Police, Chandarlapadu Police Station filed charge sheet against accused 1 to 3 for the offences punishable under sections 353, 427, 506 r/w 34 of Indian Penal Code in Cr.No. 99/2017.
2.The conspectus of the case of the prosecution is that PW1 is a police constable. PW2 is Asst. Sub Inspector. In view of Sivaratri festival, Pw1, PW2 and
NCC students were deputed to regulate the traffic at Veerulapadu road. As per the instructions of superior officers, on 13.02.2018, PW1 and PW2 were attending traffic regulation duty under new bridge. PW1 kept his motor bike on the road restricting the movement of vehicles in order to regulate the traffic to avoid traffic jam. Meanwhile, A1 to A3 came to that place with a view to enter into the traffic regulation zone. Pw1 stopped that A1 to A3 reacted harshly. PW1 called the Sub 2
Inspector/PW6 on his cell phone to inform about the accused. One of the accused snatched cell phone from the hands of PW1. Accused have pushed the motor bike of PW1 and obstructed PW1 while discharging his duties. PW3 to PW5 were at the scene of offence. PW1 lodged Ex.P.1/report.
Basing on Ex.P.1/report, PW1 registered a case in Cr.No.56/2018 and issued Ex.P.4/FIR. He took up investigation and recorded the detailed statement of PW1 at the police station. On the next day, ie., on 14022018, PW8 along with independent mediators/Pw7 and LW11/B.Venkateswara Rao visited the scene of offence which is situated under bridge/DAmuluru village. PW8 prepared
Ex.P.5/rough sketch of scene of offence. He observed the scene of offence in the presence of mediators/PW7, LW11(B.Venkateswara RAo) and prepared
Ex.P.3/scene observation report. PW8 has seized MO1/motor bike bearing registration number AP 16 EV 0441 and MO.2/broken mirror pieces at the scene of offence. PW8 secured the presence of PW2 to PW6 and recorded their detailed statements. PW8 also seized Ex.P.6/passport from PW1. On 14022018, PW8 arrested A.1 to A.3 and produced them before the court for judicial remand. On the next day ie., on 15022018, PW8 again visited the scene of offence, secured the presence of LW7 to LW9 and recorded their detailed statements. After completion of investigation, PW8 filed charge sheet.
3. On perusal of the record, this court has taken cognizance for the offence punishable under Sections 353, 427, 506 r/w 34 of Indian Penal Code against the
Accused.
4. On appearance of the accused, copies of documents furnished to them in compliance of section 207 Cr.P.C.
5. Accused were examined under section 239 Cr.P.C. Charges u/ss. 353, 427 r/w 34 of Indian Penal Code against the accused were framed, 3 read over and explained to the accused in Telugu. After having understood the same the accused denied the same, pleaded not guilty and preferred trial.
6. During the course of trial, prosecution examined PW.1 to PW.8 and got marked Ex.P1 to P6, Ex.D1 and MOs.1 and 2 on its behalf. PW1 is the de facto complainant. PW2 worked as ASI, Nandigama P.S. PW3 worked as Police constable, Nandigama P.S. PW4 was the VRO of Magallu village. PW5 worked as
VRO of Ambarupet. PW6 was Sub Inspector of Police. PW1 to PW6 are direct witness. Pw7 is independent mediator. He was present at the time of observation of scene of offence. PW8 is investigating officer.
7. Accused were examined under section 313 Cr.P.C. The incriminating evidence adduced by the prosecution is read over and explained to the accused in
Telugu. After having understood the same the accused stated that the said evidence is false. Learned Counsel for the accused reported no evidence in defense.
8.Heard both sides.
9.POINT : Whether the prosecution proved the guilt of accused for the
offence punishable under section u/ss. 353, 427 r/w 34 of Indian Penal
Code beyond all reasonable doubt?
10. PW1 deposed that on 13022018, he along with PW2 and PW3 were deputed for traffic duty near Kudali temple on occasion of Sivaratri temple and at about 0930 pm, when he was on duty on parking place near the bridge, 3 persons came on a motor bike bearing registration No. AP 16 EE 0441 ie., Hero
Honda Glamour bike and asked him to allow them to go further.
11.PW1 further deposed thathe tried to make a phone call to S.I.of Police/ PW6 to inform about the incident on his mobile and one person snatched away his mobile and again he took over his cell phone from the hands of that person and 4 made a phone call to S.I./PW6 and while he was conversing with PW6, the other person pushed the motor bike and fell down, due to his bike mirror was damaged.
12.The witness further deposed that the third person also supported the two persons and obstructed his duties while he was performing his duty and at that time, he was on his uniform. PW1 further deposed that immediately Pw6 came to the scene of offence and On seeing him, three persons escaped from the scene of offence by leaving their motor bike.
13.Evidence of PW1 further discloses that he lodged report/Ex.P1 and on enquiry, he came to know the names of three persons as Vadde Anil, Seelam
Gopireddy and Nagaraju who are residents of Gottumukkala village. The witness identified the said persons as A1 to A3.
14.During cross examination, PW1 deposed that within 5 or 10 minutes, he enquired about the names of the accused from the persons available there at the scene of offence and he cannot say the names of the persons from he obtained information. It is pertinent to note that immediately after the incident, PW1 came to know about the names of A1 to A.3 and mentioned the same in Ex.P.1. The scene of offence is a busy traffic area and it is highly difficult to secure information about the names of accused at busy traffic area. PW1 during cross examination deposed that he lodged Ex.P.1/report at O.P. police station at Kudelli to the SI of police. The witness also deposed that in general it will take three minutes time to reach O.P. police station and due to over rush of the public, it took about 15 minutes to reach O.P. police station. The witness also deposed that he gave report to Sub Inspector within 5 minutes after the incident. The investigating officer/PW8 deposed that on 13022018, at 1145 pm, PW1 went to police station and lodged Ex.P.1/report. During cross examination, PW8 deposed that the incident took place on 13022018 at 0935 pm and Ex.P.1 was lodged on the same night at 1145 pm and no report was given at the scene of offence. Pw1 deposed that he lodged Ex.P.1/report at Police out post. Contrary to this, PW8 5 deposed that Ex.P.1 was lodged at the police station, Nandigama. Evidence of Pw1 and PW8 is not consistent.
15.PW1 during cross examination deposed that the staff have mentioned about his duty entries in general diary on the date of incident. PW1 further admitted that in his duty passport, the date of duty is not mentioned as 13022018.
Investigating officer/PW8 deposed that he has seized passport of Pw1 from PW1.
The pass port is marked as Ex.P.6. This court perused Ex.P.6. Ex.P.6 reveals that passport was issued for the day 12.02.2018 but on 13.02.2018. The incident took place on 13.02.2018. Ex.P.6 by itself is not sufficient to establish that PW1 was on duty on 13.02.2018.
16.During cross examination, PW1 deposed that the incident took place under the bridge and the parking place situated under the right side of the bridge and he parked his bike on the back side of parking place. The investigating officer/PW8 deposed that on 14022018, he along with PW7 and LW11/P. Venkateswara Rao visited the scene of offence and the scene of offence is situated under the bridge at
Damuluru village and prepared Ex.P.5/rough sketch of scene of offence and observed the scene of offence in the presence of mediators/PW7, LW11. Contrary to this, the independent mediator who was present at the time of observation of scene of offence deposed that the scene of offence is situated at the outskirts of
Damuluru village and police observed the scene of offence in his presence.
During cross examination, the witness deposed that the scene of offence is situated towards northern side of the bridge. PW2 during cross examination deposed that the incident took place under the bridge. PW5 also during cross examination deposed that the incident took place under the bridge. There is no consistency in the above discussed evidence as to the exact place of incident.
17.PW1 deposed that A1 snatched his mobile, A2 was responsible for causing damage to his bike and A3 supported A1 and A.2. The said evidence of Pw1 is not attracting the essential ingredients of Section 353 IPC.
6
18.PW2 deposed that on the eve of Sivarathri festival on 13.2.2018 he along with PW.1 and PW.3 were deputed for bandobust duty in Kudeli Damuluru and on the instructions of higher officials they went for attending duties at Kudeli. The witness deposed that as there was heavy traffic creating problem of parking, he instructed PW.1 to go to under the bridge and asked him not to allow the vehicles, on that PW.1 went there and while he was performing his duties, PW.1 kept his
Discover bike across the road for not allowing the vehicles which are causing problem to devotees. The witness further deposed that at about 9.30 P.m. three persons came on a bike and picked up quarrel with PW.1 and asked him to allow their bike, on that PW.1 objected and the unknown persons pushed the Discovery bike of PW.1 and the bike fell down and it was damaged.
19.The witness further deposed that the unknown persons have picked up quarrel with PW.1 and PW.1 tried to make a phone call to PW6, one of the persons among three, forcibly took away the phone from the hands of PW.1 and all the three persons were ran away by leaving their bike and on enquiry from PW4 and
PW5, they came to know the names of three persons names.
20.PW1 deposed that he enquired the local persons and came to know the names of the accused. Contrary to this, PW2 deposed that they enquired PW4 and
PW5 and came to know about the names of the accused. The evidence of PW1 and PW2 is not consistent.
21.PW2 deposed that he instructed Pw1 to go to the under bridge to control the traffic. It shows that PW1 was under the bridge and PW1 was on the bridge and hence, PW2 is not a direct witness to the incident.
22.PW3 deposed that on the eve of Sivarathri festival on 13.2.2018 he along with PW.1. PW.2 were deputed for bandobust duty at Kudeli Damuluru and on the instructions of higher officials they went there and when they were performing 7 their duties at Kudeli, PW.1 kept his Discover bike across the road for not allowing the vehicles which are causing problems to devotees.
23.The witness further deposed that at about 9.30 P.m. three unknown persons came on a bike, picked up quarrel with PW.1 by asking them to allow their bike and on that PW.1 objected. The witness deposed that the unknown persons pushed the Discovery bike of PW.1, the bike fell down and when PW.1 tried to make a phone call to PW6, one of the persons among three, forcibly taken away the phone from the hands of PW.1 and on enquiry they came to know the names of the accused.
24.PW1 deposed that on enquiry of local persons, he came to know the names of accused. PW2 deposed that PW4 and PW5 informed the names of the accused.
PW3 deposed that on enquiry they came to know about the names of accused.
The evidence of PW1 to PW3 is not consistent.
25.The scene of offence is situated under the bridge. PW3 during cross examination deposed that at the time of incident, he was performing duty on the bridge by moving. The said evidence of PW3 shows that he was not the direct witness.
26. PW4 deposed that on 13.2.2018 there was a festival in Damuluru on the eve of Sivarathri festival, he was deputed at Damuluru kudeli to perform his duty.
The witness deposed that the MRO deputed him. No document is filed to establish that MRO deputed PW4 at Sivarathri festival duty.
27.PW4 deposed that while he was performing his duty near temple, PW.1 kept his bike near the parking place for not allowing the vehicles and at about 9.35 p.m. three persons came near parking place on a bike and asked PW.1 to remove the bike kept in parking place and the said three persons pushed the bike off PW1 and they also removed the mirror of bike of PW.1 and damaged. The witness 8 further deposed that meanwhile PW6 came there and the said three persons ran away leaving the bike.
28.PW4 deposed that he cannot identify the accused. Hence, the witness declared hostile. Even during cross examination by learned APP, the witness denied the suggestion as to the identity of the accused.
29.PW5 deposed that on 13.2.2018 he along with PW.4 and Police were performing duties at Damuluru kudali on the eve of Sivarathri festival and there was a bridge on the back side of the parking place, where PW.1 was controlling traffic near the bridge by putting his bike aside and controlling the traffic. The witness deposed that three persons came on a bike and asked PW.1 to allow them and when PW.1 replied that he does not allow them in view of traffic problem, three persons pushed PW.1 and one person among three persons pushed the bike of PW.1.
30.Except PW5, no other witness including PW1 deposed that the accused have pushed PW1. Evidence of PW5 is not consistent with the evidence of PW1 to PW4.
31.The witness deposed that when PW.1 was making a phone call to PW6, one person among three persons pulled mobile phone of PW.1 and again PW.1 made a phone call to S.I. of police. On arrival of PW6, the three persons ran away from the scene of offence by leaving their bike.
32.During cross examination, PW5 deposed that he is not having any document to show that he was on the duty at the time of incident and his duty hours are from 0900 pm to 0600 am.
33.On enquiry from the persons available there, they came to know that the three persons are inhabitants and their names are Anil Kumar, Gopireddy and
Nagaraju.
34.PW6 deposed that on 13.2.2018 on the eve of Sivarathri festival, he was deputed as incharge for controlling traffic and parking of vehicles and due to over crowd of people, he instructed PW.1 not to allow the vehicles towards temple and 9
PW.1 informed him over phone call that three unknown persons obstructed his duties and manhandled him when he objected their vehicle not to enter towards the temple and they pushed the vehicle of PW.1 and the said vehicle was damaged.
35.Evidence of Pw6 disclosed that PW1 informed him that three unknown persons have beat him but however the evidence of PW1 is silent that three unknown persons have manhandled him. Evidence of PW1 and PW6 is not consistent.
36. For the proof of the offence under Sec.353, I.P.C., the following ingredients have to be necessarily proved by the prosecution: The person assaulted etc., was a public servant ,
The accused assaulted or used criminal force to such public servant ,
When the accused assaulted him, he was acting in execution of his duty as such public servant or such assault.... was committed with intent to prevent or deter such public servant from discharging his duty as such or that such assault was committed in consequence of something done or attempted to be done by such public servant in the lawful discharge of his duty.
Under s. 353, Indian Penal Code the ingredient of assault or use of criminal force while the public servant is doing his duty as such is necessary.
Section 351 in The Indian Penal Code:
351. Assault.—Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.
Explanation.—Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault. Illustrations
37. The ingredients of offence under Section 353 are:
1. The victim must be a public servant.
2. When assaulted, he must have been acting
i) In execution of his official duty; ii) And the assault was intended to deter him from discharging his duties; iii) That it was in consequence of anything done or attempted, to be done by such person in the lawful discharge of his duty.
10
Under Section 353, the public servants get protection when he acts in the discharge of a duty imposed by law on him. An act which is the very contrary of the duties of a public servant cannot be said to be done by a public servant while acting or purporting to act in the discharge of his official duties. An assault on a public servant who is not discharging a duty imposed on him by law when he is assaulted falls under Section 352.
38.Coming to the ingredients of Section 353 IPC, the same reads as follows i.A person assaults or uses criminal force to any person, a.the person assaulted is a public servant in the execution of his duty as such public servant, & b.the act is committed with intent to prevent or deter that person from discharging his duty as such public servant or, ii.in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant.
A plain reading of the above provision shows that the main ingredients of the offence under Section 353 IPC is that the person accused of the said charge should have assaulted the public servant or used criminal force with intent to prevent or deter the public servant from discharging his duties as such public servant.
39. In Durgacharan .v. State of Orissa, AIR 1966 SC 1775 honorable supreme court held that under Section 353 IPC, the ingredients of assault or use of criminal force while the public servant is doing his duty as such is necessary.
Further, in Chandrika Sao .v. State of Bihar, AIR 1969 SC 170 honorable Supreme
Court held that that mere use of force, however is not enough to bring an act within the terms of Section 353 IPC. It has further to be shown that the force was used intentionally to any person without that person's consent, in order to commit an offence, or with an intention or with the knowledge that the use of force will cause injury, fear or annoyance to the person against whom the force is used.
40. Evidence of PW1 to PW8 is not consistent, cogent and hence not reliable.
The above discussion leads to a resolute conclusion that the case of the prosecution is not free from doubt. Prosecution miserably failed to prove the guilt of accused for the offence u/s. 353 IPC. Accordingly, point is answered in favour of accused as against the prosecution.
41.In the result, Accused 1 to 3 are found not guilty for the offences punishable
U/ss. 353, 427 r/w 34 IPC. and accordingly they are acquitted u/s. 248 (1) 11
Cr.P.C. Bail bonds of the accused shall be in force for a period of next six months as contemplated u/s.437A Cr.P.C. Mo.2 shall be destroyed after the appeal time is over.
Typed to my dictation, directly by Stenographer, Gr.III, corrected and
pronounced by me in open Court on this the 30th day of December, 2019.
FAC/ I Additional Judicial Magistrate Of First ClassCUM XIV Additional Metropolitan Magistrate, Nandigama
APPENDIX OF EVIDENCE
LIST OF WITNESSES
For ProsecutionFor Defense.
PW1 : K.Mastan Rao None PW2: P.V.Krishna Rao PW.3 :Ch.Satyanarayana PW.4 :G.Nageswara Rao PW.5 :K.Venkateswara Rao PW.6 :PVSSN.Suresh PW.7 :T.Kishore Babu PW.8 :Y.Yesobu
DOCUMENTS MARKED FOR
For Prosecution. For Defence:
Ex.P1: Report of PW.1 Nil. Ex.P2: 161 Cr.P.C. statement of PW.4 Ex.P3: Scene observation report Ex.P4: FIR Ex.P5: Rough sketch Ex.P6: Passport
Ex.D1: portion in 161 Cr.P.C. statement of PW.2
Material Objects for For prosecutionFor Defense MO.1: Seized Bike MO.2: Seized broken glass pieces
FAC/ I Additional Judicial Magistrate Of First ClassCUM XIV Additional Metropolitan Magistrate, Nandigama 12
CALENDAR AND JUDGMENT
CALENDAR CASE NO. 128 /2018 ON THE FILE OF I ADDITIONAL JUNIOR CIVIL
JUDGE CUM I ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS CUM
XIV ADDITIONAL METROPOLITAN MAGISTRATE, NANDIGAMA
Date ofReport ApprehensionDate ofCommenceClose ofJudg of thereleasement of trial trialment offence accused on bail and place 13.2.`813.2.18 Accused was issued 20.3.1926.11.1930.12.19 notice u/s. 41 Cr.P.C. Explanation for Delay :
This case was taken on file and after receipt of summons accused appeared, on 7.6.18 copies of documents were furnished to them as contemplated u/s. 207 Cr.P.C. On 27.6.18 Accused were examined u/s.239 Cr.P.C., on 20.3.19 Pw.1 was examined, on 15.4.2019 PWs.2 and 3 were examined, on 1.5.19 PW.4 was examined, on 4.6.19 PW.5 was examined, on 10.6.2019 PW.6 was examined. on 23.7.19 PW.7 was examined, on 26.11.19 PW.8 was examined, during course of trial, EXs.P1 to P6, Ex.D1 and MOs.1 and 2 were marked, on 29.11.19 accused were examined u/s. 313 Cr.P.C., on 27.12.19 heard the arguments and posted for judgment, on 30.12.19 Judgment
pronounced. Hence, the delay is explained accordingly.
CALENDAR AND JUDGMENT IN C.C.NO: 128/2018 ON THE FILE OF I
ADDITIONAL JUNIOR CIVIL JUDGE CUM I ADDITIONAL JUDICIAL MAGISTRATE OF
FIRST CLASS CUMXIV ADDITIONAL METROPOLITAN MAGISTRATE, NANDIGAMA
The Station House Officer, Nandigama Police station. :: Complainant.
And
1. Vadde Anil Kumar, S/o.Koteswara Rao, 27 yrs, New Water Tank, Gottimukkala Village, Kanchikacherla Mandal.
2. Seelam Gopi Reddy, S/o.Srinivasa Reddy, 25 yrs, Near Mosque Center, Gottimukkala Village, Kanchikacherla Mandal.
3. Kurakula Nagaraju, S/o.Venkateswara Rao, 22 yrs, Near Water Tank, Gottimukkala Village, Kanchikacherla Mandal. :: Accused.
Offence : u/ss. 353, 427 r/w 34 IPC.
Finding : Found not guilty
Result : In the result, Accused 1 to 3 are found not guilty for the offences punishable U/ss. 353, 427 r/w 34 IPC. and accordingly they are acquitted u/s. 248 (1) Cr.P.C. Bail bonds of the accused shall be in force for a period of next six months as contemplated u/s.437A Cr.P.C. Mo.2 shall be destroyed after the appeal time is over.
FAC/ I Additional Junior Civil Judge CUM I Additional Judicial Magistrate Of First ClassCUM XIV Additional Metropolitan Magistrate, Nandigama
Copy submitted to: The Hon’ble I Addl. District and Sessions Judge, Krishna, Machilipatnam. Copy to the Assistant Public Prosecutor, Nandigama.