Sucharita Edavalli

Prl. JCJ-cum-JMFC, Gajwel1CC No. 68/2017

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE -CUM- JUDICIAL

MAGISTRATE OF FIRST CLASS :: AT GAJWEL.

PRESENT : SMT. E. SUCHARITHA,

I Addl. Junior Civil Judge -cum- I Addl. JMFC, Gajwel. FAC : Principal Junior Civil Judge –cum- JMFC, Gajwel.

Tuesday, the 09 th day of July, 2019.

C.C.No. 68 of 2017

(Cr.No. 174/2017 of P.S. Toopran)

Between:-

The State of Telangana, Represented by Sub-Inspector of Police, P.S. Toopran. ….Complainant

A N D

1.Sada Rekha W/o. Srishailam, Age: 29 yrs, Caste : Mudiraj, Occ: Branch Post Master, Ravelli, R/o: Pothpally, H/o Ravelli village of Toopran mandal, Siddipet District

2.Burra Rangavva W/o. Venkatasai, Age: 30 yrs, Caste : Goud, Occ: Panchayath Secretary, Ravelli G.P, R/o: Lingapur village, Thogutta mandal, Siddipet District. Now Presently R/o: Toopran village and mandal, Siddipet District.

.….Accused No.1 & 2

This case is coming before me for final hearing on 05.07.2019 in the presence of Sri P.Ashok Reddy, in-charge Asst. Public Prosecutor for the State and of Sri A. Hari Krishna, Counsel for the accused/A1 and Sri J. Venugopala chary and Sri B. Raju, Advocate for accused/A2, upon perusal of the material papers, upon hearing the arguments, this court delivered the following :-

-: J U D G M E N T :-

1.The Sub-Inspector of Police, P.S. Toopran has filed the charge sheet against the accused No.1 & 2 for the offence punishable under section 409 of IPC.

2.The brief facts of the case are that on 28.08.2017 at 11:00 hours, the defacto complainant PW1/Sri Abhishek Kumar, came to police station and lodged an english computerized petition, in which he stated that as per the directions of Supdt. of Post

Officers vide (SPOs) Lr. No. F4-1/2016-17 dt. 22.08.2017,Medak, he is giving the following information to lodge a complaint at the police station against the accused

Prl. JCJ-cum-JMFC, Gajwel 2 CC No. 68/2017

No.1, resident of Pothrajpally village of Toopran mandal and working as branch postmaster (BPM) in the Ravelli village BO a/w Kallakal SO under Medak HO and the accused No.2/Ravelli Grampanchayath secretary. Both A1 & A2 committed fraud by withdrawing the pensioner’s money from deceased pension account holders from

March 2015 to April 2016 using POTD machine which is used to pay SSP pension.

The sub divisional inspector of post office, south sub division, Medak inquired into the matter and recovered an amount of Rs. 88,520/- along with penal interest. Further that he is giving all these information for kind consideration and with request to take necessary action against both the accused.

3 (i).Basing on the report, PW7/S.I. Toopran registered a case in Crime No.

174/2017, under section 409 of IPC and took up the investigation. During the course of investigation, PW7 examined and recorded the statement of PW1 at police station,

PW1 submitted the xerox copies of post office pass books along with statements. Later on the next day on 29.08.2017 PW7 visited the house of PW2 to 6 at Potharajpally and examined and recorded their statements.

(ii).During the course of investigation on 28.10.2017, on credible information PW7 rushed to Ravelli village along with his staff and woman home guard and apprehended both the absconding accused and issued notice U/s 41(B)(b)(i)(ii) of Cr.PC to their relatives and on interrogation both the accused confessed their guilt. Later PW7 brought the accused/A1 & A2 to the police station, effected the arrest and produced

before the Hon’ble court for judicial remand. Later PW7 filed a requisition before the

Supdt. of Post Office, Medak Division for certified copies and also collected the pass books along with statements, SPOs Letter, and final report of SDIP etc of the old age and widow pensioners from Suptd. of Post Office, Medak Division.

4.Cognizance for the offence under section 409 of IPC is taken against the accused No.1 & 2.

Prl. JCJ-cum-JMFC, Gajwel 3 CC No. 68/2017

5.On appearance of the accused/A1 & A2, they are furnished with the copies of documents as contemplated under section 207 Cr.P.C.

6.Accused/A1 & A2 are examined under section 239 Cr.P.C., for which they denied the accusation, then a charge under Section 240 Cr.P.C., for the offence

U/Sec.409 of IPC is framed, read over and explained to them, for which they pleaded not guilty and claimed to be tried.

7.In support of its case, the prosecution has examined PW1 to 7 and got marked

Ex.P1 to P25.

8.After closure of prosecution evidence, both the accused are examined U/sec.

313 Cr.P.C by explaining the incriminating substance appearing in the evidence of prosecution witnesses for which they denied and reported no defence evidence.

9.Heard the arguments on both sides and perused the material on record.

10.Now the point for consideration is :- “Whether the prosecution has proved the guilt of the accused No.1 & 2 for the offence punishable under section 409 of IPC, beyond all reasonable doubt?

POINT :-

Evidence on record in brief:-

11. PW1/defacto complainant who is the Sub Divisional Inspector of Postal

Department who has set the law into motion by lodging report/Ex.P1 deposed before this court on oath that as per directions of Superintendent of Post Office, Medak

Division, he informed to police against J. Rekha/A1 in Toopran police station. Accused

No.1 is branch post master in Ravelli branch office, attach with Kallakal SO, he alleged that A1 and Rangavva/A2 Panchayath Secretary had with drawn pensioner’s money from the deceased pensioners account. The then sub divisional inspector of Post,

Prl. JCJ-cum-JMFC, Gajwel 4 CC No. 68/2017 inquired into the matter and found fraud of Rs. 88,520/- (Eighty Eight Thousand and

Five Hundred and Twenty Only) along with penal interest and recovered. Further he deposed that he was examined by the police.

12.PW2 to 5 who are family members of deceased pension account holders turned hostile and did not support the prosecution case. Nothing could be elicited by the prosecution in their cross examination. The Sec. 161 Cr.P.C statements of these witnesses are marked as Ex.P2 to P5 respectively.

13.PW6/witness & co-sister of Manne Latha, deposed before this court on oath that

Manne Latha is her co-sister, her husband died. Pension came to her as she is widow.

Latha went to her parents house about 2 years back, thereafter they do not know where she is residing. She further deposed that two officers from Post Office came and asked them whether they were receiving pension?, they answered them that they were not receiving. Post Office people reduced into writing and obtained her signature stating that pension would come. She further deposed that she was examined by the police.

14.PW7/Investigation Officer, deposed before this court on oath that on 28.08.2017

PW1 lodged Ex.P1 before him, he registered a case in Cr. No. 174/2017 U/sec. 409 of

IPC and issued FIR under Ex.P6. During the course of investigation he examined and recorded the statement of Abhishek Kumar/PW1. PW1 along with report/Ex.P1 annexed the following photostat copies. Later PW7 made request to furnish attested copies of the same and accordingly they furnished the following documents:

1.F4-1/2016-17 Medak dt. 23.11.2017.

2.Lr. No. F/Ravelli/16, Medak, dt. 23.08.2017 (2 pages).

3.Lr. No. F4-1/2016-17 dt. 22.08.2017.

4.Ledger report (2 pages).

5.Pass book of Gottimukkula Komuraiah (4 pages).

6.Ledger report (2 pages).

Prl. JCJ-cum-JMFC, Gajwel 5 CC No. 68/2017

7.Pass book of Borra Sayamma (4 pages).

8.Statement of M. Laxmi dt. 23.01.2017.

9.Ledger information (2 pages).

10.Pass book of Manne Latha (4 pages).

11.Statement of Shivagoni Balamani dt. 23.01.2017.

12.Ledger information (2 pages).

13.Pass book of Anthima Shivagoni (4 pages).

14.Statement of Munthigalla Ramulu.

15.Death Certificate of Munthigall Bhoomavva, dt. 29.01.2016.

16.Pass book of BOUS Yellaiah.

17.Ration card of Munthigall Ramulu.

18.Ledger information (2 pages).

19.Pass book of Bhumanna Munthigalla (3 pages).

Serial No. 1 to 10 are attested copies by Superintendent of Post Officer, Medak.

Learned counsel for A1 & A2 objected for proof of above documents. The objection is considered and rejected as the competent person (Superintendent of Post Office,

Medak) attested them. Accordingly the documents from serial No. 1 to 19 are marked as Ex.P7 to P25.

Later PW7 further deposed that on 28.10.2017 on credible information he and women home guard No. 561 rushed to Ravelli village, where they apprehended A1 &

A2 near Gram Panchayath Office, on his interrogation they confessed to have committed this offence and he followed procedure for arrest and issued Sec. 41 Cr.PC notice and arrested and produced them before court.

PW7 also recorded the statements of PW2 to 6 at Potharajupally village on 29.08.2017 and filed charge sheet after completion of investigation.

15.The relevant cross examination of the above discussed prosecution witnesses shall be discussed at the time of appreciation of the evidence.

Prl. JCJ-cum-JMFC, Gajwel 6 CC No. 68/2017

Appreciation of Evidence:-

16.On perusal of the above record it is seen that PW1 who has lodged Ex.P1 has stated before this court that the inquiry into the matter was done by the then Sub

Divisional Inspector of postal department. In Ex.P1 the name of the then Sub

Divisional Inspector of postal department who has actually conducted the inquiry is not mentioned. In the chief examination of PW1 also PW1 failed to mention the name of the officer who actually conducted the inquiry. Even the investigation officer/PW7 has not cited as one of the witness, the person who actually conducted inquiry. The then

Sub Divisional Inspector of postal department is the person who has given the final report to the Superintendent of Post Office, Medak Division. This final report was marked through PW7 as Ex.P8. On perusal of Ex.P8 it is seen that Ex.P8 dated 23.08.2017 is a final report which is submitted in continuance of the report submitted on 18.08.2017 regarding the past work verification of J. Rekha/A1. But the report dated 18.08.2017 is not filed before this court. Whereas Ex.P8 discloses that the then Sub

Divisional Inspector of postal department had gone through the record and found a fraud for a total amount of Rs. 80,000/- in the record. Among the various categories of accounts he has found that fraud has been detected only in the category of SSP for an amount of Rs. 80,000/-. Further in Ex.P8 he mentions that he has recovered

Rs.88,520/-. Further in Ex.P8 it is stated that in 14 pensioners account fraud has been committed and all these 14 pensioners expired except one by name M. Latha who was stated to be residing in abroad. This Ex.P8 also does not mention the name of the officer at the end except for designation, it contains only initial.

17.In this Ex.P8 they have mentioned that an inspection was conducted on 05.10.2015. The point to be noted here is that the allegation against A1 for committing criminal breach of trust/ fraud must be either from a complaint from somebody to the postal department or through the inspection done in the postal department. But in this case neither the complaint has been mentioned orally or has been filed by way of document. Nor the inspection report dated 05.10.2015 has been filed before this court.

The crucial witness ie., The then Sub Divisional Inspector of postal department who

Prl. JCJ-cum-JMFC, Gajwel 7 CC No. 68/2017 actually inquired into the matter has not been cited by PW7 nor his name has been mentioned in Ex.P1 or by PW1. It appears that PW1 is the person who is entrusted by his department to lodge a report/Ex.P1 against A1 and A2.

18.This witness/PW1 has clearly admitted in his cross examination that he does not know whether the then Sub Divisional Inspector of postal department recorded the statements of Radha/PW3, Shankaraiah/PW2, Laxmi/PW6 and Ramulu/PW4. This witness further adds that he has to verify regarding the same. A person who is lodging

Ex.P1/report being the present Sub Divisional Inspector of postal department by the time when the report has lodged has to completely verify the records and come forward to lodge Ex.P1/report. It is not an excuse for him to say that upon the instructions of his superior officers he has lodged Ex.P1/report. Duty is cast on him to be equipped with all the information regarding the case.

19.When the learned counsel for A2/ who is Panchayath Secretary in Revalli Gram

Panchayath cross examined PW1, and questioned whether the postal department had made any correspondence with the State Government regarding A2, being a Gram

Panchayath Secretary, Ravelli, PW1 stated that he will check with his department and say. He further admitted that he has not handed over any document to the police to show such correspondence regarding A2.

20. PW1 states before this court at the time of cross examination that only after the panchayath secretary affixes the thumb impression on POTD machine the amount can be withdrawn. It is the allegation of PW1 under Ex.P1 that A1 and A2 have committed fraud by withdrawing the pensioners money from the deceased pension account holders from the month of March 2015 April 2016 by using POTD machine which is used to pay SSP pension. But in this case no POTD machine has been seized and deposited. Even the prosecution did not file any data ie., produced from the POTD machine. PW1 in his cross examination has clearly admitted that data of transaction

Prl. JCJ-cum-JMFC, Gajwel 8 CC No. 68/2017 can be obtained from the POTD machine. When such data can be obtained what precluded PW1 from providing the same to the investigation officer.

21. Further it is admitted in this case by PW1 that he has not handed over any document to show that A2 was the Panchayath Secretary for the period from March 2015 to April 2016. He also admitted that his department do not have any authenticated thumb impression of A2. It is also admitted by PW1 that their department has not compared the thumb impressions made on the POTD machine with the thumb impression of A2 scientifically during the departmental inquiry. Then how did they come to the conclusion that A2 has affixed her thumb impression on the POTD machine is not explained or proved in this case. This witness/PW1 also admits that he has no document to show that notice was issued to A2 for departmental inquiry.

22.At the later stage of cross examination of PW1 by learned counsel for A2, PW1 states that he has received complaint from MPDO regarding A2. But at the same time he admits that he has not given any complaint received from MPDO to the police,

Toopran. All these admissions and absence of proper documentary evidence goes to show that simply on instruction of the higher officials PW1 has lodged Ex.P1/report and further that based on that Ex.P1 even the investigation officer/PW7 has failed to make investigation regarding the involvement of A2 along with A1.

23.PW2 to PW5 are the witnesses who have given their statements before the police, Toopran. These witnesses are the relatives of deceased pension account holders. It is the allegation of postal department that the pensions of the deceased persons fraudulently taken by A1 & A2 after their death. However, these witnesses

before the court have stated that they do not know any facts of this case further that the

police have not examined them. When these witnesses themselves are not supporting the case of prosecution then the statements of these witnesses recorded by the postal department and which are marked as exhibits also cannot be relied. Another point to be noted is when the allegation under Ex.P8 (final report) is that fraud has been

Prl. JCJ-cum-JMFC, Gajwel 9 CC No. 68/2017 committed in respect of 14 pension holders also passed away (except one), then why only few of the relatives out of 14 persons were examined, the same shows that no proper inquiry has been conducted.

24.The only witness who has stated in support of the prosecution is Manne

Laxmi/PW6. This witness states that her co-sister Manne Latha used to receive pension as she was widow. But later Latha went away around 2 years back. Now the date from Manne Latha has left the village is not mentioned by this witness. Atleast the year is also not mentioned. Then how it would be possible to check that in the absence of Manne Latha criminal breach of trust has been committed by A1 & A2. Further this witness/PW6 when she was questioned in cross examination that whether she knows that if Manne Latha is receiving pension or not, she stated that she does not know.

Under such circumstances it is not safe to rely on the evidence of such witness.

25.While PW7/Investigation officer was cross examined by learned counsel for A1 &

A2 he has admitted that he has not made any inquiry at Revalle village as to how many persons are taking pension amount. Though he admitted that he has examined the

Superintendent of Post Office, he has not cited Superintendent of post office as one of the witness. It is also admitted by this witness that he has not filed any document to show that both A1 & A2 have worked during the same period (March 2015 to April 2016) as branch post office and panchayath secretary respectively. It is also admitted that POTD machine has not been seized. Further it is admitted by PW7 that no document has been filed pertaining to recovery of Rs. 88,520/-.

26. As seen from the above discussion of evidence on record it is clear that without proper documentary proof the Ex.P1 has been lodged before police Toopran by PW1.

There is a complete failure on part of the investigation because the investigation officer/PW7 has not examined the main person who was the then Sub Divisional

Inspector of Post office, Medak South sub division who has actually inquired into the matter and has recovered Rs. 88520/-. The complete report filed before Superintendent

Prl. JCJ-cum-JMFC, Gajwel 10 CC No. 68/2017 of Postal Office is also not filed before this court because Ex.P8 is the continuation for the report filed on 18.08.2017. Under such circumstances it is unsafe to convict A1 for the offense U/s 409 IPC. Coming to A2, there is clear admission by PW1 and PW7 that they have not made proper inquiry and investigation. Therefore this court is of opinion that the benefit of doubt can be given to both A1 & A2.

RESULT:-

In the result, accused/A1 & A2 are found not guilty for the offence punishable

U/s 409 IPC and they are acquitted under Section 248(1) Cr.P.C. The bail bonds of the accused/A1 & A2 shall stand cancelled and sureties shall be discharged after expiry of appeal time.

Typed to dictation by the Stenographer on the chamber computer, corrected and pronounced by me in the open court on this the 09 th day of July, 2019.

FAC. Principal Junior Civil Judge-cum- JMFC, Gajwel.

APPENDIX OF EVIDENCE

Witnesses examined for

PROSECUTION: PW1: Abhishek Kumar/ Defacto complainant/Sub-Divisional Inspector of Postal Department. PW2: Gottimukkula Shankaraiah/ Witness/Son of deceased G. Komuraiah

PW3: Borra Radha/ witness/grand daughter of deceased B. Sayamma

PW4: Muthigalla Ramulu/ Witness/ son of deceased M. Bhumamma

PW5: Shivagoni Balamani/ witness/daughter of deceased S. Anthamma

PW6: Manne Laxmi/ witness/co-sister of widow M. Latha

PW7: K. Parashuram, Investigation Officer

DEFENCE

-None-

EXHIBITS MARKED FOR

PROSECUTION :-

Ex.P1 : Report lodged by PW1

Ex.P2 : Sec. 161 Cr.PC statement of PW2

Prl. JCJ-cum-JMFC, Gajwel 11 CC No. 68/2017

Ex.P3 : Sec. 161 Cr.PC statement of PW3

Ex.P4 : Sec. 161 Cr.PC statement of PW4

Ex.P5 : Sec. 161 Cr.PC statement of PW5

Ex.P6 : First Information Report

Ex.P7 : F4-1/2016-17 Medak dt. 23.11.2017.

Ex.P8 : Lr. No. F/Ravelli/16, Medak, dt. 23.08.2017 (2 pages).

Ex.P9 : Lr. No. F4-1/2016-17 dt. 22.08.2017.

Ex.P10: Ledger report (2 pages).

Ex.P11: Pass book of Gottimukkula Komuraiah (4 pages).

Ex.P12: Ledger report (2 pages).

Ex.P13: Pass book of Borra Sayamma (4 pages).

Ex.P14: Statement of M. Laxmi dt. 23.01.2017.

Ex.P15: Ledger information (2 pages).

Ex.P16: Pass book of Manne Latha (4 pages).

Ex.P17: Statement of Shivagoni Balamani dt. 23.01.2017.

Ex.P18: Ledger information (2 pages).

Ex.P19: Pass book of Anthima Shivagoni (4 pages).

Ex.P20: Statement of Munthigalla Ramulu.

Ex.P21: Death Certificate of Munthigall Bhoomavva, dt. 29.01.2016.

Ex.P22: Pass book of BOUS Yellaiah.

Ex.P23: Ration card of Munthigall Ramulu.

Ex.P24: Ledger information (2 pages).

Ex.P25: Pass book of Bhumanna Munthigalla (3 pages).

DEFENCE

- Nil-

MATERIAL OBJECTS

- Nil -

FAC : Principal Junior Civil Judge-cum- JMFC, Gajwel.

1

THE COURT OF THE I ADDL.JUNIOR CIVIL JUDGE-CUM-ADDL.

JUDL.MAGISTRATE OF FIRST CLASS :: AT GAJWEL.

PRESENT: SMT. E. SUCHARITHA, Addl. Junior Civil Judge-cum-Addl. Judicial

Magistrate of First Class, Gajwel.

Wednesday, the 23 rd day of October, 2019

C.C. No. 858 of 2016

(Cr.No. 317/2016 of P.S. Gajwel)

Between:-

The State of Telangana, Represented by Sub Inspector, P.S. Gajwel ….Complainant

A N D

Mukkera Chandram, S/o Pentaiah, Age: 27 Yrs, Caste: Harijan (Madiga), Occ: Coolie, R/o Gollapally village, Jagadevpur mandal, Medak Dist.

….Accused.

This case is coming before me for final hearing on 23-10-2019 in the presence of learned Asst. Public Prosecutor for the State, and of Sri. N. Sudharshan counsel for the accused, upon perusal of the material on record, upon hearing the arguments, this court delivered the following:-

-:: J U D G M E N T ::-

1.The Sub-Inspector of Police, P.S. Gajwel has filed the charge sheet against the accused for the offence punishable under section 380 IPC.

2.The brief facts of the case are that on 05-10-2016 at 11.00 hrs, the defacto complainant PW-1/Duddeda Kishan, came to Police Station, Gajwel and lodged a report stating that on 04-10-2016 at night 20.00 hrs he locked his tea stall which is in front of Government Degree college and went home. On the next day i.e., on 05-10-2016 at 06.00 hrs in the morning Pw1 went to his tea stall and noticed that the lock of his tea stall was broke opened and 14 cigarette packs and Rs. 200 change have been subjected to theft by some unknown offenders.

Thus Pw1 requested to take necessary action. Basing on the report of PW-1,

PW-3/B. Kamalakar, SI of Police, Gajwel registered a case in Cr.No. 317/16, U/s 2 380 IPC, issued FIR to all concerned and took up the investigation. During the course of investigation PW3 examined and recorded the statement of Pw1 at

P.S. Later Pw3 proceeded to the scene of offence and examined and recorded the statement of Lw2/Duddeda Mahesh and conducted scene of offence panchanama in the presence of mediators i.e., Pw2 and Lw4/Mohammad

Khasim. While the investigation was in progress, on 05-10-2016 at 1600 hrs, while Pw3 along with staff were performing patrolling duty, they noticed the accused/Mukkera Chandram moving there in a suspicious circumstances. On that they caught hold of the accused and observed the cigarette packets in a cover and Pw3 interrogated him thoroughly. On interrogation the accused admitted his guilt and stated that he is moving there to sell those stolen cigarette packets. On that Pw3 secured the mediators Pw4 and Pw5 and recorded the confession statement of the accused, in which he confessed that he decided to commit theft and in the month of June, 2016 on one night he broke open the locks of a house in Laxmi Prasanna colony at Gajwel and committed theft of sarees and Rs. 2,000/- cash from beeruva and sold them and spent the money for his lavish life. (matter relating to Cr.No. 206/2016 u/sec 457, 380 of IPC of Ps

Gajwel). The accused further confessed that, after 3 months on one night at

Gajwel in Vidhyanagar colony he broke open the lock of one house and committed theft of 2 pairs of silver leg chains, 2 silver coins, Rs. 5,000/- cash and 2 carbon cell phones. He spent Rs. 5,000/- for his lavish life and on the way he threw the old carbon cell phones and kept the silver items in his house for the sake of selling (matter relating to Cr.No. 302/2016 u/sec 457, 380 of IPC of Ps

Gajwel). In his confession the accused further confessed that on 04-10-2016 night he came to Gajwel for committing theft and after watching movie he went towards bus stand side and on the way he broke open the lock of a tea stall which is in front of Degree college and committed theft of 14 gold flake cigarette packets and some cash (change). He further confessed that he spent Rs. 50 for eating tiffin and while moving at Pregnapur for selling the stolen cigarette packets, and at that time the police caught him. The accused showed the cover which is in his hand containing 14 charms cigarette packets and change of 11- 3

Rs. 5/- coins, 25-Rs. 2/- coins, 45-Rs. 1/- coins. Pw3 kept them in a cover and seized the same in the presence of mediators Pw4 and Pw5. (matter relating to this crime). Later Pw3 along with accused and mediators Pw4 and Pw5 went to the house of accused at Gollapally village and seized the property i.e., 2 pairs of silver leg chains and 2 silver coins, total 34 thulas relating to Cr.No. 302/2016.

Pw3 arrested the accused and produced before the court on 06-10-2016 for judicial remand. After completion of investigation Pw3 filed charge sheet against the accused.

3.Cognizance for the offence under section 380 IPC is taken against the accused. On appearance of the accused, he is furnished with the copies of documents as contemplated under Section 207 Cr.P.C.

4.Accused is examined under Section 239 Cr.P.C., for which he denied the accusation, then a charge under Section 240 Cr.P.C., for the offence

U/sec 380 IPC against the accused is framed, read over and explained to him, for which he pleaded not guilty and claimed to be tried.

5.In support of its case, the prosecution has examined PW1 to Pw5 and got marked Ex.P1 to Ex.P6 apart from MO1. Learned APP has given up the evidence of Lw2 and Lw4.

6.After closure of the evidence of prosecution witnesses, the accused is examined u/sec. 313 Cr.P.C by explaining the incriminating circumstances appearing in the evidence of prosecution witness for which he denied the same and reported no defence evidence.

7.Heard the arguments, and perused the material on record.

8.Now the point for consideration is;- 4 “Whether the prosecution has proved the guilt of the accused for the offence punishable under section 380 IPC beyond all reasonable doubt?

POINT:-

9.In this case, PW1 is the defacto complainant. Pw2 is the mediator for scene of offence panchanama. Pw3 is the investigating officer. Pw4 and Pw5 are the mediators for confession cum seizure panchanama of accused.

10.Pw1 deposed that the incident occurred in August, 2016. He runs a tea stall in front of Degree college and he closed his shop and went to house. On the next day morning he came to his tea stall and noticed that his tea stall locks were broke open and 14 cigarette packs and cash of Rs. 200/- were stolen.

Through Pw1 the prosecution got marked Ex P1 which Pw1 identified as the report lodged by him at police station and also the prosecution confronted the photograph on record which disclosed the 14 cigarette packs and coins (11-Rs.

5/- coins, 25-Rs. 2/- coins, 45-Rs. 1/- coins, total Rs. 150) which were given to

Pw1 as interim custody on 27-12-2016, upon which Pw1 identified the same and photograph is marked as MO1.

11.PW2, who is the mediator for the scene of offence panchanama and rough sketch, deposed that in the month of October, 2016 police Gajwel reduced scene of offence panchanama into writing showing one tea stall alleged to have break down. It was alleged that 14 cigarette boxes and coins were stolen. Pw2 also deposed that the contents were read over to him. Scene of offence panchanama is marked as Ex P2 and rough sketch is marked as Ex P3 through Pw2.

12.On careful perusal of the above evidence, it is clear that the evidence of PW-1 is consistent in stating about the theft of MO1 from the tea stall 5 of PW-1 and about the report lodged by PW-1 at police station Gajwel. Even the evidence of PW-2, who is the mediator for recording scene of offence panchanama and rough sketch supported about theft committed in the tea stall of

Pw1. Further the evidence of Pw1 is corroborated by the evidence of Pw3 who testified before this court that on receiving Ex P1 he conducted scene of offence panchanama Ex P2 and rough sketch Ex P3 in the presence of Pw2 and Lw3.

The evidence of Pw1, Pw2 and Pw3 could not be elicited to be false by the learned counsel for the accused though they were cross examined at length.

There was no material to discredit their version regarding the theft being committed at tea stall of Pw1. However it is clear from the evidence of PW-1 that he is not the direct or eye witness to the theft of MO1. To prove the charge for offence u/sec. 380 IPC the removal of the property by the accused from the possession of the owner i.e., from the tea stall of PW-1 is to be directly established. In the present case there is no direct or eye witness to prove the ingredients of the said offence. The prosecution relied upon the confession of accused to connect him with the offence of commission of theft of MO1 from the tea stall of PW-1. The crucial mediators Pw4 and Pw5, to the confession cum seizure panchanama of accused deposed before this court as follows. Pw4 deposed that in the month of October, in the year 2016 police Gajwel have conducted confession of accused cum seizure panchanama at Pregnapur Gajwel

Chowrastha. One another person by name Prabhakar/Pw5 also stood as mediator along with him. At that time they have enquired one person who was in the custody of police. On enquiry he stated his name as Mukera Chandram S/o

Pentaiah. (During the trial, Pw4 identified the accused who is standing in the court hall as the same person who was in the custody of the police). Pw4 also deposed that accused confessed that 3 months back he has committed theft at

Laxmi Prasanna Colony in a house and stolen sarees and Rs.2,000/- cash. He also stated that he has committed theft in a house at Vidyanagar colony after 3 months from committing theft at Laxmi Prasanna Colony. Further accused confessed that he has committed theft of 2 carbon cell phones, one pair of silver anklets, 2 silver coins, cash around 5,000/-. He further stated that 5,000/- was 6 spent by him and remaining silver items were with him at his house. And also stated that if we come to his house he would show them. He further confessed that one day prior, he has committed theft at a tea stall while he was returning after watching movie at Gajwel. There at the tea stall he committed theft of 14 charms cigarette packets and also committed theft of few coins (Rs.5/- coins,

Rs.2/- coins). Accused also stated that while he was going to sell the cigarette packets he was caught by the police. Finally PW4 testified that the cigarette packets and the coins which were in possession of the accused were seized by the police in his presence. He has attested his signature on the confession cum seizure panchanama. (Ex.P-5 is the attested copy of confession cum seizure panchanama already marked through PW-3). The second mediator Pw5 has turned hostile and did not support the case of prosecution by deposing that he do not know anything about the case and police officials did not conduct any panchanama in his presence and they obtained his signature on a paper. In the cross examination also he denied that police officials conducted confession cum seizure panchanama of accused.

13.As seen from the evidence on record, the mediator Pw4 has testified about the confession made by the accused and also about the seizure.

Further Pw3 who is the investigation officer also testified about the recording of confession cum seizure panchanama Ex P5. There is no doubt on the legal position that as per Sec 25 of Indian Evidence Act the confession made to a police officer cannot be proved against the accused. Further there is also no doubt on the legal position that as per Sec 26 of Indian Evidence Act, confession made by accused while in the custody of police to any person other than

magistrate cannot be proved against the person making such confession. Hence

under Ex P5 the extent of confession of accused that he committed the theft cannot be said to have been proved by the prosecution. But coming to the part of seizure under Ex P5, that is seizure of 14 cigarette packets and coins (MO1), the law under Sec 27 of Indian Evidence Act has made admissible the information given by the accused person to a police officer which leads to the discovery of a 7 fact. Section 27 of Indian Evidence Act is an exception to the mandate contained in Sec 25 and Sec 26 of Indian Evidence Act. Now the question is whether the seizure of MO1 from the possession of accused is sufficient enough to convict the accused. For determining the same, this court is relying on Anter Singh Vs

State of Rajasthan (2004) 10 SCC 657, where in the Hon’ble Apex Court had summed up the quint essential requirements of Section 27 of Indian Evidence

Act, “ ----16. The various requirements of the section can be summed up as follows:

(1)The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.

(2)The fact must have been discovered.

(3)The discovery must have been in consequence of some information received from the accused and not by the own act of the accused.

(4)The person giving the information must be accused of any offence.

(5)He must be in the custody of a police officer.

(6)The discovery of a fact in consequence of information received from an accused in custody must be deposed to.

(7)Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible---”

14.In the present case the discovery of MO1 and thereafter its seizure is purely upon the own act of the accused. The accused himself showed the cover which contains MO1, further the accused himself lead the police and mediator to his house and shown the case property pertaining to crime no.

302/2016. The most important requirement to be proved by the prosecution in this case, so as to take shelter under Sec 27 of Indian Evidence Act, is that the mediator and the investigation officer must depose about the discovery of the fact 8

before the court. No doubt the mediator Pw4 and investigation officer Pw3 have

deposed about the seizure of MO1 but what about the alleged part that is as per the prosecution’s case “accused lead the investigation officer and mediators to his house and there certain property was seized”, this has not been deposed by either Pw4 or Pw3. As per the prosecution’s case, only after a second seizure being conducted at the house of accused, the accused was arrested and produced before the court for judicial remand. In the absence of the testimony of

Pw3 and Pw4 about second seizure, the rest of the testimony of Pw3 and Pw4 cannot be believed so as to convict the accused. The failure of prosecution to prove the second seizure which is at the house of accused gives a benefit of doubt in favour of accused. Further in this case there is no direct witness who has seen the accused committing theft at the tea stall of Pw1. The evidence of

Pw3 and Pw4 is not cogent as they failed to disclose about the second seizure.

In the light of above discussion, this court holds that the prosecution could not make out a case u/sec 380 of IPC against the accused.

15.In the result, accused is found not guilty for the offence punishable

U/sec 380 IPC and accordingly he is acquitted under Section 248(1) Cr.P.C for the offence u/sec 380 IPC. The bail bonds of the accused shall stand cancelled and sureties shall be discharged after expiry of appeal time. The Material object

MO1 i.e., 14 charms cigarette packets and Rs. 150/- cash (11-Rs. 5/- coins, 25-

Rs. 2/- coins, 45-Rs. 1/- coins) deposited vide CPR No. 381/15/2016 dated 27- 12-2016 given to the petitioner/Pw1 as interim custody on 27-12-2016 shall become absolute after expiry of appeal time.

Typed to dictation by the Copyist, corrected and pronounced by me in the open court on this the 23 rd day of October, 2019.

ADDL.JUDL. MAGISTRATE OF FIRST CLASS

GAJWEL.

9

APPENDIX OF EVIDENCE

Witnesses examined for

PROSECUTION: PW.1- Duddeda KishanDefacto complainant

PW.2-Nadibottu JahangeerPanch for scene of offence panchanama

PW.3-B. KamalakarInvestigating officer

PW.4-Pandavula Ravi Teja Panch for confession cum seizure panchanama of accused

PW.5-Madagari PrabhakarPanch for confession cum seizure panchanama of accused

DEFENCE

None

EXHIBITS MARKED FOR

PROSECUTION:

Ex.P1is the report lodged by PW1 at PS Gowraram

Ex.P2 is the scene of offence panchanama

Ex.P3is the Rough sketch

Ex.P4is the FIR

Ex.P5is the Confession of accused cum seizure panchanama

Ex.P6is the signature of Pw5 on confession cum seizure panchanama of accused

DEFENCE

NILL

MATERIAL OBJECTS

MO1 is the 14 charms cigarette packets and Rs. 150/- cash (11-Rs. 5/- coins, 25-Rs. 2/- coins, 45-Rs. 1/- coins)

ADDL. JUDL. MAGISTRATE OF FIRST CLASS

GAJWEL.

Prl. JCJ-cum-JMFC, Gajwel1CC No. 02/2017

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE –CUM-

JUDICIAL MAGISTRATE OF FIRST CLASS :: AT GAJWEL.

PRESENT : SMT. E. SUCHARITHA,

I Addl. Junior Civil Judge -cum- I Addl. JMFC, Gajwel. FAC : Principal Junior Civil Judge –cum- JMFC, Gajwel.

Friday, the 05 th day of July, 2019.

C.C.No. 02 of 2017

(Cr.No. 375/2016 of P.S. Toopran)

Between:-

The State of Telangana, Represented by Sub-Inspector of Police, P.S. Toopran. ….Complainant

A N D

1.Abothu Ganesh S/o. Narsaiah, Age: 35 yrs, Caste : Yadav, Occ: Agriculture,

2.Abothu Jagadish S/o. Narsaiah, Age: 43 yrs, Caste : Yadav, Occ: Agriculture,

3.Abothu Sathish S/o. Jagadish, Age: 22 yrs, Caste : Yadav, Occ: Agriculture,

All are R/o: Abothpally H/o: Toopran village and mandal, Siddipet District.

.….Accused No.1 to 3

This case is coming before me for final hearing on 05.07.2019 in the presence of Sri P.Ashok Reddy, in-charge Asst. Public Prosecutor for the State and of Sri M. Ashok, Counsel

for the accused No.1 to 3, upon perusal of the material papers, upon hearing the arguments,

this court delivered the following :-

-: J U D G M E N T :-

1.The Sub-Inspector of Police, P.S. Toopran has filed the charge sheet against the accused No.1 to 3 for the offence punishable under section 324 r/w 34 of IPC.

2.The brief facts of the case are that on 17.12.2016 at 08:00 hours, the defacto complainant PW1/Sri Abothu Radhamma, came to police station and lodged a telugu written report, in which she stated that on the night of 16.12.2016 at about 9:00 PM, her villagers ie., A1 to A3 went to her house and beat her and her sons PW2 & 3 with sticks, on the of paddy fields share, due to which all three sustained bleeding injuries.

She requested to take necessary action against accused No. 1 to 3.

Prl. JCJ-cum-JMFC, Gajwel2CC No. 02/2017 3 (i).Basing on the report, PW7/S.I. Toopran registered a case in Crime No.

375/2016, under section 324 r/w 34 of IPC and took up the investigation. During the course of investigation, PW7 examined and recorded the statements of PW1 to 3/injured at police station, and sent them to Sushma Hospital, Toopran for treatment.

Later PW7 visited the scene of offence and conducted scene of offence-cum-seizure panchanama and drafted the rough sketch in the presence of PW4 & 5 and seized two sticks under the cover of panchanama, and also examined and recorded the statement of PW8.

(ii).During the course of investigation on 22.12.2016, PW7 issued notice U/s 41(A) of Cr.PC to the accused No.1 to 3 with a instructions to produce sufficient sureties. All the accused produced sureties before PW7, he verified the documents and released them on bail on furnishing sureties. After receiving the medical certificate from PW6 and after completion of entire investigation PW7 filed charge sheet.

4.Cognizance for the offence under section 324 r/w 34 of IPC is taken against the accused No.1 to 3.

5.On appearance of the accused/A1 to A3, they are furnished with the copies of documents as contemplated under section 207 Cr.P.C.

6.Accused/A1 to A3 are examined under section 239 Cr.P.C., for which they denied the accusation, then a charge under Section 240 Cr.P.C., for the offence U/Sec.

324 r/w 34 of IPC is framed, read over and explained to them, for which they pleaded not guilty and claimed to be tried.

7.In support of its case, the prosecution has examined PW1 to 8 and got marked

Ex.P1 to P14 and MO1 & MO2.

Prl. JCJ-cum-JMFC, Gajwel3CC No. 02/2017

8.After closure of prosecution evidence, all the accused are examined U/sec. 313

Cr.P.C by explaining the incriminating substance appearing in the evidence of prosecution witnesses for which they denied and reported no defence evidence.

9.Heard the arguments on both sides and perused the material on record.

10.Now the point for consideration is :- “Whether the prosecution has proved the guilt of the accused No.1 to 3 for the offence punishable under section 324 r/w 34 of IPC, beyond all reasonable doubt?

POINT :-

Evidence on Record in brief:-

11.PW1 who has set the law in to motion by lodging Ex.P1 deposed before this court that A1 to A3 beat her and her sons 1 ½ year back. On the same day of the incident, during morning time her son attended the work at his agricultural field and at that time all the accused kept silent. Later when they returned to the house, accused

No.1 beat her, accused No.2 her elder son and accused No.3 beat her younger son. It was also deposed that her elder son was beaten with stick and herself and her younger son were beaten with hands. Later they went to police station and lodged report against A1 to A3.

12.PW2 who is one of the injured deposed that on 16.12.2016 during night time A1 to A3 beat him when he went to rescue his mother/PW1. He further deposed that accused No.1 to 3 beat him with stick on his right chest.

13.The another injured and son of the PW1 deposed that on 16.12.2016 at about 9:00 PM the incident took place, PW2 is his brother and himself and PW2 have done ridge in their agricultural land during the daytime and when theyretgurned home at night, accused/A1 to A3 came to their house and abused them. PW1 asked them as

Prl. JCJ-cum-JMFC, Gajwel4CC No. 02/2017 to why they are abusing upon which A1 toA3 beat PW1. When PW2 & PW3 tried to rescue A1 to A3 beat them also. A1 to A3 beat PW2 with sticks and A1 to A3 beat him and PW1 with hands. Later they all went to police station and at the police station they were referred to Gajwel Govt. hospital for treatment. PW3 also deposed that though they were referred to Gajwel Govt. hospital they took treatment in Susma hospital and again went to Gajwel Govt. hospital.

14.The circumstantial witness PW8 deposed before this court that he know PW1 and he also know that PW1 has filed a case 2 years aback against A1 to A3 as there was a quarrel. PW8 deposed that he did not see who beat whom but he deposed that he has pacified the situation when PW1 and A1 to A3 were quarreling.

15.The mediators for Scene of offense cum seizure panchanama/PW4 & PW5 both have not supported the case of prosecution and they have turned hostile.

16.The doctor who treated PW1 to PW3 got examined as PW6. He deposed that on 16.12.2016 he treated PW1 and found Laceration over the hand of PW1 which were due to a stick (as per the opinion) and pain over the neck and head. He further deposed that he treated PW2 on the same day and he found Laceration over the left shoulder and pain over both shoulders and back. Later he deposed that on the same day he also treated PW3 and opined that PW3 sustained laceration over both hands and there was also complaint of pain over left side of head. Finally he deposed that all the injuries sustained by PW1 to 3 are simple in nature.

17.The other witness who got examined is PW7, the investigation officer. He deposed before this court right from receiving the complaint under Ex.P1, conducting scene of offence, rough sketch, seizing MO1 & MO2 etc., till filing of the charge sheet.

Prl. JCJ-cum-JMFC, Gajwel5CC No. 02/2017

Appreciation of Evidence:

18.For the prosecution to bring home the guilt of A1 to A3 U/s 324 r/w 34 IPC, it has to prove that A1 to A3 with common intention caused injury to PW1 to 3. Further that the weapon used by them is a dangerous weapon as described U/s 324 IPC. PW1 to 3 all together testified that A1 to A3 have come to their house during night time and beat them. While narrating the incident all PW1 to 3 have consistently stated that regarding the ridge between the agricultural land of A1 to A3 and their agricultural land there was a dispute, and upon the same issue A1 to A3 came to their house and beat them. The learned counsel for A1 to A3 has taken a defence by way of suggestion, while cross examining PW3 that no such incident as alleged by the prosecution has taken place and that the injuries sustained by PW1 to 3 were due to an accident which PW1 to 3 met while going to Revalli village on a motor cycle and when the motor cycle was hit by a car. However such suggestion was denied by PW3. It is argued by the learned counsel for A1 to A3 that because of enmity between PW1 to 3 and A1 to A3 a false story is created and a false case is foisted against A1 to A3.

19.It is the fact that there are disputes between the parties relating to land, but PW8 who is an independent witness in this case has deposed that 2 years ago PW1 lodged a report and that there was a quarrel between PW1 and A1 to A3. It is also deposed by this witness that he went there but he did not see who beat whom. However he has warned them and pacified the situation. The learned counsel for A1 to A3 did not choose to cross examine PW8. Thus PW8’s evidence could not be disproved. From the evidence of PW8 it is clear that some quarrel took place between the parties and therefore the contention of learned counsel for A1 to A3 that no incident has alleged by the prosecution took place cannot be believed.

20.The oral evidence of PW1 to 3 disclosed that A1 to A3 beat PW2 with sticks and beat PW1 & 3 with hands. The oral evidence of PW2 is that he sustained injury near his right chest area. The doctor/PW6 who examined PW2 after treating PW2 has

Prl. JCJ-cum-JMFC, Gajwel6CC No. 02/2017 given an opinion under Ex.P6. On perusal of Ex.P6 there is discrepancy with regards to the body part where PW2 sustained injury. Ex.P6 discloses laceration on left shoulder of PW2 and complaint of pain over both shoulders and back. It is quite obvious that when a person is beaten by the sticks, definitely there might have been several blows, and it could not have been a single blow. So the discrepancy in the evidence of PW2 for not being able to mention the correct body part in corroboration with Ex.P6 shall not be considered as vital so as to discard the remaining evidence on record. In this case PW6 also deposed regarding treating of PW1 & PW3 on the same day. Both PW1 & PW3 sustained lacerations which are minor on their hands. It appears that while defending themselves from blows of sticks they might have sustained injuries on their hands. Small discrepancy in the evidence of PW1 & PW3 that they have been beaten by hands shall also not be considered as vital.

21.The oral evidence of PW1 to 3 coupled with the circumstantial witness evidence that is PW8 goes to establish that an assault by A1 A3 on PW1 to 3 actually occurred.

Whereas the evidence of PW1 to 3 coupled with the evidence of PW6 and Ex.P5 to P7 established that all PW1 to 3 sustained simple injuries. Further there is corroboration received from PW7 regarding lodging of Ex.P1, registering of FIR without delay. The learned counsel for A1 to A3 argued that the alleged incident took place on 16.12.2016 and the report, FIR are dated 17.12.2016 and the medical requisition is dated 16.12.2016. Its true that report is dated 17.12.2016 however it is not a delay to discredit the case of prosecution because the incident took place at 9:00 PM on 16.12.2016. And the delay is less than 24 hours which is not a major delay. Infact on perusal of Ex.P1 there is a correction at the date, 16 is corrected as 17. Moreover regarding the same the learned counsel for A1 to A3 could not elicit anything in his favour while cross examining the PW1 who lodged the report or PW7 who registered

FIR and investigated the case.

22.Coming to the weapon used in this case. The mediators before whom the sticks have been alleged to be seized have turned hostile and the sticks/MO1 & MO2 are

Prl. JCJ-cum-JMFC, Gajwel7CC No. 02/2017 marked through PW7 who is the investigation officer and who conducted scene of offence cum seizure panchanama/Ex.P9. MO1 & MO2 are two sticks of 1 ½ gajam length and they neither fall under the category of instrument for shooting, stabbing or cutting nor fall under the category of an instrument which is likely to cause death because the injuries sustained by PW1 to 3 are not on vital parts. PW1 & PW3 only sustained laceration on hands and PW2 sustained laceration on shoulder. Hence keeping in view the above discussion this court is of opinion that the present case does not attract sec 324 IPC and therefore sec 324 IPC is altered to Sec. 323 IPC.

23.In the light of above discussion in the prosecution could prove the guilt of the accused No.1 to 3 under section 323 r/w 34 IPC.

24.In the result accused/A1 to A3 are found not guilty for the offence punishable under/sec 324 r/w 34 IPC and accused/A1 to A3 are found guilty for the offence punishable under/sec 323 r/w 34 IPC and accordingly, accused/A1 to A3 are convicted u/sec. 255 (2) Cr.P.C. for the offence U/sec. 323 r/w 34 IPC. In this case, the prosecution deposited MO-1 and MO2 (2 sticks) vide CPR.No.2/15/2017. The material object (MO1 and MO2) shall be destroyed after expiry of appeal time.

Typed to dictation by the Stenographer, corrected and pronounced by me in the open court on this the 05 th day of July, 2019.

I Addl. Junior Civil Judge -cum- I Addl. JMFC, Gajwel. FAC : Principal Junior Civil Judge –cum- JMFC, Gajwel.

25.Heard the accused/A1 to A3 on the quantum of sentence for the offence punishable under section 323 r/w 34 IPC for which they pleaded to take a lenient view as A1 and A2 are having children and wife and that they have to look after them. A3 pleaded that he has wife and parents to look after.

Prl. JCJ-cum-JMFC, Gajwel8CC No. 02/2017

26.Having considering the facts and circumstances of the case such as, even on the excuse that there are land disputes between the parties, one cannot be expected to harm another in person or property, this court is of the view that it is not a fit case to extend the benefit under section 4 of Probation of offenders Act, 1958 to accused. However the submission of accused/A1 to A3 that they have family to look after is considered to take a lenient view to strike some balance while awarding quantum of sentence to accused/A1 to A3.

27.Hence, accused/A1 to A3 are sentenced to pay a fine of Rs. 1,000/- each (Rupees One thousand only), in total Rs. 3,000, in default to pay the fine, the person in default shall undergo simple imprisonment for a period of 2 days, for the offence u/sec. 323 r/w 34 IPC.

28.Accused/A1 to A3 are intimated about their right to prefer an appeal

before the Hon’ble Appellate court against this Judgment. The copy of this Judgment is

supplied to the accused/A1 to A3 at free of cost.

Typed to dictation by the Stenographer, corrected and pronounced by me in the open court on this the 05 th day of July, 2019.

I Addl. Junior Civil Judge -cum- I Addl. JMFC, Gajwel. FAC : Principal Junior Civil Judge –cum- JMFC, Gajwel.

APPENDIX OF EVIDENCE

Witnesses examined for

PROSECUTION: PW1: Abothu Radhamma/ Defacto complainant

PW2: Abothu Nagaraju/ Injured / Eye Witness

PW3: Abothu Shiva Kumar/ Injured / Eye Witness

PW4: Chitti Nagi Ramchandra Reddy/ mediator for scene cum seizure panchanama

PW5: Nakkalapally Mahender/ mediator for scene cum seizure panchanama

Prl. JCJ-cum-JMFC, Gajwel9CC No. 02/2017

PW6: Dr. T. Pradeep Simha, Medical Officer

PW7: N. Venkatesh, Investigation Officer

PW8: Abothu Pochamallu/ Cir-Witness

DEFENCE

None

EXHIBITS MARKED FOR

PROSECUTION :-

Ex.P1 : Report lodged by PW1 at PS Toopran

Ex.P2 : Signature on scene-cum-seizure panchanama by PW4

Ex.P3 : Signature on rough sketch by PW4

Ex.P4 : Signature on scene-cum-seizure panchanama by PW5

Ex.P5 : Signature on rough sketch by PW5

Ex.P5 : Medical certificate of PW1 (marked as Ex P5 due to over sight)

Ex.P6 : Medical certificate of PW2

Ex.P7 : Medical certificate of PW3

Ex.P8 : First Information Report

Ex.P9: scene of offence cum seizure panchanama

Ex.P10: Rough sketch

Ex.P11: Notice U/s 41(A) of Cr.PC to accused/A1 to A3.

Ex.P12 to 14 are Medical requisitions of PW1 to 3.

DEFENCE

-- Nil --

MATERIAL OBJECTS

MO1 & 2 are two sticks.

I Addl. Junior Civil Judge -cum- I Addl. JMFC, Gajwel. FAC : Principal Junior Civil Judge –cum- JMFC, Gajwel.

Prl. JCJ-cum-JMFC, Gajwel1CC No. 02/2017

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE –CUM-

JUDICIAL MAGISTRATE OF FIRST CLASS :: AT GAJWEL.

PRESENT : SMT. E. SUCHARITHA,

I Addl. Junior Civil Judge -cum- I Addl. JMFC, Gajwel. FAC : Principal Junior Civil Judge –cum- JMFC, Gajwel.

Friday, the 05 th day of July, 2019.

C.C.No. 02 of 2017

(Cr.No. 375/2016 of P.S. Toopran)

Between:-

The State of Telangana, Represented by Sub-Inspector of Police, P.S. Toopran. ….Complainant

A N D

1.Abothu Ganesh S/o. Narsaiah, Age: 35 yrs, Caste : Yadav, Occ: Agriculture,

2.Abothu Jagadish S/o. Narsaiah, Age: 43 yrs, Caste : Yadav, Occ: Agriculture,

3.Abothu Sathish S/o. Jagadish, Age: 22 yrs, Caste : Yadav, Occ: Agriculture,

All are R/o: Abothpally H/o: Toopran village and mandal, Siddipet District.

.….Accused No.1 to 3

This case is coming before me for final hearing on 05.07.2019 in the presence of Sri P.Ashok Reddy, in-charge Asst. Public Prosecutor for the State and of Sri M. Ashok, Counsel

for the accused No.1 to 3, upon perusal of the material papers, upon hearing the arguments,

this court delivered the following :-

-: J U D G M E N T :-

1.The Sub-Inspector of Police, P.S. Toopran has filed the charge sheet against the accused No.1 to 3 for the offence punishable under section 324 r/w 34 of IPC.

2.The brief facts of the case are that on 17.12.2016 at 08:00 hours, the defacto complainant PW1/Sri Abothu Radhamma, came to police station and lodged a telugu written report, in which she stated that on the night of 16.12.2016 at about 9:00 PM, her villagers ie., A1 to A3 went to her house and beat her and her sons PW2 & 3 with sticks, on the of paddy fields share, due to which all three sustained bleeding injuries.

She requested to take necessary action against accused No. 1 to 3.

Prl. JCJ-cum-JMFC, Gajwel2CC No. 02/2017 3 (i).Basing on the report, PW7/S.I. Toopran registered a case in Crime No.

375/2016, under section 324 r/w 34 of IPC and took up the investigation. During the course of investigation, PW7 examined and recorded the statements of PW1 to 3/injured at police station, and sent them to Sushma Hospital, Toopran for treatment.

Later PW7 visited the scene of offence and conducted scene of offence-cum-seizure panchanama and drafted the rough sketch in the presence of PW4 & 5 and seized two sticks under the cover of panchanama, and also examined and recorded the statement of PW8.

(ii).During the course of investigation on 22.12.2016, PW7 issued notice U/s 41(A) of Cr.PC to the accused No.1 to 3 with a instructions to produce sufficient sureties. All the accused produced sureties before PW7, he verified the documents and released them on bail on furnishing sureties. After receiving the medical certificate from PW6 and after completion of entire investigation PW7 filed charge sheet.

4.Cognizance for the offence under section 324 r/w 34 of IPC is taken against the accused No.1 to 3.

5.On appearance of the accused/A1 to A3, they are furnished with the copies of documents as contemplated under section 207 Cr.P.C.

6.Accused/A1 to A3 are examined under section 239 Cr.P.C., for which they denied the accusation, then a charge under Section 240 Cr.P.C., for the offence U/Sec.

324 r/w 34 of IPC is framed, read over and explained to them, for which they pleaded not guilty and claimed to be tried.

7.In support of its case, the prosecution has examined PW1 to 8 and got marked

Ex.P1 to P14 and MO1 & MO2.

Prl. JCJ-cum-JMFC, Gajwel3CC No. 02/2017

8.After closure of prosecution evidence, all the accused are examined U/sec. 313

Cr.P.C by explaining the incriminating substance appearing in the evidence of prosecution witnesses for which they denied and reported no defence evidence.

9.Heard the arguments on both sides and perused the material on record.

10.Now the point for consideration is :- “Whether the prosecution has proved the guilt of the accused No.1 to 3 for the offence punishable under section 324 r/w 34 of IPC, beyond all reasonable doubt?

POINT :-

Evidence on Record in brief:-

11.PW1 who has set the law in to motion by lodging Ex.P1 deposed before this court that A1 to A3 beat her and her sons 1 ½ year back. On the same day of the incident, during morning time her son attended the work at his agricultural field and at that time all the accused kept silent. Later when they returned to the house, accused

No.1 beat her, accused No.2 her elder son and accused No.3 beat her younger son. It was also deposed that her elder son was beaten with stick and herself and her younger son were beaten with hands. Later they went to police station and lodged report against A1 to A3.

12.PW2 who is one of the injured deposed that on 16.12.2016 during night time A1 to A3 beat him when he went to rescue his mother/PW1. He further deposed that accused No.1 to 3 beat him with stick on his right chest.

13.The another injured and son of the PW1 deposed that on 16.12.2016 at about 9:00 PM the incident took place, PW2 is his brother and himself and PW2 have done ridge in their agricultural land during the daytime and when theyretgurned home at night, accused/A1 to A3 came to their house and abused them. PW1 asked them as

Prl. JCJ-cum-JMFC, Gajwel4CC No. 02/2017 to why they are abusing upon which A1 toA3 beat PW1. When PW2 & PW3 tried to rescue A1 to A3 beat them also. A1 to A3 beat PW2 with sticks and A1 to A3 beat him and PW1 with hands. Later they all went to police station and at the police station they were referred to Gajwel Govt. hospital for treatment. PW3 also deposed that though they were referred to Gajwel Govt. hospital they took treatment in Susma hospital and again went to Gajwel Govt. hospital.

14.The circumstantial witness PW8 deposed before this court that he know PW1 and he also know that PW1 has filed a case 2 years aback against A1 to A3 as there was a quarrel. PW8 deposed that he did not see who beat whom but he deposed that he has pacified the situation when PW1 and A1 to A3 were quarreling.

15.The mediators for Scene of offense cum seizure panchanama/PW4 & PW5 both have not supported the case of prosecution and they have turned hostile.

16.The doctor who treated PW1 to PW3 got examined as PW6. He deposed that on 16.12.2016 he treated PW1 and found Laceration over the hand of PW1 which were due to a stick (as per the opinion) and pain over the neck and head. He further deposed that he treated PW2 on the same day and he found Laceration over the left shoulder and pain over both shoulders and back. Later he deposed that on the same day he also treated PW3 and opined that PW3 sustained laceration over both hands and there was also complaint of pain over left side of head. Finally he deposed that all the injuries sustained by PW1 to 3 are simple in nature.

17.The other witness who got examined is PW7, the investigation officer. He deposed before this court right from receiving the complaint under Ex.P1, conducting scene of offence, rough sketch, seizing MO1 & MO2 etc., till filing of the charge sheet.

Prl. JCJ-cum-JMFC, Gajwel5CC No. 02/2017

Appreciation of Evidence:

18.For the prosecution to bring home the guilt of A1 to A3 U/s 324 r/w 34 IPC, it has to prove that A1 to A3 with common intention caused injury to PW1 to 3. Further that the weapon used by them is a dangerous weapon as described U/s 324 IPC. PW1 to 3 all together testified that A1 to A3 have come to their house during night time and beat them. While narrating the incident all PW1 to 3 have consistently stated that regarding the ridge between the agricultural land of A1 to A3 and their agricultural land there was a dispute, and upon the same issue A1 to A3 came to their house and beat them. The learned counsel for A1 to A3 has taken a defence by way of suggestion, while cross examining PW3 that no such incident as alleged by the prosecution has taken place and that the injuries sustained by PW1 to 3 were due to an accident which PW1 to 3 met while going to Revalli village on a motor cycle and when the motor cycle was hit by a car. However such suggestion was denied by PW3. It is argued by the learned counsel for A1 to A3 that because of enmity between PW1 to 3 and A1 to A3 a false story is created and a false case is foisted against A1 to A3.

19.It is the fact that there are disputes between the parties relating to land, but PW8 who is an independent witness in this case has deposed that 2 years ago PW1 lodged a report and that there was a quarrel between PW1 and A1 to A3. It is also deposed by this witness that he went there but he did not see who beat whom. However he has warned them and pacified the situation. The learned counsel for A1 to A3 did not choose to cross examine PW8. Thus PW8’s evidence could not be disproved. From the evidence of PW8 it is clear that some quarrel took place between the parties and therefore the contention of learned counsel for A1 to A3 that no incident has alleged by the prosecution took place cannot be believed.

20.The oral evidence of PW1 to 3 disclosed that A1 to A3 beat PW2 with sticks and beat PW1 & 3 with hands. The oral evidence of PW2 is that he sustained injury near his right chest area. The doctor/PW6 who examined PW2 after treating PW2 has

Prl. JCJ-cum-JMFC, Gajwel6CC No. 02/2017 given an opinion under Ex.P6. On perusal of Ex.P6 there is discrepancy with regards to the body part where PW2 sustained injury. Ex.P6 discloses laceration on left shoulder of PW2 and complaint of pain over both shoulders and back. It is quite obvious that when a person is beaten by the sticks, definitely there might have been several blows, and it could not have been a single blow. So the discrepancy in the evidence of PW2 for not being able to mention the correct body part in corroboration with Ex.P6 shall not be considered as vital so as to discard the remaining evidence on record. In this case PW6 also deposed regarding treating of PW1 & PW3 on the same day. Both PW1 & PW3 sustained lacerations which are minor on their hands. It appears that while defending themselves from blows of sticks they might have sustained injuries on their hands. Small discrepancy in the evidence of PW1 & PW3 that they have been beaten by hands shall also not be considered as vital.

21.The oral evidence of PW1 to 3 coupled with the circumstantial witness evidence that is PW8 goes to establish that an assault by A1 A3 on PW1 to 3 actually occurred.

Whereas the evidence of PW1 to 3 coupled with the evidence of PW6 and Ex.P5 to P7 established that all PW1 to 3 sustained simple injuries. Further there is corroboration received from PW7 regarding lodging of Ex.P1, registering of FIR without delay. The learned counsel for A1 to A3 argued that the alleged incident took place on 16.12.2016 and the report, FIR are dated 17.12.2016 and the medical requisition is dated 16.12.2016. Its true that report is dated 17.12.2016 however it is not a delay to discredit the case of prosecution because the incident took place at 9:00 PM on 16.12.2016. And the delay is less than 24 hours which is not a major delay. Infact on perusal of Ex.P1 there is a correction at the date, 16 is corrected as 17. Moreover regarding the same the learned counsel for A1 to A3 could not elicit anything in his favour while cross examining the PW1 who lodged the report or PW7 who registered

FIR and investigated the case.

22.Coming to the weapon used in this case. The mediators before whom the sticks have been alleged to be seized have turned hostile and the sticks/MO1 & MO2 are

Prl. JCJ-cum-JMFC, Gajwel7CC No. 02/2017 marked through PW7 who is the investigation officer and who conducted scene of offence cum seizure panchanama/Ex.P9. MO1 & MO2 are two sticks of 1 ½ gajam length and they neither fall under the category of instrument for shooting, stabbing or cutting nor fall under the category of an instrument which is likely to cause death because the injuries sustained by PW1 to 3 are not on vital parts. PW1 & PW3 only sustained laceration on hands and PW2 sustained laceration on shoulder. Hence keeping in view the above discussion this court is of opinion that the present case does not attract sec 324 IPC and therefore sec 324 IPC is altered to Sec. 323 IPC.

23.In the light of above discussion in the prosecution could prove the guilt of the accused No.1 to 3 under section 323 r/w 34 IPC.

24.In the result accused/A1 to A3 are found not guilty for the offence punishable under/sec 324 r/w 34 IPC and accused/A1 to A3 are found guilty for the offence punishable under/sec 323 r/w 34 IPC and accordingly, accused/A1 to A3 are convicted u/sec. 255 (2) Cr.P.C. for the offence U/sec. 323 r/w 34 IPC. In this case, the prosecution deposited MO-1 and MO2 (2 sticks) vide CPR.No.2/15/2017. The material object (MO1 and MO2) shall be destroyed after expiry of appeal time.

Typed to dictation by the Stenographer, corrected and pronounced by me in the open court on this the 05 th day of July, 2019.

I Addl. Junior Civil Judge -cum- I Addl. JMFC, Gajwel. FAC : Principal Junior Civil Judge –cum- JMFC, Gajwel.

25.Heard the accused/A1 to A3 on the quantum of sentence for the offence punishable under section 323 r/w 34 IPC for which they pleaded to take a lenient view as A1 and A2 are having children and wife and that they have to look after them. A3 pleaded that he has wife and parents to look after.

Prl. JCJ-cum-JMFC, Gajwel8CC No. 02/2017

26.Having considering the facts and circumstances of the case such as, even on the excuse that there are land disputes between the parties, one cannot be expected to harm another in person or property, this court is of the view that it is not a fit case to extend the benefit under section 4 of Probation of offenders Act, 1958 to accused. However the submission of accused/A1 to A3 that they have family to look after is considered to take a lenient view to strike some balance while awarding quantum of sentence to accused/A1 to A3.

27.Hence, accused/A1 to A3 are sentenced to pay a fine of Rs. 1,000/- each (Rupees One thousand only), in total Rs. 3,000, in default to pay the fine, the person in default shall undergo simple imprisonment for a period of 2 days, for the offence u/sec. 323 r/w 34 IPC.

28.Accused/A1 to A3 are intimated about their right to prefer an appeal

before the Hon’ble Appellate court against this Judgment. The copy of this Judgment is

supplied to the accused/A1 to A3 at free of cost.

Typed to dictation by the Stenographer, corrected and pronounced by me in the open court on this the 05 th day of July, 2019.

I Addl. Junior Civil Judge -cum- I Addl. JMFC, Gajwel. FAC : Principal Junior Civil Judge –cum- JMFC, Gajwel.

APPENDIX OF EVIDENCE

Witnesses examined for

PROSECUTION: PW1: Abothu Radhamma/ Defacto complainant

PW2: Abothu Nagaraju/ Injured / Eye Witness

PW3: Abothu Shiva Kumar/ Injured / Eye Witness

PW4: Chitti Nagi Ramchandra Reddy/ mediator for scene cum seizure panchanama

PW5: Nakkalapally Mahender/ mediator for scene cum seizure panchanama

Prl. JCJ-cum-JMFC, Gajwel9CC No. 02/2017

PW6: Dr. T. Pradeep Simha, Medical Officer

PW7: N. Venkatesh, Investigation Officer

PW8: Abothu Pochamallu/ Cir-Witness

DEFENCE

None

EXHIBITS MARKED FOR

PROSECUTION :-

Ex.P1 : Report lodged by PW1 at PS Toopran

Ex.P2 : Signature on scene-cum-seizure panchanama by PW4

Ex.P3 : Signature on rough sketch by PW4

Ex.P4 : Signature on scene-cum-seizure panchanama by PW5

Ex.P5 : Signature on rough sketch by PW5

Ex.P5 : Medical certificate of PW1 (marked as Ex P5 due to over sight)

Ex.P6 : Medical certificate of PW2

Ex.P7 : Medical certificate of PW3

Ex.P8 : First Information Report

Ex.P9: scene of offence cum seizure panchanama

Ex.P10: Rough sketch

Ex.P11: Notice U/s 41(A) of Cr.PC to accused/A1 to A3.

Ex.P12 to 14 are Medical requisitions of PW1 to 3.

DEFENCE

-- Nil --

MATERIAL OBJECTS

MO1 & 2 are two sticks.

I Addl. Junior Civil Judge -cum- I Addl. JMFC, Gajwel. FAC : Principal Junior Civil Judge –cum- JMFC, Gajwel.

1

IN THE COURT OF THE ADDL. JUNIOR CIVIL JUDGE-CUM-

ADDL.JUDL.MAGISTRATE OF FIRST CLASS :: AT GAJWEL.

PRESENT: SMT. E. SUCHARITHA,

Addl. Junior Civil Judge-Cum-Addl. Judicial

Magistrate of First Class, Gajwel.

Monday the 06 th day of July, 2020

C.C. No. 275 of 2018

(Old CC No. 25/2018)

(Cr.No. 63/2017 of P.S. Doulthabad)

Between:-

The State of Telangana, Represented by Sub Inspector, P.S. Doulthabad ….Complainant

A N D

A1.Dappu Pochaiah @ Helper Pochaiah, Aged: 50 years, Caste: SC-Madiga, Occ: Agriculture, R/o Dommata village, Doulthabad Mandal.

A2.Dappu Parsharamulu, S/o Pochaiah, Aged: 27 years, Caste: SC-Madiga, Occ: Sub- Station Operator, R/o Dommata village of Doulthabad Mandal.

A3.Edannagari Simhachalam, S/o Narsimulu, Aged: 25 years, Caste: SC- Madiga, Occ: Student, R/o Dommata village, Doulthabad Mandal ….Accused.

This case is coming before me for final hearing on 01.06.2020 in the presence of learned Incharge Asst. Public Prosecutor for the State, and Sri S. Yellaiah and Sri N. Sudharshan counsel for the accused/A1 to A3, upon perusal of the material papers, upon hearing the arguments and having stood over for consideration till this day, this court delivered the following:-

-:: J U D G M E N T ::-

1.The Sub-Inspector of Police, P.S. Doulthabad filed the charge sheet against the accused/A1 to A3 for the offence punishable under sections 447,353, 290 r/w 34 IPC.

2.The brief facts of the prosecution case are as follows: The law was set into motion on the report lodged by defacto complainant/PW1. The then

Thasildhar of Doulthabad Mandal on 16.09.2017. The accusation was that, as per the instruction of District collector, Siddipet an extent of Ac. 1.10 guntas in

Sy. No. 567 at Dommata village was identified by Pw1 for constructing double 2 bed room houses and the said identified land was government land. Later the identified land was handed over to PW2/Assistant Engineer (PR) on 17.03.2017 under panchanama. Accordingly PW2 took possession and started work. On 16.09.2017 A1 to A3 obstructed the work of PW2 and PW3/Revenue Inspector

Doulthabad and created nuisance by criminally trespassing into the said land. As such PW1 lodged Ex.P1/(report before P.S Doulthabad) for further action.

3.Based on Ex.P1, Pw8 registered a case under section 447, 353, 290 r/w 34 IPC against A1 to A3 with crime No. 63/2017 i.e., under Ex. P10 (FIR).

During the course of investigation PW8 examined and recorded the statement of

Pw1 to Pw4 (Pw4 is the village revenue officer). On 17.09.2017. Pw8 also conducted scene of offence panchanama in the presence of mediators Pw6 and

Pw7. Further Pw8 examined and recorded the statement of Pw5 who is

Dommata village servant. On completion of investigation Pw8 filed charge sheet.

4.Cognizance is taken by Judicial Magistrate of First Class cum

Special Mobile court, at Medak for the offence under section 447, 353, 290 r/w 34 IPC against A1 to A3 and numbered as CC 25/2018. At this stage, this case was transferred to this court as per the orders of Honorable District Court vide

Dis. No.482/2018., dated 07-02-2018 and numbered as CC.No. 275 of 2018. On appearance of the accused/A1 to A3, they are furnished with the copies of documents as contemplated under Section 207 Cr.P.C.

5.Accused/A1 to A3 are examined under Section 239 Cr.P.C., for the offences punishable U/ss 447, 353 r/w 34 IPC and they denied the accusation, then a charge under Section 240 Cr.P.C., for the said offence is, framed, read over and explained to them for which they pleaded not guilty and claimed to be tried. Erroneously this court framed charge u/sec 240 Cr.P.C instead of examination and oral explanation of the charge u/sec 251 Cr.P.C.

3

6.In support of its case, the prosecution examined PW1 to PW8 and got marked Ex.P1 to Ex.P12.

7.After closure of prosecution evidence, the accused/A1 to A3 are examined U/sec. 313 Cr.P.C by explaining the incriminating substance appearing in the evidence of prosecution witnesses for which they denied and reported no defence evidence.

8.Heard the arguments on both sides and perused the material on record.

9.Now the point for consideration is;- “Whether the prosecution has proved the guilt of the accused/A1 to A3 for the offence punishable U/ss 447, 353 r/w 34 IPC beyond all reasonable doubt?

ANSWER TO THE POINT:

10.To prove the guilt of the accused/A1 to A3 under section 447, the prosecution should prove the following ingredients:

a)That the property that is Ac 1.10 gts in Sy. No.567 was the government property or was in possession of government.

b)That A1 to A3 entered into such property.

c)That such entry was with an intention to commit an offence or to intimidate, insult or annoy any person in possession of the property.

11. Now lets see whether prosecution adduced evidence to prove these essential ingredients;

a)That the property that is Ac 1.10 gts in Sy. No. 567 was the government property or was in possession of government: It is the case of the prosecution that the alleged property was government land and upon the

Dist. Collector instructions it was identified for the purpose of constructing 4 double bed room houses. PW1 who lodged Ex. P1 deposed before this court that Sy. No. 567 at Dommata village was to a total extent of Ac 2.26 guntas and that out of it Ac. 1.10 guntas was identified for double bed room houses construction. He deposed that after conducting measurement of Ac 1.10 guntas land the panchanama was prepared and given to Pw2 in the month of March- 2017.The other witness PW2 deposed that in the month of February-2017

Government as given sanction for constructing double bed room houses at

Dommata village. Accordingly PW1 identified Ac. 1.10 guntas in Sy. No. 567 at

Dommata village for the purpose of double bed room houses construction and at the time of identifying the land a panchanama was conducted. Further that four days prior to the alleged date of offence he marked plots for twenty houses. PW3 and PW4 both corroborated the evidence of PW1 and PW2 regarding identifying

Ac. 1.10 guntas land in Sy. No. 567 at Dommata village for the purpose of constructing double bed room houses. They also corroborated the evidence of

Pw1 and Pw2 regarding conducting panchanama and handing over land to PW2 for the purpose of construction. On record there is oral evidence of PW1 to PW4 that Ac 1.10 gts land was government land and it was handed over to PW2 for double bedroom house construction purpose. Now the question is whether such oral evidence is sufficient. It is the contention of learned counsel for A1 to A3 that all the prosecution witnesses are public servants and no villager of Dommata have been examined by PW8 and further PW8 himself admitted that he has not made investigation as to”to whom the alleged property belongs to”. As rightly argued by the learned counsel for accused apart from such admission by PW8 the admission by PW2 that “the members who gathered stated that the land was already alloted to them and that why we were constructing building” and other similar admissions by prosecution witnesses shows that there is dispute between government and Sc caste people regarding the alleged identified land. As such under such circumstances this court considers that the oral evidence of PW1 to

PW4 who are public servants needs corroboration. Prosecution failed to adduce any documentary evidence to show that the alleged property was government land and to that effect even PW1 and PW8 made admissions that they have not 5 filed any document to show that the property belongs to government. Neither the witness PW1 nor the investigation officer Pw8 have brought on record any document which shows that the land which is alleged to be criminally trespassed by A1 to A3 belongs to the Government. Though all the material witnesses stated that a panchanama was conducted and Ac. 1.10 guntas of land was measured and handed over to PW2 for the purpose of constructing houses, no such panchanama has been brought on recored by the prosecution. Infact PW1 during his cross examination stated Ex. P2 is the panchanama which shows that in the month of March 2017 Pw1 has measured and handed over land to an extent of Ac. 1.10 guntas in Sy. No. 567 to PW2, but perusal of Ex. P2 discloses the contents as follows;” Upon the instructions of Tahasildar, Doulthabad I the

Revenue inspector/PW3 inspected Sy. No. 567 and noted that it is to an extent of Ac 2.26 guntas and around 35 years back the Government has sanctioned that land for house constructions and among it, to an extent of 1.16 guntas houses have been constructed and the remaining Ac. 1.10 guntas is left empty, since

Ac. 1.10 guntas is empty the same has been observed and surveyed and handed over to PW2 for construction of double bed room houses and that PW2 also marked it (Muggu kuda vesaru). Further that accused/A1 to A3 along with few woman came to the said Ac. 1.10 gts land and obstructed the public servants from doing their duties. Therefore it is requested that PW1 shall take appropriate action”. Which means that Ex. P2 is not panchanama conducted for measuring the land and giving it to Pw2. But in fact it is a report given to Pw1 by

PW3 after the alleged offence. The said report Ex. P2 do not mention any date of reporting the same and also any date of alleged offence. Therefore it is clear that on record there is no document to show the alleged sanction by collector, alleged panchanama identifying and measuring the land, and alleged handing over of the same to PW2 under said panchanama. Hence this court holds that prosecution failed to prove the first ingredient of section 447 IPC.

b)That A1 to A3 entered into such property: Regarding the presence of A1 to A3 at the alleged time of offence the evidence on record as 6 follows: PW1 deposed that through PW2 he came to know that A1 to A3 came and obstructed the work. As seen it is hearsay evidence. Further PW1 admitted that he was not present at the time when the work was obstructed. Coming to

PW2 and PW3, both stated that there were 15 people gathered. PW2 clearly said that he do not know the names of persons who gathered and also he cannot identify them. Where as PW3 stated that all the 15 members who came to the said land and obstructed the work were all woman. Hence through these two crucial witnesses who are alleged by the prosecution to have been present at the time of offense, the prosecution failed to establish that A1 to A3 entered the property. The evidence of PW1 is not reliable being hearsay evidence. Coming to

PW4, this witness deposed that A1 to A3 obstructed work by saying that the land belongs to them. Apart from this he stated that Sc caste people raised huts in the identified land and that around 10 huts were raised at the identified land. Had this been true what precluded the defacto complainant from mentioning the same.

Further though PW3 stated that the entire incident was recorded and video was handed over to PW1, neither Pw1 nor the investigation officer PW8 have mentioned about it. If really the incident has been recorded what precluded PW1 from filing the same before this court. There are many discrepancies in the evidence of material witnesses. Above all PW4 admitted in the cross examination that on the alleged date of crime there were only three persons i.e., A1 to A3, which is contrary to PW2 and PW3 version of presence of 15 people. Such evidence of PW4 needs corroboration and is not reliable without any corroboration. Accordingly the prosecution also could not establish this ingredient.

c)That such entry was with an intention to commit an offence or

to intimidate, insult or annoy any person in possession of the property.

It is the allegation that A1 to A3 obstructed the work of public servant which is a ingredient to be proved both under section 447 IPC and section 353 IPC. Except for the allegation that A1 to A3 obstructed the work of PW2, regarding the exact nature of obstruction nothing is stated by the witnesses. There is no mention of 7 assault, use of criminal force or insult, or intimidation by the witnesses, it is only stated by the prosecution witnesses that the persons who came to the alleged land stated that the land belongs to them and that double bed room houses constructions cannot be taken up. As such, such act do not amount to any offence either under 447 and 353 IPC. Even otherwise in the present case the prosecution could not establish the above discussed ingredients that the alleged land belongs to government and that it was specifically A1 to A3 only who entered in to the alleged land with intention to commit offence.

12.Further PW5 who is cited as eye witness did not support the prosecution case and stated that Doulthabad constable called him to grampanchayath office and there he was asked to call A1 to A3 ,further that he do not know anything else. Even the mediators to scene of offence panchanama and rough sketch turned hostile. In the light of above discussion this court also holds that prosecution also failed to prove the ingredients of section 353 IPC.

13. For the foregoing reasons, there is no material in proving the ingredients of Sections 447, 353 r/w 34 IPC against A1 to A3. Therefore, A1 to

A3 are entitled for acquittal.

14.In the result, accused/A1 to A3 are found not guilty for the offence punishable U/ss 447, 353 r/w 34 IPC and they are acquitted under Section 255(1) Cr.P.C. The bail bonds of the accused A1 to A3 shall stand cancelled and sureties are discharged after expiry of appeal time.

Dictated to the Stenographer, transcribed and typed by her, corrected and

pronounced by me on this the 06 th day of July, 2020.

ADDL. JUDL. MAGISTRATE OF FIRST CLASS

GAJWEL.

APPENDIX OF EVIDENCE

8

Witnesses examined for

PROSECUTION: PW.1- Vijayaprakash Rao/MRODefacto complaint

PW.2- Moturi Venkata Durga Prasad/Assistant Engineer Eye witness

PW.3- Md. Zahir Muniroddin/Revenue inspectorEye witness

PW.4-Kaboji Nagesh/VROEye witness

PW.5- Karige Nagulu/village servantEye witness

PW.6- Kanuganti Raja NarsimuluPanch for scene of offence

PW.7-Edannagari NarsimuluPanch for scene of offence

PW.8-M. SwamyInvestigation officer

DEFENCE

-None-

EXHIBITS MARKED FOR

PROSECUTION:

Ex.P1is the report lodged at PS. doulthabad Ex.P2 attested copy of panchanama Ex.P3 is the 161 Cr.PC statement of PW2 Ex.P4 is the 161 Cr.PC statement of PW3 Ex.P5 is the 161 Cr.PC statement of PW5 Ex.P6is the signature of Pw6 on scene of offence panchanama

Ex.P7is the signature of Pw6 on rough sketch

Ex.P8is the signature of Pw7 on scene of offence panchanama

Ex.P9is the signature of Pw7 on rough sketch Ex.P10is the FIR Ex.P11is the scene of offence panchanama Ex.P12is the rough sketch

DEFENCE

NIL

MATERIAL OBJECTS

Nil

ADDL. JUDL. MAGISTRATE OF FIRST CLASS

GAJWEL.

9 1

CALENDAR AND JUDGMENT

Calendar cases tried by the Addl. Judicial Magistrate of First Class cum- Addl.

Junior Civil Judge, Gajwel.

_________________________________________________________________ Date of Offence: 16.09.2017

Date of report or complaint: : 16.09.2017

Date of apprehension of accused: 17.09.2017

Date release on bail, if any: 13.11.2017

Date of commencement of trial: 03.04.2020

Close of trial: 11.03.2018

Date of sentence or other order: 06.07.2020

Explanation of delay and remarks: The case underwent several adjournments, due to delay in examining accused and presenting prosecution witnesses. ________________________________________________________________ Calendar and Judgment in C.C.No.275/2018 on the file of the Addl. Judicial Magistrate of First Class cum- Addl. Junior Civil Judge, Gajwel.

Complainant : State represented by the Sub Inspector of Police, Doulthabad Police Station _________________________________________________________________ Name of the accused Age Father’s name

A1.Dappu Pochaiah @ Helper Pochaiah, Aged: 50 years, Caste: SC-Madiga, Occ: Agriculture, R/o Dommata village, Doulthabad Mandal.

A2.Dappu Parsharamulu, S/o Pochaiah, Aged: 27 years, Caste: SC-Madiga, Occ: Sub- Station Operator, R/o Dommata village of Doulthabad Mandal.

A3.Edannagari Simhachalam, S/o Narsimulu, Aged: 25 years, Caste: SC- Madiga, Occ: Student, R/o Dommata village, Doulthabad Mandal ------------------------------------------------------------------------------------------------------------ Offence: u/sec U/ss 447, 353 r/w 34 IPC

Finding: Not guilty

Sentence: In the result, accused/A1 to A3 are found not guilty for the offence punishable U/ss 447, 353 r/w 34 IPC and they are acquitted under Section 255(1) Cr.P.C. The bail bonds of the accused A1 to A3 shall stand cancelled and sureties are discharged after expiry of appeal time.

ADDL.JUDICIAL MAGISTRATE OF FIRST CLASS CUM

ADDL. JUNIOR CIVIL JUDGE, GAJWEL.

1 1 1 1 1 1 1 1 1 2 2 2 2 2