Sri T.Vasudevan

C.C. No.21 OF 20181 of 16IV AJMFC, NELLORE

IN THE COURT OF THE IV ADDL. JUDICIAL MAGISTRATE

OF I CLASS, NELLORE.

Present: Sri T. VASUDEVAN,

IV Addl. Judicial Magistrate of First Class,

Nellore.

Monday, the 23rdday of APRIL, 2018.

alenderC Case No. 21 OF 2018

Between:-

Sk.Ismail, S/o Sattar Saheb, Aged about 53 years Door No.26-2-989, 7th cross road, Teachers colony, Nellore City, SP.S.R., Nellore District … Complainant.

And.,

Sk.Mohammad @ Tiger Mohammad, W/o Abdul Saheb, Aged about 45 years, Painter in APSRTC Depot-II, at Nellore, Nellore City. … Accused. SP.S.R., Nellore District

This case is coming on 03-04-2018 for disposal before me in the presence of Sri M.Krishnudu - Advocate for the complainant and of Sri Galla Venu - Advocate for the accused and upon hearing both sides, and on perusing the material on record and he matter having stood over for consideration till this day, and this court delivered the following:-

J U D G M E N T

1. This is case arising out of the complaint filed u/sec 200 Cr.P.C., by the complainant for the offence punishable u/sec 138 of Negotiable Instrument Act 1881.

2.COMPLAINANT CASE

The case of the complainant as per the contents contained in the complaint are as follows:-

The Complainant/Sk.Ismail, and the accused are residents of Nellore City and both are relatives, got acquittance with each other . In view of the

C.C. No.21 OF 20182 of 16IV AJMFC, NELLORE relationship, the accused used to avail loans from the complainant as and when required, later re-paid some of them. Accordingly, the accused indebted

Rs.1,80,000=00, therefore on demand of complainant the accused got issued a cheque on 29-01-2015 bearing No.080126 for Rs.1,80,000=00 drawn at State

Bank of India , Rameshreddy Nagar branch, Nellore.

i) Subsequently, the complainant presented the cheque for collection through his banker State Bank of India, Nellore on 30-01-2015 but the same was dishonoured on the ground that the FUNDS in the account of the accused are INSUFFICIENT to honour the cheque, accordingly the cheque was returned on 30-01-2015. Immediately the complainant got issued a legal notice on 13-02- 2015 to the residential and business addresses of the accused calling the accused to pay the debt and informed the dishonour of the cheque. Accused having knowledge of the same avoided notice by not claiming it, therefore the accused is liable for punishment u/sec 138 of Negotiable Instrument Act. Under these circumstances, the complainant prayed to punish the accused for the offence punishable u/sec 138 of Negotiable Instrument Act.

3.DEFENCE-

On careful consideration of the evidence of Complainant/P.W-01 and accused statements both under Sec.251 and 313 of Cr.P.C., it discloses the plea of the accused as “ the accused never borrowed any amount from the complainant and not issued the cheque in dispute but all these documents are fabricated and created one. In fact the accused availed Rs.60,000=00 from the complainant under a promissory note, for which a civil Suit O.S. No.499 of 2015 was instituted, decreed and execution petition is pending on the file of learned

III Addl. Junior Civil Judge, Nellore, by that time of executing promissory note accused handed over the cheque in dispute as security as blank cheque, subsequently the complainant fabricated the cheque as if it was pertaining to

C.C. No.21 OF 20183 of 16IV AJMFC, NELLORE money transaction took place in the year 2015, therefore there is no legally enforceable debt under Ex.P1/cheque , hence prayed to acquit him.

4. COGNIZANCE.

After careful perusal of material on record i.e., the complaint, sworn statement and documents, Cognizance for the offence Punishable Under

Section 138 r/w 142 of Negotiable Instrument Act, 1882 was takenagainst the accused.

5.On appearance of the accused, relevant copies of documents were furnished to the accused as contemplated Under Section 207 of Cr.P.C.

6. EXAMINATION OF ACCUSED BEFORE TRAIL

Examined the accused as required Under Section 251 of Cr.P.C and the allegations for the offence Punishable Under Section 138 of Negotiable

Instrument Act are read over and explained to the accused in Telugu, for which the accused pleaded not guilty and claimed to be tried.

7. PROSECUTION EVIDENCE

During the trail, the complainant/Sk.Ismail in order to prove his case, himself deposed as PW1 by producing Exs.P1 to P-04 documents. Ex. P-01 is the cheque in dispute. Ex. P-02 is the cheque returned memo, Ex. P-03 is the office copy of legal notice and Ex. P-04/returned registered post covers. To substantiate the defence of the accused/Sk.Mohammad, he cross-examined P.W- 01.

C.C. No.21 OF 20184 of 16IV AJMFC, NELLORE

8. EXAMINATION OF ACCUSED AFTER TRIAL

After closure of complainant side evidence, this Court examined the accused as required Under Section 313 of Cr.P.C and explained the incriminating evidence found against him in the evidence adduced by the complainant, for which the accused denied the same, reported no defence evidence. Upon completing evidence on both sides, in obedience to Sec. 437-A of Cr.P.C., bail bonds as required are obtained from the accused.

9.ARGUMENTS:

Learned counsel for the complainant submitted that, oral evidence of Pw1 is well supported by the contents in the documents and discloses the case of the complainant beyond reasonable doubt against the accused. Since the accused admitted his signature in Ex.P1 cheque, it’s execution for legally enforceable debt u/s 139 of N.I. Act can be presumed and the presumption available u/s 118 of Negotiable Instrument Act will assist the complainant since the complainant discharged initial burden to prove the contents in Ex.P1 cheque, hence prayed to convict the accused by awarding compensation under Sec.357 of

Cr.P.C.

Learned counsel for the accused submitted that admissions of Pw1 are itself discloses that P.W-01 had no capacity to advance such a huge amount as debt and the documents Ex. P-01 cheque being fabricated document need to be proved as genuine by obtaining expert opinion, but the complainant failed to do so, thereby failed to prove his case by discharging his burden. By considering all these aspects and the evidence placed before this court in the form of cross- examination of the complainant , prayed to acquit the accused by giving benefit of doubt since the complainant failed to prove his case.

C.C. No.21 OF 20185 of 16IV AJMFC, NELLORE

10.Now the points for determination is:

1) Whether there was legally enforceable debt under Ex.P1 cheque in between the complainant and accused as on the date of Ex.P1 cheque?

2) Whether the complainant proved the guilt of the accused beyond all reasonable doubt for the offence punishable u/sec 138 of Negotiable Instrument Act?

11.POINT :-

Since this prosecution arose out of complaint filed by the complainant, the initial burden is upon the complainant to prove his case in order to get the benefit of the presumptions available under Negotiable

Instrument Act. The complainant /Sk.Ismail, in order to discharge his burden, himself deposed as PW1 as well as produced Ex.P-01 to P-04/documents. To probablize defence and to rebut the presumption, the accused cross-examined

P.W-01.

12LAW/PROVISION:-

The complainant who preferred this complaint under sec. 200 Cr.P.C, has to establish the essential ingredients for the offence u/sec 138 of Negotiable

Instrument Act and the requirements under section 142 of Negotiable

Instrument Act in order to get the presumptions available u/sec 118, 139 and 146 of Negotiable Instrument Act. Sec.138 and 142 of Negotiable Instrument

Act deals with the essential requirements for the offence punishable u/sec 138 of

Negotiable Instrument Act. Sec.146 of Negotiable Instrument Act deals with presumptions on banker's slip.

138. Dis-honour of cheque for insufficiency, etc., of funds in the account :_

C.C. No.21 OF 20186 of 16IV AJMFC, NELLORE

Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both :

Provided that nothing contained in this section shall apply unless,

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;

and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

142. Cognizance of offences :- Notwithstanding anything contained in the Code of Criminal Procedure, 1973,--

(a) no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138;

(c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138.

The presumptions available under the provisions of Negotiable Instrument Act available in favour of holder to a Negotiable Instrument /cheque are u/sec 118, 139 and 146 of the Act.

118. Presumptions as to negotiate instruments :_ (a) of consideration;

(b) as to date; (c) as to time of acceptance; (d) as to time of transfer; (e) as to order of indorsements; (f) as to stamp; (g) that holder is a holder in due course :_Until the contrary is proved, the following presumptions shall be made :_

(a) that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;

C.C. No.21 OF 20187 of 16IV AJMFC, NELLORE

(b) that every negotiable instrument bearing a date was made or drawn on such date;

(c) that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;

(d) that every transfer of a negotiable instrument was made before its maturity;

(e) that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;

(f) that a lost promissory note, bill of exchange or cheque was duly stamped;

(g) that the holder of a negotiable instrument is a holder in due course; provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.

139. Presumption in favour of holder :_ It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.

146 of N.I.Act: Bank’s slip prima facie evidence of certain facts:-The

Court shall, in respect of every proceedings under this chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonored, presume the fact of dishonor of said cheque unless and until such fact is disproved.

13. DISCUSSION

On plain reading of section 138 r/w 142 of Negotiable Instrument act as referred above, it is clear that the complainant has to establish the following essential ingredients in order to get conviction against the accused for the offence u/sec 138 of Negotiable Instrument Act in a case of dishonor of cheque like this. Those essential ingredients as follows:-

1) There should be a cheque drawn by the accused from the account maintained by him with his banker.

C.C. No.21 OF 20188 of 16IV AJMFC, NELLORE

2) The cheque should be issued for the discharge of any whole or any part of debt or other liability.

3) The said cheque is to be presented to the bank within the statutory period of three months by the complainant for collection.

4) The said cheque is to be returned, unpaid either because of the amount in the credit of accused account is insufficient to honour the cheque or it exceeds the amount arranged to be paid under that account by an agreement made with the bank.

5) The complainant should make a demand for payment of the money due under the cheque by giving notice in writing to the accused within 30 days from the receipt of intimation of dishonour and

6) If the accused failed to pay the debt under the cheque, a complainant is to be filed within one month after expiry of 15 days from the date of service of legal notice.

Unless these requirement/ingredients are established, the complainant is not entitled for the presumptions.

14. POINT NO.1:

PW1/Sk. Ismail,/complainant in his evidence deposed that the accused is his relative and got acquittance with each other . In view of the relationship, the accused used to avail loans from the complainant as and when required, later re-paid some of them. Accordingly, the accused indebted

Rs.1,80,000=00, therefore on demand of complainant the accused got issued Ex.

P-01/cheque on 29-01-2015 bearing No.080126 for Rs.1,80,000=00 drawn at

State Bank of India , Rameshreddy Nagar branch, Nellore. To support the oral evidence of P.W-01, he produced Ex. P-01 to P-04/documents. Contents in Ex,. P- 01/cheque are supporting the oral evidence of P.W-01 that it contain signature of the accused and discloses the liability of the accused to discharge the debt due under earlier money transactions.

15.It is settled principal of Law as contained under sec.118 of

Negotiable Instruments Act and under sec.139 of the said Act, until contra is proved, it shall be presumed that the cheque in dispute was drawn for the

C.C. No.21 OF 20189 of 16IV AJMFC, NELLORE nature of liability as referred under sec.138 of N.I. Act i.e., legally dis chargeable whole or part of debt or liability. Contents in the documentary evidence i.e., Ex. P-01/cheque discloses and contains the name of P.W-01/Sk.

Ismail as holder of Negotiable Instrument/Ex. P-01/cheque, in obedience to sec.139 of N.I.Act she is entitled for both presumptions. Since the accused cross-examined P.W-01//Sk. Ismail and denied his liability and taken a plea of fabrication of cheque, it is his prima facie burden to establish the same. Since

P.W-01/ /Sk. Ismail being complainant deposed himself as P.W-01 by producing

Exs. P-01 to P-04/documents, this Court is of view that P.W-01/Sk. Ismail successfully discharged his initial burden by establishing that the accused in discharge earlier debts, issued Ex. P-01/cheque.

16,.Under these circumstances of evidence available on rerecord, this Court is of view that the complainant is entitled for presumptions provided under sec.139 and 118 of N.I.Act in his favour. Hon'ble High Court of Judicature at Hyderabad for the state of Telangana and Andhra Pradesh in between D. Atchyutha Reddy

Vs State of Andhra Pradesh and another reported in 2010(1) ALD (Crl) 59

(AP), their lordship while dealing with the provisions u/sec 118, 138 of

Negotiable Instrument Act ruled that “raising presumption u/sec 118 and

139 is mandatory and obligatory on the part of Court in every case where

the factual basis for raising the presumption had been established”. The accused herein pleaded and suggested to the complainant that cheque/Ex.P-01 was fabricated by filling the blanks at the name and other places, therefore the

Ex. P-01/cheque became invalid, since the contents in it were written by some other, other than the accused. Their Lordship in the above referred D.Atchutha

Reddy’s case further held in in para No.16 that “it is not mandatory and no

law prescribes that the body of the cheque should also be written by the

signatory to the cheque. A cheque could be filled up by anybody if it is

signed by the accused holder of the cheque. Body of cheque need not

required to in writing of its maker.” On plain reading of the above referred

C.C. No.21 OF 201810 of 16IV AJMFC, NELLORE

Judgments and in view of the facts and circumstances of this case as well as the contents in Ex. P-01/cheque, it is clear that the accused drawn Ex. P-01/cheque from the account maintained by the her prior to 29-01-2015 as contained in Ex.

P-01/cheque . Hon'ble High Court of Judicature at Hyderabad for the state of

Telangana and Andhra Pradesh in between G. Rama Krishna Reddy Vs Md.

Faizuddin and another reported in 2009(1) ALD (Crl) 29 (AP) and in between V. Munikrishnaiah Vs Janakirama Naidu and another reported in 2005 (1) ALD (Crl.) 638 (AP), their Lordship ruled that “ The general rule

that the burden of proof is on the prosecution to establish its case

beyond all reasonable doubt, is not applicable to the case of dishonour of

cheque. It is obligatory on the part of court to raise the presumption in

every case, where factual basis for raising such presumption are

established. Non-existence of subsisting liability is to be proved by the

accused rebutting the presumption available in favour of complainant

under negotiable instrument Act. It is not for the complainant to prove

that there is an existing liability in respect of cheque in question has

been issued.”

17.Herein the accused having denied totally about the execution of Ex. P- 01/cheque towards amount due under earlier money transactions, in the cross- examination of P.W-01 suggested that “it is not true to suggest that at the time of promissory note debt dt.19-05-2014 the accused handed over this cheque in blank as surety”. Further in his examination under sec.313 of Cr.P.C., the accused submitted that “complainant is brother by relation to me, but other

allegations are false. I borrowed only Rs.60,000=00 under promissory

note, and handed over blank signed cheque as surety, the complainant

also filed a Civil suit for Rs.60,000=00 at III Addl. Junior Civil Judge’s

Court, Nellore. I am not issued the cheque in dispute for the amount

mentioned in it i.e., Rs.1,80,000=00”. Suggestions put to P.W-01 in his

C.C. No.21 OF 201811 of 16IV AJMFC, NELLORE cross-examination coupled with the admissions of accused in his examination under sec.313 of Cr.P.C., which can be relied as ruled by Apex Court in various pronouncements, it is clear that the accused admitted his signature in Ex. P- 01/cheque that it belongs to him, but he denied the purpose for which Ex. P- 01/cheque was deposited/issued. Since the accused stated the circumstances under which the cheque/Ex. P-01 was issued, it was for him to place material to substantiate his plea. Except putting suggestions to P.W-01 in his cross- examination which were denied by P.W-01, no other material is available to substantiate the plea of accused. Further, admission of the accused by suggestions and in the examination under sec.313 of Cr.P.C., are itself strengthening the case of complainant that the accused is in the habit of availing money from the complainant.

18.In view of the above discussion, it is clear that the complainant established the following ingredients to attract the offence punishable u/sec 138 of Negotiable Instrument Act that

1) The Ex. P-01/cheque issued by the accused on 29-01-2015 through her banker State Bank of India, Rameshreddy Nagar branch, Nellore city towards legally enforceable earlier debt.

2) The cheque Ex. P-01 was presented by the complainant for collection through her banker State Bank of India, Nellore on 30-01-2015.

3) Ex. P-01 /cheque was returned under Ex. P-02 on 30-01-2015 for the reason of insufficient funds in the account of the accused ,

4) The complainant got issued a legal notice on 13-02-2015 to the accused under

Ex. P-03 demanding the accused to repay the debt due under the cheque.

C.C. No.21 OF 201812 of 16IV AJMFC, NELLORE

5) The said legal notice avoided by the accused under Ex. P-04/postal covers, thereby committed the offence

19.Under the discussed facts, circumstances and the evidence available on record this Court came to a conclusion that the complainant by producing Ex. P- 01/cheque and by deposing as P.W-01, discharged his initial burden to prove the execution of Ex. P-01/cheque by the accused and as there is no contrary proved by the accused, presumption under sec.139 of N.I. Act which provides presumptions that Ex. P-01/cheque issued for the nature referred in Sec.138 of

N.I. Act and it applies the complainant proved that the cheque/Ex. P-01 was issued towards the nature of debt referred under Sec.138 of N.I. Act.

Accordingly, this point is answered in favour of complainant.

20. POINT NO. 02:

Though the complainant able to establish the legally enforceable debt under Ex. P-01/cheque as on 29-01-2015, it is the responsibility of the complainant to place the essential requirements for the offence punishable under sec.138 of Negotiable Instruments Act as required under sec.142 of the Act. For this purpose, the complainant produced Exs. P-01 to P-04/documents. The complainant proved that Ex. P-01/cheque was issued towards legally enforceable debt. Ex. P-02/returned memo contains disclosing that Ex. P-01/cheque was presented on 30-01-2015 and the same was dis-honoured on 30-01-2015 on the ground that funds in the account of the accused are in sufficient. Hence, the complainant is entitled for the presumption under sec.143 of Negotiable

Instruments Act which provide that the banker’s slip of dis-honour is a prima facie evidence of the dis-honour of cheque in dispute. The oral evidence of P.W- 01 and the contents in Ex./ P-03/notice are disclosing that on 13-02-2015 the

C.C. No.21 OF 201813 of 16IV AJMFC, NELLORE complainant issued a legal notice as required under sec.138 of Negotiable

Instruments Act. The contents in Ex. P-04/postal covers disclosing that the notices reached the accused, but the accused failed to claim it thereby to respond.

21.It was pleaded by the accused that the complainant not complied sec.138 of N.I. Act by sending statutory notice before launching prosecution, thereby, this prosecution is expressly barred by Law. As discussed above sec.138(b) of the

Act, 1881 maintains sending a notice to the accused before launching prosecution. Herein the complainant sent notice under Ex. P-03 to the address of the accused i.e., his work place by registered post, the same reached and the postal authorities intimated the accused but the accused failed to receive it, notice under Ex. P-03 sent by Ex. P-04/postal cover was returned with an endorsement that notice was not claimed, hence returned to sender on 23-02- 2015. These circumstances and evidence available including endorsement of postal department in Ex. P-04/postal covers are made it clear that P.W-01 was complainant 138(b) of N.I. Act. It is for the accused to show contra either by summoning the employees of postal department or by producing documents obtained from postal department disclosing the track or status report of the notices/Ex.P-04 . There is no such material placed before the Court. Hence, this

Court came to conclusion that the plea of the accused may not sustain.

22.In view of the evidence placed before this Court by both parties as discussed above, this Court came to a conclusion that the complainant place all essential requirements as required u/sec 138 r/w 142 of Negotiable Instrument

Act to prove the guilt of the accused, thereby successfully established her case against the accused and the complainant successfully proved the guilt of the

C.C. No.21 OF 201814 of 16IV AJMFC, NELLORE accused beyond reasonable doubt for the offence punishable u/sec 138 of

Negotiable Instrument Act, therefore, the accused is liable to be convicted.

23.RESULT/FINDING

In the result, this court found that the accused is guilty for the offence punishable Under Section 138 of Negotiable Instrument Act and accordingly, this court convicted the accused U/s 255(2) Cr.P.C.

Dictated to the Typist, typed by him, corrected and pronounced by me in open Court,

this the 23rd day of APRIL, 2018.

IV Addl. Judicial Magistrate of I Class, Nellore.

24.Upon hearing the accused with regard to quantum of sentence to be imposed upon the accused for the proved offence u/s 138 of NI Act, accused submitted that he is living by doing a small job as painter in APSRTC and getting meager salary with which he shall maintain his kidney failure wife and his two female children, therefore prayed to reduce the sentence. . Learned counsel for the accused submitted that by considering the family and financial status of the accused as well as relations ship between parties who are brothers by relation, prayed to pass appropriate sentence.

25. Learned counsel for the complainant submitted that accused got capacity to pay compensation apart from imposing fine if any, therefore prayed to consider it as a fit case to award compensation.

C.C. No.21 OF 201815 of 16IV AJMFC, NELLORE

26.On hearing both sides as well as considering the proved offence u/s 138 of Negotiable Instruments Act, this court felt that since accused gone to the extent of making his brother /complainant to believe that sufficient funds are available in his account got issued Ex.P1 cheque which was subsequently dishonoured for want of sufficient funds, this court felt that it may not be a desirable case to accommodate the accused with sec.3 and 4 of Probation of Offenders Act.

27. However, since the complainant and accused are being brothers and accused got dependents upon him, this court by considering the submissions of both learned counsels for the accused and accused felt that it may be a desirable case to reduce the sentence from maximum sentence in the interest of justice.

28. Accordingly, this court by considered the submissions of both sides, sentenced the accused to undergo simple imprisonment for a period of six months for the offence u/s 138 of NI Act and also ordered the accused to pay fine of Rs.5000/- (rupees five thousand only) in default of sentence for a period of one month. . The judicial custody period of the accused if any is set off u/s 428 of Cr.P.C. to the sentence is awarded. As there is no material placed before this court that the proceedings in OS

No. 499/15 upon which execution is also pending for recovery of money based on the promissory note debt is not connected to this cheque debt, this court felt that as the complainant got source of recovery of money in the civil proceeding which were already initiated, no compensation is awarded.

C.C. No.21 OF 201816 of 16IV AJMFC, NELLORE

It is further informed to the accused that he got statutory right to prefer an appeal against the judgment to the Hon'ble District and Sessions Judge, Nellore within appeal period. Accused submitted that he got means to engage an advocate if an appeal is preferred.

Pronounced by me in open court this the 23rd day of April, 2018.

IV Addl. Judicial Magistrate of I Class, Nellore

Appendix of evidence

Witnesses examined for

For Complainant

1. P.W-01: Sk. Ismail (complainant)

For Defence :

NIL

Exhibits marked on behalf of Complainant

Ex. P-01Cheque bearing No.080126 dt.29-01-2015 for Rs.1,80,000=00.

Ex.P.- 02Cheque returned memo dt.30-01-2015.

Ex.P. -03Office copy of legal notice dt.13-02-2015 with postal receipt.

Ex.P.- 04Returned postal cover.

Exhibits marked on behalf of Defence

- NIL –

Material Objects marked for

- NIL –

IV Addl. Judicial Magistrate of I Class,

Nellore.

1/15

IN THE COURT OF THE IV ADDL. JUDICIAL MAGISTRATE

OF I CLASS, NELLORE.

Present: Sri T.VASUDEVAN,

IV Addl. Judicial Magistrate of First Class, Nellore.

Tuesday, 24 th day of APRIL, 2018

Calendar Case. No.171 of 2015

Between:-

State Represented by

The Sub Inspector of Police,

Venkatachala satram P.S. … Complainant.

Vs.

Innamala Yebu, S/o Venkataiah, aged about 30 years, Edagali village, Venkatachala Satram Mandal, S.P.S.R., Nellore district.

.... Accused.

This case came before me on 16.4.2018 for disposal in the presence of

Assistant Public Prosecutor Smt. K. Kalavathi for the complainant and Shri P.

Uma Maheswar and Sri Ch. Sreedhar - Advocates for the accused, and upon hearing both sides, and on perusing the material on record and the matter having stood over for consideration till this day, and this court delivered the following:-

J U D G M E N T

1.The Sub Inspector of Police, Venaktechala Satram police station, submitted Report against the accused in Crime Number 98 of 2015, for the offence punishable Under Section 324 and 354-C of I.P.C.

2/15 2.PROSECUTION CASE

The brief facts of the prosecution case are as follows:

Accused and Lw-01/Kanatham Penchalaiah are residents of Edagali village of Venakatachalam Satram mandal and neighbours. While so on 05-05- 2015 when L.W-02/Kanatham Renuka went to bath room for urinals at her thatched bath room near to her house in Edagali village, the accused being neighbour watched her from his house roof top. It was found by L.W- 02/Kanatham Renuka and questioned the high handed act of the accused.

Accused grow wild, came towards house of P.W-01 by possessing a stick and took up quarrel with her. L.W-01/Kanatham Penchalaiah, husband to L.sW-02, heard this quarrel and came out into the street, found the accused quarreling with L.W-01 and knowing the cause questioned the accused why he unnecessarily took up quarrel having done the wrong. Accused grow wild on

P.W-01 and beat him with stick, thereby caused bleeding injury upon the head of

P.W-01 as well as at his fore-arm. L.W-02/Kanatham Renuka intervened and tried to rescue L.W-01. Accused also attacked on L.W-02/Kanatham Renuka and caused swelling injuries at her hand. Upon hearing the quarrels L.Ws-03 to 05 namely Kaki Meeramma, Kaki Nagaraju and Mylari Bala Gunnaiah respectively rushed there, rescued L.Ws-01 and 02. Later L.W-01/K.Penchalaiah approached

L.W—07/M.V,Seshaiah, the then A.S.I., of Police, Venkatachala Satram police station and presented a written report.

L.W—07/M.V,Seshaiah, the then A.S.I, of Police, Venkatachala

Satram police station registered it as FIR in crime No.98 of 2015 for the offence punishable u/s. 324 and 354-C of I.P.C. Took up investigation, sent the injured to the Govt. Hospital, examined the witness and recorded their statement, later observed the scene of offence , prepared rough sketch,. On 07-05-2015 L.W— 08/D.Venkateswara rao, the then S.I., of Police secured the presence of the 3/15 accused of you by serving notices and after obtaining sureties directed to appear as and when called by this Court. On completing the investigation, L.W— 08/D.Venkateswara rao, the then S.I., of Police secured wound certificate from

Lw-06/Dr. T.Suneela and filed final report for the offence punishable u/s 324 and 354-C of I.P.C.

3..COGNIZANCE

After careful perusal of material on record and Police report the cognizance of the offence was taken for the offence Under Section 324 and 354-C of I.P.C. against the accused.

4.On appearance of the accused relevant copies of documents were furnished to him as contemplated Under Section 207 Cr.P.C.

5..EXAMINATION OF ACCUSED BEFORE TRIAL

This court examined the accused Under Section 239 Cr.P.C, explained the allegations, charges were framed against him for the offences punishable under sec. 324 and 354-C of I.P.C. and also read over and explained to him in

Telugu, for which the accused pleaded not guilty and claimed to be tried.

6..PROSECUTION EVIDENCE

During trial, the prosecution examined P.Ws. 01 to 06 and by producing Exs.P-01 to P-05. Pw1/K.Penchalaiah and P.W-02/K.Renuka are the victims/informant, P.W-03/K.Nagaraju and P.W-04/Bala Gunnaiah are witnesses to the offence. Pw-06/ Dr.T.Suneela is the doctor who treated Pws-01 and 02. Pw -05/D.Venkateswara rao, the then S.I., of Police is the investigation

Officer. Ex.P1 is report of Pw1, Exs.P-04 and 05 are wound certificates, Ex.P-02 is the FIR and Ex. P-03 is the rough sketch.

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7. EXAMINATION OF ACCUSED AFTER TRIAL

After closure of prosecution side evidence,accused had been examined under section 313 Cr.P.C. and explained the incriminating evidence found against him in the evidence adduced by the prosecution witnesses for which he denied the same and reported no defence evidence on his behalf. In obedience to Sec.437-A of Cr.P.C., bail bonds obtained as required in order to proceed further.

8. Heard the learned APP for the prosecution as well as learned counsel

for the accused and perused the oral and documentary evidence.

9..PROSECUTION ARGUMENTS

The learned Assistant Public Prosecutor for the prosecution in her arguments submitted that, the oral evidence of Pws -01 to 06 witnesses coupled with contents in Ex.P1 to P-05 documents are clearly disclosing essential ingredients for the offence of voluntarily causing hurt by means of dangerous weapons which is punishable u/s 324 IPC as well as , offence of Voyeurism which is punishable under sec.354-C of IPC, hence by considering the oral evidence adduced and documentary evidence produced , sought to convict the accused for the charge framed against him.

10..DEFENCE ARGUMENTS

The learned counsel for the accused submitted that it is admitted fact that there are so many contradictions in the oral evidence of witnesses and medical evidence is not supporting oral evidence. The weapon said to be used by the accused and the blood stained clothes of the injured were not collected and not placed before the court. Previous statements of P.Ws-02 to 04 discloses that the crime weapon is a stick, whereas all the witnesses stated as ‘Mancham Patti’/log, hence, these circumstances creates a suspicion upon the 5/15 prosecution case. Hence, by considering the cross examination of evidence of witnesses and the statement of the accused submitted, sought to acquit the accused by giving benefit of doubt.

11.NOW THE POINTS FOR DETERMINATION ARE:

1) Whether the prosecution proved the guilt of the accused beyond the reasonable doubt for thecharge under sec, 354-C of I.P.C ?

2) Whether the prosecution proved the guilt of the accused beyond the reasonable doubt for thecharge under sec 324 of I.P.C., for causing injury to P.W-01 ?

3) Whether the prosecution proved the guilt of the accused beyond the reasonable doubt for thecharge under sec 324 of I.P.C., for causing injury to P.W-02 ?

12. POINT

In a case instituted by police report, in order to satisfy upon the guilt of the accused and to convict him, burden is upon the prosecution to prove the guilt of the accused beyond reasonable doubt as required under criminal law.

To discharge it’s burden and to prove the guilt of the accused that the accused committed the offences of voluntarily causing hurt by means of dangerous weapon which is punishable u/s 324 IPC and also watered a woman while doing private act woman, thereby committed the offence which is punishable under sec.354-C of IPC, herein the prosecution examined Pws1 to 06 by producing

Exs.P1 to P-05 documents. Among the witnesses Pw1/K.Penchalaiah and P.W- 02/K.Renuka are the victims/informant, P.W-03/K.Nagaraju and P.W-04/Bala

Gunnaiah are witnesses to the offence. Pw-06/ Dr.T.Suneela is the doctor who treated Pws-01 and 02. Pw -05/D.Venkateswara rao, the then S.I., of Police is the investigation Officer. Ex.P1 is report of Pw1, Exs.P-04 and 05 are wound certificates, Ex.P-02 is the FIR and Ex. P-03 is the rough sketch.

For the better appreciation of evidence available, coupled with the facts and 6/15 circumstances of this case, this Court is of view that it may be just to decide all the points byclubbing together since the offences are reported to be occurred in one incident. Accordingly all the points are clubbed together.

13.POINT Nos.01 to 03:-

Accused had been prosecuted that on 05-05-2015 when P.W-02/Kanatham

Renuka went to bath room for urinals at her thatched bath room near to her house in Edagali village, the accused being neighbour watched her from his house roof top. It was found by P.W-02/Kanatham Renuka and questioned the high handed act of the accused. Accused grow wild, came towards house of P.W- 01 by possessing a stick and took up quarrel with her. P.W-01/Kanatham

Penchalaiah, husband to P.W-02, heard this quarrel and came out into the street, found the accused quarreling with P.W-01 and knowing the cause questioned the accused why he unnecessarily took up quarrel having done the wrong. Accused grow wild on P.W-01 and beat him with stick, thereby caused bleeding injury upon the head of P.W-01 as well as at his fore-arm. P.W-02/Kanatham Renuka intervened and tried to rescue P.W-01. Accused also attacked on P.W- 02/Kanatham Renuka and caused swelling injuries at her hand, thereby committed the offence punishable under sec.354-C and 324 of IPC.

14.To substantiate above allegations and the charge framed against the accused, evidence available on record is from P.Ws-01 to 06. P.Ws-01 and 04 are victims and witnesses. Pw1/K.Penchalaiah and P.W-02/K.Renuka deposed in their evidence in chief that around 04 years back at 04-00 p.m., when P.W- 02/Kanatham Renuka went to bath room for urinals at her thatched bath room near to her house in Edagali village, the accused being neighbour watched her from his house roof top. It was found by P.W-02/Kanatham Renuka and questioned the high handed act of the accused. Accused grow wild, came 7/15 towards house of P.W-01 by possessing a ‘Mancham patti’/’Mancham Padi’/log and took up quarrel with her. P.W-01/Kanatham Penchalaiah, husband to P.W-02, heard this quarrel and came out into the street, found the accused quarreling with P.W-01 and knowing the cause questioned the accused why he unnecessarily took up quarrel having done the wrong. Accused grow wild on P.W-01 and beat him with ‘Mancham patti’/’Mancham Padi’/log, thereby caused bleeding injury upon the head of P.W-01 as well as at his fore-arm. P.W-02/Kanatham Renuka intervened and tried to rescue P.W-01. Accused also attacked on P.W- 02/Kanatham Renuka and caused swelling injuries at her hand with ‘Mancham patti’/’Mancham Padi’/log. Basing on the description of crime weapon deposed by P.Ws-01 and 02, accused cross-examining P.Ws-01 and 02 and tried to prove that the crime weapon is a stick but not ‘Mancham patti’/’Mancham Padi’/log, and it is material contradiction which may go into the roots of the prosecution case and sought to give benefit of doubt.

15.On careful consideration of oral evidence of P.Ws-01 to 04 coupled the contents in Ex. P-01/report and medical opinion of P.W-06/Doctor , this Court is of view that discrepancy in between the contents in Ex. P-01/report and evidence of witnesses with regard to the description of crime weapon may not be a material one. Ex. P-01/report as well as oral evidence of P.Ws-01 to 04, opinion of P.W- 06/Doctor and contents in Exs. P-04 and P-05/wound certificates are clear that the accused attacked on P.Ws-01 and 02 with deadly weapon stick, it may be a log or a stick which are similar in nature, since they are product of wood.

Therefore, this discrepancy alone may not be a ground to reject the prosecution case. To support that the accused injuries to P.Ws-01 and 02, prosecution examined P.Ws-03 and 04 apart from P.W-06/Doctor.

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16.The opinion evidence of doctor/Pw-06/Dr. T.Suneela of D.S.R. Govt.

Hospital, Nellore who issued Exs.P-04 and P-05/ wound certificates of Pws-01 and 02, disclosing that she examined Pw1 on 05-05-2015 around 08-55 p.m.

and found a lacerated wound measuring 03 cms., at frontal area of scalp,

bleeding present, another laceration measuring 02 cms., lateral to above

injury and it was bleeding as well as found a contusion measuring 02 x 03

cms., at left upper part of fore-arm , hence she issued opinion that the injuries were simple in nature. P.W-06 further deposed that she also examined Pw-02 on 05-05-2015 around 08-55 p.m. and found swelling measuring 03 x 03 cms., over right-hand , hence she issued opinion that it was simple in nature. Oral evidence of PWs.01 and 02 is that Accused was responsible for causing these injuries with ‘Mancham Patti’/stick/log. Oral evidence of PW.-03 and 04 who witnesses the quarrel, also appears to be supporting evidence of P.Ws-01 and 02 and also opinion evidence of P.W- 06/Doctor .

17.Evidence of P.Ws-03 and 04 who are independent witnesses is that when

P.W-03/Kaki Nagaraju heard the quarrel at the house of P.W-01 around 04-00 p.m., at about 02 ½ years back , he went there found the accused who trespassed into the house of P.W-01 with a log/’Mancham Patti’ attacked on P.Ws- 01 and 02 and caused bleeding injuries, therefore he intervened and separated

P.Ws-01 and 02 from the accused but he do not know the reason for the quarrel.

P.W-04/Bala Gunnaiah evidence also discloses that he heard about the quarrel at the house of P.W-01, went there found the accused coming from house of Pw1 with ‘Mancham Patti’/log/stick, later entered into the house of P.W-01 and found

P.Ws-01 And 02 with bleeding injuries and came to know that the accused was responsible for those injuries. Though evidence of P.W-04 appears to be hear say, his evidence with regard to witnessing the accused while possessing deadly weapon ‘Mancham Patti’/log/stick and coming from house of P.W-01 and also 9/15 subsequently his witnessing P.Ws-01 and 02 with bleeding injuries are all supporting the prosecution. Evidence of P.W-03 is supporting P.Ws-01 and 02 that the accused was the responsible for the injuries received by P.W-01. Though the accused cross-examined at length, nothing elicited from them creating reasonable suspicion upon the credibility or reliability of oral evidence of P.Ws-01 to 04. Further oral evidence of victim and witnesses is supported by the opinion evidence of Doctor/P.W-06

18.Since the oral evidence of Pws-01 to 04 is supported by the documentary evidence under Exs.P-01/report and P-04 and P-05/ wound certificates as well as oral evidence of P.w-06 Doctor, this Court is of the view that the evidence of prosecution witnesses as discussed above appears to be reliable and trustworthy, hence,, this court is of the view that evidence of above witnesses can be safely relied to came to conclusion and to found the guilt of the accused for the charge framed against accused for the offence under sec.324 Of IPC. Hon'ble Supreme

Court in between State of Uttar Pradesh vs. Naresh and others 2011 (4)

ALD (Crl.) 382 (SC) while appreciating evidence of injured witness , their lordships ruled that “ Evidence of injured witness must be given weight ,

his presence cannot be doubted , his statement to be considered a very

reliable and his statement is to be given a special status in law as well as

it cannot be discarded unless there are grounds to reject his evidence on

the basis of major contradictions and omissions”. Hon'ble High Court of

Judicature at Hyderabad in between Chagallamarri Subbaiah and others vs. State of AP 2009 (2) ALD (Crl.) 121 their Lordships while dealing with similar circumstance case ruled that “ When the evidence of injured witness

is corroborated with medical evidence and if there is no delay in lodging

FIR as well as the evidence of prosecution witnesses is consistent and

trustworthy , their evidence cannot be rejected or discarded only on the

10/15 basis of enmity if any.” On plain reading of these two rulings, it is clear that evidence of injured cannot be rejected unless there are major contradictions and discrepancies . If there is no delay in reporting the matter to police and the medical evidence is supported with oral evidence of injured as well as the evidence of witnesses is consistent and trustworthy, such evidence is to be considered and to be relied upon. Herein evidence of Pws1 to 04, appear to be consistent and as there are no circumstances to suspect their evidence and no material is available upon the unnecessary implication of the accused into the offence, evidence of Pws1 to 04 appears to be trustworthy. Further there is no inordinate unexplained delay in reporting the crime to police under Ex. P1/report and under Ex.P.-03/FIR, The incident was taken on 05-05-2015 around 04-00 p.m., in the village of P.W-01 i.e., Edagali. Around 08-00 p.m.,on the same day

P.W-01 approached Venkatachala Satram police and presented written report.

Under these circumstances, this Court is of view that since oral evidence of P.Ws- 01 to 04 coupled with P.W-06/Dr. And the documents as discussed above are appears to be reliable and trustworthy, therefore exaggerations/discrepancies in the evidence of P.Ws-01 to 04 with regard to crime weapon as ‘Mancham

Patti’/log/stick is not material in nature and may not be a ground to discard the evidenced of P.Ws-01 to 04.

19. Further it was pleaded by the accused that the investigation officer/Pw05/D..Venkateswara Rao, the then Sub Inspector of Police, failed to collect and produce the crime weapon i.e. ‘Mancham Patti’/log/stick before the

Court and it was fatal to the prosecution. In view of the oral evidence of Pws 01 to 04 and the Doctor/P.W-06 , this Court is of the view that mere mistakes of the investigation officer may not sufficient to throw out the entire prosecution case by treating it as false . More so, Hon'ble Supreme Court in between V.K.Mishra and other vs. State of Uttarakhand 2015(2)ALD (Crl.) 533(SC) while 11/15 considering the defects in the investigation ruled that “the deficiency in the

investigation, omissions and lapses on the part of investigation officers

cannot themselves justify rejection of prosecution case,” . In view of the above discussion reliable and trustworthy evidence of witnesses and in obedience to the Rulings referred above, this Court is of the view that mere defect in collecting crime upon stick/log is alone may not be a ground to reject the evidence.

20.Accused further took a plea that P.Ws-01 and 02 never stated that their’s is a top less bath room, and all the witnesses admitted that since the houses in that locality in Edagali being govt. constructed houses had no steps to reach their house roof tops, hence, witnessing the accused while P.W-02 was urinating in a top less bath room, thereby committing the offence punishable under sec.354-C is unbelievable and not supported by evidence. On careful consideration of the evidence available on record i.e., victim and witnesses/P.W- 01 to 04 and the investigation officer/P.W-05, this Court is of view that there is no strength in the plea taken by the accused. Evidence of P.W-01 in his cross- examination is that “there is a thatched fencing around to my house…..I

used to do daily wage earning by leaving house in the early hours and to

return to my house in the evening.” P.W-02/Victim deposed that many houses in their locality are constructed under govt. scheme and many of those houses had no steps to reach roof. Accused house is also one of it, but with his money he developed his house. Accused got two ways to the street, one connecting to house of P.W-01 and another is a separate. For the past 12 years the accused is neighbor to them and there were no mis-understandings between them prior to this incident. Evidence of P.Ws-01 and 02 elicited in their cross- examination coupled with the contents in Ex.P-03/rough sketch and oral evidence of P.W-05/S.I., are itself disclosing that the house of P.Ws-01 and 02 at colony in 12/15

Edagali being half constructed construction without steps and they being daily wage earners may got only a thatched bath room which will not have roof and non-disclosure of description as top-less bath room to police alone may not be sufficient since evidence of P.W-02/victim is very clear that the accused got steps to reach his house roof and being neighbor watched P.W-02 while urinating in a thatched bath room. Hear say evidence of P.Ws-01, 03 and 04 also supported the same. Rough sketch clearly discloses that adjacent to the bath room of P.W-02 accused got house. All these facts, circumstances and evidence available on record discloses the the offence committed by the accused knowing its consequences. Punishable u/s 354-C of IPC for watching/observing a woman while doing a private act in a place meant for it. i.e., urinating in a bath room.

21. In view of the above discussion, this court is of the view that evidence of P.Ws-01 to 04 is appears reliable and trustworthy, evidence of Ps.W- 06./Doctor is supporting the evidence of victim and witnesses, hence, the prosecution successfully proved the guilt of accused for the offences of voluntarily causing simple hurt to P.Ws-01 and 02 by means of deadly weapon/stick/log/’Mancham patti’ as well as committed the offence of voyeurism as charged against the accused which are punishable under sec.324 for causing injury to P.W-01 and under sec.324 of IPC for causing injury to P.W-02 as well as under sec. 354-C of IPC,. Therefore, the accused is liable to be convicted.

Accordingly these points are answered in favour of the complainant.

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22. FINDING

In the result, this court found that Accused is guilty for the charge under sec.324 and 324 as well as 354-C of IPC, Hence this court convicted him u/s 248(2) Cr.P.C.3) Accused is guilty for the charge under sec.324 r/w 34 of IPC, Hence this court convicted him u/s 248(2) Cr.P.C.

The bail bonds of accused obtained under sec.437-A of Cr.P.C., shall be in force for a period of six months from the date of this judgment.

Dictated to the Typist, typed by him and, corrected and pronounced by me

in open Court, this the 24th day of April, 2018.

IV Addl. Judicial Magistrate of I Class,

Nellore.

23..With regard to quantum of sentence , upon hearing the accused submitted that he got three children among 2 or dumb and all are depending on him and he used to work as daily wage earner under his farmer, therefore prayed to take a lenient view to imposed sentence. Learned counsel for accused submitted that accused being poor, unable to pay huge quantity of fine if any to imposed, therefore consider is family and financial status in imposing sentence.

24.On careful consideration of the offence proved against the accused which discloses that accused having observed/watched a woman while urinating in a bath room and when she questioned it, attacked on his spouse and caused injuries with deadly weapon, this court felt that it may not be a desirable case to take a lenient view.

25.However, as accused being villager reported to be living upon daily wages earning and submitted that out of three children two are dumb and totally depending upon earning of the accused, this court felt that it may be a fit case to 14/15 reduce sentence from maximum sentence and to impose minimum sentence as provided under the law in order to reform the accused . It is further informed by the prosecution and the learned counsel for the accused that except this case, there were no previous allegations or conviction for similar offence or any other offence against the accused. Under these circumstances since it being first offence proved for the charge u/s 354-C of IPC for the offence Voyeurism, this court sentenced the accused to undergo Simple imprisonment for a period of one year and also sentenced to pay fine of Rs.500/-(rupees fine hundred) in default to suffer simple imprisonment for a period of one month for the charge under sec.354-C of IPC. This court also sentenced the accused to pay fine of Rs.1000/- (rupees one thousand) in default to suffer simple imprisonment for a period of one month for the proved charge u/s 324 of IPC for causing injury to Pw1 as well as sentenced to pay another Rs.1000/-(rupees one thousand) in default to suffer simple imprisonment for a period of one month as fine for the proved charge u/s 324 of

IPC for causing injury to Pw2. Total fine is Rs.500 + Rs.1000/- + Rs.1000/- =

Rs.2,500/- and term of imprisonment is one year. Out of fine amount

Rs.2500/- an amount of Rs.1,000/- + Rs.1000/- is to be payable to Pw1 Kontham

Penchalaiah and Pw2 Kontham Renuka as compensation u/s 357 of Cr,.P.C. The judicial custody period of the accused if any is set off u/s 428 of Cr.P.C. to the sentence is awarded.

It is further informed to the accused that he got right to prefer an appeal against this Judgment to the Hon’ble District Court within appeal period. The accused submitted that if an appeal preferred, he got means to engage an advocate to represent on his behalf.

Pronounced by me in open court this the 24th day of April, 2018.

IV Addl. Judicial Magistrate of I Class,

Nellore.

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Appendix of evidence

Witnesses examined for

Prosecution Defence

Pw1:Kontham Penchalaiah None

Pw2: Kontham Renuka

Pw3: Kaki Nagaraju

Pw4: Mylari Bala Gunnaiah

Pw5: D.Venkateswara Rao, SI

Pw6: Dr.T.Suneela

Exhibits marked on behalf of Prosecution

1. Ex.P.1: Report given to police by Pw1.

2. Ex.P.2: First Information Report

3. Ex.P3: Rough sketch 4.Ex.P4: Wound certificate of Pw1

5. Ex.P5: Wound certificate of Pw2.

Exhibits marked on behalf of Defence

NIL

MOS Marked : NIL

IV AJMFC

Nellore

1

IN THE COURT OF THE IV ADDL. JUDICIAL MAGISTRATE

OF I CLASS, NELLORE.

Present: Sri T.VASUDEVAN,

IV Addl. Judicial Magistrate of First Class, Nellore.

Tuesday, the 24thday of APRIL, 2018.

alenderC Case . No. 235 of 2015

Between:-

State Represented by

The Sub Inspector of Police, Venkatachala Satram P.S. … Complainant.

And

1. Udata Nagendra, S/o Subrahmanyam, aged 32 years, resident of Golagamudi village of Venkatachala Satram Mandal.

2. Gunji Muralidhar, S/o Kotaiah, aged 46 years, resident of Anikepalli village of Venkatachala Satram Mandal.

3. Soga Chandraiah, S/o late Venkataswamy, aged 37 years, resident of S.T., colony, Golagamudi village of Venkatachala Satram Mandal. … Accused

This case is coming on 23.04.2018 for disposal before me in the presence of Smt K. Kalavathi. Assistant Public Prosecutor for the complainant and Sri P.Vijaya Kumar Reddy, Sri P.Sriharsha and Sk.Rasheed - counsel for the accused and upon hearing both sides, and on perusing the material on record and the matter having stood over for consideration till this day, and this court delivered the following:-

J U D G E M E N T

1.The Sub-Inspector of Police, Venkatachala Satram P.S., laid charge sheet against the accused in Crime Number 42 of 2015 for the offence punishable Under Sections 447,427, 353 and 379 of I.P.C. and under section 21

(iv) of Mines and Minerals ( Development and Regulation ) Act 1957 and also under section 3 of Prevention of damage to public property Act 1984.

2

2.PROSECUTION CASE

The brief facts of the prosecution case are as follows:

Accused-01 to 03 are in the habit illegally trespassing into the land of

Govt., lifting gravel by damaging the govt. land and used to earn money illegally.

In that process on 04-03-2015 around 09-00 p.m., night A-01 criminally trespassed into the CJFS (govt.) land at Golagamudi fields without any authorization from the concerned authorities, with the assistance of A-02 and A- 03, who are JCB machine owner and drivers, secretly started digging in the night to lift gravel, in that process with the JCB of A-01 and A-02, loaded gravel into tractors. L.W-01/Ulavlapati Prasad being Village Revenue Officer ,

Anikepalli village, came to know about it, rushed there found the machinery at the govt. land, handover JCB to L.W-02/Kaki Sudhakar, Village Revenue Assistant of Anikepalli village. When L.W-02/Kaki Sudhakar was in the custody of JCB machine, accused used criminal force against L.W-02/V.R.A., in discharging his lawful duties as public servant. Later approached the police at Venkatachala

Satram Police Station about the offence.

Lw-08/Sk.Rahamthullah, the then SI of Venkatachala Satram P.S.

registered it as a case in crime No.42 of 2015 u/ss. 353, 447, 427 and 379 of

I.P.C. and under section 21 (iv) of Mines and Minerals ( Development and

Regulation ) Act 1957 and also under section 3 of Prevention of damage to public property Act 1984 and investigated into.

During investigation, Lw-08/Sk.Rahamthullah, the then SI examined

Lws1 , 2 and other witnesses as well as recorded their statements, visited the scene of offence, prepared rough sketch and scene observation report of the scene in the presence of two witnesses. Accused No.02 got bail from the Hon'ble

High Court of Judicature at Hyderabad and appeared on 03-05-2015, A-01 3 surrendered on 14-05-2015 and obtained bail from thisd Court as well as Lw- 08/Sk.Rahamthullah, the then SI arrested the accused No.03 on30-07-2015 and submitted for judicial custody. After completing the investigation LW.- 09/D.Venkateswararao , the then S.I. of Venkatachala Satram P.S filed report against the accused for the offences punishable Under Section 353,

447,427,379 of I.P.C and sec.21 (4) of Mines and Minerals Act, 1957 as

well as section 3 of PDPP Act.

3. COGNIZANCE

After careful perusal of material on record and charge sheet the cognizance of the offence Under Section353, 447,427,379 of I.P.C and sec.21 (4) of Mines and Minerals Act, 1957 as well as section 3 of PDPP Act.was taken against the accused.

4.On appearance of the accused, relevant copies of documents were furnished to them as contemplated Under Section 207 Cr.P.C.

5.EXAMINATION BEFORE TRIAL

The accused had been examined Under Section 239 Cr.P.C and charge for the offence punishable Under Section 353, 447,427,379 of I.P.C and sec.21 (4) of Mines and Minerals Act, 1957 as well as section 3 of PDPP Act.

were framed against the accused , read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried. Obtained bail bonds in compliance of sec.437-A of Cr.P.C.

6.PROSECUTION EVIDENCE

During the trial, the prosecution examined P.Ws-01 to 07 and got exhibited Exs.P.1 to P-09.

4

7.EXAMINATION AFTER TRIAL

After closure of prosecution side evidence, the accused had been examined Under Section 313 Cr.P.C and explained the incriminating evidence found against the accused in the evidence adduced by the prosecution witnesses for which the accused were denied the same and reported no defence on their behalf. Bail bonds as required under sec.437-A of Cr.P.C., are obtained.

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

10. Now the point for determination is:

“Whether the prosecution established the essential

ingredients for the offence punishable Under Section

353, 447,427,379 of I.P.C and sec.21 (4) of Mines and

Minerals Act, 1957 as well as section 3 of PDPP Act.

beyond reasonable doubt against accused”?

11.POINT:-

Since this crime was reported , investigated and final report submitted through the police, the burden is upon the prosecution to prove the guilt of the accused beyond reasonable doubt for the charge framed against them. The offence punishable u/ss. 353, 447,427,379 of I.P.C and sec.21 (4) of

Mines and Minerals Act, 1957 as well as section 3 of PDPP Act.To substantiate the charge framed against the accused prosecution examined Pws-01 to 07 and the documents produced are Exs. P-01 to P-09. Pw1/ Ulavapati Prasad, VRO was the informant who detected the offence handed over the crime vehicle, P.W- 02/Kaki Sudhakar, V.R.A., P.W-03/Mocherla Ramanaiah, V.R.A., P..W- 5 04/Paramkonda Nageswara Rao, P.W-05/Challa Venkateswarlu and P.W-06/Pathan

Khayyum Khan are witnesses, P.W-07/Sk.Rahamthullah, the then Sub Inspector of Police was the investigation officer.

12.Prosecution alleged against the accused Nos.-01 to 03 and Pw1 /informant deposed by presenting Ex.P1 report that on 04-03-2015 around 09-00 p.m., night A-01 criminally trespassed into the CJFS (govt.) land at Golagamudi fields without any authorization from the concerned authorities, with the assistance of A-02 and A-03, who are JCB machine owner and drivers, secretly started digging in the night to lift gravel, in that process with the JCB of A-01 and A-02, loaded gravel into tractors. P.W-01/Ulavlapati Prasad being Village

Revenue Officer , Anikepalli village, came to know about it, rushed there found the machinery at the govt. land, handover JCB to P.W-02/Kaki Sudhakar, Village

Revenue Assistant of Anikepalli village. When P.W-02/Kaki Sudhakar was in the custody of JCB machine, accused used criminal force against P.W-02/V.R.A., in discharging his lawful duties as public servant. Later approached the police at

Venkatachala Satram Police Station about the offence under Ex. P-01.

13.To support the oral evidence of Pw1 and charges framed against the accused, prosecution examined P.W-02/Kaki Sudhakar, V.R.A., P.W-03/Mocherla

Ramanaiah, V.R.A., P..W-04/Paramkonda Nageswara Rao, P.W-05/Challa

Venkateswarlu and P.W-06/Pathan Khayyum Khan are witnesses, P.W- 07/Sk.Rahamthullah, the then Sub Inspector of Police. On careful consideration of the material available on record and going through with the evidence given by witnesses, it discloses that the prosecution failed to establish the identity of the accused Nos.01 to 03 as offenders and they committed the charged offences 353, 447,427,379 of I.P.C and sec.21 (4) of Mines and Minerals Act, 1957 as well as 6 section 3 of PDPP Act.

14.Oral evidence of Pw1/VRO discloses that his VRA/P.W-02 informed to him abouit the offence and both detected offence as well as Pw1 came to know that accused no.2 is owner and A-03 as driver JCB machine, as well as the scene of offence land is a govt. land (CJFS land), When P.W-02/Kaki Sudhakar was in the custody of JCB machine, accused used criminal force against P.W-02/V.R.A., in discharging his lawful duties as public servant . Proof for all these facts asserted by Pw1 is required beyond reasonable doubt to satisfy upon the guilt of the accused. For this purpose, witnesses available to support the oral evidence of

Pw1 is the evidence of P.W-02/Kaki Sudhakar, V.R.A., P.W-03/Mocherla

Ramanaiah, V.R.A., P..W-04/Paramkonda Nageswara Rao, P.W-05/Challa

Venkateswarlu and P.W-06/Pathan Khayyum Khan are witnesses, P.W- 07/Sk.Rahamthullah, the then Sub Inspector of Police. Though P.W-07 deposed that he investigated the offence and later submitted final report, his further evidence in cross examination coupled with the evidence of P.Ws-02 to -06 are all creating a doubt upon prosecution case as an ordinary prudent man.

15.P.W-01/Ulavapati Prasad, V.R.O., evidence is that around 03 years back on one day night around 09-00 p.m., he received telephonic information from P.W-02/Kaki Bhaskar about trespass and illegal act of lifting gravel from government land, immediately he went there, found one JCB only, placed P.W-02 as custodian for JCB and when P.W-01 returned, P.W-02/V.R.A., informed that A- 01 by using criminal force took away the JCB, thereby obstructed public servant in discharging duties. P.W-01 evidence discloses that he neither found the accused nor others during work at the scene of offence on behalf of accused nor lifting gravel nor presence of tractors with gravel load. He himself admitted in his cross-examination that “I do not know JCB number. I did not found anyi 7 person who trespassed and attempted to commit offence. “ On careful consideration of P.W-01’s evidence it discloses that he being informant failed to identify the accused as offenders as well as failed to disclose that the land in dispute belongs to government. P.W-07/Sk.Rahamthullah, the then Sub

Inspector of Police evidence also discloses that he did not conducted preliminary enquiry into the allegations, no details of JCB were collected by me and no evidence disclosing that the land in dispute belongs to government secured during the investigation. All these admissions of witnesses who includes informant and investigation officer falsifies the case of prosecution and discloses that it failed to place the essential requirements for the offences charged.

16.Others deposed on behalf of prosecution are also appears to be turned hostile and deposed nothing in support of the charge framed. P.W-02/Kaki

Sudhakar, V.R.A., deposed that “I do not know what happened at the sand

reach as well as the nature of offence committed by the accused and I

never informed anything to P.W-01.” P.W-03/Mocherla Ramanaiah, another

V.R.A., also deposed that “I do not know what happened at the sand reach

as well as the nature of offence committed by the accused and I never

informed anything to P.W-01.” P.W-04/P.Nageswara Rao, auto driver who set to be witnessed the offence deposed that “I have not witnessed anything pertaining to this case and police not recorded my statement. “ P.W- 05/Ch.Venkateswarlu, another eye witness deposed that “I never found the accused while committing any offence” and P.W-06/Pathan Khayyum Khan witnessed the scene observation done by P.W-07/Sub Inspector deposed that

“around 03 years back on one day police approached me , requested and

obtained my signature on a written paper, but I do not know the

purpose and contents of the document, in where I signed.” Evidence of above witnesses/P.Ws-02 to 06 is made it clear that none of the witnesses 8 supported by prosecution, turned hostile and failed to corroborate with the portions of previous statements recorded during investigation under Exs. P-02 to

P-05. In view of the above discussion and evidence available on record it is clear that prosecution failed to prove the charge framed against the accused

Nos.01 to 03 beyond reasonable doubt, hence, this point is answered against the prosecution.

16.FINDING

In the result, this court found that accused Nos. 01 to 03 are not guilty for the charge Under Section 353, 447,427,379 of I.P.C and sec.21 (4) of

Mines and Minerals Act, 1957 as well as section 3 of PDPP Act. accordingly, this court acquitted them U/s 248(1) Cr.P.C. Their bail bonds obtained u/s 437-

A Cr.P.C. shall stand canceled after six months from the date of this Judgment.

Dictated to the Typist, typed by him , corrected and pronounced by

me in open Court, this the 24th day of APRIL, 2018.

IV Addl. Judicial Magistrate of I Class,

Nellore

Appendix of evidence

Witnesses examined for

Prosecution Defence

Pw-01 Ulavapati Prasad,VRO None

Pw-02 : Kaki Sudhakar/V.R.A.

Pw-03 : Mocherla Ramanaiah, V.R.A.,

Pw-04 : Paramkonda Nageswara Rao .

P.W-05: Challa Venkateswarlu.

P.W-06: Pathan Khayyum Khan.

P.W-07: Sk.Rahkamthullah, Sub Inspector of police.

9

Exhibits marked on behalf of Prosecution

Ex.P-01: Report given police by Pw1.

Ex.P-02: Portion of P.W-02 previous statement.

Ex.P-03: Portion of P.W-03 previous statement.

Ex.P-04: Portion of P.W-04 previous statement.

Ex.P-05: Portion of P.W-05 previous statement.

Ex.P-06: Signature of P.W-06 in scene observation report.

Ex.P-07: Original First Information Report.

Ex. P.-08 : Rough sketch of the scene of offence.

Ex. P-09 : Scene observation report.

Exhibits marked on behalf of Defence

- Nil -

Material Objects marked for Prosecution

NIL

IV Addl. Judicial Magistrate of I Class,

Nellore

1

THE COURT OF THE IV ADDL. JUDICIAL MAGISTRATE

OF I CLASS, NELLORE.

Present: Sri T.VASUDEVAN,

IV Addl. Judicial Magistrate of First Class, Nellore.

Thursday, the 24thday of April, 2018.

C alender Case . No.324 of 2015

Between:-

State Represented by

The Sub Inspector of Police, V.Satram P.S.

… Complainant.

And

1. Addanki Pedda Polaiah S/o late Polaiah Aged 65 years, Gudluruvaripalem village Venkatchalam mandal.

2. Bommirala Prasad S/o late Kistaiah Aged 35 years, Punjulurupadu village, Venkatachalam mandal.

3. Bommirala Subrahmanyam S/o Late Kistaiah Aged 30 years, Punjulurupadu village, Venkatachalam mandal. … Accused .

This case is coming on 18.4.2018 for disposal before me in the presence of Smt K. Kalavathi. Assistant Public Prosecutor for the complainant and Sri K.Ramesh Reddy, counsel for the accused and upon hearing both sides, and on perusing the material on record and the matter having stood over for consideration till this day, and this court delivered the following:- 2

J U D G E M E N T

1.The Sub-Inspector of Police, V.Satram P.S., laid charge sheet against the accused in Crime Number 80 of 2015 for the offence punishable Under Sections 447, 427 and 379 of I.P.C.

2.PROSECUTION CASE

The brief facts of the prosecution case are as follows:

Accused no.1 to 3 are residents of Gudluruvaripalem and Punjulurupadu village in V.Satram mandal. Whereas the victim/informant/Lw1 Shaik Jilani Basha is the resident of Nawbpet, Nellore city. Government assigned an extent of Ac.0.35 cents in survey No.1734/4 and an extent of Ac.1.66 cents in survey No.1734/6 in total Ac.2.01 cents by way of Darakasthu 'D' form patta to the father of Lw1 namely Abdul Rajak who retired from military service . Accordingly, an assignment was made on 26.12.1988 vide F.Dis.No.1060/88. victim/informant/Lw1 Shaik Jilani Basha being son to Abdul Rajak/assignee, ploughed the land and brought into cultivation raised variosu crops including paddy under the management of Lw5Valipi Kistamma of Edagali village of V.Satram mandal. While so, accused being niehgbours, high handedly trespassed into the land of victim/informant/Lw1 Shaik Jilani Basha, cut down paddy crop and stolen without the knowledge of victim/informant/Lw1 Shaik Jilani Basha, thereby caused financial loss to victim/informant/Lw1 Shaik Jilani Basha. Knowing the same victim/informant/Lw1 Shaik Jilani Basha, rushed to the land found it and reported to police on 11.4.2015 by way of written report. Lw6 D.Venkateswara Rao, the then SI, V.Satram PS received report from victim/informant/Lw1 Shaik Jilani Basha, 3 registered it as FIR in crime No.80/15, for the offence punishable u/ss.447,427,379 of

IPC, took up investigation, visited the scene of offence, observed it and drawn rough sketch examined the witnesses Lws1 to 5 namely Shaik Jilani Basha, D.V.Sudhakar,

K.V.L.Prasanna, Dumpala Seenaiah, and Valipi Kistamma, respectively secured the information from the revenue authorities/Lws2 and 3 namely D.V.Sudhakar,

K.V.L.Prasanna, thereby by completing investigation, arrested the accused No.1 and 3 on 14.9.2015. Accused No.2 surrendered and obtained bail on 6.10.2015 from this court, therefore by completing investigation, filed final report.

3. COGNIZANCE

After careful perusal of material on record and charge sheet the cognizance of the offence Under Section 447, 427 and 379 of IPC was taken against the accused.

4.On appearance of the accused, relevant copies of documents were furnished to them as contemplated Under Section 207 Cr.P.C.

5.EXAMINATION BEFORE TRIAL

The accused had been examined Under Section 239 Cr.P.C and charge for the offence punishable Under Section 447, 427 and 379 of IPC were framed against the accused , read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.

4

6.PROSECUTION EVIDENCE

During the trial, the prosecution examined P.Ws.1 to 5 and got exhibited

Exs.P.1 to P5 . Pw 1 Shaik Jilani Basha is the victim and informant, Pw2 D.V.Sudhakar.

Pw3 K.V.L.Prasanna, Pw4 Dumpala Seenaiah are witnesses and Pw5 D.Venkateswara

Rao was the investigation officer. Ex.P1 is the report of Pw1, Ex.P2 is the report of

Tahsildar, Ex.P4 FIR and Ex.P5 rough sketch.

7.EXAMINATION AFTER TRIAL

After closure of prosecution side evidence, the accused had been examined Under Section 313 Cr.P.C and explained the incriminating evidence found against the accused in the evidence adduced by the prosecution witnesses for which the accused were denied the same and reported no defence on their behalf.

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

9. ARGUMENTS

Learned APP on behalf of the prosecution submitted that oral evidence of revenue officials Pw2 and Pw3 who are Tahsidlar and VRO is well supporting with the oral evidence of Pw1 and the evidence of Pw5 investigation officer discloses the intentional trespass of accused into the land of Pw1 and committing the offence of theft, therefore prayed to punish the accused for the charge framed against them.

5

The learned counsel for the accused submitted that prosecution totally failed to prove that the land in dispute belongs to Pw1 or to his father thereby they became lawful owners as well as there were crops raised by Pw1 and those were stolen by the accused. In the absence of reliable and cogent evidence, upon mere suspicion convicting the accused may not be just and proper , hence prayed to acquit the accused.

10. Now the point for determination is:

1. “Whether the prosecution established the essential ingredients for the

offence punishable Under Section 447 r/w 34 beyond reasonable doubt against

accused 1 to 3 ”?

2. “Whether the prosecution established the essential ingredients for the offence

punishable Under Section 427 and 379 r/w 34 beyond reasonable doubt against

accused 1 to 3 ”?

11.POINT:-

Unless prosecution establishes the guilt of the accused beyond reasonable doubt by placing oral or documentary evidence disclosing essential requirements for the offences charged, convicting the accused may not be just and proper. Herein , the prosecution examined P.Ws.1 to 5 and got exhibited Exs.P.1 to P5 . Pw 1 Shaik Jilani

Basha is the victim and informant, Pw2 D.V.Sudhakar. Pw3 K.V.L.Prasanna, Pw4

Dumpala Seenaiah are witnesses and Pw5 D.Venkateswara Rao was the investigation officer. Ex.P1 is the report of Pw1, Ex.P2 is the report of Tahsildar, Ex.P4 FIR and Ex.P5 is rough sketch.

6

12. Point No.1: Prosecution prosecuted the accused No,.1 to 3 stating that Pw1 is the lawful owner to the land in survey No. 1734/4 and 1734/6 in total Ac.2.01 cents in

Gudluruviaripalem village, since it was assigned in favour of his father namely Abdul

Rajak under Military quota on 26.12.1988 under proceeding of revenue authorities. To support the same no documentary evidence is placed before this court like 'D' form patta or proceedings of revenue authorities dated 26.2.1988. Though Ex.P2 information given by Pws2 to 5 discloses that an assignment was made on 26.2.1988, there is no such official documents evidencing the same. Further Pw1 evidence discloses that he raised various crops including paddy in the land in dispute

Ac.2.00 at Gudluruvaripalem with the assistance of one Valipi Kistamma in the year 2015 also and the said paddy crop was stolen by the accused.

13.Since Pw1 approached this court stating he is owner and possession of the land, it is for him to place evidence. Whereas contents in Ex.P2 letter of Pw2 discloses that Bommirala Prasad and Addanki Pedda Polaiah who are accused No.1 and father of accused no.2 and 3 are actual possessor /enjoyers of the land in dispute for so many years. Evidence of Pw3 K.V.L.Prasanna, VRO to Gudluruvaripalem village is also disclosing that accused are possessor of the land for so many years but not the informant/Pw1. All these facts, circumstances and evidence discussed above including admissions of Pw1 in his cross examination that Tahsildar/Pw2 D.V.Sudhakar though passed an order on 5.5.2015 against to Pw1 his remaining silent without preferring any appeal or revision against that order of Pw2 on pattadar pass book are itself discloses that prosecution failed to prove that accused no.1 to 3 are with an intent to commit an offence entered into the scene of offence land illegally or entered legally but 7 remained illegally to commit an offence, thereby committed an offence punishable u/s 447 of IPC. Accordingly this point is answered against the prosecution by coming to a conclusion that prosecution failed to prove the guilt of the acccued beyond reasonable doubt for the offence u/s 447 of IPC.

14. Point No.2 :

Prosecution prosecuted that accused No.1 to 3 prior to Ex.P1 report i.e., on 11.4.2015, high handedly by damaging the standing crop in the land in dispute Ac.2.01 cents at Gudlurivaripalem cut down and took away paddy raised by Pw1 with the help of Lw5 Valipi Kistamma thereby committed the offence of causing damage to property and theft which are punishable u/s 427 and 379 of IPC as charged against the accused. To support the same evidence available on record is the evidence of Pws1 to

5. Evidence of Pw2 the then Tahsildar D.V.Sudhakar itself discloses that in the year 2015 as on the date of Ex.P1 report accused are possessor and enjoydars of land in dispute. More so, Pw2 admitted that there are no records available evidencing cultivation in the disputed survey numbers , therefore even pattadar pass book was not issued to Pw1. Evidence of Pw3 KVL Prasanna , VRO also disclosing that accused are enjoyers of land in dispute but not Pw1. Further evidence of Pw5 investigation officer in his cross examination is that “ It is true that Ex.P1 report does not contain the nature of crop raised by Pw1, when it was raised and who cut down it, when cut down it. I am not prepared any observation report of the scene of offence. I did not examined the neighbours at the land. In general crop will be harvested either by men or by a machine, the roots and symptoms of harvesting will be available even for 2 or 3 months. I enquired with the tractor driver who transported the crop …. As I came to 8 know that accused sold away harvested paddy I am not recovered it. No where in my report and case diary mentioned that accused sold way stolen property. As the details of purchaser are not furnished by the accused, I did not investigated into that aspect”.

All these admissions of Pw5 coupled with the oral evidence of Pw2 and Pw3 who deposed that there are no records, to show that either Pw1 or his father enjoyed the land in dispute and failure of prosecution in examining Lw5 Valipi Kistamma of

Edagali village who said to be cultivated the land of Pw1 at Gudluruvaripalem village are all renders the evidence of Pw1 and the contents in Ex.P1 report as suspicious and untrustworthy. Unless incriminating evidence is available that accused were committed the offence of theft of standing crop convicting them may not be just.

Herein prosecution though examined Pws1 to 5 failed to prove beyond reasonable doubt that accused No.1 to 3 were high handedly by trespassing into the land of Pw1, by damaging the land cut down standing paddy crop, sold it and appropriated money, thereby committed offence as charged against them, hence accused are entitled for acquittal. Accordingly, these points are answered against the prosecution.

15.FINDING

In the result, this court found that accused 1 to 3 are not guilty for the charge Under Section 447, 427 and 379 of I.P.C accordingly, this court acquitted them U/s 248(1) Cr.P.C. Their bail bonds obtained u/s 437-A Cr.P.C. shall stand canceled after six months from the date of this Judgment.

Dictated to the Personal Assistant , typed by him , corrected and pronounced

by me in open Court, this the 24 th day of April, 2018.

IV Addl. Judicial Magistrate of I Class,

Nellor 9

Appendix of evidence

Witnesses examined for

Prosecution Defence

Pw1 Shaik Jilani Basha None

Pw2 : D.V.Sudhakar, Tahsildar

Pw3: K.V.L. Prasanna, VRO

Pw4: Dumpala Seenaiah

Pw5: D.Venkateswara Rao, SI

Exhibits marked on behalf of Prosecution

Ex.P1: Report given to police by Pw1.

Ex.P2: Report of Pw2, dt.11.8.2015

Ex.P3: Portion of 61 Cr.P.C. Statement of Pw4.

Ex.P4: First Information report

Ex.P5: Rough sketch.

Exhibits marked on behalf of Defence

- Nil -

Material Objects marked for Prosecution

NIL

IV A.J.F.C.M.

Nellore

IV JMFC,Nellore. 1 Of7 CC.No. 65 of 2015

IN THE COURT OF THE IV ADDL. JUDICIAL MAGISTRATE

OF I CLASS, NELLORE.

Present: Sri. T. VASUDEVAN, IV Addl. Judicial Magistrate of First Class, Nellore.

Monday, the 23 rdday of April, 2018.

alenderC Case .No. 65 of 2015

Between:-

State Represented by Sub Inspector of Police,

Nellore rural Police Station.… Complainant.

And

1. Meduru Ravi s/o Krishnaiah

2. Meduru Malli s/o Krishnaiah

Aged about 30 and 25 years respectively Both are residents of Dakkilivaipalem, TP Gudur mandal … Accused.

This case came on 6.4.2018 for disposal before me in the presence of Assistant Public Prosecutor Smt. K. Kalavathi for the complainant and of Sri. S.Yesudass, counsel for the accused and upon hearing both sides, and on perusing the material on record and the matter having stood over for consideration till this day, and this court delivered the following:-

J U D G E M E N T

1.The Sub-Inspector of Police, Nellore rural P.S., laid charge sheet against the accused in Crime Number 33 of 2015 for the offences punishable Under Section 341 and 323 r/w 34 of I.P.C .

2. PROSECUTION CASE

The case of the prosecution as per the charge sheet laid by the

Sub-Inspector of Police, Nellore rural P.S. as follows-

IV JMFC,Nellore. 2 Of7 CC.No. 65 of 2015

Lw1 Rayapu Venkateswarlu is resident of Kamakshi Nagar village, TP Gudur mandal. Accused no.1 and 2 are residents of

Dakkilivaripalem village of TP Gudur mandal. The victim/Lw1 Rayapu

Venkateswarlu got disputes with accused and accused waiting for opportunity to assault him. On 20.1.2015 The victim/Lw1 Rayapu

Venkateswarlu went to Nellore and after completing his duty, left Nellore for his village on his motor cycle. En route, The victim/Lw1 Rayapu

Venkateswarlu stopped his motor cycle at petrol bunk situated near

Dhanalakshmi puram and filling fuel. In the meantime, accused who going in their auto observed him alone. Then they followed his motor cycle in their auto and they chased him and kept their auto across his motor cycle when he reached volunteer bakery situated at Dhanalashmipuram,caught hold him and beat him indiscriminately with hands and legs and caused swelling injuries on his face, left side of temporal region and right shoulder. When the neighbours rushed there and on seeing them accused sped away. On the report of Lw1 Rayapu Venkateswarlu to Lw6

I.Masthanaiah, the then ASI registered a case in crime No.33 of 2015 u/s.341 and 323 r/w 34 of IPC and investigated into.

During the investigation, Lw6 I.Masthanaiah, the then ASI visited the scene of offence, observed it and drawn rough sketch, examined witnesses and recorded their statements. Lw6 I.Masthanaiah, the then

ASI, served notice to the accused u/s 41 Cr.P.C. After completing investigation, Lw7 V.Giri Babu, the then SI filed final report for the offence u/ss. u/s.341 and 323 r/w 34 of IPC.

IV JMFC,Nellore. 3 Of7 CC.No. 65 of 2015

3. COGNIZANCE

After careful perusal of material on record and report filed by police, this court took the cognizance for the offences punishable under section 341 and 323 r/w 34 of IPC against the accused .

4.On appearance of the accused, relevant copies of case documents were furnished to him as contemplated Under Section 207 of

Criminal Procedure Code.

5.EXAMINATION OF ACCUSED BEFORE TRAIL

The accused had been examined Under Section 251 Cr.P.C and the allegations were read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.

6. PROSECUTION EVIDENCE

During the trial, the prosecution examined P.Ws.1 to 4 by producing Ex.P1 to P5 documents.

7.EXAMINATION OF ACCUSED AFTER TRAIL

After closure of prosecution side evidence, accused had been examined under section 313 Cr.P.C. and explained the incriminating evidence found against them in the evidence adduced by the prosecution witnesses for which they denied the same and reported that they have no defence evidence. Bail bonds as required under sec.437-A were obtained to proceed further.

IV JMFC,Nellore. 4 Of7 CC.No. 65 of 2015

8.Heard the arguments on both sides and perused the entire material on record and also the evidence in the form of oral evidence adduced as well as documentary evidence produced.

The Learned APP for the prosecution submitted that oral evidence of Pws1 and 4 is consistent and trustworthy therefore prayed to convict the accused for the offences committed by them.

Learned counsel for the accused submitted that though prosecution examined Pws1 to 4, there is no corroboration and trustworthiness in the oral evidence of Pws1 and 4. Pws2 and 3 turned hostile and they did not support the case of the prosecution. Evidence of Pw1 and 4 alone may not be sufficient to convict the accused. Hence prayed to acquit the accused.

9. Now the point for determination is:

“Whether the prosecution proved the guilt of the accused beyond reasonable doubt for the offence punishable u/sec 341 and 323 r/w 34 of IPC ?

10. POINT

In order to place essential requirements for the offences of wrongful restraint, voluntarily causing hurt punishable u/ss.341 and 323 r/w 34 of IPC, prosecution examined Pws1 to 4 by producing Exs.P1 to P5.

Pw1 Rayapu Venkateswarlu is the victim, Pw2 Pantrangi Chinni Krishna and Pw3 Kantepalli Naveen are eye witnesses, Pw4 I.Masthanaiah, was the investigation officer. Among the documents relied Ex.P1 is the report of Pw1, Ex.P4 and Ex.P5 FIR and rough sketch are important documents.

IV JMFC,Nellore. 5 Of7 CC.No. 65 of 2015

11.Evidence of Pw1 Rayapu Venkateswarlu coupled with the contents in Ex.P1 report of Pw1 to police, Nellore Rural police station contains that around 8.00p.m. night on 21.1.2015 when he was going to his Kamakshinagar near to Vaviletipadu village accused came in a auto wrongfully confined Pw1 by keeping earlier disputes in mind took up quarrel with Pw1, fisted and kicked him and when he raised cries for help , accused No.1 and 2 were went away and in that quarrel he received contusion injuries all over his face, thumb , finger to let leg. To support the oral evince of Pw1, prosecution examined Pws2 to 4, statement of Pw2

P.Chinni Krishna and Pw3 Kantepalli Naveen though discloses that they know the offence committed by accused upon Pw1, during trial Pw2 and

Pw3 categorically stated that they do not know anything about the case facts as they witnessed nothing as well as police not examined them. Pw2 and Pw3 are turned hostile to the prosecution and failed to support the oral evidence of Pw1 as well as to corroborate with their previous statements Exs.P2 and P3.

12.Only evidence available against the accused is the evidence of

Pw1 Rayapu Venkateswarlu and Pw4 I.Masthanaiah, who are victim and investigation officer. No doubt that the sole testimony of witness whose evidence appears to be reliable and trustworthy, can be basis for conviction . Herein sole testimony of Pw1 Rayapu Venkateswarlu is not appears to be reliable and trustworthy. Pw1 in his cross examination deposed that accused No.2 herein deposed as a witness against Pw1 in an another criminal case reported by others against Pw1. Pw1 obtained treatment for his injuries which are contusions at his face and left leg thumb finger from one RMP Doctor namely Dinesh Kumar. His evidence further discloses that he reported crime on 21.1.2015 itself I.e., date of

IV JMFC,Nellore. 6 Of7 CC.No. 65 of 2015 offence. Whereas evidence of Pw4 I.Masthanaiah, ASI and contents in

Ex.P1 report, Ex.P4 FIR discloses that on 3.2.2015 at 4.00p.m. Pw1 presented Ex.P1 report and there was delay in presenting report to police i.e., delay in between 21.1.2015 to 3.2.2015 and none of the witnesses examined by Pw4 I.Masthanaiah, ASI are stated the reasons for the delay.

Though, Pw1 deposed that he receive contusion all over his face and at left leg toe, as well as he said to be received treatment from a doctor namely Dinesh Kumar, there is no such material available on record to support the same. Pw1 himself in his cross examination admitted rivalry with accused. Though the incident was said to be occurred on 21.1.2015, there is no proper explanation from the prosecution available from and out of the oral evidence of Pw1 and Pw4 investigation officer about the reasons for the delay. All these circumstances are giving strength that because of existing enmity Pw1 might have reported this crime as suggested to him during cross examination, thereby prosecution failed to prove it .

13.In view of the above discussed facts, circumstances and evidence available on record this court is of the view that Pw2 and Pw3

Independent witnesses not supported prosecution, therefore their evidence is no way helpful, evidence of Pw1 is not appears to be reliable and trustworthy and in view of the admitted enmity as well as unexplained delay in presenting report to police, this court is of the view that prosecution failed to prove the guilt of the accused beyond reasonable doubt for the offence alleged, therefore accused are entitled for acquittal for the offence punishable u/ss.341 and 323 r/w 34 of IPC. Accordingly this point is answered.

IV JMFC,Nellore. 7 Of7 CC.No. 65 of 2015

14. FINDING:-

In the result, this court found that the accused No.1 and 2 are not guilty for the offences punishable Under Section 341 and 323 r/w 34 of IPC, accordingly, acquitted them U/s 255(1) Cr.P.C. Their bail bonds obtained u/s 437­A of Cr.P.C. shall stand canceled after six months from the date of this

Judgment.

Dictated to the Personal Assistant, corrected and pronounced by me in

open Court, this the 23rd day of April, 2018 .

IV Addl. Judicial Magistrate of First Class, Nellore

Appendix of evidence

Witnesses examined for

Prosecution Defence

Pw1: Rayapu Venkateswarlu None

Pw2: Pantrangi Chinni Krishna

Pw3: Kantepalli Naveen

Pw4: I.Masthanaiah, ASI

Exhibits marked on behalf of Prosecution

Ex.P1: Report given to police by Pw1

Ex.P2: Portion of previous 161 Cr.P.C. statement of Pw2.

Ex.P3: Portion of previous 161 Cr.P.C. statement of Pw3

Ex.P4: First Information Report.

Ex.P5: Rough sketch..

Exhibits marked on behalf of Defence

NIL

MOS Marked : NIL

IV AJMFC

Nellore