Smt V.Satya Lakshmi Prasanna

IN THE COURT OF THE I ADDITIONAL JUDICIAL MAGISTRATE

OF I CLASS: KURNOOL

Present: Smt V.Satya Lakshmi Prasanna

Judicial Magistrate of I Class, Kurnool

Wednesday, 06th day of April, 2022

CC.No.1162/2018

Between: State : Represented by Sub Inspector of police, Kurnool I Town P.S.

.... Complainant.

-VS-

Penujuri Shiva Shankar, S/o P.Purushotham Setty, Aged 27 years, H.No.68/47, Yerraburuju Street, Kurnool Town. …. Accused

This case is coming this day before me for final hearing in the presence of learned A.P.P.O for prosecution and Sri.K.Rama Krishna

Reddy, Advocate for accused and upon having perused the material this court delivered the following:

: JUDGMENT::

The then Sub Inspector of police, I Town PS, Kurnool filed charge sheet in Cr.No.09/2018 registered U/sec.186, 426 r/w 511 of IPC.

2. The brief facts of prosecution case are that the complainant here in by name P.Siva Nagi Reddy filed a private complaint U/sec.200 of Cr.P.C, with a prayer to forward the same to the police U/sec.156(3) of

Cr.P.C for FIR and investigation with following averments that:- on 08.02.2016 the accused here in by name P.Shiva Shankar S/o

P.Purushotham Setty borrowed a sum of Rs.5 lakhs and executed a pronote in his favor. Subsequently, he failed to pay anything in spite of repeated oral requests made by the complainant, so he constrained to got issue a legal notice with same demand for repayment. In spite of such notice also there is no positive response from the end of accused, as such the complainant had filed a civil suit for recovery of money vide

O.S.No.235/2016 before Hon’ble Senior Civil Judge Court, Kurnol and he

also filed an inter locatuory application vide I.A No.594/2016 for attach- ment of movables in the fancy shop bearing No.18-43A Srivasavi Fancy wholesale and Retail shop, Kurnool. Accordingly, he got an attachment warrant and on the date of execution on the request of Ameena, he ac- companied him to go to shop of accused for effecting the attachment.

But, the accused who was present in the shop at times obstructed the official duties of Ameena in effecting the attachment of movables in the fancy shop, thereby he disobeyed the orders passed by Court of law. Be- cause of that complainant had sustained loss. The complainant had al- ready given a complaint before I Town PS, Kurnool but the police did not take any action against the accused. Hence, he filed the present com- plaint.

3. After hearing the counsel for complainant and on perusal of the material documents filed along with the complaint, the present com- plaint was referred to police U/sec.156(3) of Cr.P.C by one of my learned predecessors. On the strength of such complaint the investigating offi- cer/LW5 had registered the present crime and took up investigation by examining and recording the statements of the complainant, Court ameena and two other witnesses. On 12.04.2018 at 11.00 hours the in- vestigating officer arrested accused on his surrender and subsequently enlarged him on station bail after obtaining sufficient sureties. Accord- ingly on completion of investigation, he filed charge sheet against ac- cused stating that he obstructed the public servant from discharging his lawful duties and also made an attempt to commit mischief. Hence he is liable to be punished for the offences punishable under section.186, 426 r/w 511 of IPC.

4.On the strength of averments of charge sheet, private complaint and, other material documents filed by both complainant and police this case was taken on file by one of my learned predecessors by taking cog- nizance of the offences punishable U/sec.186, 426 r/w 511 of IPC. Ac- cordingly ordered summons to sole accused.

5. On receipt of such summon, the accused appeared and received the copies of case documents supplied by this Court in compliance of

Sec.207 of Cr.P.C.

6. He was examined U/sec.251 of Cr.P.C, by explaining the sum and sub- stance of accusation of the offence punishable under section.186, 426 r/w 511, of IPC to which he pleaded not guilty and claimed to be tried.

7. During course of trial prosecution examined PW1 to PW5 and got marked Ex.P1 to P7.

8.After closure of prosecution evidence, the accused was examined

U/sec.313 of Cr.P.C by explaining the incriminating material appears from the evidence of prosecution witnesses to which, he pleaded false impli- cation, however reported no evidence in his defence.

9.I have heard on both sides and perused the record.

10.Now the point for determination is :

“Whether the prosecution to prove the guilt of accused of

the offences punishable under section.186, 426 r/w 511 of IPC

beyond any possible doubt”?

11.In order to establish their case against accused prosecution had examined 5 witnesses and got marked 7 documents. Out of them PW1 is the complainant, PW2 and 3 are eye witnesses to the offence, PW4 is

Court ameena and PW5 is investigating officer. Where as Ex.P1 is private complaint, Ex.P2 is attachment warrant in I.A, Ex.P3 is certified copy of petition and affidavit in I.A No.594/2015 in O.S.NO.235/2016, Ex.P4 is 4 photographs along with C.D, Ex.P5 is a portion of 161 Cr.P.C statement of

PW2, Ex.P6 161 Cr.P.C statement of PW4, Ex.P7 is F.I.R.

12.PW1 is the victim, so also complainant and he deposed that on 08.02.2016 he lent a sum of Rs.5 lakhs to the accused who in spite of execution of a pronote in favor of debtor, failed to pay any amount to- wards the discharge of debt. Subsequently, the complainant had filed a civil suit for recovery Vide O.S.No.235/2016 on the file of Hon’ble Senior

Civil Judge’s court, Kurnool.

13. He also deposed that during pendency of above suit on his peti- tion the Hon’ble Court ordered for attachment of movables available in the whole sale shop of the accused situated in Nehuru road Kurnool as he is running a fancy store in the name and style of Sri Vasavi fancy and whole sale. For the purpose of implementing orders the Court ameena sought for his assistance in identification of property accordingly both of them went to accused shop and while attaching articles in the shop the accused had obstructed the duties of court ameena therefore they left the shop without effecting the attachment order.

14.He further deposed that on the next day the accused had changed his shop’s name. One week after the above incident, he approached I town P.S, Kurnool and gave a report but they failed to take any action against accused. Hence, he filed Ex.P1 complaint which was referred to police for FIR and investigation. The prosecution also got marked the certified copy of attachment warrant dated.27.06.2015 as ExP2, Ex.P3 is- certified copy of petition and affidavit in attachment before judgment pe- tition and Ex.P4 is 4 photographs with C.D.

15.He was cross examined by learned counsel for defence at length suggesting that he got attachment order in the name of Siddi Vinayaka

Fancy for attaching the movables there in, indeed one P.Rajasekhar was the proprietor of said siddi vinayaka fancy and toys bearing door

No.18/434 Nehru road, Kurnool and he got license for running his busi- ness in the name as mentioned above from 15.11.2015 to 31.03.2018 but the complainant had filed civil suit against wrong person showing him as the owner of Siddi Vinayaka whole sale and fancy store. PW1 had denied the suggestion about the ownership of one P.rajasekhar over siddi vinayaka fancy store and he states that the alleged license (xerox copy) confronted to him is a fabricated document.

16.In his chief examination PW1 had stated that he got attachment order for attachment of movables in the fancy shop named after as Sri vasavi fancy and whole sale, Ex.P2 attachment warrant and P3 attach- ment petition particularly the schedule shows that the attachment sought is of the movables in the fancy store i.e., Vasavi fancy and whole sale. The learned counsel for defence tried to portray that the accused is no way concerned with Siddi vinayaka fancy and toys and the attach- ment was ordered against the movables in Vasavi fancy store therefore the allegations leveled by complainant against accused that he being the proprietor of Siddi Vinayaka fancy store obstructed court ameena in discharging his official duties are not tenable.

17. Be it noted, in his cross examination PW1 admitted a suggestion that he got attachment order for the movables in siddi Vinayaka fancy and whole sale but subsequently he added that the name of such shop was changed to Vasavi Fancy whole sale subsequently. The answer for the above ambiguity lies in Ex.P4 photographs which are 4 in number. A perusal of those photographs shows that the shop bearing No.18/43A

Nehuru Road, Kurnool at one point of time was displayed with the name board as Sri vasavi whole sale and retail and the same shop also dis- played with a different name board as Sri Siddivinayaka fancy and toys whole sale. One may believe the defence of the accused that both the shop i.e., Vasavi Fancy and Siddivinayaka fancy are different if they have been housed in different door numbers/shop number, but the shop num- ber displayed on both the name plates depicts that those boards were arranged for the same shop bearing No.18/43A. Nothing is suggested to the witness about the genuinity of Ex.P4 photographs. These photo- graphs suggests that the owner of the above shop is used to change his shop name boards as and when he wishes. Further Ex.P2 and P3 also states that the attachment was ordered only for movables in Vasavi

Fancy. Therefore, there is no such ambiguity in the shop name as sug- gested and submitted by the learned counsel for defence.

18.Even otherwise the details of the fancy store named after as Sri siddi Vinayayaka fancy and toys bearing door No.18-434, Nehuru road,

Kurnool are different from the details of fancy shop which was subjected to attachment by the Hon’ble Principal Senior Civil Judge court, Kurnool.

Therefore, when the defence counsel had suggested that one P.Ra- jasekhar was the proprietor of Sri Siddi Vinayaka fancy store which has bearing door No.18-434, Nehru road Kurnool which is denied by the wit- ness and even if really such Rajasekhar was the proprietor of above Siddi

Vinayaka fancy store which was housed in a different door number that would not effect the merits of present case. Therefore out of the evi- dence of PW1 who could stood the lengthy cross examination done by learned counsel for defence and Ex.P2 and P3 which are suit related doc- uments are enough to hold that, he filed a civil suit for recovery of money against one P.Siva Sankar who is proprietor of Vasavi Fancy and whole sale vide shop number 18-43A Nehuru road, Kurnool and got an attachment warrant for movables therein.

19.Then there is evidence of PW4 who is a crucial witness being the court ameena who said to have visited the shop of accused for attach- ment of movables in his shop. In his examination PW4 deposed that on 14.07.2016, he along with Dhr (PW1) both went for attachment of fancy store and he was obstructed by the owner of fancy shop in execution of warrant. He failed to state the name of fancy store as well as the owner of such fancy shop stating that unless he goes through the record he can not say those details. Even after going through the record also this wit- ness fails to say the fancy store name but confirmed that he was ob- structed by the owner of fancy store because of which he could not exe- cute the warrant accordingly returned the same to the concerned.

20.He was declared as hostile by learned APPO and was cross exam- ined at length in respect of the contents of Ex.P2 attachment warrant and Ex.P3 attachment petition. Some crucial aspects were elicited out such cross examination. PW4 admitted that as per Ex.P2 attachment warrant the same was issued in I.A.No.594/2016 in O.S.No.235/2016 by

Hon’ble Principal Senior Civll Judge court, Kurnool and further admitted

that the schedule mentioned in Ex.P2 warrant might be the same sched- ule which was mentioned in Ex.P3 attachment petition.

21. He further stated that the fancy store name is mentioned as Sri

Vasavi fancy whole sale and the shop bearing NO.18/43-A. His further cross examination also reveals some other crucial aspects that generally the attachment warrant will be executed in the presence of Jdr. He also admitted that on the date when he went for execution of warrnat the Jdr was present in the shop that is why he proceeded for execution of war- rant. He also admitted that as per Ex.P3 petition the Jdr’s name is one

P.Siva sankar and he went to his fancy shop in accordance with the de- tails mentioned in the petition schedule. PW4 had admitted the several crucial suggestions given by learned APPO and ultimately gave a conclu- sion that he went for attachment of movables in Vasavi Fancy store

Nehru road, Kurnool belongs to one P.Siva sankar who is none other than the accused here in. Since PW4 admitted all the suggestions given by prosecution in his cross examination, his evidence cannot be treated as totally hostile and on such ground alone, it cannot be brushed aside alto- gether from the record. On that count there is a decision of “Hon’ble

Apex Court in Between Syed Akbar Vs. State of Karnataka”

where in the Hon’ble Court observed that mere declaring a witness as hostile is not a ground by itself to reject his testimony in toto. His testi- mony not shaken on material points in cross examination cannot be brushed aside. There is another decision of same “Hon’ble Court re-

ported in 1991 SCC (Cr) 1960 in Between Khujji Vs State of

Madhya Pradesh” where in the court observed that the evidence of prosecution witness cannot be rejected in toto merely because the pros- ecution chose to treat him as hostile and cross examined. The evidence of such witness cannot be treated as effaced or washed off the record al- together but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny there of. Therefore, the evidence of PW4 which is favourable to what ever extent either to the defence or prosecution can be taken into consideration. In his chief examination

PW4 unable to state the fancy store’s name as well as its owner. But af- ter having refreshed his memory by drawing his attention to the content of Ex.P2 and P3 which are suit related documents he was able to state those details and admitted the case of prosecution that he has gone to the shop of accused for attachment of movable in Vasavi fancy and on such occasion he was obstructed by the proprietor. Nothing is favorable in the chief examination of PW4 to the defence since only because of fading out of his memory the witness could not state certain details and due to lapse of time which is almost 6 years ago from the date of of- fence, it is inevitable that one may loose memory of the instance that was occurred long ago in the year 2016. In his cross examination by learned counsel for accused also he repeated the same that unless he has gone through the record he cannot say the details of Dhr as well as the details of person who are present in the shop as he stated earlier that there were 4 persons in the shop and they all obstructed him. Ad- mittedly being a public servant the court ameena did not choose to gave any complaint against the accused for obstructing discharge of his offi- cial duties. But when the evidence of PW4 on its all over consideration suggests that the attachment ordered by Hon’ble Senior Civil Judges court, Kurnool is against accused here in and when it is not the case of defence that such suit was dismissed for choosing wrong person as de- fendant as suggested to PW1 in his cross examination, such evidence is suffice to hold that being the proprietor of Vasavi Fancy store the ac- cused who was present in his shop on the date of offence obstructed

PW4 from affecting the attachment warrant of movables available in his fancy store.

22.Then there left the evidence of PW2 and PW3. Out of them PW2 who supported the case of prosecution to some extent in his chief, fi- nally stated that on the date of alleged offence the accused had re- quested court ameena to give 2 days time for payment. Subsequently he locked the shop and gave keys to PW1. After two days some body has broke open the lock and no stock was there. He was treated as hostile by prosecution to the limited extent of contradiction about the resistance said to have been made by accused in execution of attachment warrant by ameena and in his cross examination he admitted the same which is marked as Ex.P5. Nothing material could be elicited out of PW2’s cross examination except a point about the name of fancy store that by the date of offence the accused is running his shop in the name and style of

Srinivasa Fancy store. PW5 investigating officer had also stated the same name stating that his investigation reveals that the accused is the owner of Srinivasa Fancy store. The evidence brought on record particu- larly PW1, Ex.P4 photograph clinchgly established that the accused had habit to change his shop name from time to time frequently but running the same fancy store in the same shop bearing No.18-43A Nehru Road,

Kurnool. So the difference in the fancy store name alone could not make any difference and effect the case of prosecution which had already been established by the evidence of PW1 and PW4.

23.PW3 is second witness and he deposed in support of prosecution case on all aspects and nothing material could be elicited out of his cross examination except the name difference in the fancy store name. Finally there is evidence of PW5 investigating officer who had deposed about lines of his investigation. Except the fact that the accused was called to police station on 09.04.2018 on the same day he was arrested and re- leased on bail which is quite different from the date of arrest as men- tioned in the charge sheet no crucial material could be elicited out of

PW5 cross examination. It is admittedly true that there are certain de- fects in the investigation carried by PW5 in projecting the correct name of fancy store as well as to provide the details of exact date of arrest of accused. But all those defects are trivial in nature and would not come in the way of prosecution in successful establishing the guilt of accused.

24.However, it is not explained by prosecution how the allegations leveled against accused for having obstructed the official duties of public servant would amounts to mischief as defined U/sec.425 and made pun- ishable U/sec.426 of IPC. The gist of prosecution case particularly as pro- jected through evidence of PWs1, 4, only relates to the offence punish- able U/sec.186 of IPC. Thus, the allegations in the case on hand wound not attract the offence punishable under section.426 r/w 511 of IPC.

25.Hence, on careful consideration of the oral evidence of PWs1 to 5 and Ex.P1 to P7, this court is of the view that the prosecution able to es- tablish their case against accused only for the offence punishable

U/sec.186 of IPC and they fails to bring home the guilt of accused for the offence punishable U/sec.426 r/w 511 of IPC.

In the result, accused found guilty of the offence punishable

U/sec.186 of IPC. Accordingly he is convicted of the same under section.255(2) of Cr.P.C. However, he is found not guilty of the offence punishable U/sec.426 r/w 511 of IPC and acquitted of the same u/sec.255(1) of Cr.P.C. His bail bonds and surety bonds if any shall stand canceled.

Dictated to the Stenographer, corrected and pronounced by me in

open Court, this the 06th day of April, 2022.

I Addl.Judicial Magistrate of I Class, Kurnool.

Heard on sentence. The accused submitted that in recent past he lost his father, and his mother is suffering from cancer. Therefore, he submitted that his presence along with his mother is just and essential to look after her welfare and to provide treatment to her ailment.

However as the allegation leveled against accused are that he obstructed a public servant in discharge of his official duties as defined and made punishable U/sec.186 of IPC. This court is not inclined to invoke and apply the beneficial provisions either under section.360 of

Cr.P.C or under probation offenders Act.

Considering the facts of the present case and the submission made by accused this court is of the view that instead of the sentence of imprisonment some amount of fine would meet the ends of justice.

Accordingly the accused is sentenced to pay a fine of Rs.500/- for the offence punishable U/sec.186 of IPC. In default he shall undergo simple imprisonment for a period of one month.

The accused is appraised of his right to prefer an appeal against the judgment passed by this Court if necessary by availing the services of DLSA, Kurnool.

Dictated to the Stenographer, corrected and pronounced by me in

open Court, this the 06th day of April, 2022.

I Addl.Judicial Magistrate of I Class, Kurnool.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION : FOR DEFENCE:

P.W.1:P.Siva Nagi Reddy -None- P.W.2:M.Udaya Prasad P.W.3:M.Venkata Ramana P.W.4:M.Babu P.W.5:Y.Venkateswarlu

EXHIBITS MARKED

FOR PROSECUTION: Ex.P.1: Complaint Ex.P.2: Certified copy of attachment warrant dt.27.06.2015 Ex.P3:Certified copy of petition and affidavit in I.A.No.594/2015 in

O.S.No.235/206.

Ex.P4:4 photographs along with C.D. Ex.P5: 161 Cr.P.C statement of PW2 Ex.P6: 161 Cr.P.C statement of PW4 Ex.P7:FIR

FOR DEFENCE

None

I JMFC, KNL.

CALENDAR AND JUDGMENT

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS :: KURNOOL

Calendar Case No.1162/2018

Date of offence.: 04.07.2016

Date of complaint.: 13.01.2018

Date of apprehension of accused: 12-04-2018

Date of release on bail : 12-04-2018

Date of commencement of trial.:25-11-2021

Date of close of trial.:24-02-2022

Date of sentence or order.:06-04-2022

Explanation.: ----

Complainant: State: Represented by the Sub Inspector of Police, Kurnool I Town P.S.

S.NoNameFather’sReligionOccup-ResidenceAge name/ation Husband Name H.No.68/47, Penujuri ShivaP.Pu- 1HinduYerraburuju, Shankarrushotham ---27 yrs Street, Setty Kurnool Town.

Offence. : Obstructing public servant in discharge of public functions.

Section of Law : 186 of IPC.

Finding. : Found guilty.

Sentence or order: In the result, accused found guilty of the offence punishable U/sec.186 of IPC. Accordingly he is convicted of the same un- der section.255(2) of Cr.P.C. However, he is found not guilty of the of- fence punishable U/sec.426 r/w 511 of IPC and acquitted of the same u/sec.255(1) of Cr.P.C. His bail bonds and surety bonds if any shall stand canceled.

Heard on sentence. The accused submitted that in recent past he lost his father, and his mother is suffering from cancer. Therefore, he submitted that his presence along with his mother is just and essential to look after her welfare and to provide treatment to her ailment.

However as the allegation leveled against accused are that he obstructed a public servant in discharge of his official duties as defined and made punishable U/sec.186 of IPC. This court is not inclined to invoke and apply the beneficial provisions either under section.360 of

Cr.P.C or under probation offenders Act.

Considering the facts of the present case and the submission made by accused this court is of the view that instead of the sentence of imprisonment sum amount of fine would meet the ends of justice.

Accordingly the accused is sentenced to pay a fine of Rs.500/- for the offence punishable U/sec.186 of IPC. In default he shall undergo simple imprisonment for a period of one month.

The accused is appraised of his right to prefer an appeal against the judgment passed by this Court if necessary by availing the services of DLSA, Kurnool.

I Addl.Judicial Magistrate of I Class, Kurnool.

Copy submitted to the Hon’ble Chief Judicial Magistrate-Cum-Prl. Asst.

Sessions Judge, Kurnool.

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS:

NANDIKOTKUR

Present: Smt V.Satya Lakshmi Prasanna

Judicial Magistrate of I Class, Kurnool

FAC Judicial Magistrate of I Class, Nandikotkur

Monday, 2 nd day of December, 2019

CC. No.87/2012

Between:

State : Represented by Sub-Inspector of police, Muchumarri P.S.

... Complainant.

-VS- 1.Ediga Naga Ratnam Goud, age 60 yrs, S/o. Ediga Naganna Goud 2.Ediga Naga Ratnamma, age 58 yrs, W/o. Ediga Naga Ratnam Goud, A1 and A2 are R/o. Nehrunagar village, Pagidyala Mandal. 3.Pikkili Venkateswarlu, age 37 yrs, S/o. Chinna Savaraiah, C.P.M.Party, Division Secretary, R/o.Vaddepeta, Valmiki Nagar, Nandikotkur town 4.Mala Eswaramma, age 65 yrs, W/o. Late Venkata Swamy, C.P.M.Party, R/o. Nehrunagar village, Pagidyala Mandal.

... Accused.

This case coming this day before me for final hearing in the presence of learned Asst. Public Prosecutor for prosecution and

Sri C.Venakteswarlu Advocate for Accused and having perused the material this court delivered the following:

: JUDGMENT::

The then SI of police, PS Muchumarri filed charge sheet in Cr.No. 5/2012 registered U/sec.386 of IPC.

2. The brief facts of case are that one Chakalai Rama Swamy is resident of Nehru Nagar village, Pagidyalal Mandal. He purchased a land to an extent of Ac.1.56 cents in Sy.No.317. Originally, that land was located in Srisailam project back water area. He purchased that land on 24.06.2011 from his vendor Narayanamma for a sale consideration of

Rs.2,25,000/- and executed an agreement of sale. Three months prior to 22.02.2012, the back water of the project was dried up. Therefore, he 2 planted paddy seedings and raised the crop which had ripen for harvestation.

(b) While the things stood thus, on 22.02.2012, in the absence of

Chakali Rama Swamy in the village, his wife Chakali Eswaramma and his son Chakali Suresh Babu both were working in that agricultural land, around 12.00 pm, their villagers namely Ediga Nagartnam Goud and his wife Ediga Nagaratnamma apart from CPM party people namely

P.Venkateswarlu and Mala Eswaramma and some others brought three tractors as well as the crop cutting machine to the land and the accused party ie., A1 and A2 claimed that the land as of their own, therefore,

Rama Swamy and his family members has no right at all to get the crop.

Stating so, they got cut down standing crop with the help of machine and carried away the crop after its harvestation in three tractors. Though

LW.1/Chakali Eswaramma and LW.2/Chakali Suresh Babu tried to resist them but the accused party threw a threat that they would kill them . On the next day, after arrival of her husband who is the alleged owner of land, LW.1 Chakali Eswaramma approached police and submitted a written report at 10.00 hrs wherein she mentioned the registration numbers of paddy crop cutting machine and one tractor and also stated that one out of two remaining tractors pertains to one Mandlem.

Sudhakar. Therefore, she sought for necessary action against all the persons who came to their lands and taken away the paddy crop.

(c) Basing on the strength of such report, LW.9/SI of police, Muchumarri

PS registered the present case and later secured the presence of

LW.1/C.Eswaramma, LW.2/C.Suresh Babu, LW.3/Chakali Rama

Swamy,LW.4/Golla Linga Maddilety and LW.5/ Kuruva Beeraiah and recorded their statements in part-II CD. Whereafter on 24.02.2012,

LW.9/SI of police deputed one PCNo. 3239 for serving notices upon A1 and A2 u/sec. 41-A of Cr.P.C. with a direction to attend before the

Investigating officer and for co-operating in investigation. But they 3 refused to receive the notices. Subsequently on 26.02.2012, LW.9/SI of police secured the presence of LW.6/Adam Pullaiah and recorded his statement and on the same day, he seized 57 sacks of paddy grain which were alleged to be harvested by accused in this case under cover of a panchanama prepared in the presence of LW.7/N.Ranganna and

LW.8/B..Maddilety and later produced the property through Form-60

before this court.

(d) During the course of further investigation, on 27.02.2012, on receipt of some credible information, LW.9/SI of police arrested A1 and

A2 at Nehru Nagar village and subsequently forwarded them for judicial remand. Again on 28.02.2012, he deputed another PC 1589 for serving notices u/sec. 41-A of Cr.P.C. upon A3 and A4 but they too had refused to receive the notices, they were arrested on 12.03.2012 subsequently produced them before the court for judicial remand. After completion of investigation, he laid charge sheet against A1 to A4 alleging that they all had committed an offence punishable u/sec. 386 of IPC.

3.Basing on the strength of panchanama dt. 26.02.2012 as well as on the strength of report dt. 23.02.2012, one of my learned predecessor has this case was taken on file by taking cognizance of the offence punishable u/sec. 386 of IPC. Accordingly, summons ordered to accused No.1 to 4.

4. On receipt of such summons, all the accused appeared

before the court, and received the copies of case documents supplied to

them as required u/sec. 207 of Cr.P.C. Therefore, they were examined u/sec. 239 of Cr.P.C. regarding the allegations levelled by prosecution but they all pleaded not guilty. Therefore, a charge u/sec. 386 of IPC is framed, read over and explained to them in their known language, to which they pleaded not guilty and claimed to be tried.

5. During course of trial, prosecution had examined 9 listed witnesses, that apart the prosecution had filed two petitions u/sec. 311 4 of Cr.P.C. and examined one Narayanamma as PW.3 and Tahsildar

Pagdiyala Mandal as PW.11 and got marked Ex.P.1 to Ex.P.10.

6.After closure of prosecution evidence, all accused were examined U/sec. 313 of Cr.P.C. by explaining the incriminating material appears in the testimony of PW1 to PW.4 as well as PW.10. To which they pleaded false implication and reported no defence evidence.

7.Heard the learned APPO. Whereas the counsel for accused had filed written submissions.

8.Now the point for determination is:

Whether the prosecution could prove the guilt of accused

No.1 to 4 of the offence punishable u/sec. 386 of IPC beyond

reasonable doubt?

POINT:

9.In order to establish the case leveled against accused , as already stated above, prosecution had examined 11 witnesses and got marked Ex.P.1 to Ex.P.10. Out of them, PW.1 is the defacto complainant.

PW.2 is her son and he is eye witness to the incident. PW.3 is owner of the lands who sold out such land to PW.4 ie., PW.1’s husband. PW.5 is an independent witness. PW.6 and PW.9 are panchas for seizure of paddy sacks panchanama dt. 26.02.2012. PW.10 is investigating officer. PW.11 is Tahsildar of Pagidyala Mandal.

10.Prior to dwelling into the issue involved in the case on hand, this court would like to sum of the case of prosecution as follows:

11.PW.4 Chakali Rama Swamy who purchased a land in

Sy.No.317 which is submerged lands of Srisailam Project Back Water areas and also cultivated it by raising paddy crops at the time of harvestation A1 to A4 along with others took three tractors as well as paddy crop cutting machine and harvested the crop subsequently taken away in the vehicles by throwing threatens. PW.1 and PW.2 are shown as present in the fields at the time of incident as described above.

5

12.PW.1 is the wife of PW.4 deposed about purchase of Ac. 1.56 cents of land in Sy.No.317 by her husband and that they raised paddy crop, in the month of February which was Sivarathri Festival on one day at 12.00 noon while herself and her son was working in the paddy field, all the accused and 15 other CPM Party workers brought the vehicles harvested the crop forcibly and carried away in the vehicles. She further deposed describing the harvesting machine as 68G and Tractor number

as 5878 and further deposed that one tractor belongs to Mandlem

Sudhakar. In support of her case, she exhibited her report as P.1. As per the case of prosecution, police had recovered 57 bags of paddy under cover of panchanama.

13.Not only PW.1, PW.2 who is her son also deposed in similar lines of PW.1 about the arrival of all the accused to the scene, harvesting the paddy crop and that all the accused threatened them to do their lives and taken away the bags of the paddy along with them.

14.The learned counsel for accused cross examined both these witnesses mostly on similar grounds stating that originally father of A1 by name Ediga Naganna Goud is the owner of the subject land in

Sy.No.317 and thus even PW.3 and A1 has no right at all to execute any deed of alienation in favour of others therefore A1 is in cultivation of that land at relevant point of time and the crop alleged tobe harvested by accused is only grown up by him.

15.PW.1 and PW.2 are very specific that Chakali Rama Swamy (PW.4) had purchased that land from PW.3 in the year 2011 by way of an unregistered sale deed for some sale consideration. Though such owner is examined due to timely steps taken by prosecution as a witness though she also deposed about alienation of subject land in favour of

PW.4 in the year 2011 and prior to that she got such land from her parental aunt in the year 1995 who earlier got such land in her family partition and since she is issue-less, her paternal aunt executed an un 6 registered document in the name of PW.3’s son by name Simagouni

Madhav Kumar.

16.In her cross examination PW.3 admitted that the compensation was awarded regarding the submerged land in Sy.No.317 in favour of one Nagaratnam Goud who is none other than father of A1.

It is the contention of prosecution that the subject land is located in

Submerged areas of Back water Srisailam Project. As admitted by PW.1 to PW.3 collectively they did not file any document that alleged to be executed by PW.3 in favour of PW.4 conveying any right and title over land in Sy.No.317. It is also admitted by these three witnesses that no revenue records could be filed to show the possession of PW.3 prior to the alleged alienation of land in favour of PW.4 muchless any adangal showing the possession of PW.4 after purchase of that land in the year 2011.

17. In this context, this court would like to refer sec. 386 of IPC which described punishment for the offence an extortion by putting a person in fear of death or grevious hurt. As per the ingredient of sec.

383 of IPC which originally defines the offence of extortion, some persons intentionally should put another person in fear of an injury, with a purpose to dishonestly induces the person put in fear to deliver the property or valuable security.

18.In the case on hand, by virtue of the allegations levelled against accused we have to consider the crop harvested and taken away accused as the property but prior to one should not loose either of the fact that before holding that the accused threatened PW.1 and PW.2 thereby induced to deliver such property the ownership of paddy crop involved in this case should be alleged/established. It is also peculiar in the case on hand that the accused also claiming the same land as it is his ancestral property and he cultivating it by raising paddy crop whenever water in that area was dried up.

7

19.In this context, this court would like to refer to the evidence of PW.11 who is Tahsildar, Pagidyala village, he was examined as a witness at the instance of prosecution. He produced the revenue records pertains to land in Sy.No.317 of Muruvakonda (Nehru Nagar village) regarding which the dispute is pending before this court. He deposed that there is Ac.9.64 cents of land in Sy.No.317 and the entire land was acquired by Srisailam Project at about 30 years ago for project purpose and compensation was also paid to the concerned land owners.

Therefore, neither the accused party nor PW.4 has no right of title over the disputed land and admittedly when it is the case of over it. Since in the case on hand, there is no document showing the title as well as the possession of PW.4 and further once the land is acquired by government the disputed regarding the ownership over such land between the private persons is not tenable.

20.Even if we kept aside who got the subject land and cultivated the crop, in between PW.4 and accused and confine to the allegations that the accused had taken away crop from the subject land, it is the case of prosecution and as deposed by PW.1, PW.2 and PW.4 that all the accused had brought three tractors as well as and one crop cutting machine. But in the case on hand, the police had shown only four accused and undoubtedly in her Ex.P.1 report PW.1 had stated that A1,

A2 and 15 others came to the land and taken away the crop. When it is the contention of prosecution that several vehicles were harvested in carrying the crop after cutting it harvested with the help of crop cutting machine the examination of drivers as well as the owners of the such vehicles would render assistance to the case of prosecution in proving the involvement of vehicles in the commission of the offence. But in the case on hand, PW.10 did not take any steps in that regard and even no explanation was given in the charge sheet while the names and involvement of other accused could not be established out of his 8 investigation. Therefore, when there is no material in the form of oral evidence given by the persons who co-operated the vehicle in coming and going away from the scene for the purpose of carrying away the harvested crop utilisation of such vehicle is also not believable.

21. In such context, this court would like to add one thing that

PW.10 investigating officer had seized 57 bags of paddy from market yard in the presence of PW.8 and W.9 under cover of panchanama. Out of them, PW.8 turned hostile saying that in the month of February, 2012 police just informed him that they have seized 59 paddy bags from

Nandikotkur while which belongs to the villagers of Nehru nagar village and further they informed him that they are going to draft the same and saying so obtained his signature on white blank paper. Hence, the testimony of this particular witness is of no use to the prosecution in establishing the seizure of bags from market yard, Nandikotkur.

22.PW.9 is another panch and his evidence is no way different from the evidence of his companion witness PW.8 and he become unfriendly denying that the police had seized 57 bags in his presence.

PW.10 is investigating officer and while deposing his lines of investigation he also testified that he seized bags under Ex.P.9 on 26.02.2012 from market yard, Nandikotkur. But in his cross examination, he admitted that the officials in market yard will verify the pass books and owners only can be allowed into market yard with the agricultural products.

23.If such being the case, if at all we accepted the prosecution that A1 to A4 after committing extortion of paddy bags if at all they approached to market yard, Nandikotkur for its sale obviously they would not get any entry into the premises and products cannot allowed to be kept in the market yard. Hence, by virtue of such admission that even if we believe the testimony of PW.10 regarding the seizure but such fact 9 itself is not suffice to hold that he seized bags from the possession of accused which were taken away from the land of PW.4.

24.Moreover, in order to attract an offence the prosecution should establish that by virtue of dishonest inducement made by accused, the prosecution witnesses I.e, PW.1 and PW.2 were compelled to do any act which they are not at all bound to do or omit to do what they have legally failed to do, a thing which otherwise they are not bound to do.

25Therefore, when the right of PW.4 over the land as well as the crop alleged to be grown up in that land is not established the case of prosecution lacks regarding the main ingredient that the accused made the complainant party to do any unlawful act which they are not otherwise bound to do. When there is no material resembling their right over the crop even if PW.1 and PW.2 resisted accused party not to take away such crop along with them such circumstances in the considerable opinion of this court would not attract an offence punishable u/sec. 386 of IPC. PW.4 is the alleged owner of land and he too had failed to place any document even the so called agreement of sale alleged tobe executed by PW.3. Whereas PW.5 is independent eye witness but strangely he turned hostile and pleaded innocence about the facts of this case. Therefore, as the offence u/sec. 386 of IPC is incorporated in the group of offences described as offence against property before holding that any person had committed an offence against the property all another , the right muchless the possession of the later one should be established beyond reasonable doubt.

26.Under such circumstances, when there is lacunae in the right claimed by PW.1 to PW.4 over the paddy crop their allegations for committing extortion of such paddy crop by accused are not tenable.

Hence, aforesaid discussion, and after careful consideration of the oral testimony of PW.1 to PW.11 coupled with Ex.P.1 to Ex.P.10, this court is of 10 the view that the prosecution had failed their case against accused , even if at all the accused had been cultivating the subject land it is recourse of the revenue officials to take necessary action against him.

For doing cultivation even after by its acquisition by the government.

Over all the case of prosecution is meritless and as a result all the accused are entitled for acquittal.

27.In the result, accused found not guilty of offence punishable u/sec. 386 of IPC. Accordingly they are acquitted of the same u/sec. 248 (1) of Cr.P.C. Their bail bonds and surety bonds shall be inforce for a period of 6 months as per section 437-A of Cr.P.C.

Directly typed to my dictation, corrected and pronounced by me in open court, this the 2nd day of December, 2019.

Judicial Magistrate of I Class, Kurnool

FAC Judicial Magistrate of I Class,

Nandikotkur.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FO R PROSECUTION: FOR DEFENCE:

P.W.1: C.Eswaramma P.W.2: Suresh Babu P.W.3: S.Narayanamma P.W.4: Rama Swamy P.W.5: K.Bheeraiah P.W.6: Aden Pullaiah-None- P.W.7: G.Linga Maddilety P.W.8: B.Maddilety P.W.9: N.Ranganna VRO P.W.10: G.M.Shankar P.W.11: K.Srinivasulu

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P.1 : Complaint Ex.P.2 : Sec 161 Cr.P.C. Statement of PW.5 Ex.P.3 : Sec.161 Cr.P.C. statement of PW.6 Ex.P.4: Sec. 161 Cr.P.C. Staement of PW.7 Ex.P.5: Signature of PW.8 on seizure panchanama Ex.P.6: Signature of PW.9 on seizure panchanama Ex.P.7: FIR 11

Ex.P.8: Rough sketch Ex.P.9: Seizure of panchanama dt. 26.02.2012 Ex.P.10: Attested copy of adangal 4.09.2019

FOR DEFENCE:

NIL

MATERIAL OBJECTS

NIL

JMFC, KURNOOL

FAC JMFC, NANDIKOTKUR.

12

CALENDAR AND JUDGMENT

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS:

NANDIKOTKUR

Calendar Case No.87/2012

Date of offence.: 22.02.2012

Date of complaint.: 23.02.2012

Date of apprehension of accused: 27.02.2012-A1,A2 12.03.2012-A3,A4

Date of release on bail.: 01.03.2012-A1,A2 14.03.2012-A3,A4

Date of commencement of trial.: 11.03.2014

Date of close of trial.: 18.11.2019

Date of sentence or order.: 02.12.2019

Explanation.: ----

Complainant: State: Represented by the Sub Inspector of Police, Muchumarri Police Station.

1.Ediga Naga Ratnam Goud, age 60 yrs, S/o. Ediga Naganna Goud 2.Ediga Naga Ratnamma, age 58 yrs, Accused Nos. W/o. Ediga Naga Ratnam Goud, 1 to 4A1 and A2 are R/o. Nehrunagar village, Pagidyala Mandal. 3.Pikkili Venkateswarlu, age 37 yrs, S/o. Chinna Savaraiah, C.P.M.Party Division Secretary, R/o.Vaddepeta, Valmiki Nagar, Nandikotkur town 4.Mala Eswaramma, age 65 yrs, W/o. Late Venkata Swamy, C.P.M.Party, R/o. Nehrunagar village, Pagidyala Mandal.

Offence. : Extortion Section of Law : 386 IPC

Finding. : Not Guilty.

Sentence or order: In the result, accused No.1 to 4 found not guilty of the offence punishable u/sec. 386 of IPC . Accordingly, they are acquitted of the same u/sec. 248 (1) of Cr.P.C. Their bail bonds and sureties if any shall be inforce for a period of 6 months as per sec. 437-A of Cr.P.C.

13

Judicial Magistrate of I Class, Kurnool

FAC Judicial Magistrate of I Class,

Nandikotkur.

Copy submitted to the Hon’ble Chief Judicial Magistrate-cum- Prl. Asst.

Sessions Judge, Kurnool.

1

IN THE COURT OF THE JUNIOR CIVIL JUDGE: NANDIKOTKUR

Present: Smt V. Satya Lakshmi Prasanna

I Addl. Junior Civil Judge, Kurnool FAC Junior Civil Judge, Nandikotkur

Tuesday the 31 st day of December, 2019

ORIGINAL SUIT NO.145/2016

G.Maheswara Reddy, S/o. G.Nagi Reddy, Hindu, age 43 yrs, Agriculturist, R/o. Pagidyala village and Mandal, Kurnool District. …. Plaintiff

Versus

M.Jaya Bharath Reddy, S/o. M.Kantha Reddy, Hindu, age 43 yrs, Agriculturist, R/o.Pagidyala Village and Mandal, Kurnool District.

.... Defendant

This Suit is coming up for final hearing on 02.12.2019 in the presence of Sri S.Venkata Reddy, Advocate on behalf of the Plaintiff and

Sri C.C.V.Ranga Reddy Advocate on behalf of the Defendant and upon considering the material, till this day, this Court delivered the following:

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

This is a suit filed for recovery of Rs.2,74,652/- along with costs and interest.

2. The brief averments of plaint are that:

I). On 05.07.2013, the defendant herein had borrowed an amount of Rs.1,00,000/- from the plaintiff for his family necessities and executed A1 marked suit pronote at Pagidyala village agreeing to repay the debt amount with interest @ 24% p.a. On the same day, he again borrowed another amount of Rs.1,00,000/- from the plaintiff for his family necessities and executed “B” marked suit pronote in favour of plaintiff with same kind of stipulation to pay the debt with interest. Subsequently, in spite of several repeated demands and despite issuance of legal notice dt. 06.06.2016, the defendant did not pay anything towards the amount due under A and B 2 marked pronotes. Hence, the plaintiff is constrained to file the present suit for the relief as indicated above.

3. On receipt of summons, the defendant entered his appearance through an advocate and opposed the claim of plaintiff by filing his written statement and interalia he further submitted that much prior to the suit transaction dt. 05.07.2013, there are money transactions in between himself and plaintiff and on 23.09.2012 he borrowed an amount of

Rs.50,000/- from plaintiff who got executed pronote in favour of his father-in- law by name Mandadi Krishna Reddy. He admitted that on 05.07.2013 he had borrowed Rs.1,00,000/- twice at two different timings and also admitted execution of A and B suit pronotes.

(b) The defendant further submitted that on 14.05.2014, he paid an amount of Rs.1,16,800/- to the plaintiff towards the part payment of the amount due under the suit pronotes and got endorsed such part payment on rear side of pronote dt. 23.09.2012 executed in favour of Mandadi Krishna

Reddy, after the part payment endorsement regarding the payment of

Rs.61,000/- towards the amount borrowed on 23.09.2012 from plaintiff.

Therefore, after part payment dt. 14.05.2014, plaintiff is only entitled to claim an amount of Rs.1,78,940/-.

(c) He further submitted that plaintiff himself wrote part payment endorsement including the calculations on the rear side of pronote dt.

23.09.2012 which was executed by defendant in favour of father-in-law of plaintiff. But by suppressing the fact of receipt of part payment of

Rs.1,16,800/-, the plaintiff had filed present suit with all false allegations and made a claim for Rs.2,74,652/- which he is not entitled to claim from the defendant. He further submitted that the defendant is an agriculturist therefore, he is entitled for scaling down of interest @ 12.5% p.a. for the amount due under the suit pronotes and if, the interest is calculated @ 12.5 % p.a. he is only liable to pay an amount of Rs.1,32,530/- but not the suit amount as claimed by the plaintiff.

3

(d) He finally submitted that he sustained huge loss in his agricultural work and at present it is very much difficult for him to provide the basic needs to their family members, therefore, he prayed to permit him to pay the due amount by way of installments within a period of 2 years from the date of passing the decree. Thus, he prayed to pass the decree only for an amount of Rs.1,32,530/- with a liberty to pay the same in two equal annual installments.

4. Basing on the strength of pleadings following issues are settled for trial.

1.Whether the suit pronote is true, valid and binding on the defendant ?

2. Whether the plaintiff is entitled for recovery of suit amount along with cost and interest as prayed for?

3. To what relief?

5. During the course of trail, plaintiff examined his own self as

PW.1 and he got marked Ex.A.1 to A.4. Apart from that he got examined one G.Thikkaswamy as PW.2 describing him as a witness to the suit transactions.

6. On the other hand, the defendant himself is examined as D.W.1 and he got marked Ex.B1.

7. Heard both sides.

ISSUE NO.1 & 2:

8. Since the plaintiff is claiming recovery of suit amount of

Rs.2,74,652/-, he is under obligation to prove the original transaction dated.

05.07.2013.

9. In doing so, plaintiff examined his own self as PW.1 and got marked Ex.A1 to Ex.A4. In his chief examination he reiterated the material facts of his case in the evidence affidavit and further deposed that having borrowed the amount under both suit pronotes and having received a 4 demand notice dt. 06.06.2016, the defendant did not choose to pay the due amount. In support of his case, he exhibited two original pronotes, dt.

05.07.2013 for amount of Rs.1,00,000/- each as A1 and A2. Besides that he got marked office copy of legal notice dt. 06.06.2016 as Ex.A3, whereas

Ex.A4 is postal receipt.

10.The learned counsel for defendant had cross examined PW.1 on the ground that having borrowed Rs.2,00,000/- under Ex.A1 and Ex.A2 pronotes, the defendant had made a part payment which was scribed by

PW.1 on the rear side of pronote dt. 23.09.2012 which was executed by defendant in favour of Madandi Krishna Reddy for the amount borrowed from plaintiff. Though PW.1 admitted his writings in Ex.B1 document but he further clarified that the inscriptions regarding the part payment made on 14.05.2014 are in respect of some other transaction, but no way concerned with the suit transaction. Since, in his written statement itself the defendant categorically admitted execution of Ex.A1 and A2 pronotes, there is no obligation on the part of plaintiff to prove the execution of such pronotes again in consonance with sec. 58 of Indian Evidence Act that the admitted facts need not be proved.

11.On the other hand, having taken the plea of part payment, squarely the onus of proof rests upon defendant to establish such payment towards the amount due under Ex.A1 and Ex.A2 pronotes. In doing so, he had cross examined PW.1 basing on Ex.B1 endorsement dt. 14.05.2014 and claimed that after receipt of amount the plaintiff himself made such endorsement on the rear side of pronote dt. 23.09.2012. That apart the defendant examined his own self as DW.1 wherein he reiterated the material facts of his defence as set forth in the written statement and further got marked Ex.B.1 endorsements dt 14.05.2014 which was marked subject to admissibility, proof and relevancy.

12.In his cross examination DW.1 admitted that in Ex.B1 there is no mention that the transaction shown therein pertains to plaintiff. Admittedly, 5

Ex.B1 shows that there is some part payment regarding amount

Rs.2,00,000/- alleged tobe borrowed on 05.07.2013 and there is a mention that interest was paid on the principal amount for 10 months and 10 days and after deducting the payment, the total due amount comes around

Rs.1,78,940/-. There is no dispute regarding the authorship of those writings by the plaintiff. But,when it is specifically denied by him saying that the alleged payment is nothing to do with his claim regarding both suit pronotes,it is the burden on the part of defendant to prove such payment by placing some cogent and supporting evidence. DW1 admitted in his cross examination that there is no specific mention in Ex.B1 that such payments were made regarding the amount borrowed by him from plaintiff and even

Ex.B1 does not contain the signatures of either of the parties to the suit acknowledging the payment. If that is the case, mere pleadings alone are not suffice to believe the version of defendant regarding making of part payment towards the debt amount due under Ex.A1 and Ex.A2 pronotes.

13.Be it noted, DW.1 was also cross examined by the learned counsel for plaintiff regarding receipt of Ex.A3 demand notes dt. 06.06.2016.

DW.1 specifically admitted that he received such notice. If at all, the case of defendant regarding making part payment in respect of amount due under

Ex.A1 and Ex.A2 pronotes is true and correct,certainly he would have issued a reply notice to Ex.A3 demand notice denying his liability to pay the entire suit amount as claimed by plaintiff muchless he would have set forth his defence of part payment on 14.05.2014. But no such reply notice was given by defendant and no explanation is forth coming from his side why he did not choose to do so. There is no strike jacket formula that mere failure to give a reply to the legal notice always led the court to draw an adverse inference against the recipient. But if at all the defendant is prudent and diligent enough regarding his liability towards the suit pronotes, he expected to issue such reply notice denying his liability for the entire amount due under A and B marked suit pronotes. Without doing so, he has taken a 6 defence of part payment in his written statement and even Ex.B1 endorsement does not contain the signatures of parties between whom the part payment endorsement was made even their name particulars were also not mentioned therein . All these facts made this court to disbelieve Ex.B1.

Even otherwise,generally if a debtor paid any part payment ,the same should be endorsed on the rear side of pronote if any, existing in proof of the money transaction in between himself and his creditor. But in the case on hand

Ex.B1 endorsement was made on the pronote executed in favour of one

Rama Krishna Reddy ,who is not a party to the present suit. Therefore, on any count,it cannot be considered that Ex.B1 came in to existence in connection with suit pronotes. Thus, the defence taken by defendant is not plausible both on factual and legal aspects, hence it is liable to be ignored.

14.In that context, the counsel for defendant also cross examined

PW.1 that even after knowing about the defence taken by DW.1, plaintiff did not choose to file any rejoinder application to claim that Ex.B1 is false and no way relevant to the present case. However, when Ex.B1 document is unable to convince that the part payment endorsement contains therein is only in relating to the suit transaction the mere failure to file a rejoinder particularly to deny Ex.B1 itself not become a fatal issue . Thus, the defendant failed to prove his defence of part payment.

15.Regarding the case of plaintiff, to prove his claim for suit amount, there are Ex.A1 and Ex.A2 pronotes which are not at all in dispute since the defendant himself admitted their execution in his written statement itself. In such a case evidence of PW.2 is not at all required for the adjudication of the lis in the case on hand. Therefore, in the absence of any plausible evidence let in by defendant to establish his defence and by virtue of his admission of execution of suit pronotes there is no hesitation on part of this court to hold that the defendant is liable to pay the amount of

Rs.2,00,000/- along with interest.

7

16. The defendant has claimed scaling down of interest @ 12.5% alleging that being a farmer and having sustained loss he is entitled for a nominal rate of interest to be paid on the due amount. Admittedly, the defendant did not file any scrap of paper to show that he is having some lands and had sustained loss in cultivation of such lands. However, PW.2 admitted that the defendant is an agriculturist and in his cross examination

DW.1 stated that he is running a bakery in Nandikotkur town. Under such circumstances, the inference that can be drawn by this court is that having sustained loss in his agriculture, the defendant started to do bakery business at Nandikotkur.

17.Even otherwise, in his plaint, PW.1 claimed nominal interest @ 12.5% p.a. on the principal amount of Rs.2,00,000/- rather than the interest as agreed in Ex.A1 and Ex.A2 pronotes.Thus,there is no much dispute regarding the amount to be paid on principal amount of Rs.2,00,.000/- since the rate of interest as claimed by plaintiff and sought to be paid by defendant is one and the same I.e, 12.5% p.a. If one has calculated interest at such rate on principal amount of RS.2,00,000/- the total due amount comes around the suit claim of Rs. 2,74,652/-. Hence, having failed to prove his plea of part payment, the defendant is liable to pay total suit amount to the plaintiff.

18.Finally, in his written statement itself the defendant claimed to permit him to pay the amount in two equal annual installments. As per order

XX rule 11, this court is having every power to order for payment of due amount in installments with or without interest, if such request is made

before passing of decree. Therefore, in view of the findings given for issues

no.1 and 2 and having considered the request of defendant to order for payment of debt amount in two equal annual installments, this court is inclined to pass the decree for suit amount along with interest payable thereon in installments.

8

19.In the result, the suit is decreed with costs for Rs.2,74,652/- along with interest @ 12% p.a. from the date of suit till the date of decree, thereafter with future interest @ 6% p.a. from the date of decree till the date of realization on such principal amount of Rs.2,00,000/- in twenty equal monthly installments commencing from February, 2020.

Dictated to Personal Assistant, Transcribed by her, corrected and

pronounced by me in the Open Court, this the 31st day of December, 2019.

Sd/- Smt. V. Satya Lakshmi Prasanna,

I Addl. Junior Civil Judge, Kurnool. FAC Junior Civil Judge, Nandikotkur.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff:For Defendant:

PW-1: G.Maheswara Reddy DW-1: M. Jaya Bharath Reddy

P.W.2:G.Thikka Swamy

EXHIBITS MARKED

For Plaintiff:

Ex.A-1 : Suit promissory note for Rs.1,00,000/- dt. 05.07.2013 executed by the defendant in favour of plaintiff.

Ex.A2: Suit promissory note for Rs.1,00,000/-dt. 05.07.2013 executed by the defendant in favour of plaintiff.

Ex.A3: Office copy of legal notice dt. 06.06.2016

Ex.A4: Postal receipt dt. 06.06.2016

For Defendant :

Ex.B.1: Calculation memo on the back of xerox copy of Promissory note,

dt. 23.09.2012 executed by defendant in favour of Mandal Krishna

Reddy, S/o. Mandadi Rama Krishan Reddy who is the father-in-law of the plaintiff for Rs.50,000/- which is marked subject to relevancy proof and admissibility.

Id/- V.S.L.P. I Addl.JCJ,KNL.

FAC JCJ,NDK.

9 10

IN THE COURT OF THE JUNIOR CIVIL JUDGE: NANDIKOTKUR

Present: Smt V. Satya Lakshmi Prasanna

I Addl. Junior Civil Judge, Kurnool FAC Junior Civil Judge, Nandikotkur

Tuesday the 31 st day of December, 2019

ORIGINAL SUIT NO.145/2016

G.Maheswara Reddy, S/o. G.Nagi Reddy, Hindu, age 43 yrs, Agriculturist, R/o. Pagidyala village and Mandal, Kurnool District. …. Plaintiff

Versus

M.Jaya Bharath Reddy, S/o. M.Kantha Reddy, Hindu, age 43 yrs, Agriculturist, R/o.Pagidyala Village and Mandal, Kurnool District.

.... Defendant

****

This suit is filed by the plaintiff against the defendant for recovery of amount of Rs.1,37,326/- + Rs.1,37,326/- in total Rs.2,74,652/- being the principal and interest due on promissory note-A and B for

Rs.1,00,000/-each, dt. 05.07.2013 and 05.07.2013 respectively and executed by the defendant in favour of plaintiff for Rs.1,00,000/- each agreeing to repay the same with interest at 24% per annum. But he failed to pay any amount despite several repeated demands made by the plaintiff and issuance of legal notice dt. 06.06.2016. Hence, the suit and for costs.

The cause of action for the suit arose on 05.07.2013, 05.07,2013(both pronotes) at Pagidyala village,Kurnool District, when the defendant borrowed amount from the plaintiff and executed suit promissory notes in favour of the plaintiff, and on all subsequent dates of demands made by the plaintiff and when the defendant failed to pay the suit debt at Kurnool, within the jurisdiction of this Court.

Jurisdiction value of the suit is Rs. 2,74,652/-(pronote -A Rs.1,37,326/- and pronote-B Rs.1,37,326/-) and Court fee of Rs.7,652/- (Rs.3,826/- +

Rs.3,826/-) is paid under section 20 of A.P. Court Fee and Suits Valuation Act, 1956.

Plaint presented on 01.07.2016 Last represented on 11.07.2016 and numbered on 14.07.2016.

11

This Suit is coming up for final hearing on 02.12.2019 in the presence of Sri S.Venkata Reddy, Advocate on behalf of the Plaintiff and Sri

C.C.V.Ranga Reddy Advocate on behalf of the Defendant , upon having perused the material papers on record, this Court doth the Decree as follows:-

1. that the suit be and same is hereby decreed in favour of plaintiff against defendant,

2. That the defendant do also pay to the plaintiff a sum of

Rs.2,74,652/- with subsequent interest at 12% per annum from the date of filing of suit till the date of decree, and thereafter with future interest at 6% per annum from the date of decree till date of realization on such principal amount of Rs.2,00,000/- (Rs.1,00,000/- + Rs.1,00,000/-) in twenty equal monthly installments commencing from February,2020.

3. That the defendant do also pay to the plaintiff a sum of

Rs.12,714 /- towards costs of the suit.

Given under my hand and the seal of the Court, this the 31st day of December, 2019. I Addl. Junior Civil Judge, Kurnool. FAC. Junior Civil Judge, Nandikotkur.

MEMO OF COSTS

For Plaintiff (Rs) For defendant (Rs)

1. Stamp on plaint Rs. 7,652-00 --

2. Stamp on Vakalath Rs. 2-00 --

3. Stamp on processRs. 40-00 --

4. Advocate fee Rs. 4,970-00 Not certified

5. Typing charges Rs. 50-00

------------------- ---------------

TOTAL Rs. 12,714-00 Nil

------------------ ---------------

I ADDLl. J.C.J, KNL.

FAC. J.C.J. NDK.

12

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS: NANDIKOTKUR

Present: Smt V.Satya Lakshmi Prasanna

Judicial Magistrate of I Class, Kurnool

FAC Judicial Magistrate of I Class, Nandikotkur

Dated the 30th day of December, 2019

CC. No.135/2015

Between:

State : Represented by Sub-Inspector of police, Muchummarri P.S.

... Complainant.

-VS-

Setty Nagendra, S/o. Setty Raju, Age 26 yrs, Nehrunagar village, Pagidyala Mandal.

…. Accused

This case coming this day before me for final hearing in the pres- ence of learned Asst. Public Prosecutor for prosecution and Sri

V.N.Satyanarayana Advocate for Accused and upon having perused the material this court delivered the following:

: JUDGMENT::

The then SI of police, Muchummarri PS filed charge sheet in

Cr.No.13/2015 registered U/sec.452, 324, 509 of IPC .

2. The brief facts of the case are that one Maddela Dargamma has been residing along with her husband and children in Nehrunagar village of Pagidyala mandal. Her husband is washermen by profession.

Therefore, she is taking care of the maintenance of her family. In front of their house one Setty Nagendr, S/o. Setty Raju has been residing along with his family. On 10.03.2015, around 8.00 pm, while Dargamma alone present in her house, then the accused i.e, S.Nagendra who was under intoxication criminally trespassed into the house and started to abuse her “Yeme Lanjadana “ and also asker her “why you ares end my wife to another persons” and stating so he picked up a stick available in her house and beat her on left side of her head thereby caused bleeding 2 injuries. Immediately,she raised huge cries and on hearing the same her brother-in-law by name Maddela Seshanna who was passing infront of her house came to the scene. Then the accused escaped from the scene.

The neighbour people as well as her husband and his brother’s shifted her to Vasavi Hospital in Nandikotkur and due to non availability of duty doctor they again shifted her to Govt. General Hospital, Kurnool in 108 ambulance for treatment.

(b).On receipt of MLC intimation from the hospital authorities, the police Muchummarri visited the hospital and recorded the statement of injured and basing on such statement LW.8/ SI of police Muchumarri registered the present case. He took up investigation by securing the presence of LW.1/ Maddela Dargamma, LW.2 Maddela Seshann,

LW.3/Maddela Muniswamy, LW.4/Maddela Triveni and LW.5/Maddela

Prakasham and recorded their statements in part-II CD. On 13.02.2015,

LW.8/SI of police arrested the accused and forwarded him before this court for judicial remand. During course of further investigation, he received the wound certificate issued by LW.7 medical officer and after completion of investigation, he laid charge sheet against accused.

3.On the strength of statement of LW.1 Maddela Dargamma as well as on the strength of contents of wound certificate issued by LW.7, this case was taken on file by taking cognizance of the offences punishable U/sec.452, 324,509 of IPC . Accordingly, summons ordered to sole accused.

4.On receipt of such summons, accused made his appearance and received case copies supplied by this court as required u/sec. 207 of Cr.P.C. whereafter he was examined U/sec.239 of Cr.P.C. regarding the allegations levelled by prosecution but he pleaded not guilty. Therefore, a charge u/sec. 452,324,509 of IPC is framed, read over and explained to him in his known language. But he pleaded not guilty and claimed to be tried.

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5.During course of trial, prosecution had examined PW.1 to

PW.8 and got marked Ex.P.1 to Ex.P.4.

6.After closure of prosecution evidence, sole accused was examined U/sec.313 of Cr.P.C by explaining the incriminating material appears in the testimony of prosecution witnesses. To which he pleaded false implication and reported no defence evidence.

7.Heard the learned APPO. Whereas the learned counsel for accused filed his written arguments.

8.Now the point for determination is :

“ Whether the prosecution to prove the guilt of accused

of the offence punishable U/sec.452,324,509 of IPC beyond

reasonable doubt”?.

POINT :

9.To summarise the case of prosecution, it is their allegation that the accused voluntarily trespassed into her house, caused simple hurt and also used to abusive language against PW.1. Therefore, as per sec. 452 of IPC, the house trespass is only available if one has made such entrance after making preparation for causing hurt , assault or wrongful restraint. Therefore, in order to establish the guilt of accused of the offence punishable u/sec.452 of IPC, it is the prime obligation on the part of prosecution to bring home the guilt of accused of the offence punishable u/sec. 324 of IPC. For which they have to establish that PW.1 had sustained injury on the alleged date of incident.

10.In order to discharge such burden, the prosecution has projected the testimony of PW.1 to PW.6. Out of them, PW.1 is the victim and remaining witnesses are circumstantial witnesses. Besides that the prosecution had also placed reliance on Ex.P2 wound certificate.

11.Being described as injured PW.1 deposed that at about 1 year 5 months back, while he was present at home the accused came there in a drunken condition and beat her with a stick on head, as a result, she sustained bleeding injury. PW.5 who is brother-in-law of PW.1 4 and who alleged to have found the occurrence of incident at first upon hearing the alaram made by PW.1 also deposed that he found PW.1 in her house with an injury on her head above the left ear.

12.PW.2 to PW.4 and PW.6 are all the relatives of PW.1 and PW.5 and they too had also deposed that they came to know that PW.1 had sustained injury caused by a wooden stick on 10.03.2015.

13.The learned counsel for accused cross examined all these witnesses suggesting that PW.1 had sustained the injury in the hands of her husband but by taking advantage of an injury she thought to implicate the accused who advised her not to pick up any quarrel with his relatives.

14.Be it noted, the accused never disputed the fact that PW.1 had sustained an injury on her left temporal parietal region of head.

PW.7 the medical officer who deposed on behalf of the author of Ex.P.2 wound certificate testified before this court that on 10.03.2015, PW.1 got treated by LW.7 at 10.01 pm and found one lacerated injury size about 5 cms over left parietal region. As per the opinion of medical officer (LW.7) that injury is simple in nature and its age is between 0-6 hours prior to his examination. Prosecution had examined PW.7 instead of LW.7 on the strength of certificate issued by Superintendent, Govt. General Hospital that LW.7 who applied for medical leave for a period of one month, subsequently absconded from his duties. Thus, the prosecution got marked Ex.P.2 wound certificate through PW.7 who identified the signature of LW.7. Though the learned counsel for accused did not raise any objection for marking wound certificate through PW.7. But it is crystal clear that he has lost the valuable right to cross examine the medical officer (LW.7) who originally treated PW.1 to elicit the nature as well as the approximate reason for causing such injury. Therefore without any prejudice to the right of accused for cross examining the author of

Ex.P.2 wound certificate, this court would like to consider that document 5 only to hold that PW.1 had sustained injury on her left parietal region.

Thus, the prosecution succeeded in establishing the fact that PW.1 sustained injury on 10.03.2015 which is nothing but the date of alleged offence.

15.Now the 2nd point for consideration is :

Whether the accused himself is responsible for the injury

sustained by PW.1?

16.In order to establish this fact, the prosecution has again projected the testimony of PW.1 to PW.6. A Thoughtful consideration of the oral testimony of all these witnesses would goes to show that PW.1 is the only ocular witness whereas PW.5 found the accused soon after hearing the huge cries made by PW.1, while he was leaving her house.

The remaining witnesses who are husband, daughter and two brother-in- laws of PW.1 are only circumstantial evidence. Thus, their evidence is hearsay in nature.

17.Undoubtedly, PW.1 spoken that the accused had beat her with a wooden stick on her head above the left ear while abusing that she has taken his wife to others and thereby imparting training to live an immoral life. Be that as it may, in her cross examination PW.1 specifically admitted that the wife of accused has been staying at

Kurnool for the last two years by the date of her examination on 06.09.2016. This admission is very crucial since the offence had been occurred on 10.03.2015, at 8.00 am. If that is the case, when the wife of accused has been staying at Kurnool even by the date of alleged offence how the accused could pick up a quarrel with PW.1 alleging that she has been taken his wife to lead an immoral life ?.

18. The cross examination of PW.1 also shows the probabilities that she might not have any chance for having acquaintance with the wife of accused since she failed to even spoke the name of accused wife.

Therefore, without even knowing the name how PW.1 could take wife of 6 accused for collecting fire wood as deposed by her, who has been staying in Kurnool is remind as un- explained. It is undoubtedly true that it is not necessary in all cases to establish the motive for commission of offence but in the case on hand it is the origin for the case of prosecution that as PW.1 has one had taken accused wife for collecting fire wood in that context only he picked up a quarrel and beat PW.1 with a stick on her head. But the admissions made by PW.1 show that the presence of accused‘s wife in his house at Nehrunagar of Pagidyala

Mandal at the time of alleged offence is improbable.

19. If such being the case though Ex.P.2 wound certificate had suggests us that PW.1 had sustained some kind of injury for which he got treatment from LW.7 but this court feels that the prosecution had failed to project their case as it is. Since the circumstances under which the offence had been committed are not established muchless their failure to do so would further create a doubt in the judicious mind about very occurrence of the incident. Adding to that PW.6 is one of the brother-in- law’s of PW.1 and he deposed that he found the accused while he was coming out from the house of PW.1 and immediately PW.5 found with a bleeding injury on her head. It is the case of prosecution that the accused had beat PW.1 with a stick, PW.5 spoken that he saw such stick in house of PW.1 soon after the incident, he shown the stick to police and they seized blood stained clothes of PW.1 besides the stick used by accused in the commission of offence.

20.Be it noted, except the oral testimony of PW.1 and PW.5, the prosecution never made any attempt to exhibit such stick before this court tobe marked as M.O. and even the evidence of PW.8 investigating officer is silent regarding the seizure of such material object from the scene of offence. While cross examining PW.1 the learned counsel for accused got marked part of her statement recorded u/sec. 161 of Cr.P.C which is to the effect that the accused himself has brought a stick and 7 beat her with it. Whereas it is the testimony of PW1 that the accused picked up the stick available in her house and caused injury with such stick. The contradict statement given by PW.1 regarding that how the accused had secured the stick for the commission of offence and the prosecution fails to give any explanation why the investigating officer had failed to seize any such stick though he alleged to have visited the scene and draw Ex.P.4 rough sketch. All these facts ultimately made us to conclude that the case of prosecution that the accused had beat PW.1 with a stick is found to be baseless. Even otherwise, PW.2 is not eye witness to the incident therefore strictly speaking he has no first not/hand informant how PW.1 had sustained the subject injury on her head.

21.Moreover, having found the accused after hearing the alaram raised by PW.1, PW.5 did not act as an ordinary prudent man either to caught hold the accused or to give any shouts regarding the offence committed by accused. Therefore, the evidence of PW.1 and

PW.5 even if considered but it is not suffice to convince judicious mind to hold that PW.1 had sustained injury only because of a hit given by accused with a stick. It is golden principal of criminal judicious that the prosecution would establish the guilt of accused beyond reasonable doubt.

22.In the case on hand, the prosecution has miserably failed to prove the circumstances which found the basis for the accused to commit the alleged offence. Except the said circumstances there is no other reason motivated by any personal ill feelings between the accused and PW.1 which facilitated the accused for the commission of the offence.

23. Thus, even after careful consideration of the oral testimony of PW.1 to PW.8, coupled with Ex.P.1 to Ex.P.4 besides Ex.D1, this court is of the view that the prosecution had failed to establish the guilt of 8 accused beyond reasonable doubt. Since it fails to explain how the accused could pick up a quarrel regarding his wife who has been staying at Kurnool alleging that PW.1 had been taken her for collecting fire wood in Nehrunagar of Pagidyala Mandal. Thus, a careful consideration of the circumstances of the prosecution case would made this court to hold that the accused is entitled for benefit of doubt.

24.Now coming to the offence punishable u/sec. 452 of IPC when the prosecution had failed to prove the offence u/sec.324 the mere entry into the house of PW.1 as deposed by herself and PW.5 that itself would not constituted the ingredients to attract the offence punishable u/sec.452 of IPC. In the same manner there is no material to attract the offence punishable u/sec. 509 of IPC also.

25.Hence on oral consideration of the prosecution case, this court is of the view that though PW.1 had sustained injury but the prosecution had failed the accused caused with such injury, hence, they failed to establish his guilt as required under law. Accordingly, he is entitled for benefit of doubt.

26. In the result, accused found not guilty of the offence punishable U/sec.452,324,509 of IPC. Accordingly, he is acquitted of the same U/sec. 248(1) of Cr.P. The bail bonds and sureties of accused if any shall be inforce for a period of 6 months as required u/sec. 437-A of

Cr.P.C.

Dictated to Personal Assistant, transcribed by her, corrected and pronounced by

me in open court, this the 30th day of December, 2019.

Judicial Magistrate of I Class,

Kurnool. FAC Judicial Magistrate of I Class, Nandikotkur.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

PW.1 M.Dargamma

PW.2:Muniswamy

PW.3:M.Triveni

PW.4:Eswaraiah-Nil-

PW.5:M.Seshanna

PW.6:Maddela Prakash

PW.7: S.Manjula

PW.8:L.Sivanjal

EXHIBITS MARKED

FOR PROSECUTION: FOR DEFENCE:

Ex.P.1 : Report

Ex.P.2 : Wound certificate , dt. 24.03.2015

Ex.P.3 : FIR

Ex.P.4 : Rough Sketch -NIL-

Ex.D1 is marked portion of 161 Cr.P.C. statement of PW.1

JMFC, KURNOOL.

FAC JMFC, NANDIKOTKUR.

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CALENDAR AND JUDGMENT

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS:

NANDIKOTKUR

Calendar Case No.135/2015

Date of offence.: 10.03.2015

Date of complaint.: 11.03.2015

Date of apprehension of accused: 13.03.2015

Date of release on bail.: 20.03.2015

Date of commencement of trial.: 06.09.2016

Date of close of trial.: 04.11.2018

Date of sentence or order.: 30.12.2019

Explanation.: ----

Complainant: State: Represented by the Sub Inspector of Police, Muchumarri Police Station.

Setty Nagendra, S/o. Setty Raju, Age 26 yrs, Nehrunagar village, Pagidyala Mandal.

Accused

Offence. : House trespass alter preparation for hurt, assault or wrongful restraint., Voluntarily causing hurt by dangerous weapons or means, Word,gesture or act intend to insult the modesty of woman.

Section of Law : 452,324,509 IPC.

Finding. : Not Guilty

Sentence or order:In the result, accused found not guilty of the offence punishable U/sec.452,324,509 of IPC. Accordingly, he is acquitted of the same U/sec. 248(1) of Cr.P. The bail bonds and sureties of accused if any shall be inforce for a period of 6 months as required u/sec. 437-A of Cr.P.C.

Judicial Magistrate of I Class, Kurnool

FAC Judicial Magistrate of I Class, Nandikotkur.

Copy submitted to the Hon’ble Chief Judicial Magistrate-cum- Prl. Asst.

Sessions Judge, Kurnool.

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IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS:

NANDIKOTKUR

Present: Smt V.Satya Lakshmi Prasanna

Judicial Magistrate of I Class, Kurnool

FAC Judl. Magistrate of I Class, Nandikotkur

Monday, 30th day of December, 2019

CC. No.34 8 /2015

Between: State : Represented by Sub- Inspector of police, Muchummarri P.S.

.... Complainant.

-VS- 1.Pagadam Sampath Kumar, age 25 yrs, S/o. P.Vijayudu, 2.Gundepogu Nagaraju, age 35 yrs, S/o. G.Pullanna, Both are r/o. Devanagar street of Pagidyala (V) & (M).

…. Accused

This case coming this day before me for final hearing in the presence of learned Sr.A.P.P for prosecution and Sri P.Srinivasulu

Advocate for accused and upon having perused the material this court delivered the following:

: JUDGMENT::

The then Sub Inspector of police, Muchumarri PS, filed charge sheet in Cr.No.66/2015 registered U/sec. 353 r/w 34 of Indian

Penal Code.

2. The brief facts of case are that on 27.09.2015 at 10.30 hours one S.Subbaiah / HC 2438 along with A.Ram Prasad gone to village visit on the instruction of the then SI of police of Muchumarri PS. Accordingly, they visited Anjineyanagar, Biravolu, thereafter reached Pagidyala villages. Then around 12.30 pm they found A1 and A2 at bus stand in near Devanagar colony. Both the accused making gestures and causing nuisance to the general public, passing through the way into the bus stand. On observing the same, LW.1 and LW.2 warned them not to cause nuisance and also instructed them to left the place. Whereupon, both the accused gave an adamant reply saying “why should they leave the place and who are the police officials to instruct them to went 2 away from the scene ? thereby, they caused obstruction to Lws 1 and 2, while discharging their official duties. In the mean time, some passersby warned them and subsequently sent them away. Where after, the police officials make an enquiry and came to know the details of both accused as Pagadam Sampath Kumar and Gundepogu Nagaraju. Therefore, after completion of their duty, they both came back to PS around 5 pm and submitted a special report,whereupon, LW.5 registered the present case.

(b)During course of investigation, he recorded the statements of

LW.1 and LW.2 later, he visited the scene of offence. Subsequently, on 28.09.2015, he arrested both the accused, at the bus stand near

Devanagar colony and forwarded them before the Hon’ble Court for judicial remand. After completion of investigation, he laid charge sheet against accused no.1 and 2.

3. On the strength of material papers filed along with charge sheet, one of my learned predecessor in office, has taken this case on file by taking cognizance of the offence punishable u/sec. 353 r/w 34 of

IPC. Accordingly, issued summons to both accused.

4.On receipt of such summons, accused No.1 and 2 appeared

before the court and had received copies of case documents supplied to

them as required u/sec.207 of Cr.P.C. Where after, they were examined

U/sec.251 of Criminal Procedure Code, by explaining the sum and substance of accusation of the offence punishable u/sec. 353 r/w 34 of

Indian Penal Code, in their known language, to which they pleaded false implication and claimed to be tried.

5. During course of trial, prosecution had examined almost all the listed witnesses as PW.1 to PW.5 and got marked Ex.P.1 to Ex.P.5.

6. After closure of prosecution evidence, accused were examined

U/sec.313 of Criminal Procedure Code by explaining the incriminating 3 material appears in the testimony of PW.1, PW.2 and PW.5. To which, they pleaded false implication at the instance of the then village

Sarpanch. However, reported no defence evidence in their defence.

7. Heard on both sides.

8.Now the point for consideration is:

Whether the prosecution to prove the guilt of accused of

the offence punishable U/sec. 353 r/w 34 of Indian Penal Code

beyond reasonable doubt?

POINT:

9. In order to bring home the guilt of accused, prosecution had projected the evidence of PW.1 to PW.5. Out of them, PW.1 is the informant–cum-eye-witness. PW.2 is also ocular witness. PW.3 and PW.4 are independent eye witnesses to the incident. Whereas PW.5 is investigating officer.

10.Being the informant, PW.1 deposed that on 27.09.2015 on the instructions of SI of police, Muchumarri PS, he along with LW.2 left PS for visiting villages, accordingly they visited Anjineyanagar, Biravolu villages, whereafter reached Pagidyala village at 12.30 pm. At that time, when they reached Devanagar bus stand at Pagidyala village and performing their beat duty, found two persons at the bus stop standing on the road and creating public nuisance thereby, obstructing the public who were coming on the way. Then both the police officials went there and warned not to create any public nuisance and also instructed them to leave the place for which, both those persons did not listen and in turn questioned the police people who are you to ask us to leave the place thereby they both caused obstruction to PW.1 and PW.2 who were engaged in discharging their official and lawful duties. However, on the intervention and the admonition given by some of the passersby, both the accused left the place. PW.1 also deposed that his enquiry with the persons available at the scene leads to the disclosure of names and 4 particulars of both accused. Therefore, came back to PS at 5.00 pm and submitted Ex.P.1 Special report.

14.PW.2 who alleged to have accompanied PW.1 in visiting the villages also deposed that both the accused found to be causing nuisance to the general public near Devanagar bus stand and when they questioned the same, both gave rash answers and on the admonition given by some by standers they left the scene. These two witnesses were cross examined by the learned counsel for accused on the ground that since both the accused did not support the then

Sarpanch Chinna Yerranna of Pagidyala village, a false case was foisted against them due to political pressure, but both the accused are obedient and have much respect towards police. The suggestion of false implication was denied by both PW.1 and PW2. Admittedly, the scene of offence is a busy locality which happened to be a bus stand, near Devanagar colony.

15.As per the evidence given by PW.1 and PW.2, both accused no.1 and 2 found to have an altercation with eachother seriously and also causing obstruction to the general public passing on the way and did not heed the advice given by police and further gave an evasive reply. Before deciding the guilt or otherwise of the both accused for the offence charged with, this court would like to consider Whether the allegations as reproduced above would really attract the offence punishable u/sec. 353 of Indian Penal Code? And for the better understanding the section, the same is reproduced as hereunder.

16.Assault or criminal force to deter public servant from discharge of his duty:- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person to the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term whey may extend to two years, or with fine, or with both.

5

17.A careful consideration of the ingredients of the offence punishable u/sec. 353 of Indian Penal Code, would discloses that in order to attract the offence in the case on hand, one has to use criminal force or cause assault. The Indian Penal Code also clarifies what is meant by force for the purpose of section 353 IPC which is as defined u/sec. 349 of IPC.

A person is said to use force to another if he cause motion, change of motion, or cessation of motion as to things that substance into contact with any part of that other’s body, with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other’s sense of feeling. As per sec. 349 of IPC, the action of a person would certainly should cause a change in the motion of a particular person as well as or a change in the motion of a substance which would contact with another person, then only it will be called as using force by one person against another.

18.Whereas section 351 of IPC defines what an act of assault is .

As per the ingredients of the section, if a person makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he should makes that gesture or preparation is about to use criminal force. Therefore, a cumulative affect of careful and thoughtful consideration of the both the terms force and assault as defined under

Indian Penal Code, would give us a loose it picture that some physical activity is required to be done by the offender before he is going tobe charged either for the offence punishable u/sec.350,351, finally u/sec.

353 of IPC.

19.Having observed so, this court has every doubt whether mere uttering of some words even against a public servant would really attracts an offence punishable u/sec. 353 of Indian Penal Code?. In those lines, this court also come across a decision of our Hon’ble Apex

Court reported in AIR 1966 SC 1775 in a case between Durga 6

Charan VS State of Orissa, wherein the Hon’ble Court held that u/sec.353 of IPC, the ingredient of assault or use of criminal force are required to be done while the public servant is doing his duty as such is necessary.

20.If such being the case, in the case on hand, the testimony of

PW.1 and PW.2 only shows that both the accused had given an adamant reply to the advice given by them and their evidence is utterly/entirely silent regarding whether the accused had done any physical act muchless used any force or caused assault against him.

21.Thus, in view of the observations made by Hon’ble Apex Court in the decision referred above, this court feels that even if we assume that both PW1 and PW2 gone to Pagidyala village and found A1 and A2 in the same circumstances as deposed by them in chief examination and as mentioned in Ex.P.1 special report, but such allegations by themselves would not suffice to constitute the offence punishable u/sec.

353 of IPC.

22.Even otherwise, it is the general procedure to be followed in police station to record the each and every activity done by police officials as a part of their regular duty in the general diary which should be maintained for 24 hours i.e, from 7.00 am to 7.00 am another day.

But in the case on hand, it seems that no such entry could be made in the general diary and even there is no documentary proof such as instructions if any, given by PW.5 directing both PW.1 and PW.2 to go for visiting villages come under the territorial jurisdiction of their PS.

23.Moreover, PW.1 and PW.2 though both are police officials but they had no chance to know the people residing in the surrounding villages of the concerned PS. As per the case of prosecution, after occurrence of the incident both PW.1 and PW.2 had made an enquiry with PW.3 and PW.4 who were present and witnessed the incident ,then 7 they came to know of the name and other particulars of both accused.

But both the independent witnesses who are examined as PW.3 and

PW.4, pleaded innocence about the facts of the present case muchless regarding alleged complicity of the accused in the commission of offence.

24.Despite cross examination of these two witnesses by learned

APPO, no useful material could be elicited. Hence, when both PW.3 and

PW.4 become unfriendly to the case of prosecution and did not support regarding passing on information of both accused to the police officials then how could both PW.1 and PW.2 came to know of such details to make a mention thereof in Ex.P.1 special report? Is required to be explained.

25.Therefore, the case of prosecution projected through the testimony of PW.1 to PW.4 has no legs to stand both on facts as well as on legal aspects. PW.5 is the investigating officer and superior to both

PW1 and PW.2, therefore obviously his investigation as well as his evidence should be in support of the case putforth by PW.1 through

Ex.P.1 special report.

26.Thus, even after careful consideration of the oral testimony of

PW.1 to PW.5, coupled with Ex.P.1 to Ex.P.5, this court is of the view that there is no cogent and sufficient evidence to bring home the guilt of accused either on factual or on legal aspects. Thus, as a result, both the accused are entitled for benefit of doubt. Consequently, they deserved to be acquitted from the charge.

28.In the result, accused No.1 and 2 found guilty of the offence u/sec.353 r/w 34 of IPC . Accordingly he is acquitted of the same u/sec.

255 (1) of Cr.P.C. The bail bonds and sureties of accused, if any shall be inforce for a period of 6 months as per sec.437-A of Cr.P.C.

Dictated to Personal Assistant, transcribed by her, corrected and

8

pronounced by me in open court, this the 30th day of December, 2019.

sd/- Smt. V. Satya Lakshmi Prasanna,

Judicial Magistrate of I Class,

Kurnool. FAC. Judicial Magistrate of I Class, Nandikotkur.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

P.W.1: S.Subbaiah HC., P.W.2: A.Ram Prasad -None- P.W.3:P. Narasimhulu P.W.4: Shaik Thahir Basha P.W.5: L.Sivanjal.

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P.1 : Special Report Ex.P.2: Sec.161 Cr.P.C. statement of PW.3 Ex.P.3: Sec.161 Cr.P.C. statement of PW.4 Ex.P.4: FIR Ex.P.5: Rough sketch

FOR DEFENCE:

-NIL-

Id/- V.S.L.P.,

JMFC, KNL.

FAC JMFC,NDK.

9

CALENDAR AND JUDGMENT

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS :: NANDIKOTKUR

Calendar Case No. 348 /201 5

Date of offence.:27.09.2015

Date of complaint.:27.09.2015

Date of apprehension of accused:28.09.2015

Date of release on bail.:05.10.2015

Date of commencement of trial.:25.11.2016

Date of close of trial.:18.11.2019

Date of sentence or order.:30.12.2019

Explanation.: ----

Complainant: State: Represented by the Sub Inspector of Police, Muchumarri Police Station. S.NoNameFather’s ReligioOccupatiResidencAge name/Husband none Name

1.Pagadam P.VijayuduHindu ---Devanaga25 Sampath r street of yrs KumarPagidyala

(V) & (M).

2.Gundepogu G.Pullanna,Hindu ---Devanaga35 Nagarajur street of yrs Pagidyala

(V) & (M).

Offence. :Assault or criminal force to deter public servant from discharge of his duty:-

Section of Law : 353 r/w 34 of IPC Finding. : Not Guilty

Sentence or order: In the result, accused No.1 and 2 found guilty of the offence u/sec. 353 r/w 34 of IPC . Accordingly he is acquitted of the same u/sec. 255 (1) of Cr.P.C. The bail bonds and sureties of accused, if any shall be inforce for a period of 6 months as per sec.437-

A of Cr.P.C.

sd/- Smt. V. Satya Lakshmi Prasanna,

Judicial Magistrate of I Class,

Kurnool. FAC. Judicial Magistrate Of I Class, Nandikotkur.

10

Copy submitted to the Hon’ble Chief Judicial Magistrate-Cum-Prl. Asst.

Sessions Judge, Kurnool.