*HON’BLE SRI JUSTICE K.S.APPA RAO +Criminal Petition No.7293 of 2008 % 23-3-2011 # Seshapu Bhujanga Rao … Petitioners Vs. $ The State, Rep. by Public Prosecutor, High Court of A.P., Hyderabad and another … Respondents ! Counsel for the Petitioner: Sri K.Chidambaram, Advocate. Counsel for the Respondent No.1: Public Prosecutor, High Court of A.P., Hyderabad. Counsel for the Respondent No.2: Smt.M.Bhaskara Laxmi, Advocate < Gist: > Head Note: ? Cases referred: THE HON’BLE SRI JUSTICE K.S.APPA RAO CRIMINAL PETITION No. 7293 of 2008 DATE: 23-03-2011 Between: Seshapu Bhujanga Rao .. Petitioner And The State, Rep. by Public Prosecutor, High Court of A.P., Hyderabad and another .. Respondents THE HON’BLE SRI JUSTICE K.S.APPA RAO CRIMINAL PETITION No. 7293 of 2008 ORDER: The present Criminal Petition is filed by the petitioner under Section 482 of the Code of Criminal Procedure (for short “Cr.P.C.”) to quash the proceedings in C.C.No.257 of 2004 on the file of the Court of the Additional Judicial Magistrate of First Class, Tadepalligudem, West Godavari District. Learned counsel appearing for the petitioner urged that the petitioner being the P.W.1 stated before the Court that he is unable to recognize and identify the accused in C.C.No.124 of 2000 due to long delay and he did not give any false evidence and, therefore, the criminal prosecution cannot be initiated on the ground that he had taken different stand from his statement under Section 161 of Cr.P.C. Now the point for consideration is whether there are any grounds to quash the proceedings in C.C.No.257 of 2008 on the file of the Court of the Additional Judicial Magistrate of First Class, Tadepalligudem, West Godavari District? As seen from the record, the petitioner herein is the sole accused in C.C.No.257 of 2004 on the file of the Additional Judicial Magistrate of First Class, Tadepalligudem, West Godavari District. The alleged offence against him is under Section 193 of Indian Penal Code, 1860 (for short “IPC”) on the basis of a complaint preferred by the then Presiding Officer of the Additional Judicial Magistrate of First Class, Tadepalligudem, West Godavari District under Section 340 of Cr.P.C. The complaint was lodged by the learned Magistrate alleging that the accused in C.C.No.124 of 2000 was prosecuted for an offence under Section 332 of IPC on the basis of the case in Crime No.63 of 2000. The said crime was registered basing on the report given by the petitioner herein. This petitioner was examined as P.W.1 in the said Crime No.63 of 2000, which was numbered as C.C.No.124 of 2000. During the course of evidence, he stated before the Court that he cannot identify the accused due to delay. The learned Magistrate having found the evidence of defacto-complainant examined as P.W.1 i.e. the petitioner herein, was hostility towards the accused, lodged the complaint. It cannot be said without any hesitation that P.W.1, being the defacto-complainant and injured having lodged the report to the police, could not able to identify the accused due to delay. He did not deviate his version before the Court to the earlier version stated before the police under Section 161 of Cr.P.C. It is well settled law that Section 161 of Cr.P.C. statement is not admissible in evidence. Simply because he is the complainant, who shown hostility towards the accused, it cannot be said that the complainant committed any offence, much less against his own case. Therefore, in the totality of the circumstances and the facts and circumstances of the case on hand, it cannot be said that P.W.1 committed an offence under Section 193 of IPC. Accordingly, the criminal prosecution cannot be initiated merely on the ground that the witness has taken different stand from his statement under Section 161 of Cr.P.C. without taking into consideration of the various facts. Therefore, the proceedings in C.C.No.257 of 2004 on the file of the Additional Judicial Magistrate of First Class, Tadepalligudem, West Godavari District are liable to be quashed. Accordingly the Criminal Petition is allowed. _______________ K.S.APPA RAO, J 23-03-2011 Note: LR copy to be marked. B/o MR THE HON’BLE SRI JUSTICE K.S.APPA RAO CRIMINAL PETITION No. 7293 of 2008 DATE: 23-03-2011 MR