IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY FIRST DAY OF NOVEMBER TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL No.722 of 2008 Between: The State of A.P. .. Appellant AND Manukonda Gopala Rao .. Respondent The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL No.722 of 2008 JUDGMENT: This Criminal Appeal is directed against the acquittal of the accused, by the judgment in C.C.No.2 of 2006 on the file of the Judicial Magistrate of First Class, Special Mobile Court, Eluru, dated 05.04.2007, of offences punishable under Sections 352, 353 and 506 (2) of the Indian Penal Code (for short, ‘I.P.C.’). 2. The factual background for the appeal is that the Sub-Inspector of Police, Tadepalligudem Town Police Station filed the charge sheet against the accused alleging that Sri J.Sambasiv was Additional Judicial Magistrate of First Class, Tadepalligudem under whom K.Venkata Lakshmi was working as Superintendent. On 12.10.2004, Sri Sambasiv directed the police to seize two motor cycles kept across the passage to the Court obstructing the movement of public, along with an official memorandum for necessary action as per law. M.Srinivasa Rao, N.V.S.Srimannarayana, N.V.V.Satyanarayana, N.Surya Mani, E.Narasimha Murthy and the accused- advocate requested the Magistrate to release the two motor cycles, but, the Magistrate did not agree. Then the accused, who had professional rivalry and disputes with Godi Nageswara Rao, advocate, went to the Telegraph Office, Tadepalligudem, on 13.10.2004, morning, obtained two blank telegram forms, prepared Telegram in English mentioning “warning change your behaviour otherwise see end of job and face problems- G.Nageswara Rao”. He mentioned the address of the sender as G.Nageswara Rao, advocate, Tadepalligudem and the telegram was received by the Magistrate through the Superintendent at 7 p.m. on 13.10.2004. Sri Sambasiv, Magistrate suffered shock and apprehended danger to his life and he gave a complaint to the police, which was received by the Sub-Inspector, Town Police Station through M.Venkata Naga Raju, attender of the Court and the same was registered as Crime No.299 of 2004 and P.Kireeti Rao, Senior Telephone Supervisor cum Operator and J.Srinivasa Rao, Telecom Mechanic, Delivery boy in Telegraph Office gave credible information to the Sub-Inspector and a statement was also obtained from the Chief Telegraph Master, N.Srirama Murthy. On requisition, the Principal Junior Civil Judge, Tedepalligudem, Sri K.Seshagiri Rao recorded the statements of Sri Kireeti Rao and Srinivasa Rao and the accused was arrested on 18.11.2004. Hand writing expert opined the signature/hand writings on the telegram sent in the name of G.Nageswara Rao to be not written by him and a Test Identification Parade was also held in Sub-jail, Tadepalligudem whereat the accused was identified by Sri Kireeti Rao and Sri Srinivasa Rao. The accused, a practising advocate of Tadepalligudem, by his acts committed the offences punishable under Sections 352, 353, and 506 (2) I.P.C and Hence, the charge. 3. On the appearance of the accused before the Court, which took cognizance of the offences, copies of the documents were furnished to him. He denied the allegations when he was examined under Section 239 of the Code of Criminal Procedure (for short, ‘Cr.P.C.’) and he pleaded not guilty to the charges under Sections 352, 353 and 506 (2) I.P.C. framed against him. 4. During trial, PWs.1 to 18 were examined and Exs.P1 to P11 were marked on behalf of the prosecution. No defence evidence was produced. The accused denied the incriminating circumstances appearing in the evidence against him when he was examined under Section 313 Cr.P.C. 5. The trial Court rendered the impugned judgment noting that PW.1 himself did not suspect any advocate to be behind the incident and that the accused had no necessity to commit the alleged offences. The trial Court also noted that the Expert- PW.12 opined in Ex.P10- opinion that the disputed writings were not written by the accused. The original hand written telegram form allegedly seized by the Investigating Officer was noted to have not been sent for comparison and apart from the non-production of the original statement, the trial Court also noted that PW.2 did not promptly deliver the telegram to PW.1 in spite of noting its seriousness. The trial Court further noted that PW.3, Supervisor in the Telegraph Office and PW.5 did not identify the accused before the Court and PW.4, who spoke about his instructions to PW.3, admitted that the original telegraph form would be available in the office, but the same was not produced. The trial Court further noted that PWs.8, 9, 10, 13 and 14 spoke about the direction of the Magistrate to seize the motorcycles and even PW.15 being given a show-cause notice by PW.1 and PW.13 having his cell phone seized at the instance of PW.1. PW.8 only suspected the accused due to the earlier conduct and ultimately, the accused was found not guilty by the trial Court for the said reasons. 6. The State through the learned Public Prosecutor challenges the said acquittal contending that the ingredients of the offences have been made out by the prosecution, particularly through the evidence of PW.11, who conducted the Test Identification Parade on the accused and recorded the statements of PW.3 and PW.4 under Section 164 Cr.P.C. The failure of PW.3 and PW.5 to identify the accused before the Court is motivated. Hence, the appellant desired the acquittal of the accused to be reversed. 7. Heard Sri Rudresh Deshpande, learned counsel representing the learned public prosecutor/the appellant and Smt.Jamal Hasani, learned counsel representing Sri C.Praveen Kumar, learned counsel for the accused. 8. The point for consideration is whether the acquittal of the accused of the offences with which he was charged deserves to be reversed on merits. 9. The evidence of PW.1, the then II Additional Judicial Magistrate of First Class, Tadepalligudem, about receiving Ex.P1- telegram and giving Ex.P2 report to the police in the back ground of seizure of two motor cycles on the earlier day and his refusing to release them in spite of requests by some advocates had no direct reference to the possible involvement of the accused in the crime. The evidence of PW.1 was clear that he did not suspect the offence to be committed by the accused with whom he maintained cordial relations. Even PW.2 only handedover the telegram in person to PW.1 and had nothing to state about the person who might have issued the telegram. 10. PW.3- the Supervisor in the Telegraph Office, Tadepalligudem has informed PW.4 even on the same day that he cannot identify the person, who gave the matter for the telegram. He was stated to have expressed the same inability to the Sub-Inspector of Police also when he was examined and his claim about the manner in which he was made to identify the person during the Test Identification Parade conducted by the Magistrate with reference to threats and coercion by the investigating officer throw grave doubts on the acceptability of the test identification parade proceedings. Significantly, PW.3 further stated that the person, who was identified in the test identification parade, was not the person standing as accused before the Court. Even in his cross-examination by the prosecution declaring him as hostile, nothing substantial had been elicited from PW.3 to believe that he resorted to falsehood to help the accused. No connection between PW.3 and the accused was alleged or established as to resort to falsehood to some how help the accused and though he admitted giving a statement under Section 164 Cr.P.C. to the Magistrate, his version is as though it was not voluntary. The credibility of PW.3 might have become suspect due to his vacillation at different stages, but the same incredibility should result in not fastening any guilt to the accused beyond reasonable doubt on such version. The original matter filled up in the telegram form available with the office of PW.4 was not placed before the Court and PW.5 also claimed ignorance about the accused before the Court. He denied stating to the police as in Ex.P4 and like PW.3, he was also not shown to have any reason or motive to help the accused by resorting to falsehood. The original telegram forms entrusted to the police by PW.7 on their requisition, as already stated, were not placed before the Court and while PW.8 denied sending any telegram like Ex.P1, he tried to claim that there were ill feelings in respect of exchange of legal notices making him suspect the accused and suspicion, however strong it may be, cannot be a substitute for legal proof. While PW.8 did not complain against the accused to the Bar Council at any time, the evidence of the other advocates PWs.9, 10, 13, 14 and 15 had nothing to do with the offence proper. The version of PW.1 about the test identification parade conducted by him and Section 164 Cr.P.C. statements recorded by him cannot be suspected but such circumstantial evidence in the face of PWs.3 and 5 not supporting the version of the prosecution in any manner before the Court is not conclusive. 11. PW.12- the expert from the State Forensic Science Laboratory compared the original telegram form with the standard writings of the accused and found in Ex.P10 opinion that the hand writing was not that of the accused. In the absence of physical identification of the accused by PWs.3 and 5 before the Court and in the face of the evidence of the expert as PW.12, the guilt of the accused for giving Ex.P1 telegram to PW.1 cannot be considered to have been proved beyond reasonable doubt. The Investigating Officer as PW.18 had admitted that they did not obtain any specimen signatures of PW.8 in whose name the telegram was sent, for obtaining expert opinion. If on the basis of such evidence, the trial Court could not find the accused guilty of the offences with which he was charged beyond reasonable doubt; the trial Court cannot be considered to have gone wrong in concluding that the accused is found not guilty of the offence. 12. Merits or the acceptability of the prosecution version apart, it has also to be noted that the issuance of the telegram and its receipt by PW.1 could not have been brought within the meaning of assault as defined in Section 351 I.P.C, force as defined in Section 349 I.P.C. and criminal force as defined under Section 350 I.P.C., to constitute any offence punishable under Sections 352 and 353 I.P.C. Part-II of Section 506 I.P.C. involves a threat to cause death or grievous hurt, or to cause destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life and the threat involved in Ex.P1 may not on the plain and grammatical language of the telegram be susceptible to be construed as within Part-II of Section 506 I.P.C. 13. For the above reasons, the acquittal of the accused on merits cannot be interfered with and the Criminal Appeal fails and is, accordingly, dismissed. __________________ G. BHAVANI PRASAD, J Date: 21st November, 2011 Ivd