HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2187 of 2004 Date:29.01.2011 Between: Nidumukkala Seshagiri Pulla Rao ….Appellant And: Nidumukkala Srinivasa Rao and another .…. Respondents. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2187 of 2004 JUDGMENT: This is an appeal arising out of the acquittal of the accused in C.C.No.7 of 2010 by the Additional Junior Civil Judge, Mangalagiri on 26.3.2004. The appellant herein is the complainant and he has filed the complaint under Section 200 Cr.P.C against the accused for the offences under Sections 323 and 506 IPC alleging that the accused is the 2nd son of his first wife and his first wife died in the year 1968. Subsequently the complainant married one Venkata Pushpa Leelavathi about 35 years back who is no other than the own younger sister of his first wife. Since the second marriage, the 2nd wife has been looking after the welfare of the children of the complainant including the accused till his marriage. Later, due to some disputes in the family, the accused began to live away from the complainant since 1997. In the year 1997, the accused along with his elder brother took the rice mill bearing No.1-1405 on lease from the complainant and as per the lease agreement, the accused has to vacate the said mill by 31.5.1998. But, he did not vacate the same even though the complainant asked them and hence the accused bore grudge against the complainant. On 9.1.2000, the accused trespassed into the building bearing Door No.1-1-365 by break opening the locks of the said building in the absence of the complainant, who is the absolute owner of the same. On that the complainant gave a report to the Station House Officer, Mangalagiri town police station against the accused about his illegal and high handed acts. The Sub Inspector of Police called both the parties and the accused gave undertaking for vacating the said building but he did not vacate the building and filed a suit O.S.No.180 of 2000 on the file of Senior Civil Judge, Guntur for recovery of possession of the said building. On 23.12.2001 at 9.00 a.m when the complainant went to the building bearing Door No.1-1-365 for collecting rents from the tenants, he found the accused demolishing the backside portion of the building with the help of two coolies and when the complainant asked about his illegal and high handed acts, the accused replied recklessly that whatever he wants to do he can do and thrown him aside and also threatened to kill him with a knife and pushed him aside. The complainant has reported the matter to the police on 23.12.2001, but the police did not take any action. The high handed and illegal acts were witnessed by one Tamaraju Vishnumurthy who entered into the building due to hearing cries and pacified the matter. The said complaint was taken on file by the Additional Junior Civil Judge, Mangalagiri for an offence under Sections 323 and 50 part-II IPC against the accused. In order to establish the offence against the accused, the complainant examined himself as P.W.1 and examined one Tamaraju Vishnumurthy as P.W.2 and got marked Exs.P.1 and P.2. The lower court after taking consideration of both oral and documentary evidence found the accused not guilty for offences under Sections 323 and 506 Part-II IPC and acquitted under Section 248(1) of Cr.P.C. Aggrieved by the said acquittal, the present appeal is field by the complainant. Now the point that arises for consideration is whether the complainant could able to establish the offences under Sections 323 and 506 Part-II IPC against the accused beyond reasonable doubt? According to the complainant on 23.12.2001 at 9.00 a.m when the complainant went to the building bearing Door No.1-1- 365 for collecting rents from the tenants, he found the accused demolishing the backside portion of the building with the help of two coolies and when the complainant asked about his illegal and high handed acts, the accused replied recklessly that whatever he wants to do he can do and also threatened to kill him with a knife and pushed him aside. The complainant as P.W.1 has narrated the same facts as mentioned by him in the complaint. The P.W.2 said to be the eye witness examined on behalf of the complainant has stated in his chief-examination that on 23.12.2001 at about 9.00 a.m when he went to the house of the complainant, which was situated in Bhagavathula Vari street for supplying of milk, he heard some cries inside the house and then he went inside the house and found the complainant lying on the ground and he also noticed the accused kicking the complainant with his legs. He also stated that when the complainant was questioning the accused for spoiling or damaging the house, the accused was threatening the complainant and asked him to tell the same to anybody and to do whatever he likes and that the accused was also arming with a knife at that time. When P.W.2 was cross- examined subsequently after granting of several adjournments, he resiled from his earlier version about the incident and turned hostile to the complainant. He has stated that the incident happened in front of his house on the road and he did not remember about how many days back, the incident in question took place, that he has not seen the kicking of P.W.1 by the accused nor the accused was armed with knife. P.W.2 has gone to the extent of saying that he has also not seen the accused among the gathering of the people, and he has not advised P.W.1 to go and report the matter to the police. He further admitted that at the request of P.W.1, he deposed on the previous adjournment of the case. He used to take money from P.W.1 as hand loan and return the same and that he never supplied milk to the persons residing in Bhagavathula Vari street and that he did not know where the said street was situated in Mangalagiri and he did not know where the accused was residing. Therefore, P.W.2 has not supported the version of the P.W.1. Thus, the only evidence available on record is the evidence of P.W.1 who is the complainant himself. The learned counsel for the appellant pleaded that even though P.W.2 has not supported the case of the prosecution, the examination in Chief has to be taken into consideration but the lower court has observed that the P.W.2 is not residing in the same locality and he has clearly stated that he has deposed in his chief-examination at the instance of P.W.1. P.W.2 also admitted that he was taking hand loans from the P.W.1 and repaying the same. Therefore, P.W.2 is under the influence of P.W.1 as he was lending money to him whenever required. Therefore, he might have spoken in support of P.W.1 in his chief-examination and when it comes to the cross-examination, he might have spoken the real facts. Therefore, it is not safe to rely upon the evidence of P.W.2. With regard to the evidence of P.W.1 who is the complainant, admittedly that there are disputes between him and the accused and the accused has field a suit O.S.No.180 of 2000 on the file of Senior Civil Judge, Mangalagiri for recovery of the possession of the alleged building at which the incident had taken place. Therefore, in view of the strain relationship between the P.W.1 and the accused prior to this incident, it is not safe to rely upon the evidence of P.W.1 without any corroboration. The lower court has rightly appreciated the evidence of P.W.1 and P.W.2 and findings of the lower court does not warrant any interference by this Court. Thus, the complainant could not establish the offences under Sections 323 and 506 Part-II against the accused beyond reasonable doubt. Hence, the appeal is dismissed. _____________________ P.DURGA PRASADJ. Date:29.01.2011 Gk. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2187 of 2004 Date:29.01.2011 Gk.