HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2180 OF 2004 Dated 10-03-2011 Between: B. Kesavulu Naidu ……..Appellant And: Doraswamy Naidu and 5 others. ………Respondents HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2180 OF 2004 JUDGMENT: This is an appeal filed against the acquittal of the accused in S.C.No.365 of 1997 by the Assistant Sessions Judge, Madanapalle, Chittoor District on 20.07.2004 The appellant herein is the complainant and he has filed the complaint against the accused for offences under Sections 148, 447, 395 and 307 IPC. The brief averments made in the complaint are that the complainant is a permanent resident of Kamalapuram village residing in Door No.1/7. There is enmity with regard to family disputes in between the complainant and the accused Nos.4 and 5. In order to wreck vengeance against the complainant, the accused Nos.4 and 5 with the support and on the instigation of the accused No.2, who was the Mandal Parishad President and influential person and brought along with him accused Nos.1 and 3 formed themselves into unlawful assembly on 5.8.1996 at 4.30 p.m and trespassed into the house of complainant to terrarise him and his family members to part with the valuable property and house hold articles in the house. When the complainant tried to resist the illegal acts of the accused person, A-4 pressed the throat of the complainant in order to kill him, while the other accused caught hold of the complainant. When the complainant and his family members raised alarm for help, all the accused beat them with hands and legs indiscriminately. Thereafter, the accused has gone to his field and removed his electric motor (Submersible) with all equipments and took away with them and kept in front of the house of the complainant. Later the A-5 forcibly drove away the complainant and his wife by name Subbalakshmamma and his minor children, Janardhan, Yuva Rani, Mohana Krishna and Jeevan Jyothi by showing a loaded pistol and took the possession of the house with all food grains and other house hold articles i.e., furniture, clothes, provisions, two steel Beeruvas, height 6 ½ feet worth about Rs.9,500/- which contains silk sarees, clothes, silver, gold chains of the minor children, cash of Rs.500/-. Thereafter, A.1 to A.5 brought paddy bags out side to the house and loaded them in a tractor belongs to one Eswarappa of Nakkapalle village along with some other miscellaneous house hold articles and sent them away for selling and on hearing the cries of the complainant and his family members some of the villagers intervened and safeguarded them from the clutches of the accused. All the properties are the self acquired properties of the complainant and the accused Nos.4 and 5 are nothing to do with the same. The complainant on the same day evening rushed to Palamaneru Police Station and lodged complaint, but the police did not take any action and thereafter, the complainant has sent a telegram to the District Superintendent of Police on 8.8.1986, but he has also not taken any action. Hence, the complainant has filed the present complaint. The learned Assistant Sessions Judge has framed the charges under Sections 148, 447, 395 and 307 IPC against the accused and the accused pleaded not guilty for the said charges. The complainant, in order to establish the said charges, examined P.Ws.1 to 4 and got marked Exs.P.1 to P.25 and C.1 to C-3. The learned Assistant Sessions Judge by taking into consideration of both oral and documentary evidence found the accused not guilty for the said charges and thereby acquitted them under Section 235(1) Cr.P.C. Aggrieved by the said acquittal, the present appeal is filed. Now the point that arises for consideration is whether the complainant could able to establish the charges under Sections 148, 447, 395 and 307 IPC beyond reasonable doubt? The main contention of the learned counsel for the appellant is that the lower court has not given any valid reasons for disbelieving the evidence of P.Ws.1 to 3 and the learned Assistant Sessions Judge has failed to consider that the house is in exclusive possession of the complainant and the accused has forcibly trespassed into the said house and thrown them out of the house. The learned counsel for the respondents, on the other hand has pleaded that the P.Ws.1 to 3 are interested witnesses and P.W.4 is the Commissioner who made an inventory of the house hold articles found in the said house and the complainant failed to establish that he was in possession of the said house as on the date of commission of the offence and the said property was allotted to him in the partition. According to the complainant, he is residing in the house No.1/7, Kamalapuram village. There are disputes between him and A.4 and A.5 with regard to their family properties. On 5.8.1996 at 4.30 p.m., all the accused trespassed to the house and terrarised him and his family members and A.4 tried to kill him by pressing his throat and when he resisted their illegal acts and when his family members came to rescue, they were beaten the complainant indiscriminately and the accused has taken away the house hold articles and the paddy available in the house and in spite of the complainant lodging the complaint in the Kamalapuram Police Station, they have not taken any action and then the complainant sent a telegram to the District Superintendent of Police and in spite of receiving the same, the Superintendent of Police also did not take any action against the accused. The complainant examined himself as P.W.1 and narrated the same facts as mentioned in the complaint in his chief examination. P.W.2 is the wife of the complainant and she also supported the version of the P.W.1 in her chief-examination. P.W.3 is the son of the complainant and he has also supported the version of the P.W.1 in his chief-examination. As per the cross-examination of P.Ws.1 and 2, the defence taken by the accused is that the said property is not in possession of the complainant and his family members and the complainant is not residing in the said house and he is residing in Makkala Javanpally village, Punganur Mandal along with his wife. P.W.1 got marked Exs.P.1 to P.8 to show that he is in possession of the said property. Ex.P.4 is the Electricity Pass book issued in the name of the complainant and Ex.P.5 is the Electricity bill issued in his name and Ex.P.6 is special notice issued in his name by the electricity department demanding him to pay the charges for the Distribution Service Connection No.224. But whereas Ex.P.4 pass book is for the Service Connection No.173. In the cross-examination, he admitted that during the life time of his father, as his father became old, the complainant is managing the joint family properties and he has obtained the electricity connection in his name. Therefore, the said electricity pass book and the bills do not show that he is in possession of the said house. As per Ex.P.7 voters list for the year 1993 himself, A.4 and A.5 are residing in separate houses as shown against their names. Ex.P.7 is the Voters List for the year 1993 and which shows that himself, A.4 and A.5 and his father are residing in their respective houses. But the said voters list pertaining to the year 1993 whereas the alleged offence took place in the year 1996. Therefore, as on the date of the incident he must show that he in possession and enjoyment of the said house, and the said house. According to him, a partition took place between himself and his brothers and the said house fallen to his share. But he has not produced any document with regard to partition of the said properties and the said house fallen to his share in the said partition. He also not produced any documents to show that he is in possession of agricultural field as on the date of incident. As admitted by him, A.4 and A.5 have filed a suit against him for partition which is pending on the file of Additional Senior Civil Judge, Chittoor and he admitted that the said suit was decreed exparte against him but according to him he has filed an application for setting aside the said exparte decree and the same is pending but he could not give any number of the said petition filed by him. He also does not know the date of hearing of the said application. According to the accused, the said application for setting aside the exparte decree was dismissed about six months back. According to the accused on 30.05.1996, the family settlement was arrived in the presence of mediators but the same is denied by the complainant. P.W.2 is the wife of P.W.1 has supported the version of the P.W.1 with regard to the incident occurred on 5.8.1996. But she could not say that they are in possession of the said property as on the date of the said offence. P.W.3 is the son of P.Ws.1 and 2 and he only stated about the accused attacking their house and questioned them whey they have not vacated the house in spite of the warning and A.4 asked the other accused to caught hold of P.W.1 stating that he will kill P.W.1. A.4 squeezed the neck of his father and when his father raised hue and cry, the remaining family members intervened and rescued his father but the accused also beat them. Since P.Ws.1 to 3 are the interested witnesses they have spoken the same facts as mentioned in the complaint in their chief- examination. According to P.W.1, at the time of incident when one Devarajula Naidu, Durvasula Naidu and Syamala witnessed the incident and they are cited as witnesses in the complaint, but the said persons were not examined before the lower court to establish commission of the offence. Since P.Ws.1 to 3 are interested witnesses and they are husband, wife and son and even though the independent witnesses were available at the time of incident, they were not examined, it is not safe to rely upon the evidence of P.Ws.1 to 3. More over as rightly observed by the learned Assistant Sessions Judge, the complainant failed to establish the possession of the property as on the date of commission of the offence and the said property fallen to his share in the said alleged partition made by his father during his life time. Admittedly, there are disputes between A.4 and A.5 and P.W.1 with regard to their family properties. The suit was filed by A.4 and A.5 for partition of the said properties. Therefore, in view of the rivalry between the accused and P.W.1, it is not safe to rely upon the interested evidence of P.Ws.1 to 3 to come to the conclusion that the offence has taken place as alleged by them. The other witness P.W.4 is the Commissioner who is said to have been appointed by the Magistrate to find out the articles available in the said house and he has prepared the list of inventory and handed over the same to A.4 and A.5 with an undertaking to produce them as and when directed by the court. A mere presence of some of the articles mentioned in the complaint were available in the said house, it cannot be said that the complainant is in possession of the said property as on the date of the commission of the offence. Therefore, the learned Assistant Sessions Judge has rightly observed that the complainant has failed to establish the offence as alleged against the accused and the said finding of the learned Assistant Sessions Judge does not warrant any interference by this Court. Hence, the Criminal Appeal is dismissed. ______________________ P.DURGA PRASAD,J. Date:10.03.2011. Gk. HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2180 OF 2004 Dated 10.03.2011 Gk.