HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2172 of 2004 Date:27.01.2011 Between: B. Babu ….Appellant And: Jagannadham Pillai and 4 others. .…. Respondents. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2172 of 2004 JUDGMENT: This is an appeal arising out of an acquittal passed by III Additional Judicial Magistrate of the I Class, Tirupati in C.C.No.493 of 2001 on 3.9.2003. The appellant herein has filed a private complaint under Section 200 Cr.P.C against the respondents 1 to 4 for an offence under Sections 452 and 324 IPC alleging that the accused No.1 is residing opposite to his house and he borrowed a sum of Rs.1,000/- from him as a hand loan but he failed to repay the same. On 10.1.2001 at about 7.00 a.m, the complainant demanded A-1 for repayment of the loan amount for which he requested time for payment till 8.30 a.m on the same day. Again the complainant demanded A-1 for repayment of the amount, but he refused to repay the same and on the other hand abused the accused No.1 in filthy language. At that time suddenly A-2 and A-3 came to the scene of offence and all of them attacked the complainant with sticks. While accused No.3 caught hold of the shirt of the complainant and pulled down, accused No.4 beat the complainant indiscriminately on his backside. Accused No.4 also tied the complainant with his hands to his back to enable accused No.1 to 3 to beat the complainant, but the complainant some how escaped from the attack with simple injuries on his left eyebrow. The neighbours Munendra, and others rescued the complainant from the clutches of the accused. The incident was also witnessed by one Murali, Renuka and Reddamma but they did not interfere. Thereafter, the complainant was admitted in S.V.R.R.G.G. Hospital, Tirupati by one Venkatamuni and also one Joffer Saheb. The complainant took treatment for seven days as in patient. While, the complainant was undergoing treatment, police came and recorded the statement on the intervening night of 1/11-1-2001 but no action was taken by the police. Thereafter legal notice was issued by the complainant to the Superintendent of Police, Chittor, but there was no response. Hence, he has filed the present complaint. The lower court by recording the sworn statement of the complainant took cognizance of the said complaint under Sections 452 and 323 IPC against A-1 to A-4. All the accused not pleaded guilty when they were examined under Section 251 Cr.P.C. The complainant examined himself as P.W.1 and examined P.Ws.2 and 3 on his behalf and got marked Exs.P.1 to P.3. Taking into consideration of the said oral and documentary evidence, lower court found the accused has not guilty for the said offence under Section 454 and 323 IPC and thereby acquitted them. Aggrieved by the said acquittal, the present appeal is filed. Now the point for consideration is whether the appellant- complainant could be able to establish the offence under Sections 452 and 323 IPC against the accused beyond reasonable doubt. According to the complainant on 10.1.2001 at about 7.00 a.m he went to the house of the accused and demanded for repayment of the loan taken by him, but he refused to pay the same and on the other hand abused him in a filthy language. Thereafter, A-2 and A-3 came there and attacked with sticks and A-4 beat the complainant indiscriminately from behind. The lower court has disbelieved the story of the complainant that there is delay in lodging the complaint and the said delay was not explained by him properly. The next ground on which the accused was acquitted for non examination of Venkatamuni who is stated to be taken P.W.1 to the hospital and P.Ws.2 and 3 are not eye witnesses to the incident. With regard to the delay in lodging the complaint, the incident as alleged to have been taken place on 10.1.2001 and the complainant was filed on 7.9.2001. No explanation was given for the said delay either in the complaint or in the evidence of P.W.1. Even though the P.W.1’s statement was recorded by the police and subsequently he did not take any action, the complainant has stated that the case was referred as ‘mistake of fact’, but the said record was not placed before the lower court. Thus, the lower court has rightly observed that there was no proper explanation by the complainant. With regard to the alleged incident that was occurred on 10.1.2001 that when the complainant has demanded the accused for repayment of the loan taken by him, he abused him and refused to pay the same and in that regard, the incident has taken place. But, the complainant has not produced any material before the lower court to show that about the accused obtaining loan from him on the previous occasion and admittedly no notice was issued to the accused demanding for repayment of the loan amount. According to the complainant, P.Ws.2 and 3 are the eye witnesses to the incident but P.W.2 has only stated that on the date of incident he came and enquired only from P.W.1. On enquiry, he came to know that P.W.1 has assaulted by A-1 to A-4. Therefore, P.W.2 is not an eye witness to the incident. Even though P.W.3 has stated that he saw the accused beating the complainant, but he is not residing in house bearing Door No.4-4-930 at Nehru Nagar, Tirupati as stated by him and he has not given any explanation for his presence at the spot at the time of incident. Therefore, the only evidence available on record is the evidence of P.W.1 to speak about the incident. According to the complainant, the incident has taken place when he approached the accused No.1 for demanding the repayment of the loan amount taken from him. The complaint does not disclose exactly where the incident took place. But, P.W.3 has stated that the incident took place between the house of the complainant and the P.W.1. Therefore, the incident appears to have taken place in the street. Therefore, the lower court has rightly observed that under Section 452 IPC was not proved by the complainant. With regard to offence under Section 323 IPC, P.W.1 even though stated to be obtained injury to the left eye brow and got marked Ex.P.1, the out patient chit, it does not disclose the said injury alleged to have been sustained by P.W.1. No wound certificate was produced by the complainant from the doctor who examined him to establish the injury sustained by him. Therefore, the complainant failed to establish the offence under Section 323 IPC. Thus, the complainant failed to establish the offence under Section 452 IPC against the accused beyond all reasonable doubt. Thus, the lower court has rightly acquitted the accused. In the result, the appeal is dismissed. _____________________ P.DURGA PRASADJ. Date:27.01.2011 Gk. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2172 of 2004 Date:27.01.2011 Gk.