THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL REVISION CASE NO.2019 OF 2004 ORDER: 1 The petitioner herein and another were tried for the offences punishable under sections 353 and 332 r/w 34 of IPC by the learned Judicial Magistrate of I Class, Bodhan in C.C.No.5 of 2000. During the course of trial, the prosecution examined P.Ws.1 to 5 and got marked Exs.P.1 and P.2. Having analysed the said evidence both oral and documentary the trial court came to the conclusion that the accused including the petitioner are guilty of the said offences punishable under sections 353 of IPC and accordingly sentenced them to pay a fine of Rs.2000/- each, in default, to suffer simple imprisonment for a period of three months. Questioning the said judgment passed by the trial court the accused preferred Criminal Appeal No.7 of 2002 and the learned VII Additional District Judge (FTC), Nizamabad by his judgment dated 29.11.2003 while concurring with findings given by the trial court, dismissed the said appeal. Aggrieved thereby the first accused in the said case preferred this revision. 2 The case of the prosecution, in brief, is that on 21.6.1999 at 8.30 p.m. the accused came to the check post Kandakurthy and asked P.W.2 who was working as supervisor of Agricultural Committee, Check Post, Kandakurthy to let off the paddy load lorries through the said check post and when he refused the accused who are paddy smugglers bore grudge against P.W.2, picked up quarrel, abused him in filthy language and kicked on his buttocks and damaged the solar lamp belonging to the Agricultural Marketing Committee. 3 The learned counsel for the petitioner submitted that there is absolutely nothing against the petitioner on record and the courts below erred in convicting him as if he also assaulted P.W.2. In this context the learned counsel for the petitioner has drawn my attention to the evidence of P.W.1 i.e. Deputy Tahasildar who worked at Kandakurthy Check Post at the relevant point of time. 4 Heard. 5 I find force in the said submissions made by the learned counsel for the petitioner. The law was set into motion on the basis of the report given by P.W.1 who was the then Deputy Tahasildar at Kandakurthy Check Post. In his evidence he has not specified the role attributed to the petitioner herein. It may be relevant to extract the said evidence which reads as follows: “On 21.06.1999 around 8.30 p.m. while I was discharging my duty at Kandakurthy Check Post along with Purnachander Rao (L.W.2), Abhisekh (L.W.4) I heard some commotion and when I came on to the road, I witnessed that A.2 manhandling L.W.2. A.2 before assaulting L.W.2 had smashed the solar lamp. I separated A.2 and L.W.2. A.1 was present at a little distance.” 6 From the said evidence, it is clear that A.1 was present at a little distance and no specific overt act is attributed to A.1 i.e. petitioner herein. Simply because of his presence it cannot be said that he also committed the said offence punishable under section 353 of IPC. The said aspect was not considered by both the courts below. Hence this court has no hesitation in coming to the conclusion the said conviction and sentence imposed against the petitioner is unwarranted. 7 Accordingly, this revision is allowed and the conviction and sentence imposed by the courts below in so far as the petitioner herein who is A.1 in the said case is concerned, is hereby set aside. The fine amount paid by the petitioner shall be refunded. ----------------- kvsn 27.01.2011