Miss. A.nagamalleswari

1 VII AMM COURT, VSP

CC No.1096/2018

IN THE COURT OF VII ADDITIONAL METROPOLITAN MAGISTRATE, VISAKHAPATNAM

(formerly III Metropolitan Magistrate Court, Visakhapatnam)

Present: Miss A.Nagamalleswari, VIII A.M.M & VIII Additional Junior Civil Judge, Spl. Judicial Magistrate of First Class (P&E), FAC VII Addl. Metropolitan Magistrate Visakhapatnam

Tuesday, the 19 th day of November, 2019

CALENDAR CASE NO :10 96 /2018

(Cr.No.311/2018&461/2018 of Kancharapalem Police Station) BETWEEN: State Represented by the Sub Inspector of Police, Kancharapalem (Crime)Police Station, Visakhapatnam city. …Complainant AND

Kosuri Bhaskara Rao, S/o(L) Hanumantharao, age 29 yrs, Caste Kapu, R/o D.No.7-17-170, NGO’s Colony, Near Burma Quarters, Opp. Rajeev Gruha Kalpa, Visakhapatnam City. …Accused

This case has come up on 15.10.2019 for final hearing before me in the presence of T.Vani, Learned Asst. Public Prosecutor, for the State-Complainant and of Sri P.Kiran Kumar Basu, Advocate is appointed as legal aid council to the accused and having stood over for consideration till this day, this Court delivered the following:

JUDGMENT

1. This case is filed by the Sub Inspector of Police, Kancharapalem (Crime)

Police Station, Visakhapatnam city in a case in Cr.No. 311/2018 and 461/2018 for the offence punishable under Sec.457, 380 or 411 IPC.

02.The brief averments of the the prosecution story are that LW1 the defacto complainant reported On 25.06.2018, at 21.00 hours stating that she along with her family members went to upstairs by locking their house to sleep there. On the next day i.e. on 25.06.2018 morning at about 5.30 hours they found that their house lock was broke-opened, they went into the house and noticed that some unknown culprits entered into their house and broke-opened the lock and have committed theft of gold ornaments i.e. ear rings two pairs ¾ tulas, gold finger rings 2/4 tulas and two pairs of silver anklets weighing of 10 tulas and cash of

Rs.30,000/-. Basing on the report the inspector of police

R.V.V.CH.S.Chandrasekhara Rao registered the FIR in Cr.No.311/2018 of 2 VII AMM COURT, VSP

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Kancharapalem Police station u/sec. 457, 380 of IPC and endorsed the CD to

LW.12, Sub Inspector of Police, R.H.N.V.Kumar for the purpose of investigation.

LW.12 took up investigation and visited the scene of offence and prepared the rough sketch and examined LW1 and 2.

LW4 gave report on 24.09.2018 stating that on 23.09.2018 afternoon her mother went to Gosha Hospital for looking welfare of her elder sister on the same day at about 10 hours LW4 along with LW2 locked their house and went to another sister's house situated beside their house. On the next day on 24.09.2018 at 7 hours LW4 and 2 returned to their house and noticed that the house lock was missing. They went into the house and found that theft has taken place in their house and noticed that a cash of Rs.40,000/- and gold ornament two pairs of ear studs weighing about ½ tula, finger ring weighing about ¼ tula, one pair of

Sathamanalu weighing of ½ tula worth of Rs.71,250/- were stolen and requested to take necessary action against culprits. Basing on the report LW11, Inspector of

Police, Kancharapalem P.S. T. Ashok registered the FIR in Cr.No.461/2018 u/sec.

457 and 380 of IPC of Kancharapalem P.S and endorsed the record to LW.12 for the purpose of investigation. He took up investigation and visited the scene of offence and prepared the rough sketch and examined the witnesses LWs 3 and 4.

On 6.11.2018 LW9 G.Demudu Babu received credible information about A1 &

A2 and arrested them in Cr.No.643/2018 u/sec. 379 of IPC of Pendurthy P.S.

During interrogation the accused-1 voluntarily confessed that he has also committed the theft of silver, gold ornaments and cash pertaining to the case in

Cr.No.311/2018 of Kancharapalem P.S and further admitted that he sold one gold finger ring and two pairs of gold ear studs to LW7 showing them as the jewelery of his wife and he was selling the same for her treatment and received consideration of Rs.20,000/- and he spent the sale proceeds along with stolen cash of Rs.30,000/- for his luxurious and kept two pairs of silver anklets with him. He further confessed that he committed theft of gold ornaments and cash pertaining to the Cr.No.461/2018 of Kancharapalem P.S. further disclosed that he sold two 3 VII AMM COURT, VSP

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pairs of ear gold studs and one pair of gold sathamanalu to LW8 by stating them as his wife’s jewelery and was selling the same for the treatment of her ill-health and received cash of Rs.20,000/- he spent that amount also along with stolen cash for his luxurious and kept one gold finger ring with him. LW9 recovered part of the stolen property i.e., two pairs of silver anklets and one gold finger ring from A1 and weighed the same with appraiser and he found two pairs of silver anklets weighing of 10 tulas pertaining to Cr.No.311/2018 of Kancharapalem P.S. and one gold finger ring weighing about 2.9 grams pertaining to Cr.No.461/18 of

Kancharapalem P.S. in the presence of mediators LWs 5 and 6 under the cover of mediators report dated 6.11.2018 respectively at 6 hours, 9 hours and 10.30 hours.

LW12 caused their arrest and produced them before the court seeking judicial custody on 12.11.2018. LW.13 A.Manmadharao, in charge Sub-Inspector of

Kancharapalem Crime P.S connected the accused to this case by filing PT Warrant.

He examined LW7 and 8 and recorded their detailed statements, After completion of investigation LW.12 has filed charge sheet against the accused.

03.The case was taken on file for the offence punishable u/sec.457, 380 or 411 of Indian Penal Code,1860, the accused was in prison, the Superintendent is directed to produce the accused before the court.

04.On production of the accused, copies of case documents were furnished to him as contemplated U/Sec.207 of Criminal Procedure Code,1973, The accused was examined U/Sec. 239 of Criminal Procedure Code,1973, he pleaded not guilty and claimed to be tried. Upon considering the material on record a charge under section 457,380 or 411 Indian Penal Code,1973 is framed against him, read over and explained to him in Telugu. He pleaded not guilty and claimed to be tried.

05.During trial, the prosecution examined PWs.1 to 8 and got marked documentary evidence of Exs.P1 to P15.

06.After closure of prosecution evidence, accused was examined U/Sec.313 of Criminal Procedure Code,1973, explaining the incriminating evidence 4 VII AMM COURT, VSP

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appearing against him in Telugu, he denied the same and reported no defense evidence on his behalf.

07.Heard both sides.

The learned APP submitted her arguments on behalf of the prosecution by stating that to prove the guilt of the accused the prosecution has examined

PWs 1 to 8 and got marked Exs.P1 to P15 and out of eight witness two were independent mediators in whose presence the property was recovered, though one of the mediator failed to support the prosecution the other mediator has deposed the fact happened in his presence. Hence, the prosecution version is substantially corroborated by the evidence of an independent mediator thereby the guilty of the accused is proved beyond reasonable doubt. By cross examining the prosecution witnesses also the defence counsel failed to elicit that the accused was in permissible possession or lawful possession of the stolen articles. There is no explanation how they got the possession of the said property. LW1 and LW3 who are the owners of the stolen property were examined as PW1 and PW2 they deposed before the court and stated about the theft and stealing of gold ornaments further they have identified the produced property and from their evidence it is apparent that there is no acquaintance to them with the accused. When there is no acquaintance there is no necessity for theim to make a false complaint.

08. It is the contention of the learned defence counsel that the case was foisted against the accused to clear the unclaimed property lying at their station but how far the suggestion is believable because what is the necessity for the prosecution to implicated anyone by planting valuable property. Hence, by all the means and all the circumstances the guilt of the accused was proved by the prosecution beyond reasonable doubt. Hence, prays to punish the accused with a maximum punishment prescribed for the offence.

09.On the other hand, the learned counsel for the accused submitted his arguments stating that there is no truth in the prosecution version it is a 5 VII AMM COURT, VSP

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concocted story against the accused and he was falsely implicated in this case.

The prosecution has examined PW3 and 8 as independent mediators but one of the mediator PW3 did not support the prosecution version and by cross examining also the prosecution failed to elicit that the alleged property was seized in their presence. According to him the police have obtained their signatures at the station he stated the truth. PW2 who is another independent mediator at the time his evidence stated that he is a VRA but in the mediator report there is no whisper about his occupation as a VRA to show that he has participated in the seizure conducted by the police from these facts it is appearing that the police have obtained the signatures of PW3 and 8 at their station and nothing was recovered in their presence.

Infact, the accused has not committed any offence he was implicated to clear of the unclaimed property lying at their station. Hence, prays to acquit the accused in the interest of justice.

10. Now The point for dermination is that:

1) Whether the prosecution has proved the guilt of the accused for the

offence punishable u/sec.457, 380 or 411 of Indian Penal Code,1860 beyond

reasonable doubt ?

11.By considering the evidence on the record and after hearing both the learned counsel the court decided the matter as follows:

12.To prove the offence punishable u/sec.457,380 or 411 of IPC the prosecution has to prove that the accused was found in possession of stolen property and he has stolen that property from the possession of the complainant with a dishonest intention and he has committed the offence of house breaking by night to commit theft.

13.To prove the same, the prosecution has examined PW1 to 8. PW1 and 2 are the defacto complainants. PW3 and 8 are the independent mediators.

To prove the prosecution case, the prosecution has examined PW1 to 8.

14.PW1, Challa Laxmi deposed that LW2 Rambabu is her son on 24.06.2018 along with her family members she went to up stairs to sleep and came down at 5 am and noticed that their house doors were opened and household articles were 6 VII AMM COURT, VSP

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scattered they verified and noticed that two pairs of ear rings, two finger rings cash of Rs.30,000/-, silver anklets were missing. They lodged a report before police. In the month of November, 2018 police informed her about the recovery of stolen items and she took the interim custody of those items through the court.

The police report was marked as Ex.P1 and two pairs of ear rings were marked as

MO.1, two finger rings were marked as MO.2 and two pairs of silver anklets were marked as MO.3.

She was cross examined by the learned defence counsel in the cross examination she admitted that out of two pairs of silver anklets one pair is appearing as new she does not possess any receipts or bills to show that MO.1 to 3 are purchased by her. She denied the suggestion that MO.1 to 3 does not belong to her and she was deposing false at the instance of police.

15. LW4,V.Varalakashmi was examined as PW2 she deposed that LW3 Bhavani is her younger sister on 23.09.2018 along with her family members she slept in the house of her sister residing adjacent to their house. At about 7 am when they returned to their house they noticed that there was no lock to their house and all the house hold articles were in pelmel condition on verification they noticed missing of two pairs of ear rings, one gold ring and two sathamanams and cash of

Rs.40,000/-, for that they lodged a report before the police. In the month of

December, 2018 police informed her about the recovery of stolen items and she took back the said items through the court as interim custody and the said items were marked as MO.4 to 6. The report lodged by her before the police was marked as Ex.P2.

She was cross examined by the learned defence counsel she admitted that

MO.4 to 6 were appearing new and she did not have any receipt or bills to show that they were purchased by her. She denied the suggestion that the articles are not belonging to her and She was deposing false at the instance of police.

16. B.Ramesh Naidu was examined as PW2 he deposed on 6.11.2018 at about 5.am while he was going to play cricket in Sujatha Nagar Stadium police came there and 7 VII AMM COURT, VSP

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informed him and to the other person who was also present there that they have caught-hold of two thieves and requested to act as mediators and asked them to come to their station, Accordingly they went to the police at about 6 am and at their instance both have signed on some written papers his signatures on the mediators reports prepared at 6.hrs was marked as Ex.P3 and on the mediator report concluded at 10 hrs was marked as Ex.P4 and on another mediator report concluded at 11.30 hrs was marked as Ex.P5 and also on the mediator report concluded at 1.30 pm was marked as Ex.P6.

PW3 was cross examined by the learned Asst. Public Prosecutor by posing questions that can be asked by the adverse party in the cross examination after obtaining permission u/sec. 154 of Indian Evidence Act,1872. In the cross examination also he denied the entire version of the prosecution.

17.LW7 Immandi Apparao was examined as PW4 he deposed that he is resident of MVP Colony and he was doing jewelery business on 6.11.2018 the Sub-

Inspector of Police, Pendurthy came to his shop Sri Kanakamahalakshmi jewelers at Kurupam market along with his staff and two mediators he brought the accused along with them and enquired whether the accused has sold any gold items to him.

On that he informed that the accused came to him 4 items and sold gold items by saying that his wife was fell ill for treatment he requires money. He informed to the police about gold items sold in the months of January, June, August and

October in the year of 2018. At the instance of the police he handed over all the gold items to them. According to his memory they were 3 gold bangles and two pairs of ear rings, 4 finger rings and one gold chain. But he does not remember the exact number of items. The police have prepared mediator report and weighed the items and he inscribed his signature in that report. The mediators drafted on 6.11.2018 in between 9hrs to 10hrs was marked as Ex.P7.

He was cross examined by the learned defence counsel in the cross examination he deposed that previously he did not give evidence in any case before this court. The police came to his shop at 9 am. On perusal of his statement 8 VII AMM COURT, VSP

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recorded u/sec. 161 of Criminal Procedure Code,1973 he stated that he did not state the months when the accused came to his shop and the police did not serve any summons instructing him to produce the gold items and he inscribed his signature in Ex.P6 at his shop and he did not sign on any identity slips affixed on the gold items he denied the suggestion that the accused never sold any gold items to him in his shop and he was deposing false to support the case at the instance of police.

18.LW8 Patoori Prasad, the gold smith was examined as PW5 he deposed that he does not know anything about the case and he was never examined by the police in this case.

He was cross examined by the learned APP as he was resiled from his previous statement after obtaining permission from the court. U/sec. 154 of

Indian Evidence Act, 1972. In the cross examination he denied the version of the prosecution.

19. LW.12 R.H.N.V.Kumar, Sub-Inspector of Police was examined as PW6 he deposed that on 25.6.2018 LW.10 R.V.V.CH.S.Chandrasekhara rao the then

Inspector of Police, Kancharapalem Police Station endorsed the FIR to him in

Cr.No.311/2018 for the offence u/sec. 457,380 of IPC and On 24.9.2018 Sri

T.Ashok, the then Inspector of Police, Kancharapalem P.S. endorsed FIR in

Cr.No.461/2018 for the offence punishable u/sec. 457,380 of IPC. For the purpose of investigation. Ex.P8 and P9 are the FIRs. He took up investigation and examined

PW1 and LW2 and PW2 and LW4 and recorded their statements. Then he visited both the scene of offences and prepared the rough sketchs and passed the information to the finger prints experts. They visited the scene of offence and examined it for tracing any chance prints.

20. G.Demudubabu, Sub-Inspector of Police, Kancharapalem police station was examined as PW7 in his evidence he deposed that on 6.11.2018 on receipt of credible information along with his staff he proceeded to Pendurthy junction and picked up mediators PW3 and another person by name Vadisala Demudu at Chinamushidiwada 9 VII AMM COURT, VSP

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and there he conducted the vehicle checking at Pendurthy junction at about 6.00 am and noticed that accused and another person M.Srinu were coming on a motorbike from Chinamushidiwada side they tried to escape on seeing the police by taking U-

Turn. Then with the help of his staff he caught-hold and interrogated them. On his interrogation both the accused have confessed their guilt in that crime and in another nine crimes, including the present case. Then he conducted personal search of the accused and found one gold Bracelet weighing about 3 grams, one pair of Ear Studs weighing about 3 grams relating to crime No.661/2018 of Pendurthy police station and two pairs of Silver Anklets weighing about 10 Tulas in the same bag pertaining to crime No.311/2018 of Kancharapalem police station, one gold ring weighing about 2.9 grams pertaining to Crime No.461/2018 of Kancharapalem police station. Then he seized the gold and silver items found in the possession of the accused and also seized motor cycle bearing Regn.No.AP 31 CA 9423 by which A1 and A2 were proceeding. He drafted mediator report Ex.P10 is mediator report. Basing on the confession statement of the accused A1 they proceeded to the shop of Sri

Kanakamahalakshmi Jwellers, Kurupam Market, I Town and there they noticed PW4 the shop owner and enquired him. On that he revealed that A1 has pledged some gold items with him and from time to time took money by saying that his wife's health was not good and he produced one Pustulathadu weighing about 3 to 4 tulas pertaining to Cr.No.50/2018 of Pendurthy police station, one gold ring of ¼ Tula, two pairs of gold Ear-studs weighing about ¾ Tulas pertaining to Cr.No.311/2018 of

Kancharapalem police station, 3 gold Bangles weighing about 3 tulas pertaining to

Cr.No.596/2018 of Pendurthy police station, 4 gold rings of 2 tulas pertaining to

Cr.No.661/2018 of Pendurthy crime police station. Then on their instructions, the shop owner weighed all the gold items and handed-over to them. He seized those items under the cover of mediator report drafted in between 9 am to 10 am after informing to the shop owner that those items are stolen property and they obtained signatures of the accused, mediators and Apparao. The said mediator report was marked Ex.P11.

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21.From there they proceeded to the house bearing D.No.22-18 located at

Kadambari Veedhi near Sri Kanakamahalakshmi Temple at 10.30 am and the said house belongs to one Patoori Prasad on questioning Prasad admitted that A1 pledged some gold items with him and took money on the pretext his wife's treatment and on their instructions he produced one gold finger ring weighing about 3 grams pertaining to Cr.No.51/2018 of Pendurthy police station, gold Black beeds chain weighing about 22.32 grams pertaining to Cr.No.85/2018 of M.V.P. Police

Station two pairs to gold rings weighing about 2.9 grams each and two sathamanams weighing about 5.83 grams pertaining to Cr.No.461/2018 of Kancharapalem Crime

Police Station. Then he got weighed those items through Prasad and seized the same under the cover of a mediator report prepared in between 10.30 am to 11.30 am and obtained the signatures of accused, mediators and Prasad. Ex.P.12 is mediators report. From that place they proceeded to the bushes situated at Chinamushidiwada near to Yekalavya colony along with mediators and the accused. There they seized motor bikes from the accused under the cover of mediators report. The mediators report is marked as Ex.P13. Then he returned to their station along with accused and seized property and produced them before the Honourable court seeking judicial custody for the accused, after completion of investigation he filed charge sheet against the accused.

PW7 was cross examined by the learned defence counsel and in the cross examination he stated that he picked-up the mediators V.Demudubabu and PW3 at

Chinamushidiwada junction and at about 5.am they came to their station and from there they started. He admitted that PW3 belongs to Gopalapatnam and Demudu belongs to Chinamushidiwada and he does not know whether PW3 and Demudu Babu are friends or not. While mentioning the address of the mediators in the mediator report it was not disclosed that V.Demudu Babu is working as VRA and in the body of mediator report their names were not referred as if they were writing the mediator reports and the total raid party has not signed on the mediator report except himself.

They have inscribed their signatures only on the first page of each paper of mediators 11 VII AMM COURT, VSP

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reports. Either the mediators or the accused did not mention the date beneath their signatures and he called Thadikonda Tirupataiah to the Pendurthy junction after they found gold items in the possession of A1 over phone and he came with weighing machine at around 7.30 am.

22.At a distance of 100 meters there is a bus stop the distance between old

Pendurthy junction and Kurupam Market is about 16 to 18 Kms and they went to the

Jewelers shop of Apparao and he does not know whether Accused is married or not.

He denied the suggestion that no property was seized from the accused in the alleged places and the case was foisted against him falsely.

23. Vadisala Demudu was examined as PW8 he deposed that on 6.11.2018 at 5.30 am Pw3 Sri G.D.Babu called him to act as mediator in a theft case. Therefore he and

PW3 went to Pendurthy junction one Sub-Inspector, one Head Constable and two constables were already present there. The accused along with Miriyala Srinu was coming by a bike and the police caught-hold of them and seized some gold ornaments from the accused Kosuri Bhaskara Rao the police drafted a mediator report and he signed on that.

24.From there they were taken to the gold shop of one Apparao at Kurupam

Market. The police have seized some gold items from the said Apparao with whom the accused have pledged the gold and from there they were taken to Yekalavya colony and enquired. There the police have drafted mediators reports dated 6.11.2018 from 9 am to 10 am, 10 am to 11.30 am, 12.30 pm to 1.30 pm.

PW8 was cross examined by the learned defence counsel and in the cross examination he admitted that at 5.30 am he received one phone call and at that time he was in his house. On the mediators report while mentioning his address and address of PW3 not mentioned designation. The Sub-Inspector instructed him to come to Pendurthy junction, where as in Ex.P3 it was mentioned that they went to police station. Including police personnel they were total five members at Pendurthy junction. He saw the accused and M.Srinivas for the first time on that day only and

PW3 has informed him that he obtained permission from the M.R.O and asked him to 12 VII AMM COURT, VSP

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come. At first VRO called him before 6 am. He further admitted that Pendurthy junction is a busy locality and they were present at that junction until 9.am. It takes one hour for reaching I Town from Pendurthy by vehicle and they came to I Town to

Kurupam Market by 10.30 am and they went to the shop of Apparao at 10.30 am. He denied the suggestion that the gold shops generally are opened after 11 am only. He denied the suggestion that the averments mentioned in his examination in chief are all false and he was deposing at the instances of police.

25.The learned defence counsel has raised a defence that there was a contradiction in between the evidence of PW3 and PW8 with regard to the place of securing of mediators. As per PW3 they were secured by the police at Sujatha Nagar and PW8 has stated that he was secured by the police over a phone. Whereas PW7 has stated that the mediators were secured on the way at Chinamushidiwada all the three have stated different places.

26. On perusal of evidence it could be seen that the PW2 who has denied the version of the prosecution stated that the police have requested them to act as mediator. PW8 also stated the same though there is small inconsistency with regard to place at which the mediators were secured that cannot be treated as a material contradiction which will brush away the evidence brought on record on behalf of the prosecution.

27.The other contention of the learned defence counsel is that one of the mediator has turned hostile and he did not support the version of the prosecution and another mediator who stated that the seizure was conducted in his presence also not stated the description of the property seized by the police. When the mediator has not supported the seizure it becomes invalid.

28.It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted.

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29.In the present case the Pw3 turned hostile but he has stated that the police have asked him and another person to act as mediators by informing them that they have detained two thieves, that means he is having knowledge about the detection of the offence and detention of the accused by the police hence that portion can be accepted with regard to the securing of mediators. Coming to another point that PW8 who supported the prosecution version failed to give the particulars of the seized items. But it could be observed that the incident of seizure was happened on 06.11.2018 and he has given his evidence on 05.08.2019 there was 8 months gap between both the dates it is not possible to an ordinary individual to remember the description of the number of items which he saw only once on the date of seizure hence the defence is not sustainable.

30. The other defence raised by the learned defece counsel is that the police have not mentioned the designation of the mediators while drafting the mediator report.

It is admitted fact that one of the mediator is a VRA and another is an employee for that no proof is not necessary the police have to mention the designation of the mediators while drafting the mediator report. Though it was not mentioned it is not at all fatal to the prosecution case because the minor discrepancies in the investigation cannot be considered while considering evidence on whole.

31.The other defence of the learned counsel is that the scene of offence is existing in a busy locality. The police can secure anyone as mediator at that place but they have not done so and they have obtained the signatures of PW3 and 8 at their station. While cross examining Pw.7, the learned defence counsel has taken defence that he did not secure local mediators at Bhagathsingh Nagar junction by posing question that both the mediators PW3 and 8 do not belong to the area at which the seizure was conducted.

32.In the present case the police have secure the revenue official and another employee as mediators one of whom is a public servant. The fact to be considered is that it may not be possible to secure mediators from the exact place of seizure in each 14 VII AMM COURT, VSP

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and every case because no individual come forward to be a witness in a criminal case in such circumstances securing the public servant as mediator is obvious and that too it is the main point to see whether the witness is independent or nor. In the present case, Pw8 is an independent mediator deposed voluntarily and after the test of cross examination also his evidence remained unshaken and consistent hence, his evidence can be taken into consideration and he is proved as independent mediator.

Through cross examination the defence counsel failed to establish that PW8 has inscribed his signature at the police station and he is in habit of inscribing his signature to maintain cordial relationship with them by posing questions with the relevant CC numbers in which he has deposed on behalf of the police or inscribed his signature as mediator. Hence, the defence of obtaining signatures at the police station does not sustain.

33.Coming to the other defence that the case was foisted against the accused and the defacto complainant has lodged false complaint to obtain the unclaimed property lying at the police station.

34.According to the charge-sheet and the evidence of PW7 and 8 the police have recovered gold, silver items and motorbikes from the possession of the accused and the accused failed to explain how they got possession of the said property. The learned defence counsel has posed a question to PW1 and 2 that to obtain unclaimed property in the police station the complaints were given by them but this defence is not at all acceptable because the MO1 to 6 were seized by PW7 in pursuance of the voluntary confession made by the accused in the presence of PW8 which fact is admissible under section 27 of Indian Evidence Act,1872. The accused himself lead the police to PW4 and 5 from whom the stolen property was recovered and the fact is corroborated with the evidence of PW4 and 8. PW8 is a complete stranger to the accused and the court feels that there is no necessity to him to speak false evidence against the accused, hence there are no grounds to disbelieve the evidence of PW8.

35.Foisting of false case is also a baseless defence because there is no necessity either to PW1 and 2 or to the police to foist a case against the accused. It was not 15 VII AMM COURT, VSP

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brought before the court that because of certain reason there was unhealthy relationship between Pws 1&2 and the accused due that they have foisted a false complaint and to support them the police have registered a case and filed charge sheet. On perusal of the record it is appearing that the accused and PW1 and 2 are complete strangers. Hence, the defence is not tenable.

As seen from the evidence of Pws. 1 to 8, there is no direct evidence on record to show that the accused has committed the offence punishable under 457 and section 380 of IPC as no one has witnessed the accused while broke opening the lock and taking away MO1 to 6 the gold, silver articles and cash from the defacto complainants.

But, as per the illustration (a) of Sec. 114 of Indian Evidence Act “ that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.”

In the present case the property was recovery from the place where the accused lead them voluntarily and the accused failed to give any explanation that can account for his possession.

The evidence of Pws. 4,7 and 8 is duly corroborated and consistent with each other with regard to the recovery of MO1 to 6 from the place where the accused lead them after his arrest. When ones the prosecution has proved the factum of the discovery which is admissible under section 27 of Indian Evidence Act, certainly the accused has to explain how he received the stolen property.

On careful consideration of the entire evidence adduced by the prosecution, the examination of the accused under section 313 Criminal Procedure Code,1973 did not account for retaining MO1 to 6 with him as such there is no need to disbelieve the evidence of PW7 and 8, thus the prosecution has established that MO1 to 6 are stolen property which belong to PW1and 2 and the other fact that the same were seized from the place lead by him under mediation report in the presence of Pw8 which inspires confidence that the accused has retained MO1 to 6 knowing it as stolen property. The evidence of PW1 to 8 coupled with Exs. P.1 to P12,, the prosecution has placed cogent and acceptable evidence to show that the accused has committed the offence punishable under section 411 of Indian Penal Code,1860 36. In the result, accused is found not guilty of the offence punishable under section 457 of IPC and found guilty for the offence punishable under section 411 IPC and accordingly he is convicted under section 248(2) of Cr.P.C.

MO.1 Two pairs of ear rings , MO.2 two finger rings, MO.3 two pairs of Silver anklets which are given as interim custody to the Defacto complainant PW1 and MO.4 two pairs of gold ear rings, MO5 one finger ring, MO.6 two Sethamanams which are 16 VII AMM COURT, VSP

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given as interim custody to the Defacto complainant PW2 shall be made absolute after appeal time is over.

Partly dictated to the Stenographer Gr.III, and partly typed by her corrected and pronounced by me in open Court on the 19 th day of November, 2019.

Sd/-Miss A.Nagamalleswari,

Spl. Judicial Magistrate of First Class (P&E), VIII A.M.M & VIII Additional Junior Civil Judge, FAC VII Addl. Metropolitan Magistrate Visakhapatnam Hearing on quantum of Setence: When questioned the accused with regard to the quantum of sentence to be imposed, Accused stated that he is the sole bread winner to his family and he has to look after his family and he is innocent and he has no connection with this case.

Hence, prays to take lenient view against him.

Keeping in view of the statements of the accused, facts and circumstances of the case, the court is not inclined to invoke the provisions of Prohibition of Offenders Act and feels that a minimum period of sentence will meet the ends of justice and accordingly,

Accused is sentenced to under go simple imprisonment for a period of four months for the offence punishable U/Sec. 411 of IPC. The remand period if any undergone by him shall be given set off U/sec. 428 of Cr. P.C. The accused has already for a period of one year and hence, the remand period is set off from his substantial sentence U/sec. 428 of

Cr. P.C.

Accused shall be released forthwith if he is not required in any other case.

Typed to my dictation by the Stenographer,Gr.III corrected and pronounced by me in the open court, on this the 19 th day of November, 2019.

Sd/-Miss A.Nagamalleswari,

Spl. Judicial Magistrate of First Class (P&E), VIII A.M.M & VIII Additional Junior Civil Judge, FAC VII Addl. Metropolitan Magistrate Visakhapatnam

APPENDIX OF EVIDENCE

Witnesses Examined For Prosecution: For Defense: PW.1 : Challa Lakshmim, Mastry -NONE- PW.2 : V.Varalakshmi, Employee in Sweet Shop PW.3 : B.Ramesh Naidu, Coordinator in HDB Finance 17 VII AMM COURT, VSP

CC No.1096/2018

PW.4 : Immandi Apparao, Jewelry Business PW.5 : Paturi Prasad, Goldsmith PW.6 : R.H.N.V.Kumar, SI of Police PW.7 : G.Demudu Babu, SI of Police, I Town Crime PS PW.8 : Vadisala Demudu, VRA

Exhibits Marked

For Prosecution: Ex.P1 is report, in Cr.No.311/18 dt.24.06.2018

Ex.P2 is report in Cr.No.461/18

Ex.P3 is signature of PW3 in the mediators report conclued at 6.00 am

Ex.P4 is signature of PW3 in the mediators report conclued at 10.00 am

Ex.P5 is signature of PW3 in the mediators reportconclued at 11.30 am

Ex.P6 is signature of PW3 in the mediators reportconclued at 1.30 pm

Ex.P7 is 161 statement of PW5

Ex.P8 is the FIR in Cr.No.311/2018

Ex.P9 is rough sketch in Cr.No.311/2018

Ex.P10 is FIR in Cr.No.461/2018

Ex.P11 is Rough sketch in Cr.No.461/2018

Ex.P12 is mediators report conclued at 6.00 am

Ex.P13 is mediators report conclued at 10.00 am

Ex.P14 is mediators reportconclued at 11.30 am

Ex.P15 is mediators reportconclued at 1.30 pm

For Defense: Nil

Material Object:

MO.1 is Two Pairs of Ear Rings MO.2 is Two finger rings MO.3 is two pairs of Silver anklets MO.4 is Two pairs of Gold ear rings. MO.5 is one finer ring MO.6 is two Sathamanams

Sd/-Miss A.Nagamalleswari,

Spl. Judicial Magistrate of First Class (P&E), VIII A.M.M & VIII Additional Junior Civil Judge, FAC VII Addl. Metropolitan Magistrate Visakhapatnam Copy submitted to: The Chief Metropolitan Magistrate, Visakhapatnam. The accused 18 VII AMM COURT, VSP

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CALENDER AND JUDGMENT

IN THE COURT OF VII ADDITIONAL METROPOLITAN MAGISTRATE, VISAKHAPATNAM

(formerly III Metropolitan Magistrate Court, Visakhapatnam)

CALENDER CASE NO. 1096/2018

(Cr.No.311/2018 & 461/2018 of Kancharapalem Police Station) Date of offence 24.06.2018 & 23.09.2018 Date of report or complaint 25.06.2018 & 24.09.2018

Date of cognizance 30.11.2018 Date of apprehension of the 12.11.2018 accused or Date of appearance of the accused in the Court

Date of Release ---- Date of commencement of trial 20.03.2019 Date of close of trial 05.08.2019

Date of sentence on order 19.11.2019

Explanation of delay or remarksDue to Non-production of accused and witness from time to time, as such there is a delay.

Name of the ComplainantState Represented by the Sub Inspector of Police,Kancharapalem (Crime)Police Station, Visakhapatnam city.

Name of the accusedA1 Kosuri Bhaskara Rao, S/o(L) Hanumantharao, age 29 yrs, Caste Kapu, R/o D.No.7-17-170, NGO’s Colony, Near Burma Quarters, Opp. Rajeev Gruha Kalpa, Visakhapatnam City.

OffencesUnder Sec.457, 380 or 411 of Indian Penal

Code,1973. Finding found guilty

Sentence:In the result, accused found not guilty for the offence punishable under section 457 of IPC and found guilty for the offence punishable under section 411 IPC and accordingly he is convicted under section 248(2) of Cr.P.C.

MO.1 Two pairs of ear rings , MO.2 two finger rings, MO.3 two pairs of Silver anklets which are given as interim custody to the Defacto complainant PW1 and MO.4 two pairs of gold ear rings, MO5 one finger ring, MO.6 two Sethamanams which are given as interim custody to the Defacto complainant PW2 shall be made absolute after appeal time is over.

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Keeping in view of the statements of the accused, facts and circumstances of the case, the court is not inclined to invoke the provisions of Prohibition of Offenders Act and feels that a minimum period of sentence will meet the ends of justice and accordingly, Accused is sentenced to under go simple imprisonment for a period of four months for the offence punishable U/Sec. 411 of IPC. The remand period if any undergone by him shall be given set off U/sec. 428 of Cr. P.C. The accused has already for a period of one year and hence, the remand period is set off from his substantial sentence U/sec. 428 of Cr. P.C.

Accused shall be released forthwith if he is not required in any other case.

Sd/-Miss A.Nagamalleswari,

Spl. Judicial Magistrate of First Class (P&E), VIII A.M.M & VIII Additional Junior Civil Judge, FAC VII Addl. Metropolitan Magistrate Visakhapatnam 20 VII AMM COURT, VSP

CC No.1096/2018

1 VII AMM COURT, VSP

CC No.1094/2018

IN THE COURT OF VII ADDITIONAL METROPOLITAN MAGISTRATE, VISAKHAPATNAM

(formerly III Metropolitan Magistrate Court, Visakhapatnam)

Present: Miss A.Nagamalleswari, VIII A.M.M & VIII Additional Junior Civil Judge, Spl. Judicial Magistrate of First Class (P&E), FAC VII Addl. Metropolitan Magistrate Visakhapatnam Tuesday, the 19 th day of November, 2019

CALENDAR CASE NO :10 94 /2018

(Cr.No.596/2018 & 661/2018 of Pendurthy Police Station) BETWEEN:

State Represented by the Sub Inspector of Police, Pendurthy (Crime)Police Station, Visakhapatnam city. …Complainant AND

Kosuri Bhaskar Rao, S/o(L) Hanumantharao, age 29 yrs, Caste Kapu, R/o D.No.7- 17-170, NGO’s Colony, Near Burma Quarters, Opp. Rajeev Gruha Kalpa, Visakhapatnam City.

…Accused

This case has come up on 15.10.2019 for final hearing before me in the presence of T. Vani, Learned Asst. Public Prosecutor, for the State-Complainant and of Sri P.Kiran Kumar Basu, Advocate is appointed as legal aid council to the accused and having stood over for consideration till this day, this Court delivered the following:

JUDGMENT

1. The Sub Inspector of Police, Pendurthy (Crime) Police Station,

Visakhapatnam city filed charge-sheet against the accused in Cr.No.596/2018 and 661/2018 of Pendurthy Police Station for the offence punishable under

Sec.454,457, 380 or 411 IPC.

02.The brief averments of the case are that on 04.09.2018, at 19.00 hours, LW9 received a written complaint from LW1 Dandi Netaji Subash Chandra Dev stating that he is residing along with his father and mother. His elder brother Durga

Prasad Dev residing beside his house. He and his parents went on work by locking the doors. On 4.9.2018 his elder brother noticed that his house main door lock was totally broken and theft was committed in his house, in the bed room all the clothes were scattered, and the iron almyrah's locks were broke opened. He immediately called him and his father and informed about that. On his father's 2 VII AMM COURT, VSP

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instructions he verified and found missing of four bangles (each bangle weighing

About 1 tula) total weighing about 4 tulas and two silver plates weighing about 1 kg in the beeruva, Hence he presented a report for necessary action.

Basing on the complaint of LW1, LW9 registered FIR in Cr.No.596/2018 u/sec.457,380 of IPC of Pendurthy P.S On 4.9.2018 at 19.00 hrs and entrusted the same to LW.10 for investigation.

On 5.10.2018 at 21.30 hrs, LW9 received a written complaint from LW.3

Bhoomireddi Srinivas stating that he has been residing in the given address along with his family members. Beside the house of Pothuraju. On 27.9.2018 at 0700 hrs, Pothuraju and his family members went to Nellore on some work. On 5.10.2018 at about 1600 hrs he went to the house of Pothuraju and found that the side door locks of the house were broke opened. Immediately he informed it to

Pothuraju through phone. Then he entered into the house checked and found that the doors of two beeruvas in the house were opened and all the things in the house were scattered and found that the gold ornaments i.e. 04 gold finger rings weighing about two tulas, silver articles i.e. two kundulu, one harathi stand, four bowls, two plates, two spoons, eight prasadam ginnelu, silver weighing about 60 tulas, and cash of Rs.30,000/- were missing, Hence he has given report to police for necessary action.

Basing on the complaint of LW3, LW9 registered FIR in Cr.No.661/2018 u/sec. 457, 380 IPC of Pendurthi PS on 5.10.2018 at 21.30 hrs and entrusted the same to

LW.10 for investigation.

During investigation, LW.10 visited the scene of offences in both cases, inspected the scene and prepared rough sketch of the scene of offence with all salient features and examined LWs 1 to 4 and recorded their statements u/sec. 162

Cr.P.C.

LW10 arrested the accused on 6.11.2018 along with one other accused by name Miriyala Srinu, who were responsible in Cr.No.643/2018 of Pendurthi PS in the presence of LW.5 Vadisala Demudu, LW6 Burela Ramesh and on interrogation, 3 VII AMM COURT, VSP

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the accused voluntarily confessed these offences. Besides these offences, accused also confessed their involvement in the following other property Offences registered in Pendurthi PS, Kancharapalem PS and MVP PS of Visakhapatnam City.

1. Cr.No.643/2018 u/sec. 379 IPC of Pendurthi PS.

2. Cr.No.50/2018 u/sec.457,380 IPC of Pendurthi PS.

3. Cr.No.51/2018 u/sec. 457, 380 IPC of Pendurthi PS.

4. Cr.No.311/2018 u/sec. 457,380 IPC of Kancharapalem PS.

5. Cr.No.461/2018 u/sec. 457,380 IPC of Kancharapalem PS.

6. Cr.No.32/2018 u/sec. 379 IPC of Kancharapalem PS.

7. Cr.No.520/2018 u/sec. 379 IPC of Kancharapalem PS.

8. Cr.No.85/2018 u/sec. 457, 380 IPC of MVP PS.

In pursuance of the confession made by the accused, stolen property i.e., one bangle weighing About 11.6 grms, in Cr.No.596/18 and eight silver prasadam ginnelu weighing about 30 tulas in Cr.No.661/18, from the possession of the accused Kosuru Bhaskar Rao, three gold bangles weighing about 34.98 gms in

Cr.No.596/18, 04 gold finger rings weighing about two tulas(23.32 grams) in

Cr.No.661/18 from LW.8 Immandi Apparao were recovered by LW.10 under the cover of mediators reports drafted by the mediators LW5 and LW6, and he caused the arrest of the accused.

LW.10 produced the accused on 6.11.2018 along with remand report while producing him in Cr.No.643/2018 u/s.379 IPC of Pendurthi PS before honourable court seeking judicial custody for the accused. LW.10, Sub Inspector of Police,

Pendurthi Crime PS filed charge sheet in this case after completion of investigation.

03.The case was taken on file for the offence punishable u/secs.454,457,380 or 411 of IPC. The accused was in judicial custody and the superintendent of CJ was directed to produce the accused.

04.On production of the accused, copies of case documents were furnished to him as contemplated U/Sec.207 of Criminal Procedure Code,19783, The 4 VII AMM COURT, VSP

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accused was examined U/Sec. 239 Criminal Procedure Code,1973, he pleaded not guilty and claimed to be tried. Upon considering the material on record a charge 454,457,380 and 411 IPC was framed against him, read over and explained to him in Telugu. He pleaded not guilty and claimed to be tried.

05.During trial, the prosecution examined PWs.1 to 8 and got marked documentary evidence of Exs.P1 to P14 and MO.1 to 3 were marked.

06.After closure of prosecution evidence, accused was examined U/Sec.313 of Criminal Procedure Code,1973, explaining the incriminating material appearing against him in Telugu, he denied the same and reported no defense evidence on his behalf.

07.Heard both sides. The learned APP submitted her arguments on behalf of the prosecution by stating that to prove the guilt of the accused the prosecution has examined PWs 1 to 8 and got marked Exs.P1 to P13 and out of eight witnesses two were independent mediators in whose presence the property was recovered, though one of the mediator failed to support the prosecution the other mediator has deposed the fact happened in his presence. The police have recovered the property from the places to which the accused has voluntarily lead and the persons from whose possession the property was recovered also deposed before the court. Hence, the prosecution version is substantially corroborated by the evidence of an independent mediator thereby the guilt of the accused is proved beyond reasonable doubt. By cross examining the prosecution witnesses also the defence counsel failed to elicit that the accused was in permissible possession or lawful possession of the stolen articles. There is no explanation how they got the possession of the said property. LW1 and LW3 who are the owners of the stolen property were examined as PW1 and PW3 they deposed

before the court and stated about the theft and stealing of gold ornaments

further they have identified the produced property. There is no necessity either 5 VII AMM COURT, VSP

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for police or to the defacto complanants to implicate the accused by planting valuable property Hence, by all the means and all the circumstances the guilt of the accused was proved by the prosecution beyond reasonable doubt. Hence, prays to punish the accused with a maximum punishment prescribed for the offence.

08. On the other hand, the learned counsel for the accused submitted his arguments stating that there is no truth in the prosecution version it is a concocted story against the accused and they were falsely implicated in this case.

The prosecution has examined PW4 and 6 as independent mediators but one of the mediator PW4 did not support the prosecution version and by cross examining also the prosecution failed to elicit that the alleged property was seized in their presence, according to him the police obtained their signatures at the police station he stated the truth. PW6 who is another independent mediator at the time his evidence stated that he is a VRA but in the mediator report there is no whisper about his occupation as VRA to show that he has participated in the seizure conducted by the police from these facts it is appearing that the police have obtained the signatures of PW4 and 6 at their station and nothing was recovered in their presence.

Infact, the accused has not committed any offence he was implicated to clear of the unclaimed property lying at their station. Hence, prays to acquit the accused in the interest of justice.

09. Now The point for dermination is that:

1) Whether the prosecution has proved the guilt of the accused for the offence punishable u/sec.454,457, 380 or 411 of Indian Penal Code,1860 beyond reasonable doubt ?

10.By considering the evidence on the record and after hearing both the learned counsel the court decided the matter as follows:

11.To prove the offence punishable u/sec.454,457,380 or 411 of IPC the prosecution has to prove that the accused was found in possession of stolen 6 VII AMM COURT, VSP

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property and he has taken away that property from the possession of the complainant with a dishonest intention and he has committed the offence of house breaking and lurking house tress pass by night to commit theft.

12.To prove the same, the prosecution has examined PW1 to 8. PW1 and 3 are the defacto complainants PW2 and 3 are the owners of the property. PW4 and 6 are the independent mediators.

13. Nethaji Subash Chandra Deo was examined as PW1 on 27.08.2018 his parents went to Orissa by locking their house. At that time he remained at

Madhurawada on his office work. The keys of the house were handed over by his parents to his brother LW2 Durga Prasad who resides in the adjacent portion.

On 04.09.2018 his brother noticed that the main door was broke opened. On the information passed by his brother he reached to his house and notice the main lock of the almyrah in the bedroom was opened by breaking the lock. He noticed missing of four gold bangles weighing about one tula each, two silver plates. All household articles in the bedrooms were made pelmel, Thereafter he went to

Pendurthy PS and lodged report Ex.P1 report lodged by him.

In the month of November he received a phone call from police informing him their stolen bangles were recovered. By following the due procedure he took back their stolen bangles for interim custody through court, the bangles which were taken by him for interim custody were marked as MO3 and were returned to PW1.

PW1 was cross examined by the learned Asst. Public Prosecutor by posing questions that he did not file any receipt to show that MO.3 bangles belongs to him and four bangles weighing four Tulas i.e., each one tula.

14. B.Sreenivas examined as PW2 he deposed that he knows LW4 Nimmadala

Pothuraju and he is his neighbor. On 27.09.2018 at about 7.00 am LW4 Pothuraju and his family members went to Nellore by saying them to look after their house.

He used to go to their house to water the plants on alternative days. On 05.10.2018 while he was returning to his home from office, he noticed the side door of the house of LW4 was found opened. Then he went there and observed that the lock 7 VII AMM COURT, VSP

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was found broken. Then he informed the same to LW4. LW4 furnished the particulars of gold and silver items and cash to him and asked him to see whether they are available or not. Then he verified the house and found missing of four gold rings, eight small silver bowls, two big silver bowls, two silver spoons, one silver dhoop stand, one pair of silver Deepapu Kundulu and an amount of Rs.30,000/-.

Then at the request of LW4 he lodged a report before police. Ex.P2 report lodged by him.

PW 2 was cross examined by the learned defence counsel by posing questions that Ex.P2 is silent about the date of his lodging of it before police.

15. Nimmadala Pothuraju was examined as PW3 on 27.09.2018 at about 7.00 am stating that he and his family members went to Nellore by saying a word to

PW2 who is his neighbor to look after their house.

On 05.10.2018 PW2 informed him over phone that some theft was committed in his house. Then he furnished the particulars of gold and silver items and cash to PW2 and asked him to see whether they are available or not. Then he verified the house and found missing of four gold rings, eight small silver bowls, two big silver bowls, two silver spoons, one silver dhoop stand, one pair of silver

Deepapu Kundulu and an amount of Rs.30,000/-. Then at his request PW2 lodged a report before police.

On 6.11.2018 he received a phone call from police informing him that some of the stolen items were recovered. By following the due procedure he took back their stolen items, which were recovered by police, for interim custody through court. MO.1 eight silver bowls, MO.2 four gold rings and returned to the witness.

PW2 cross examined by the learned defence counsel by posing questions that MO.1

Silver items and MO.2 Gold items are appearing to be very new.

16. B.Ramesh Naidu was examined as PW4 he deposed that on 6.11.2018 at about 5.am while he was going to play cricket in Sujatha Nagar Stadium police came there and informed him and to the other person who was also present there and they have informed that they have caught-hold two thieves and 8 VII AMM COURT, VSP

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requested to act as mediators and asked them to come to their station,

Accordingly they went to the police at about 6 am and at their instance both have signed on some written papers his signatures on the mediators reports prepared at 6.hrs was marked as Ex.P2 and on the mediator report concluded at 10 hrs was marked as Ex.P3 and on another mediator report concluded at 11.30hrs was marked as Ex.P4 and also on the mediator report concluded at 1.30 pm was marked as Ex.P5.

PW4 was cross examined by the learned Asst. Public Prosecutor by posing questions that can be asked by the adverse party in the cross examination after obtaining permission u/sec. 154 of Indian Evidence Act,1872. In the cross examination also he denied the entire version of the prosecution.

17. LW7 Tatikonda. Tirupataiah was examined as PW5 he deposed that on 06.05.2018 at about 10.30 to 11.30am the pendurthy police took him to

Pendurthy Junction by the time they reached to the place two mediators, the accused and one SI were present. There he weighed gold chain, ear studs, bracelet and bangles with the weighing machine.

PW5 was cross examined by the learned defence counsel and he admitted that he deposed in two or three other matters as witness in cases pertaining to

Pendurthy PS and the police have not served any summons on him while asking him to weigh the gold items. According to him Pendurthy Junction means not the four road junction but even before that junction in the village.

18. Vadisala Demudu was examined as PW6 he deposed that on 6.11.2018 at 5.30 am Pw8 Sri G.D.Babu called him to act as mediator in a theft case, Therefore he and

PW4 went to Pendurthy junction one Sub-Inspector, one Head Constable and two constables were already present there. The accused along with Miriyala Srinu was coming by a bike and the police caught-hold of them and seized some gold ornaments from the accused Kosuri Bhaskara Rao the police drafted a mediator report and he signed on that. The mediators report was marked as Ex.P7.

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From there they were taken to the gold shop of one Apparao at Kurupam

Market. The police have seized some gold items from the said Apparao with whom the accused have pledged the gold and from there they were taken to Yekalavya colony and enquired. There the police have drafted mediators reports dated 6.11.2018 from 9 am to 10 am, 10 am to 11.30 am, 12.30 pm to 1.30 pm. The mediators reports were marked as Ex.P8 to P10.

PW6 was cross examined by the learned defence counsel and in the cross examination he admitted that at 5.30 am he received one phone call and at that time he was in his house. On the mediators report while mentioning his address and address of PW4 they have not mentioned their designation.The Sub-

Inspector instructed him to come to Pendurthy junction, whereas in Ex.P7 it was mentioned that they went to police station. Including police personnel they were total five members at Pendurthy junction. He saw the accused and

M.Srinivas for the first time on that day only and PW4 has informed him that he obtained permission from the M.R.O and asked him to come. At first VRO called him before 6 am. He further admitted that Pendurthy junction is a busy locality and they were present at that junction until 9.am. It takes one hour for reaching

I Town from Pendurthy by vehicle and they came to I Town to Kurupam Market by 10.30 am and they went to the shop of Apparao at 10.30 am. He denied the suggestion that the gold shops generally are opened after 11 am only. He denied the suggestion that the averments mentioned in his examination in chief are all false and he was deposing at the instances of police.

19. LW8 Immandi Apparao was examined as PW7 he deposed that he is resident of MVP Colony and he was doing jewelery business on 6.11.2018 the Sub-

Inspector of Police, Pendurthy came to his shop Sri Kanakamahalakshmi jewelers at Kurupam market along with his staff and two mediators he brought the accused along with them and enquired whether the accused has sold any gold items to him.

On that he informed that the accused came to him 4 items and sold gold items for money by saying that his wife was fell ill for treatment he requires money. He 10 VII AMM COURT, VSP

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informed to the police about gold items sold in the months of January, June,

August and October in the year of 2018. At the instance of the police he handed over all the gold items to them and according to his memory they were 3 gold bangles and two pairs of ear rings, 4 finger rings and one gold chain. But he does not remember the exact number of items. The police have prepared mediator report and weighed the items and he inscribed his signature in that report. His signature on the mediator report drafted on 6.11.2018 in between 9hrs to 10hrs.

He was cross examined by the learned defence counsel in the cross examination he deposed that previously he did not give evidence in any case before this court. The police came to his shop at 9 am. On perusal of his statement recorded u/sec. 161 of Criminal Procedure Code,1973 he stated that he did not state the months when the accused came to his shop and the police did not serve any summons instructing him to produce the gold items and he inscribed his signature in Ex.P8 at his shop and he did not sign on any identity slips affixed on the gold items he denied the suggestion that the accused never sold any gold items to him in his shop and he was deposing false to support the case at the instance of police.

20. G.Demudubabu, Sub-Inspector of Police, Kancharapalem police station was examined as PW8 in his evidence he deposed that on 6.11.2018 on receipt of credible information along with his staff he proceeded to Pendurthy junction and picked up mediators PW4 and another person by name Vadisala Demudu at

Chinamushidiwada and there he conducted the vehicle checking at Pendurthy junction at about 6.00 am and noticed that A1 and another accused M.Srinivas were coming by a motorbike from Chinamushidiwada side they tried to escape on seeing the police by taking U-Turn. Then with the help of his staff he caught-hold and interrogated them. On his interrogation both the accused have confessed their guilt in this crime and in another nine crimes. Then he conducted personal search of the accused and found the gold and silver articles pertaining to the Crime Nos. 661/2018 of Pendurthy police and crime 11 VII AMM COURT, VSP

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No.311/2018 & 461/2018 of Kancharapalem police station and motorbike relating to the crime no.648/2018 of Pendurthy P.S. Basing on the confession statement of the accused they proceeded to the shop of Sri Kanakamahalakshmi

Jwellers, Kurupam Market, I Town and there they noticed one person Immandi

Apparao the shop owner and enquired him. On that he revealed that Accused has pledged some gold items with him and from time to time took money by saying that his wife's health was not good and he produced one Pustulathadu weighing about 3 to 4 tulas pertaining to Cr.No.50/2018 of Pendurthy police station, one gold ring of ¼ Tula, two pairs of gold Ear-studs weighing about ¾

Tulas pertaining to Cr.No.311/2018 of Kancharapalem police station, 3 gold

Bangles weighing about 3 tulas pertaining to Cr.No.596/2018 of Pendurthy police station, 4 gold rings of 2 tulas pertaining to Cr.No.661/2018 of Pendurthy crime police station. Then on their instructions, the shop owner weighed all the gold items and handed-over to them. He seized those items under the cover of mediator report drafted in between 9 am to 10 am after informing to the shop owner that those items are stolen property and they obtained signatures of the accused, mediators and Apparao. The said mediator report was marked Ex.P9.

From there they were taken to the house of Patoori.Prasad and the bushes situated near to Yekalavya Colony and there recovered gold items and motorbikes. Then he returned to their station along with accused and seized property and produced them before the Honourable court seeking judicial custody for the accused, after completion of investigation he filed charge sheet against the accused.

PW8 was cross examined by the learned defence counsel and in the cross examination he stated that he picked-up the mediators V.Demudubabu and PW4 at

Chinamushidiwada junction and at about 5.am they came to their station and from there they started. He admitted that PW4 belongs to Gopalapatnam and Demudu belongs to Chinamushidiwada and he does not know whether PW4 and Demudu Babu are friends or not. While mentioning the address of the mediators in the mediator 12 VII AMM COURT, VSP

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report it was not disclosed that V.Demudu Babu is working as VRO and in the body of mediator report their names were not referred as if they were writing the mediator reports and the total raid party has not signed on the mediator report except himself.

They have inscribed their signatures only on the first page of each paper of mediators reports. Either the mediators or the accused did not mention the date beneath their signatures and he called Thadikonda Tirupataiah to the Pendurthy junction after they found gold items in the possession of A1 over phone and he came with weighing machine at around 7.30 am.

They have detained at around 5.45 am to 6 am. Pendurthy junction is situated at a distance of one to one and half kilometer from Pendurthy police station. They have detained the accused at a place which is at a distance of 100 meters to the way leading towards Kothavalasa and it is called as Old Pendurthy. At a distance of 100 meters there is a bus stop the distance between old Pendurthy junction and Kurupam

Market is about 16 to 18 Kms and they went to the Jewelers shop of Apparao and he does not know whether Accused is married or not. He denied the suggestion that no property was seized from the accused in the alleged places and the case was foisted against them falsely.

21.The learned defence counsel has raised a defence that there was a contradiction in between the evidence of PW4 and PW6 with regard to the place of securing of mediators. As per PW4 they were secured by the police at Sujatha Nagar and PW6 has stated that he was secured by the police over a phone, Whereas PW8 has stated that the mediators were secured on the way at Chinamushidiwada all the three have stated different places.

22. On perusal of evidence it could be seen that PW4 who denied the version of the prosecution stated that the police have requested them to act as mediator. PW6 also stated the same though there is small inconsistency with regard to place at which the mediators were secured that cannot be treated as a material contradiction which will brush away the evidence brought on record on behalf of the prosecution.

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23.The other contention of the learned defence counsel is that one of the mediator has turned hostile and he did not support the version of the prosecution and another mediator who stated that the seizure was conducted in his presence also not stated the description of the property seized by the police. When the mediator has not supported the seizure it becomes invalid.

24.It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted.

25.In the present case the Pw4 turned hostile but he has stated that the police have asked him and another person to act as mediators by informing them that they have detained two thieves, that means he is having knowledge about the detection of the offence and detention of the accused by the police hence that portion can be accepted with regard to the securing of mediators. Coming to another point that PW6 who supported the prosecution version failed to give the particulars of the seized items. But it could be observed that the incident of seizure was happened on 06.11.2018 and he has given his evidence on 05.08.2019 there was 8 months gap between both the dates it is not possible to an ordinary individual to remember the description of the number of items which he saw only once on the date of seizure hence the defence is not sustainable.

26. The other defence raised by the learned defece counsel is that the police have not mentioned the designation of the mediators while drafting the mediator report.

It is an admitted fact that one of the mediator is a VRA and another is an employee for that no proof is not necessary the police have to mention the designation of the mediators while drafting the mediator report. Though it was not mentioned it is not at all fatal to the prosecution case because the minor discrepancies in the investigation cannot be considered while considering evidence on whole.

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27.The other defence of the learned counsel is that the scene of offence is existing in a busy locality. The police can secure anyone as mediator at that place but they have not done so and they have obtained the signatures of PW4 and 6 at their station. While cross examining Pw.8, the learned defence counsel has taken defence that he did not secure local mediators at Bhagathsingh Nagar junction by posing question that both the mediators PW4 and 6 do not belong to the area at which the seizure was conducted.

28.In the present case the police have secure the revenue official and another employee as mediators who are public servants. The fact to be considered is that it may not be possible to secure mediators from the exact place of seizure in each and every case because no individual come forward to be a witness in a criminal case in such circumstances securing the public servant as mediator is obvious and that too it is the main point to see whether the witness is independent or nor. In the present case, Pw6 is an independent mediator deposed voluntarily and after the test of cross examination also his evidence remained unshaken and consistent hence, his evidence can be taken into consideration and he is proved as independent mediator.

Through cross examination the defence counsel failed to establish that PW6 has inscribed his signature at the police station and he is in habit of inscribing his signature at the instance of police to maintain cordial relationship with them by posing questions with the relevant CC numbers in which he has deposed on behalf of the police or inscribed his signature as mediator. Hence, the defence of obtaining signatures at the police station does not sustain.

29.Coming to the other defence that the case was foisted against the accused and the defacto complainant has lodged false complaint to obtain the unclaimed property lying at the police station.

30.According to the charge-sheet and the evidence of PW6 and 8 the police have recovered gold, silver items and motorbikes from the possession of the accused and the accused failed to explain how he got possession of the said property. The learned defence counsel has posed a question to PW1 and 2 that to obtain unclaimed 15 VII AMM COURT, VSP

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property in the police station the complaints were given by them but this defence is not at all acceptable because the MO1 to 3 were seized by PW8 in pursuance of the voluntary confession made by the accused in the presence of PW6 from PW7 which fact is admissible under section 27 of Indian Evidence Act,1872, as the accused himself lead the police to PW7 the above fact is corroborated with the evidence of PW6,7 and

8. PW6 is a complete stranger to the accused and the court feels that there is no necessity to him to speak false evidence against the accused, hence there are no grounds to disbelieve the evidence of PW6.

31.Foisting of false case is also a baseless defence because there is no necessity either to PW1 and 2 or to the police to foist a case against the accused. It was not brought before the court that because of certain reason there was unhealthy relationship between Pws 1&2 and the accused due that they have foisted a false complaint and to support them the police have registered a case and filed charge sheet. On perusal of the record it is appearing that the accused and PW1 and 2 are complete strangers. Hence, the defence is not tenable.

As seen from the evidence of Pws. 1 to 8, there is no direct evidence on record to show that the accused have committed the offence punishable under section 454, 457 and 380 of IPC as no one has witnessed the accused while broke opening the lock and taking away MO1 to 3 the gold articles and cash from the house of the defacto complainants.

But, as per the illustration (a) of Sec. 114 of Indian Evidence Act “ that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.” In the present case the property was recovery from the place where the accused lead the police voluntarily and the accused failed to give any explanation that can account for his possession.

The evidence of Pws. 6,7 and 8 is duly corroborated and consistent with each other with regard to the recovery of MO1 to 3 from the place where the accused lead them after his arrest. When ones the prosecution has proved the factum of the discovery which is admissible under section 27 of Indian Evidence Act, certainly the accused has to explain how he received the stolen property.

On careful consideration of the entire evidence adduced by the prosecution, the examination of the accused under section 313 Criminal Procedure Code,1973 did not account for retaining MO1 to 3 with him as such there is no need to disbelieve the evidence of PW6,7 and 8, thus the prosecution has established that MO1 to 3 are stolen property which belong to PW1 and 3 and the other fact that the same were seized from 16 VII AMM COURT, VSP

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the place lead by him under mediation report in the presence of Pw6 inspires confidence that the accused has retained MO1 to 3 knowing it as stolen property.

The evidence of PW1 to 8 coupled with Exs. P.1 to P10, the prosecution has placed cogent and acceptable evidence to show that the accused has committed the offence punishable under section 411 of Indian Penal Code,1860 32. In the result, Accused is found not guilty for the offence punishable under section 454 and 457 of IPC and found guilty for the offence punishable under section 411 IPC and accordingly he is convicted under section 248(2) Cr. P.C.

MO.1 Eight silver bowls and MO.2 four gold rings which is given as interim custody to the Defacto complainant PW3 and MO.3 four gold Bangles which are given as interim custody to the Defacto complainant PW1 shall be made absolute after appeal time is over.

Typed to my dictation by the Stenographer,Gr.III corrected and pronounced by me in the open court, on this the 19 th day of November, 2019.

Sd/-Miss A.Nagamalleswari,

Spl. Judicial Magistrate of First Class (P&E), VIII A.M.M & VIII Additional Junior Civil Judge, FAC VII Addl. Metropolitan Magistrate Visakhapatnam Hearing on quantum of Sentence

When questioned the accused with regard to the quantum of sentence to be imposed, Accused stated that he is the sole breadwinners to his family and he has to look after his family and he is innocent and he has no connection with this case.

Hence, prays to take lenient view against him.

Keeping in view of the statements of the accused, facts and circumstances of the case, the court is not inclined to invoke the provisions of Prohibition of Offenders Act and feels that a minimum period of sentence will meet the ends of justice and accordingly,

Accused is sentenced to under go simple imprisonment for a period of four months for the offence punishable U/Sec. 411 of IPC. The remand period if any undergone by them shall be given set off U/sec. 428 of Cr. P.C. The accused has already been in judicial 17 VII AMM COURT, VSP

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custody for a period of one year and hence, the remand period is set off from his substantial sentence U/sec. 428 of Cr. P.C.

Accused shall be released forthwith if he is not required in any other case.

Sd/-Miss A.Nagamalleswari,

Spl. Judicial Magistrate of First Class (P&E), VIII A.M.M & VIII Additional Junior Civil Judge, FAC VII Addl. Metropolitan Magistrate Visakhapatnam

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution: For Defense:

PW.1 : Nethaji Subash Chadra Deo -NONE-

PW.2 : B.Srinivas

PW.3 : Nimadala Pothuraju

PW.4 : B.Ramesh Naidu

Pw.5 : Tatikonda Tirupataiah

PW.6 : Vadisala Demudu

PW.7 : Immandi Apparao

PW.8 : G.Demudu Babu

Exhibits Marked

For Prosecution:

Ex.P1 is report ,dt.04.09.2018

Ex.P2 is report 5.10.2018

Ex.P3 is signature on the mediators of PW.4 concluded at 6.00 am

Ex.P4 is signature of PW4 in the mediators report concluded at 10.00 am

Ex.P5 is signature of PW4 in the mediators report concluded at 11.30 am

Ex.P6 is signature of PW2 in the mediators report concluded at 1.30 pm,

Ex.P7 is the mediators report

Ex.P8 is the mediators report( 9 am to 10.am)

Ex.P9 is the mediators report (10.30 am to 11.30 am)

Ex.P10 is the mediators report( 12.30 pm am to 1.30.pm) 18 VII AMM COURT, VSP

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ExP.11 is the FIR in Cr.No.596/2018

ExP.12 is the rough sketch in Cr.No.596/2018

ExP.13 is the FIR in Cr.No.661/2018

Ex.P14 is the rough sketch in Cr.No.661/2018

For Defense:

Nil

Material Object:

MO.1 is 8 Silver bowls

MO.2 is Gold rings

MO.3 is Gold bangles 4

Sd/-Miss A.Nagamalleswari,

Spl. Judicial Magistrate of First Class (P&E), VIII A.M.M & VIII Additional Junior Civil Judge, FAC VII Addl. Metropolitan Magistrate Visakhapatnam

Copy submitted to: The Chief Metropolitan Magistrate, Visakhapatnam. The accused 19 VII AMM COURT, VSP

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CALENDER AND JUDGMENT

IN THIN THE COURT OF VII ADDITIONAL METROPOLITAN MAGISTRATE,

VISAKHAPATNAM

(formerly III Metropolitan Magistrate Court, Visakhapatnam)

CALENDER CASE NO. 1094/2018

(Cr.No.596/2018, 661/2018 of Pendurthy Police Station)

Date of offence 04.9.2018 & 5.10.18 Date of report or complaint 04.9.2018 & 5.10.18

Date of Cognizance 28.11.2018 Date of apprehension of the 06.11.2018 accused or Date of appearance of the accused in the Court

Date of Release ---- Date of commencement of trial 29.01.2019 Date of close of trial 05.08.2019

Date of sentence on order 19.11.2019

Explanation of delay or remarksDue to Non-production of accused and witness from time to time, as such there is a delay.

Name of the ComplainantState Represented by the Sub Inspector of Police, Pendurthy (Crime)Police Station, Visakhapatnam city.

Name of the accusedKo Kosuri Bhaskar Rao, S/o(L) Hanumantharao, age 29 yrs, Caste Kapu, R/o D.No.7-17- 170, NGO’s Colony, Near Burma Quarters, Opp. Rajeev Gruha Kalpa, Visakhapatnam City.

Offencesunder Sec. 454,457,380 and 411 IPC.

Finding found guilty

Sentence:

In the result, Accused is found not guilty for the offence punishable under section 454 and 457 of IPC and found guilty for the offence punishable under section 411 IPC and accordingly he is convicted under section 248(2) Cr. P.C.

MO.1 Eight silver bowls and MO.2 four gold rings which is given as interim custody to the Defacto complainant PW3 and MO.3 four gold Bangles which are given as interim custody to the Defacto complainant PW1 shall be made absolute 20 VII AMM COURT, VSP

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after appeal time is over.

Keeping in view of the statements of the accused, facts and circumstances of the case, the court is not inclined to invoke the provisions of Prohibition of

Offenders Act and feels that a minimum period of sentence will meet the ends of justice and accordingly, Accused is sentenced to under go simple imprisonment for a period of four months for the offence punishable U/Sec. 411 of IPC. The remand period if any undergone by him shall be given set off U/sec. 428 of Cr. P.C. The accused has already in judicial custody for a period of one year and hence, the remand period is set off from his substantial sentence U/sec. 428 of Cr. P.C.

Accused shall be released forthwith if he is not required in any other case.

Sd/-Miss A.Nagamalleswari,

Spl. Judicial Magistrate of First Class (P&E), VIII A.M.M & VIII Additional Junior Civil Judge, FAC VII Addl. Metropolitan Magistrate Visakhapatnam

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IN THE COURT OF VII ADDITIONAL METROPOLITAN MAGISTRATE, VISAKHAPATNAM

(formerly III Metropolitan Magistrate Court, Visakhapatnam)

Present: Miss A.Nagamalleswari, VIII A.M.M & VIII Additional Junior Civil Judge, Spl. Judicial Magistrate of First Class (P&E), FAC VII Addl. Metropolitan Magistrate Visakhapatnam

Tuesday, the 19 th day of November, 2019

CALENDAR CASE NO :10 75 /2018

(Cr.No.643/2018 of Pendurthy crime Police Station) BETWEEN:

State Represented by the Sub Inspector of Police, Pendurthi(Crime)Police Station, Visakhapatnam city. …Complainant AND

A1 Kosuri Bhaskar Rao, S/o(L) Hanumantharao, age 29 yrs, Caste Kapu, R/o D.No.7-17-170, NGO’s Colony, Near Burma Quarters, Near Vaibav Venkateswar Swamy Temple, Opp. Rajeev Gruha Kalpa, Visakhapatnam City.

A2 Miriyala Srinu, S/o Apparao, Age 26 years, Caste by Rajaka, D.No.39-12-13, Opp. Navatha Transport, Murali Nagar Madhavadhara, Visakhapatnam City. …Accused

This case has come up on 15.10.2019 for final hearing before me in the presence of T.Vani, Learned Asst. Public Prosecutor, for the State-Complainant and of Sri P.Kiran Kumar Basu, Advocate is appointed as legal aid council to the accused and having stood over for consideration till this day, this Court delivered the following:

JUDGMENT

1. The Sub Inspector of Police, Pendurthy (Crime) Police Station,

Visakhapatnam city has filed charge-sheet in Cr.No. 643/2018 for the offence punishable under Sec.379 or 411 of Indian Penal Code,1860.

02. The brief averments of the case are that:

LW1 the defacto complainant reported that on 27.09.2018, at 20.00 hours, LW5 received a written complaint from LW1 Tamadana Venkata Prasanna, stating that, he parked his bike bearing Regn. No.AP 31 CA 9423 in front of his house main gate on 26.9.2018 night at 10 p.m and on the next day morning at 4 a.m. he woke up early and found that his motorcycle was missing. He further stated that during 2

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midnight at about 2 a.m on 27.9.18 he heard dog was barking loudly but not checked because of fear. Since then he made searches for his motorcycle and did not find it. So he gave the report to the police for necessary action.

Basing on the complaint of LW1, LW.5 registered FIR in Cr.No.643/2018 u/sec.379 or 411 of Indian Penal Code,1860 of Pendurthi PS on 27.9.18 at 20.00 hrs and entrusted the same to LW6 for investigation.

During investigation, LW6 visited the scene of offence, inspected the scene and prepared it's rough sketch with all salient features and examined LWs 1 and 2 and recorded their statements u/s. 162 of Cr.P.C.

LW.6 arrested the accused on 6.11.18 in the presence of LWs 3 and 4 and on interrogation, the accused voluntarily confessed this offence.

In pursuance of the confession made by the accused about stolen property i.e, two wheeler i.e. Bajaj Discover 125 ST Bearing Regn. No.AP31 CA 9423 was recovered from the possession of the accused by LW6 under the cover of mediators report, drafted at the said place and arrested the accused in the presence of mediators LW3 and LW4.

LW6 produced the arrested accused before the honourable court on 6.11.2018 for judicial custody. After completion of investigation he filed charge sheet in this case against the accused.

03.The case was taken on file for the offence u/secs.379, or 411 Indian Penal

Code,1860. The accused were in jail the Superintendent of central prison was directed to produce them before the court.

04.On production of the accused, copies of case documents were furnished to them as contemplated U/Sec.207 of Criminal Penal Code,1973, The accused were examined U/Sec. 239 of Criminal Procedure Code,1973. They pleaded not guilty and claimed to be tried. Upon considering the material on record a charge under section 379, or 411 Indian Penal Cone,1860 was framed against them, 3

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read over and explained to them in Telugu. They pleaded not guilty and claimed to be tried.

05.During trial, the prosecution examined PWs.1 to 4 and got marked

Exs.P1 to P7 and MO1.

06.After closure of prosecution evidence, accused were examined U/Sec.313 of Criminal Procedure Code,1973, explaining the incriminating evidence appearing against them in the prosecution on evidence. They denied the same and reported no defense evidence on their behalf.

07.Heard both sides.

The learned APP submitted her arguments on behalf of the prosecution by stating that to prove the guilt of the accused the prosecution has examined PWs 1 to 4 and got marked Exs.P1 to P7 and MO.1 and out of four witness two are independent mediators in whose presence the property was recovered and both the mediators were examined and they deposed about the recovery of property from the accused. Hence, the prosecution version is substantially corroborated by independent evidence thereby the guilty of the accused is proved beyond reasonable doubt. By cross examining the prosecution witnesses also the defence failed the elicit that the accused was in permissible possession or lawful possession of the stolen motorbike. There is no explanation how they got the possession of the said bike. PW1 who is the owner of the motorbike has produced the documents proving the ownership. It is the contention of the learned defence counsel that the case was foisted against the accused to clear the unclaimed property lying at their station but how far the suggestion is believable, what is the necessity for the prosecution to implicated anyone by planting motorbikes. Hence, by all the means and all the circumstances the guilt of the accused was proved by the prosecution beyond reasonable doubt. thus, 4

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prays to punish the accused with a maximum punishment prescribed for the offence.

08.On the other hand, the learned counsel for the accused submitted his arguments stating that there is no truth in the prosecution version it is a concocted story against the accused and they were falsely implicated in this case.

The prosecution has examined PW2 and 4 as independent mediators they are the influenced witnesses to maintain cardial relationship with the police they inscribed their signatures at the police station. PW2 in his cross examination has admitted that nothing was seized from the accused. PW4 who is one of independent mediator at the time of giving evidence stated that he is a VRO but in the mediator report there is no whisper about his occupation as a VRO he was participating in the seizure conducted by the police from these facts it is appearing the police have obtained the signatures of PW2 and 4 at their station and nothing was recovered in their presence. There is discrepancy in the evidence of PW1 he has not lodged the complaint Immediately after missing of the bike there was a delay of one but the delay was not properly explained in the FIR. In fact, the accused have not committed any offence they were falsely implicated to clear of the unclaimed property lying at their station. Hence, prays to acquit the accused in the interest of justice.

09. Point for determination is that-

1) Whether the prosecution has proved the guilt of the accused for

the offence punishable u/sec.379 or 411 of Indian Penal Code,1860 beyond

reasonable doubt ?

By considering the evidence on the record and after hearing both the learned counsel the court has decided the matter as follows:

10.To prove the guilt of the accused for the offence punishable under section 379 or 411 of Indian Penal Code,1860 the prosecution has to prove that the accused have dishonestly taken away the motor bike from the possession of the 5

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defacto complainant or they were in possession of the stolen property by knowing it as stolen property or received or retained the same.

11.To prove the same the prosecution has examined PW1 to 4. PW1 is the defacto complainant. PW2 and 4 are the independent mediators. PW3 is the investigating officer. The prosecution has got marked Ex.P1 to Ex.P7. Ex.P1 is

Police report,dt.27.09.2018, Ex.P2 is the Mediators Report Dt.06.11.2018 at.6.00am,Ex.P3 is the Mediators Report Dt.06.11.2018 at.9.00am to 10.00am,

Ex.P4 is the Mediators Report Dt.06.11.2018 at.10.30am to 11.30am,Ex.P5 is the

Mediators Report Dt.06.11.2018 at.12.30pm to 1.30pm,Ex.P6 is the FIR in

Cr.No.643/2018, Ex.P7 is the rough sketch.

12. T. Venkata Prasanna, the defacto complainant was examined as PW1 in his evidence he stated that on 26.09.2018 he parked his motor bike bearing Regn.

No.AP31 CA 9423, Bajaj Discover 125nfront of his house in the night, on the next day at about 4.00 am he found that the bike was missing. Then he searched for the bike but could not trace the same Finally he lodged a report in Pendurthy Police Station on 27.09.2018. Later on 06.11.2018 police informed him that his bike was recovered and he obtained the interim custody of that motor bike through honourable court. Ex.P1 police Report and MO.1 motor bike bearing Regn. No.AP31 CA 9423 were marked through him.

PW1 was cross examined by the learned defence counsel in the cross examination he admitted that he mentioned his age as 18yrs. There was a correction in Ex.P1 at the date and he has not mentioned the date beneath his signature on

Ex.P1. He denied the suggestion that no complaint was lodged by him and his bike was stolen.

13. B.Ramesh Naidu was examined as PW2 he deposed that on 6.11.2018 at about 5.am while he and LW3 were going outside the sub-inspector of police Pendurthy P.S asked them to act as mediators stating that they caught hold of two persons while they were coming by motor bike from Chinamushidiwada side. Police searched them 6

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in his and LW3's presence and seized some gold and silver items and motorbike. He identified the accused as those two persons. A report was prepared there he and LW3 have inscribed their signatures. The report was marked as Ex.P2. From there they were taken to Sri Kanakamahalakshmi Jewelers, Kurupam Market at about 9.00 am.

Police recovered some gold items from that shop a report was also drafted there, he and LW3 signed on it. Mediators report was marked as Ex.P3 and they were taken to the house of one P.Prasad situated at Kadambari Street, near Sri Kanakamahalakshmi

Temple at about 10.30 am. Police recovered some gold items from Prasad in his house. A report was also drafted there and he and LW3 signed in it. Mediators report marked as Ex.P4 and they were taken to Ekalavya colony at about 12.30 pm. Police recovered one motor bike from that open place. A report was also drafted there and he and LW3 signed in it. Mediators report was marked as Ex.P5.

PW2 was cross examined by the learned defence counsel in the cross examination he admitted that Gopalapatnam is a big area and he was residing at

Ganapathi Nagar, Kothapalem, Gopalapatnam. LW3 was at Sujatha Nagar on that day and he does not know the location where LW3 resides at Sujathanagar and it takes half an hour time to reach Sujatha nagar from Gopalapatnam and it was a winter season, it remains dark by 5.00am and LW3 Demudu was at the right side of the Arch of Sujatha Nagar while going from Gopalapatnam to Sujatha Nagar on Main Road and police called him and LW3 while they both were at Sujatha Nagar and he has no prior acquaintance with LW3 and he does not know that the person to whom he was talking at that time is LW3 Demudu and he does not know the name of the cricket ground at

Sujatha Nagar and police stopped him and LW3 Demudu by presuming that they are thieves and police came to them by 5.00 am and police brought two persons along with them. Police did not serve any summons or notice on them requesting to act as mediators and no report was drafted at that place and his evidence that police caught hold of two persons while they were coming on a motorbike from Chinamushidiwada side and the police searched them in their presence including the motorbike is false 7

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and that his evidence in paragraphs 3 to 5 is also false. He signed in Exs.P2 to P5 at

Pendurthi police station at the instance of police.

14. G.Demudubabu, Sub-Inspector of Police, Kancharapalem police station was examined as PW3 in his evidence he deposed that on 27.09.2018 LW5 P.

Suryanarayana registered the case in Cr.No.643/2018 under section 379 of IPC and entrusted to his for the purpose of investigation. He took up investigation and examined Pw1. He visited the scene of offence and prepared the rough sketch and at the scene of offence he examined LW2 and another person Appalanaidu at the scene of offence and recorded their statement. Ex.P6 FIR, Ex.P7 Rough sketch were marked through him.

15.On 6.11.2018 on receipt of credible information along with his staff he proceeded to Pendurthy junction by their official police jeep and picked up mediators

PW2 and another person by name Vadisala Demudu at Chinamushidiwada and there he conducted the vehicle checking at Pendurthy junction at about 6.00 am and noticed that A1 and A2 were coming on a motorbike from Chinamushidiwada side they tried to escape on seeing the police by taking U-Turn. Then with the help of his staff he caught-hold and interrogated them. On his interrogation both the accused have confessed their guilt in this crime and in another nine crimes. Then he conducted personal search of the accused and found gold and silver items pertaining to the

Crime No.661/2018 and Crime No.311/2018 and 461/2018 of Kancharapalem PS. The

Motor bike was found as the stolen property in Cr.No.463/2018 of Pendurthy P.S.

Then he seized the gold and silver items found in the possession of A1 and also seized motor cycle bearing Regn.No.AP 31 CA 9423 by which A1 and A2 were proceeding. He drafted mediator report Ex.P8 is mediator report. Basing on the confession statement of the accused No1 the police were lead to the shop of one Immandi

Apparao and house of Patoori Prasad and recovery some stolen gold items and from there.

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They proceeded to the bushes situated at Chinamushidiwada near to Yekalavya colony along with mediators and the accused. Both the accused have shown the motor cycles bearing registration No.AP 31 AC 7951 and AP 31 DF 2268, he then confirmed those vehicles as the stolen property pertaining to the Cr.Nos.32/2018 and 520/2018 of Kancharapalem police Station respectively. Then he seized those two vehicles under the cover of mediators report drafted in between 12.30 pm to 1.30pm.

Then he returned to their station along with accused and seized property and produced them before the Honourable court seeking judicial custody for the accused, after completion of investigation he filed charge sheet against the accused.

PW3 was cross examined by the learned defence counsel and in the cross examination he stated that he picked-up the mediators V.Demudubabu and PW2 at

Chinamushidiwada junction and at about 5.am they came to their station and from there they started. He admitted that PW2 belongs to Gopalapatnam and Demudu belongs to Chinamushidiwada and he does not know whether PW2 and Demudu Babu are friends or not. While mentioning the address of the mediators in the mediator report it was not disclosed that V.Demudu Babu is working as VRO and in the body of mediator report their names were not referred as if they were writing the mediator reports and the total raid party has not signed on the mediator report except himself.

They have inscribed their signatures only on the first page of each paper of mediators reports. Either the mediators or the accused did not mention the date beneath their signatures. They have detained at around 5.45 am to 6 am. Pendurthy junction is situated at a distance of one to one and half kilometer from Pendurthy police station.

They have detained the accused at a place which is at a distance of 100 meters to the way leading towards Kothavalasa and it is called as Old Pendurthy. At a distance of 100 meters there is a bus stop the distance between old Pendurthy junction and

Kurupam Market is about 16 to 18 Kms and they went to the Jewelery shop of

Apparao and he does not know whether A1 is married or not. He denied the 9

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suggestion that no property was seized from the accused in the alleged places and the case was foisted against them falsely.

16. Vadisala Demudu was examined as PW4 he deposed that on 6.11.2018 at 5.30 am Pw3 Sri G.D.Babu called him to act as mediator in a theft case. Therefore he and

PW2 went to Pendurthy junction one Sub-Inspector, one sub-inspector, one Head

Constable and two constables were already present there. The accused along with

Miriyala Srinu was coming by a bike and the police caught-hold of them and seized some gold ornaments from the accused Kosuri Bhaskara Rao the police drafted a mediator report and he signed on that.

17.From there they were taken to the gold shop of one Apparao at Kurupam

Market. The police have seized some gold items from the said Apparao with whom the accused have pledged the gold and from there they were taking to Yekalavya colony and enquired. There the police have drafted mediators reports dated 6.11.2018 from 9 am to 10 am, 10 am to 11.30 am, 12.30 pm to 1.30 pm.

PW4 was cross examined by the learned defence counsel and in the cross examination he admitted that at 5.30 am he received one phone call and at that time he was in his house. On the mediators report while mentioning his address and address of PW2 they have not mentioned their designation. The Sub-Inspector instructed him to come to Pendurthy junction, where as in Ex.P2 it was mentioned that they went to police station. Including police personnel they were total five members at Pendurthy junction. He saw the accused and M.Srinivas for the first time on that day only and PW2 has informed him that he obtained permission from the

M.R.O and asked him to come. At first VRO called him before 6 am. He further admitted that Pendurthy junction is a busy locality and they were present at that junction until 9.am. He denied the suggestion that the averments mentioned in his examination in chief are all false and he was deposing at the instances of police.

18.The learned defence counsel has raised a defence that there was a contradiction in between the evidence of PW2 and PW4 with regard to the place of 10

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securing of mediators. As per PW2 they were secured by the police at Sujatha Nagar and PW4 has stated that he was secured by the police over a phone. Whereas PW3 has stated that the mediators were secured on the way at Chinamushidiwada all the three have stated different places.

19. On perusal of evidence it could be seen that the PW2 who has stated that the police have requested them to act as mediator while he was proceeding through

Sujathanagar. PW4 stated that he was informed by the police to come to Pendurthi junction with a request to act as mediator, though there is small inconsistency with regard to place at which the mediators were secured that cannot be treated as a material contradiction which will brush away the evidence brought on record on behalf of the prosecution.

20.The other contention of the learned defence counsel is that one of the mediator has completely denied the version of the prosecution in his cross examination and another mediator also not stated the description of the property seized by the police. The mediators evidence is not corroborating the version of the prosecution with regard to the seizure as such the seizure is not proved.

21. On seeing the evidence of Pw2 and 4, PW2 in his examination in chief has stated that the police have seized some gold, silver articles and motor bike from the accused and the accused themselves lead them to Kanakamahalakshmi jewelers, and to the house of P.Prasad and Yekalavya colony. In the cross examination he denied the recovery of property from the possession of the accused. But he stated that the police caught hold the accused and the identification of the accused was not denied and there is no cross examination on this aspect from his evidence it is evidencing that the police have caught-hold the accused in their presence to that extent there is corroboration. Though there is inconsistency in his evidence, the another mediator

PW4 has stated about the recovery of the stolen articles from the possession of the accused as per their voluntary confession from the places lead by themselves. Thus, the seizure does not become invalid on the ground of inconsistent evidence of one of 11

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the mediator who turned hostile when the other evidence is consistent with the record.

Coming to the other point non disclosure of particulars of the seized articles by

PW4, from the record it could be observed that the incident of seizure was happened on 06.11.2018 and he has given his evidence on 05.08.2019 there was 8 months gap between both the dates it is not possible to an ordinary individual to remember the description of the number of items which he saw only ones on the date of seizure and say exact discreation in the witness box without any reference hence the defence is not sustainable.

22. The other defence raised by the learned defece counsel is that the police have not mentioned the designation of the mediators while drafting the mediator report.

23.It is the fact that one of the mediator is a VRA and another is an employee for that no proof is not necessary the police have to mention the designation of the mediators while drafting the mediator report. Though it was not mentioned it is not at all fatal to the prosecution case because the minor discrepancies in the investigation cannot be considered while considering evidence on whole.

24.The other defence of the learned counsel is that the scene of offence is existing in a busy locality. The police can secure anyone as mediator at that place but they have not done so and they have obtained the signatures of PW2 and 4 at their station. While cross examining Pw.3, the learned defence counsel has taken defence that he did not secure local mediators at Bhagathsingh Nagar junction by posing question that both the mediators PW2 and 4 do not belong to the area at which the seizure was conducted.

25.In the present case the police have secure the revenue official and another employee as mediators one of them is a public servant. The fact to be considered is that it may not be possible to secure mediators from the exact place of seizure in each and every case because no individual come forward to be a witness in a criminal case in such circumstances securing the public servant as mediator is obvious and that too 12

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it is the main point to see whether the witness is independent or nor. In the present case, Pw4 is an independent mediator deposed voluntarily and after the test of cross examination also his evidence remained unshaken and consistent and so also the witness who denied the prosecution version in his cross examination has identified the accused and admitted their detention in his and PW4’s presence. Hence, PW4 evidence can be taken into consideration and he is proved as independent mediator.

Through cross examination the defence counsel failed to establish that PW4 has inscribed his signature at the police station and he is in habit of inscribing his signature at the instance of police to maintain cordial relationship with them by posing questions with the relevant CC numbers in which he has deposed on behalf of the police or inscribed his signature as mediator. Hence, the defence of obtaining signatures at the police station does not sustain.

26.Coming to the other defence that the case was foisted against the accused and the defacto complainant has lodged false complaint to obtain the unclaimed property lying at the police station.

According to the charge-sheet and the evidence of PW3 and 4 the police have recovered gold, silver items and motorbikes from the possession of the accused and the accused failed to explain how they got possession of the said property. The learned defence counsel has posed a question to PW1 that to obtain unclaimed property in the police station the complaint was given by him but this defence is not at all acceptable because the defacto complainant has established his owner-ship by proceeding the registration certificate and other connected documents showing his owner-ship over the said motor bike marked in MO1. The MO1 was seized by PW3 in pursuance of the voluntary confession made by the accused in the presence of PW4 which fact is admissible under section 27 of Indian Evidence Act,1872, as the accused himself lead the police to the bushes. The above fact is corroborated with the evidence of PW4. PW4 is a complete stranger to the accused and the court feels that 13

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there is no necessity to him to speak false evidence against the accused, hence there are no grounds to disbelieve the evidence of PW4.

27.Foisting of false case is also a baseless defence because there is no necessity either to PW1 or to the police to foist a case against the accused. It was not brought

before the court that because of certain reason there was unhealthy relationship

between PW1 and the accused due that he has foisted a false complaint and to support him the police have registered a case and filed charge sheet. On perusal of the record it is appearing that the accused and PW1 and complete strangers. Hence, the defence is not tenable.

As seen from the evidence of Pws. 1 to 4, there is no direct evidence on record to show that the accused have committed the offence punishable under section 379 of IPC as no one has witnessed the accused while taking away the motor bike from the defacto complainant.

But, as per the illustration (a) of Sec. 114 of Indian Evidence Act “ that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.” In the present case the accused were found in the recent possession of stolen property MO.1- motorbike and when they were asked about the documents of the vehicle they failed to show the same and also failed to give any explanation that can account for their possession.

The evidence of Pw.3 and 4 is duly corroborated and consistent with each other with regard to the recovery of MO1 from the possession of the accused at the time of their arrest. When once the prosecution has proved the factum of the discovery of the stolen property which is admissible under section 27 of Indian Evidence Act, certainly the accused has to explain how he received the stolen property.

On careful consideration of the entire evidence adduced by the prosecution, the examination of the accused u/sec 313 Cr.P.C. the accused did not account for retaining MO1 with them as such there is no need to disbelieve the evidence of PW3 and 4, thus the prosecution has established that MO1 is stolen property which belongs to PW1 and the other fact that the same was seized from the possession of the accused under mediation report in the presence of Pw4 inspires confidence that the accused has retained MO1 knowing it as stolen property.

By the evidence of PW1 to 4 coupled with Exs. P.1 to P7, the prosecution has placed cogent and acceptable evidence to show that the accused have committed the offence punishable under section 411 of Indian Penal Code,1860 14

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28. In the result, A1 and A2 are found guilty for the offence under section 411 of IPC and accordingly they are convicted under section 248(2) Cr. P.C.

MO.1 Motor Bike Bearing Regn. No..AP 31 CA 9423 Bajaj Discover 125 which was given interim custody to the Defacto complainant shall be made absolute after appeal time is over.

Typed to my dictation to the Stenographer, corrected and pronounced by me in the open Court, this the 19thday of November,2019.

Sd/-Miss A.Nagamalleswari,

Spl. Judicial Magistrate of First Class (P&E), VIII A.M.M & VIII Additional Junior Civil Judge, FAC VII Addl. Metropolitan Magistrate Visakhapatnam

APPENDIX OF EVIDENCE

Witnesses Examined For Prosecution: For Defense: PW.1 : T.Venkata Prasanna, Student -NONE- PW.2 : B.Ramesh Naidu,Coordinator in HDB Finance Ltd PW.3 : G.Demudu Babu, SI of Police, I Town Crime PS. PW.4 : Vadisala Demudu,VRA

Exhibits Marked

For Prosecution: Ex.P1 is report ,dt.27.09.2018

Ex.P2 is signature on the mediators of PW.2 concluded at 6.00 am

Ex.P3 is signature of PW2 in the mediators report concluded at 09.00 am

Ex.P4 is signature of PW2 in the mediators report concluded at 10.30 am

Ex.P5 is signature of PW2 in the mediators report concluded at 12.30 pm,

Ex.P6 is the FIR in Cr.No.643/2018,

Ex.P7 is the rough sketch

For Defense: Nil

Material Object: MO.1 is Motor bike AP 31 CA 9423 Bajaj Discover 125

Sd/-Miss A.Nagamalleswari,

Spl. Judicial Magistrate of First Class (P&E), VIII A.M.M & VIII Additional Junior Civil Judge, FAC VII Addl. Metropolitan Magistrate Visakhapatnam

Copy submitted to: The Chief Metropolitan Magistrate, Visakhapatnam.

15

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2) The Accused

Hearing on quantum of sentence :

When questioned the accused with regard to the quantum of sentence to be imposed, A1 and A2 have stated that they are the sole breadwinners to their respective families and they have to look after their families and they are innocent and they have no connection with this case. Hence, prays to take lenient view against them.

A2 further submitted that he is suffering from physiological problem and have been undergoing treatment he has to look after his parents who are old aged and are dependent solely on his income and prayed to consider his pathetic condition and take lenient view in imposing sentence.

Keeping in view of the statements of the accused, facts and circumstances of the case, the court is not inclined to invoke the provisions of Prohibition of Offenders Act and feels that a minimum period of sentence will meet the ends of justice and accordingly, A1 is sentenced to undergo simple imprisonment for a period of four months and by considering the plea of A2 the court considers that imposing of fine will meet the ends of justice. Hence he is sentence to pay fine of Rs.1000/-(Rupees one Thousand only) and in default of payment of fine, he has to undergo simple imprisonment for a period of one month for the offence punishable U/Sec. 411 of IPC. The remand period if any undergone by them shall be given set off U/sec. 428 of Cr. P.C. The accused 1 has already in judicial custody for a period of one year and hence, the remand period is set off from his substantial sentence U/sec. 428 of Cr. P.C.

A1 shall be released forthwith if he is not required in any other case.

Typed to my dictation to the Stenographer, corrected and pronounced by me in the open Court, this the 19thday of November,2019.

Sd/-Miss A.Nagamalleswari,

Spl. Judicial Magistrate of First Class (P&E), VIII A.M.M & VIII Additional Junior Civil Judge, 16

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FAC VII Addl. Metropolitan Magistrate Visakhapatnam

CALENDER AND JUDGMENT

IN THE COURT OF VII ADDITIONAL METROPOLITAN MAGISTRATE, VISAKHAPATNAM

(formerly III Metropolitan Magistrate Court, Visakhapatnam)

CALENDER CASE NO. 1075/2018

(Cr.No.643/2018 of Pendurthi crime Police Station)

Date of offence 26.09.2018 Date of report or complaint 27.09.2018

Date of Cognizance 27.11.2018 Date of apprehension of the 06.11.2018 accused or Date of appearance of the accused in the Court

Date of release A2 released on 19.12.2018 Date of commencement of trial 29.01.2019 Date of close of trial 05.08.2019

Date of sentence on order 19.11.2019

Explanation of delay or remarksDue to Non-production of accused and witness from time to time, as such there is a delay.

Name of the Complainant State Represented by the Sub Inspector of Police, Pendurthi(Crime)Police Station, Visakhapatnam city.

Name of the accusedA1.KosuriBhaskarRao,S/o(L) Hanumantharao, age 29 yrs, Caste Kapu, R/o D.No.7-17-170, NGO’s Colony, Near BurmaQuarters,NearVaibav Venkateswar Swamy Temple, Opp. Rajeev Gruha Kalpa, Visakhapatnam City.

A2 Miriyala Srinu, S/o Apparao, Age 26 years, Caste by Rajaka, D.No.39-12-13, Opp. Navatha Transport, Murali Nagar Madhavadhara, Visakhapatnam City.

Offencesunder Sec.379 or 411 IPC.

Finding found guilty

Sentence:

In the result, A1 and A2 are found guilty for the offence under section 411 of IPC 17

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and accordingly they are convicted under section 248(2) Cr. P.C.

MO.1 Motor Bike Bearing Regn. No..AP 31 CA 9423 Bajaj Discover 125 which was given interim custody to the Defacto complainant shall be made absolute after appeal time is over.

Keeping in view of the statements of the accused, facts and circumstances of the case, the court is not inclined to invoke the provisions of Prohibition of Offenders Act and feels that a minimum period of sentence will meet the ends of justice and accordingly, A1 is sentenced to undergo simple imprisonment for a period of four months and by considering the plea of A2 the court considers that imposing of fine will meet the ends of justice. Hence he is sentence to pay fine of Rs.1000/-(Rupees one

Thousand only) and in default of payment of fine, he has to undergo simple imprisonment for a period of one month for the offence punishable U/Sec. 411 of IPC.

The remand period if any undergone by them shall be given set off U/sec. 428 of Cr. P.C.

The accused 1 has already in judicial custody for a period of one year and hence, the remand period is set off from his substantial sentence U/sec. 428 of Cr. P.C.

A1 shall be released forthwith if he is not required in any other case.

Sd/-Miss A.Nagamalleswari,

Spl. Judicial Magistrate of First Class (P&E), VIII A.M.M & VIII Additional Junior Civil Judge, FAC VII Addl. Metropolitan Magistrate Visakhapatnam ****************** 18

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1 VII AMM COURT, VSP

CC No.1341/2019

IN THE COURT OF VII ADDL. METROPOLITAN MAGISTRATE

(Formerly III Metropolitan Magistrate Court)

VISAKHAPATNAM

Present: Miss A.Nagamalleswari, VIII A.M.M & VIII Additional Junior Civil Judge, Spl. Judicial Magistrate of First Class (P&E), FAC VII Addl. Metropolitan Magistrate, Visakhapatnam

Monday, this 23rd day of December 2019

CALENDAR CASE NO.1341/2019.

(Cr.No.398/2018 of Kancharapalem Police Station)

BETWEEN:

The State represented by the Sub-Inspector of Police, Kancharapalem Police Station, Visakhapatnam City.

...Complainant

AND:

Munigentti Sai Kalyan, S/o.Narasimhulu, 33 years, Padmasili, R/o.Door No.17-63, Sai Baba Temple Street, Narsapur Mandal and Village, Medak District, Telangana State.

...Accused

This case has come up on 05.12.2019 for final hearing before me in the presence of T.Vani, Learned Asst. Public Prosecutor, for the State- Complainant; and of Sri P.Kiran Kumar Basu, Advocate for accused; and having stood over for consideration till this day, this Court delivered the following:

JUDGMENT

This case is filed by the Sub-Inspector of Police, Kancharapalem

Police Station, Visakhapatnam City in Crime NO.398/2018 for the offence punishable under Sections 419, 420 of Indian Penal Code,1860.

2.The brief averments of the case are:

LW.1-Terli. Swapna is residing at Door NO.40-1-24/397,

Kasturinagar, Kailasapuram, Visakhapatnam along with her family members and she used to visit the house of her friend at Kancharapalem for studying, there she got acquainted with the accused he offered her a role in short film, but she refused the same. The accused introduced 2 VII AMM COURT, VSP

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himself that he was working in TV9 channel and showed ID card and made LW1 believe his words. He asked her to contact him, if anyone wants job in TV channels, As the financial condition of LW1's family was not good, she contacted the accused for job, he made her to believe that he would join her as reported in TV-9 and stated that for that she has to pay some money and the accused used to come to the house of LW1 and pressurized her repeatedly for the money. In the first week of June 2018, the accused came to her house informing that she would get the job immediately, if she pays amount for which her parents borrowed

Rs.10,000/ and gave the same to accused. The accused was in touch with her for about 10 days who informed that if anyone else wants job, may contact him and at that time when she contacted accused asking as to what happened to her job, he kept her mobile number in block list and tried to evade. She came to know that he had also collected amount from some other persons. She contacted a TV9 reporter near her house who informed that the accused is no way connected to TV9. The accused also took an amount of Rs.10,000/- from LW.2- Vasupalli Durga Prasad and LW.3- Kalivarapu Khageswara Rao deceiving him in the same way and further the accused also cheated other person at Simhachalam.

Basing on the report of LW1, LW.8-R.V.V.S.S.Ch.Sekhar Rao,

Inspector of Police registered the case in Crime NO.398/2018 under

Sections 419, 420 IPC of Kancharapalem P.S and endorsed the same to

LW.-L.Sreenivasa Rao, Inspector of Police for investigation and he visited the scene of offence, examined the witnesses and recorded their statements and he arrested the accused on 13.08.2018 and sent him for judicial custody. He seized one Samsung Android mobile phone, one

Sony camera, East Coast Railway identity card, two SBI ATM cards, one 3 VII AMM COURT, VSP

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Axix bank ATM card under the cover of mediators report. On completion of investigation he filed charge sheet against the accused.

3.The case was taken on file for the offence punishable under

Sections 419, 420 of IPC, the superintendent of Central Prison,

Visakhapatnam was directed to produce the accused.

4.On production of the accused, copies of case documents were furnished to him as contemplated under Section 207 of Criminal

Procedure Code,1973. The accused was examined under Section 239 of

Criminal Procedure Code,1973, the substance of the accusation was read over and explained to him, he pleaded not guilty and claimed to be tried.

Upon considering the material on record charge under Sections 419 and 420 of Indian Penal Code,1860 was framed and explained to him in

Telugu, he denied the same and pleaded not guilty and claimed to be tried.

5.During trial, the prosecution examined PW1 to PW7 and got marked Exs.P1 to P.4.

6.After closure of prosecution evidence, accused was examined under Section 313(1)(b) of Criminal Procedure Code,1973 explaining the incriminating material made against him in the prosecution evidence, he denied the same and reported no defense evidence on his behalf.

7.Heard both sides.

8. The learned APP submitted that the prosecution has successfully proved the guilt of the accused beyond reasonable doubt by examining the witnesses PW1 to 7 and got marked Ex.P1 to 4 and MO 1 to 3 on its behalf. The documents marked are amply corroborating the evidence of prosecution witnesses. The material objects are the apparent proofs that 4 VII AMM COURT, VSP

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he induced the public by representing him as a reporter and thereby deceived the innocent by collecting amount on the pretext of providing job. Hence, prays to punish the accused for the offence punishable under section 419 and 420 of IPC.

9. On the other hand the learned defence counsel submitted arguments by stating that the case was foisted against the accused, there is no proof on record to show that the alleged victims have paid amount to the accused, no one has stated the dates on which they have paid to the accused. The investigating officer has not conducted a proper investigation, there are several contradictions and inconsistencies in the prosecution evidence. The court cannot rely on the inconsistent evidence, the prosecution failed prove the guilt of the accused beyond reasonable doubt, hence prays to acquit the accused in the interest of justice.

10.The point for determination is :

Whether the prosecution has succeeded in proving the

guilty of the accused for the offence punishable under

Sections 419 & 420 IPC.?

11.POINT:To prove the guilt of the accused under Section 419 & 420 of IPC, the prosecution has to establish that the accused has represented himself as the reporter of TV-9 and thereby fraudulently induced the defacto complainant and other two persons to pay money for the arrangement of jobs, which he couldn’t do.

Section 415 IPC:- Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or 5 VII AMM COURT, VSP

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omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Explanation.—A dishonest concealment of facts is a deception within the meaning of this section. Illustrations

(a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A cheats.

Section 416 IPC: Cheating by personation.—A person is said to “cheat by personation” if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is. Explanation.—The offence is committed whether the individual personated is a real or imaginary person.

Illustration

(a) A cheats by pretending to be a certain rich banker of the same name. A cheats by personation.

12. Perused the record, the version of the prosecution is that the accused has introduced himself as a TV-9 reporter and induced the PW.1 & PW.2 and PW.7 to pay money for the arrangement of jobs in TV-9 office though he has no capacity or intention to arrange any job. To prove the same, it has examined PW.1 to PW.7. All the prosecution witnesses were cross-examined by the learned defence counsel.

13.The defence of the accused is that he was falsely implicated in this case and he has not received any amount from anyone. The argument of the learned defence counsel is that PW.1 & PW.7 have foisted this case by colluding with PW.4 & PW.5 for the best reasons known to them, there are so many inconsistances and infirmities in the evidence of 6 VII AMM COURT, VSP

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prosecution witnesses. The police have not conducted proper investigation, they might have filed a referred charge sheet, if they conducted a proper investigation. The material contradictions in between the evidence of witnesses are showing that there is no reality in prosecution version.

14.The defence of the accused is that either PW.1, PW.7 or any other witness has not stated the dates on which they met the acused and the date on which they have paid the amounts and there is descripancy in the date of presentation of the complaint by PW.7. If they have paid the amount they might have stated the dates.

15. On perusal of the report marked as Ex.P3, the date was mentioned

as 11.07.2018 and at the year 2017 was altered to 2018 and at the end

of the report the Inspector of Kancharapalem P.S has endorsed the registration and mentioned the date of registration as dt.12.08.2018.

The learned defence counsel posed questions about the alteration in the year to PW.6 and PW.7. PW.6, the Investigating Officer stated that he doesn’t know when the defacto complinant (PW.7) has drafted the complaint, but it was presented on 12.08.2018 and on the same he examined and recorded her statement. The Learned counsel posed the same questions to PW.7. She also admitted that there is a correction and she didn’t remember the date of presentation of complaint and stated that she knows the accused since January, 2018. There is no clarification about the correction from the complainant, she is only the person who can give clarification as she has prepared and lodged it, instead of clarifying the question she stated that she did not remember the date of presentation. From this it can seen that there was one month gap between the date of complaint and its registration, that means there was 7 VII AMM COURT, VSP

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delay in lodging the complaint the investigating officer has to mention the reason for the delay but that was not explained, hence the said fact is fatal to the prosecution case.

16.It is true that the defacto complainant has not mentioned the date of payment of amount to the accused either in her complaint or in her statement recorded under section 161 of Cr.P.C,1973 ironically no witness has stated the date of payment and the date on which they met the accused, the phone number through which they contacted him. The fact can be a minor one to be considered if one or two witnesses fail to give such information but in the present case no single witness has stated and the investigating officer also not enquire about the said facts to find out the truth in the allegation made against the accused.

17.There is contradiction in the evidence of witnesses PW1,2 and 7.

PW1 stated that PW7 Swapna introduced the accused to him and the accused induced them to pay Rs.10,000/- each to arrange job and for that he paid an amount of Rs.5,000/- at the residence of Swapna in her presence. Coming to his statement recorded under section 161 of Cr.P.C he stated that he got acquaintance with the accused at the residence of

Swapna and accused himself introduced him as reporter and induced him with a promise of arranging of job as a reporter in TV9 NEWS channel. when the learned defence counsel asked question about the place of payment then he stated that he paid the amount near the residence of PW7 but not in her residence. Further he admitted that at the time of payment of money no elders were present but it was happened in the presence of PW7. He accompanied her to the police station but he has not inscribed his signature on the report and no one were present at the time of payment of money except Swapna. Thus, 8 VII AMM COURT, VSP

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from his admissions it is clear that there is contradiction between his statement under section 161 and deposition and no one knows about the payment of amount except Swapna further he has not revealed about the source of the amount. According to his testimony he was the student. He has not stated that he was doing any part-time job etc. that means he was dependent, then obviously the question arises how he arranged the amount. PW1 either in his statement or in his evidence has revealed how he got the amount to pay the same to the accused.

18.Now coming to the evidence of PW7 Swapna, she stated that she got acquaintance with the accused at the residence of her friend Teja while they were doing combined studies. The accused introduced himself and offered role in short film when she refused he induced her with a promise to arrange job as reporter in TV9 NEWS channel and she paid the amount in the presence of her parents and PW1 (Durga Prasad) later the accused avoided her phone and switched off his mobile. After that she enquired about the accused with a reporter by name Hussain who came for news coverage to their area on his suggestion she went to

TV9 office and enquired about the accused and came to know that no such person was working in their office, on that she gave police report against the accused.

She was cross examined by the learned defence counsel, she stated that her friend informed her that he was their guest and she does know whether the accused is relative of her friend or not. At the time of payment of amount to the accused her parents and PW1 were present.

19.PW7 in her statement under section 161 CR.P.C,1973 that her parents paid the amount at her residence and she enquired about the accused with the reporter who was residing near to her residence. Thus, 9 VII AMM COURT, VSP

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there are contradictions between her statement and deposition.

According to PW7 her parents and PW1 are the witnesses to her payment, but the investigating officer has not examined her parents in proof of payment, further the witness who was examined as PW1 has not stated that he was present at the time of payment by PW7. The prosecution failed to produce any proof with regard to the payment made by PW7.

20. The other witness who has stated that he also paid amount to the accused failed to bring any proof for the amount paid to the accused.

There are contradictions in the evidence of PW2. In his statement under section 161 of Cr.P.C,1973 he stated that he gave Rs.10,000/- to the accused on the simhachalam hills on the same day on which the accused met him and he asked him to send some more money to arrange job and for the purchase of camera and other things and asked him to come to Visakhapatnam on 24.07.2018 at his request he sent amount through his Bank Account, later after coming to visakhaptnam

TV9 office he came to know that he was cheated by the accused and gave report against the accused in Simhachalam P.S and he paid an amount of Rs.12,000/- within 10 days, and he sent Rs.1400/- through his bank account.

21. In his evidence before the court he stated that he met the accused in Simhachalam Devasthanam there the accused introduced him as a reporter and helped in availing the food and other eminities by showing his identity and as per information of the accused he came to visakhapatnam on 24.07.2018 and went to Gajuwakam and came to know that TV9 office is situated at Dhabagardens not at Gajuwakam, the accused informed that he will arrange job as reporter and for that he 10 VII AMM COURT, VSP

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paid an amount of Rs.12,000/- within 10 days in Hyderabad, later as there was no information from the accused he enquired in the TV9 office and came know that the accused was the TV9 reporter. Then he gave report in Simhachalam P.S.

In his cross examination he admitted that the accused stated to him that he has taken toilet cleaning contract from railways and showed his identity card. The accused has collected his Aadhar Card, Pan Card and two passport size photos. He gave police report in Gopalapatnam PS in writing and received phone call from them stating that case was registered against the accused in Kancharapalem PS, further he admitted that in his statement he has not stated about going to

Hyderabad with the accused and giving his identity proofs, and about lodging of report in Gopalapatnam PS.

22. After going through the evidence of PW2 it is apparent that there are so many contradictions between his statement under section 161

Cr.P.C,1973 and his testimony before the court. There is inconsistency with regard to the place of payment in his statement he stated that he paid Rs.10,000/- to the accused then there on Simhachalam hills, later sent Rs.1400/- by way of account transfer, but in his examination in chief he stated that he paid the amount within ten days in Hyderabad later, though he could not produce any proof for the payment of Rs.10,000/- he can produce his account statement in proof of his subsequent payment, but he did not do so, he failed to say on which date he met the accused and the date of payment.

The PW.2 in his cross examination has stated that he has given complaint to Gopalapatnam PS and as they informed him through the phone that a case was registered against the accused and investigation was being conducted by the Kancharapalem Police asked him to 11 VII AMM COURT, VSP

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approach that station. Whereas, in his statement before the police under

Section 161 Cr.P.C., he has not stated about the said fact and in his evidence he stated that the accused took him to Hyderabad there he has collected his identity proofs and other relevant documents. But in his statement, he stated that the accused has taken him by auto and took him to different places in the city of Visakhapatnam and asked him to come and join in the TV-9 office as an attender on 18.05.2018. But, he has not revealed the phone number of the accused and also his number to get a conclusion that the accused has given him his phone number and he made phone calls to him and also he has not produced any document to show that he has transferred amount to the accused through his bank account. PW.2 in his cross examination stated that he has transferred Rs.1,400/- to the accused through his account, but he has not furnished any account particulars showing that the amount was transferred to the accused account. He has not produced any receipt showing that he has given complaint to the Gopalapatnam PS and the

Gopalapatnam Police has also not transferred any FIR to the

Kancharapalem PS showing that it was registered on the complaint of

PW.2.

PW.6, the Investigating Officer has stated that PW.2 approached their station by seeing a news item published with regard to the cheating committed by the accused. But according to PW.2, he went to the Kancharapalem PS by receiving a phone call from the Gopalapatnam

PS for which also there is no proof with the prosecution.

23.PW7 the defacto complainant has stated that she got acquaintance with the accused at her friend's house and she informed her that he was their guest, but the investigating officer has not examined her to know about the accused and by examining her he can 12 VII AMM COURT, VSP

CC No.1341/2019

also prove the version of PW7 that how she got acquaintance with the accused and how he made her believe that he can arrange job. But in the entire investigation no such efforts were made, when it is not brought before the court that there exists a person by name Teja who is a friend PW7 and she went for combined studies, no one can believe that

PW7 met the accused in the house of Teja.

24.PW7 never stated in her evidence that TV9 reporters (PW 3&4) have informed her that they saw the accused and he escaped from them.

25.TV9 reporters were examined as PW4 and 5. PW4 stated that PW2 came to their office and enquired about the accused and he has shown the photo of the accused in their mobile phones, he informed him that the accused was not working in their channel and took his photo to enquire. PW5 also stated the same by stating that PW7 came and enquired about the accused and further stated that, later in the month of

Sravanamasam while covering the sravanamasa utsvamams he and

PW4 saw the accused and identified him as the person about whom PW2 and 7 enquired and caught hold of him and enquired the accused about his identity and after revealing their identity as TV9 reporters and the accused admitted about cheating of PW1,2 LW1 (swapna), then they have handed over the accused to Gopalapatnam PS.

26.But the prosecution has examined one Pasupureddy. Narsimga Rao as PW3 as an independent mediator, in whose presence the accused was arrested and MO1 to 3 were seized. PW6 the Sub-Inspector of

Kancharapalem PS stated that he has arrested the accused in the presence of PW4 and LW7 and at the time of arrest of the accused he also took PW1 to that place for identifying the accused and in his 13 VII AMM COURT, VSP

CC No.1341/2019

investigation he came to know that another case was also registered against the accused in Arilova PS.

27.There is clear contradiction in between the evidence of PW4 and 5.

PW4 has not stated that they saw the accused on Simhachalam hills in the month of Sravanamasam and they have handed over him to

Gopalapatnam Police, on perusal of their statements recorded under section 161 of Cr.P.C they stated that he escaped from them by pushing them.PW2 also stated that he gave report against accused in

Gopalapatnam PS but there is no single document showing that a report was lodged in Gopalapatnam PS and accused was handed over to that station by PW4 and 5. There is no investigation on this aspect, moreover the investigating officer has stated that another case was registered in

Arilova PS but the accused was not connected to that case till the date of judgment and the accused in his examination under section 313(1)(b)of

Cr.P.C,1973 has stated except the present case there is no other case against him. The Investigating Officer has not produced any document relating to the crime registered in Arilova PS and even not stated the crime number.

28.There are so many discrepancies in the investigation, the investigating officer failed to bring before the court that there was a person by name Teja friend of PW7 to establish that at her house the defacto complainant got acquaintance with the accused and also failed to prove that the alleged victims PW1,2 and 7 have paid amount to the accused for arranging job. According to his testimony he has seized cell phone from the accused, he has not tried to extract information from the phone that with whom he was contacting whether the phone consists the same number as furnished by him to the victims. There are 14 VII AMM COURT, VSP

CC No.1341/2019

contractions in between the evidence of PW6 Investigating Officer and other witnesses, he has stated that PW1 is B.SC graduate but in his investigation he came to know that he is B-Tech graduate, whereas PW1 has stated that he is a student and now he is studying B.SC in Kasyap

College. He has stated that they took PW7 to NAD Junction while arresting the accused for identification purpose but PW4 and 5 has stated that PW2 and 7 have given photo of the accused to them, then a question arises why the investigating officer has not secured the photo either from PW4,5 or PW2 or 7, the other thing which has to be observed on this score is that PW1 has not stated that she has accompanied the police at the time of arresting of the accused. The PW3 has admitted that in the hotel at which the accused was arrested some other persons were also present and infront of that cafe bus stop is existing, but the investigating officer has chosen the TV9 reporter as a mediator.

29.After culling out the evidence of prosecution witnesses is clear that there is no consistency in between the evidence of prosecution witnesses and it is full of improvements and contradictions. The prosecution has failed to prove that the accused has impersonated as a reporter and have collected amount from the innocent and deceived them on the pretext of arranging of job. Except the inconsistent evidence of prosecution witnesses there is no strong proof to show that accused has represented him as a reported and deceived the said persons on the name of providing jobs in TV9 news channel, thus the court cannot rely on the inconsistent evidence to punish the accused unless his guilt is proved beyond reasonable doubt, hence the benefit of doubt is extended infavour of the accused.

15 VII AMM COURT, VSP

CC No.1341/2019

30.In the result, the accused is found not guilty for the offence punishable under Section 419 and 420 of IPC and he is acquitted under

Section 248(1) Criminal Procedure Code,1973 and bail bonds of the accused if any shall stand cancelled after appeal time is over. The accused shall be released forthwith, if he is not required in any other case. The unclaimed property MO.1 Sony company camera and MO2

Samsung mobile, shall be confiscated to the stated after appeal time is over, MO3 Debit cards in 3 numbers (one card belong to Axis bank and two cards belong to SBI) shall be destroyed after appeal time is over.

Typed to my dictation to the Stenographer, corrected and pronounced by me in open court, this the 23rd day of December, 2019.

VIII A.M.M & VIII Additional Junior Civil Judge, Spl. Judicial Magistrate of First Class (P&E), FAC VII Addl. Metropolitan Magistrate Visakhapatnam

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution:

PW.1Vasupalli Durga Prasad PW.2K.Khageswara Rao PW.3Pasupureddy Narasinga Rao PW.4Seemala Srinivasa Rao PW.5Maqdood Hussain PW.6L.Srinivasa Rao PW.7Terli Swapna

For Defense:NONE

Exhibits Marked For Prosecution: Ex.P.1Mediators report Ex.P.2 Identity card of the accused Ex.P.3Report of PW.7 Ex.P.4First Information Report

For Defense:- NIL - 16 VII AMM COURT, VSP

CC No.1341/2019

No. of Material Objects Marked

MO.1Sony company camera MO.2Samsung mobile MO.3Debit cards in 3 numbers (one card belong to Axis bank and two cards belong to SBI

VIII A.M.M & VIII Additional Junior Civil Judge, Spl. Judicial Magistrate of First Class (P&E), FAC VII Addl. Metropolitan Magistrate Visakhapatnam

Copy submitted to: The Chief Metropolitan Magistrate, Visakhapatnam.

1 CC 562/2018

IN THE COURT OF SPECIAL JUDICIAL FIRST CLASS MAGISTRATE (PROHIBITION &

EXCISE), VISAKHAPATNAM

Present: Miss A.Nagamalleswari,

Spl. Judicial Magistrate of First Class (P&E),

VIII A.M.M & VIII Additional Junior Civil Judge,

Visakhapatnam

Wednes day, the 18 th day of March, 2020

1Serial No. of the caseCC No.562/2018. 2Date of offence 01-11-2011.

3Name of the complainant State Represented by the Sub Inspector of Police, Chinthapalli Police Station. 4Name of the accused and his A1.Anuguri Venkata Ramana, S/o parentage etc.,Chinnabbai, 25 yrs, Kondadora by caste, Korukonda village, Balapam Panchayat, Chintapalli Mandal, Militia member.

A2. Gemmili Nagaraju, S/o Chinnabbai, 26 yrs, Bagatha by caste, Korukonda village, Balapam Panchayat, Chintapalli Mandal, Militia member

A3. Gemmili Sathibabu,S/o Chinnabbai, 26 yrs, Bagatha by caste, Korukonda village, Balapam Panchayat, Chintapalli Mandal, Militia member.

A4. Muvvala Chinnabbai, S/o Birusu, 28 yrs, Kondu by caste, Kistavaram village, Balapam Panchayat, Chintapalli Mandal, Militia member.

A5. Talla Sathibabu, S/o Karranna, 30 yrs, Kondadora by caste, Burugubayalu Turumamidi village, Balapam Panchayat, Chintapalli Mandal Militia member

A6. Vantal Sibu, S/o Bhaskara Rao, 25 yrs, Kondu by caste, Burugubayalu Turumamidi village, Balapam Panchayat, Chintapalli Mandal,

A7. Chalapathai S/o @ Apparao, banned CPI Maoist(absconding)

A8. Kudumula Venkata Rao @ Ravi, S/o Sriramamurthy, 40 yrs, Kommangi village, Chintapalli Mandal, Visakhapatnam District, Banned CPI Maoist(Absconding) 2 CC 562/2018

A9. Bakuri Venkata Ramana Murthy @ Prasad, S/o Narasimha Raju, 41 yrs, Bhagatha by caste, Bakuru village, Hukampeta Mandal, Visakhapatnam District. Banned CPI Maoist(Absconding)

A10. Epe Swamy @ Narendra,(died) S/o Narasaiah, 55 yrs, Koya by caste Khammam District. Banned CPI Maoist(Absconding)

A11. Krishna banned CPI Maoist(Absconding)

A12.Kiran, banned CPI Maoist(Absconding)

A13. Naveen, banned CPI Maoist(Absconding) .

A.14. Santhosh, banned CPI Maoist(Absconding)

A15. Bhavani, banned CPI Maoist(Absconding).

A.16.Jambri, banned CPI Maoist(Absconding)

A.17. Ananh banned CPI Maoist(Absconding) (A7 to A17 are Absconding) 5Offence complained of Offence PunishableUnder Sections 147,148,435 r/w 149 IPC and section 25 of Arms Act,1959 and Sec. 4 of PDPP Act. 6plea of the accused &hisPleaded not guilty examination, if any

This case is coming on 05-03-2020 before me for final hearing in the presence of Sri M. Avatharam, Addl. Public Prosecutor for Complainant, and of Sri V.V.Balakrishana and Dr.G.Sivaramakrishna for A1 to A6, Advocate

for the Accused and having stood over for consideration till this day, this

court delivered the following :-

J U D G M E N T

1.The Sub- Inspector of Police, Chinthapalli Police Station, Visakhapatnam

City has filed charge sheet against the accused A1 to A17 in Crime

No.81/2011 for the offence Punishable u/secs. 147,148,435 r/w 149 IPC and section 25 of Arms Act,1959 and Sec. 4 of PDPP Actof Chinthapalli PS.,

Visakhapatnam City.

3 CC 562/2018 2. In a nutshell the brief contents of the charge-sheet are as follows:

The accused A07 to A17 are Main leaders of banned CPI Maoists. A1 to

A6 are the Militia members under the leader ship of A7 to A17. A1 to A3 are the residents of Korukonda Village of Balapam Panchayat. A4 is the resident of Kistavaram village, A4 and A6 are the residents of Burugubayalu

Turumamidi village of Balapam Panchayati, Chintapalli Mandal. LW1 Javadam

Nookaratnam is the de-facto complainant. LW2, Yekera Satyanarayana, LW3

Koppu Raju, LW4 Koppu Adinarayana are witnesses to the offence. LW5,

Sinderi Subba Rao, and LW6 Kadithi Balaraju were the mediators who drafted mediators report Dt. 24.12.2013. Lws 7 to 9 are the Investigating officers in this case.

On the intervening night of 01.11.2011 at about 23.00 hrs the incident took place near BSNL Tower, at the outskirts of Lammasingi village,

Chintapalli Mandal. LW1 came to Chintapalli P.S on 3.11.2011 at about 18.30 hrs and lodged a report stating that on the intervening night of 01.11.2011 at about 23.00hrs about 25 CPI Maoists who were clad in olive green uniform, and A1 to A6 who were acting as Militia members and their sympathizers formed themselves into an unlawful assembly, committed Rioting armed with fire weapons, axes, and knives at Lammasingi village, they trespassed into the BSNL Cell Tower and ablaze the same and thereby caused loss of

Rs.10,00,000/- and creating panic in the public. After commission of offence, all of them fled away towards thick forest.

On report of LW1, LW8 the then Sub-Inspector of Police, Chintapalli registered a case in Cr.No.81/2011, u/s 147,148,435 r/w 149 of Indian Penal

Code,1860 and section 25 of Arms Act,1959 and Sec. 4 of PDPP Act of

Chinthapalli P.S. on 03.03.2011 at 18.30 hrs, and took up invention.

During investigation LW8 the then Sub-Inspector of Police Chintapalli P.S.

visited the scene of offence, inspected the scene examined the witnesses LW1 to 4 4 CC 562/2018 and recorded their statements u/sec. 161(3) of Criminal Procedure Code,1973.

During investigation on 24.12.2013 at about 10.00 hrs, LW7 the then Inspector of Police, Chinthapalli Circle and LW8 the then SI of Police, Chinthapalli I/c of

A-Annavaram P.S received reliable information about the absconding accused A1 to A6 and arrested them in the presence of mediators. LW5 and 6 recorded their confession in which the accused have confessed about their involvement in other offences within the limits of Chinthapalli and Annavaram police stations, including the offence in

Cr.No.31/2010 of Chinthapalli P.S and Cr.No.17/2013 u/s 147,148,302, 120(b), 506, 427 435 r/w 149 IPC and section 25 & 27 of Arms Act, Sec.8 (i)(ii) of APPS Act and Sec. 16,18 & 20 of UPPA Act of A.Annavaram P.S and later, they were produced before this court for judicial custody. LW.9 Sub-Inspector of Police,

Chinthapalli P.S took up further investigation from LW8 produced A1 to A6 in this case before this court by executing Production warrant.

LW9 Sub-Inspector of Police, Chinthapalli P.S. obtained proceedings of

Honourable Dist Collector & District Magistrate, Visakhapatnam against the accused

A1 to A6 vide R.C.No.1623/2015/C4 dt.07.10.2015 for prosecuting them for the offence committed under Arms Act in this criminal case as per section 39 of Indian

Arms Act, 1959. Since efforts have been made to apprehend the remaining accused

A7 to A.11 hard core outlawed CPI Maoists but all efforts went in vain. Separate charge sheet will be filed whenever they apprehend the accused 7 to 11, After completion of investigation, LW.9 Sub-Inspector of Police, Chinthapalli P.S filed charge sheet against A1 to A6.

3. Cognizance was taken by this court against the Accused-1 to 6 for the offence punishable u/s 147,148,435 r/w 149 of IPC and section 25 of Arms

Act,1959 and Sec. 4 of PDPP Act of Chinthapalli P.S. against the accused. On appearance of the accused, copies of documents were furnished to them as contemplated under section 207 of Criminal Procedure Code,1973.

4.The accused were examined under section 239 of Criminal Procedure 5 CC 562/2018

Code,1973 and the same accusation was read over and explained to them in

Telugu, charge was framed for the above said offence and the same was read over to them, they denied it and pleaded not guilty and claimed to tried.

5.To substantiate the case of prosecution, it has examined PW1 to 6, and got marked Exs.P1 to P.7.

06.After completion of prosecution evidence, the accused were examined under Section 313(1)(b) of Criminal Procedure Code,1973 by explaining the incriminating material made out against them in the prosecution evidence, they denied the same and reported no defence evidence on their behalf.

07.Heard arguments on both sides.

08. The learned Asst. Public Prosecutor submitted that the prosecution has proved the guilt of the accused beyond reasonable doubt the witnesses examined from P.W1 to P.W6 and the exhibits marked Ex.P1 to P7 on behalf of prosecution substantially established the accusation, hence the accused must be punished in the interest of justice.

09. The learned defence counsel has submitted that there is no truth in the prosecution version. The case was foisted for their statistical purpose the accused are the innocent tribal they do no know anything about the present case. No incident was happened as stated by the police if really the

BSNL Tower was burnt the BSNL officials might have given complaint about the incident. But there is no such complaint infact the complaint was lodged by the local VRO on the instructions of the police. The police have obtained the signatures of the VRO and the mediators at the police station and the fact is evident from the evidence of PW4. Only to harass the accused they have implicated the accused baselessly in this case and there is no evidence on record to show that the accused have committed the offence even by examining the number of witnesses PW1 to 6 the prosecution failed to establish the guilt of the accused beyond reasonable doubt, Hence prays to 6 CC 562/2018 acquit the accused in the interest of justice.

10. Now the points for determination is that :-

1.Whether the prosecution has proved the guilt of the accused for

the offence punishable U/sec 147,148,435 r/w 149 IPC and section

25 of Arms Act,1959 and Sec. 4 of PDPP Act?

The prosecution has to prove that the accused by forming themselves into an unlawful assembly have caused violence by wearing deadly weapons and have caused loss to the government.

To prove the case the prosecution has examined PW1 to 6 and got marked Ex.P1 to P7 on its behalf.

11. Perused the record and gone through the evidence of PW1 to 6.

There is no eye witness to the said incident, no witness has stated that they have seen anyone at the scene of offence. The Defacto complainant in her evidence stated that she was on leave on 02.11.2011 and she came to know about the incident through their VRO on 3.11.2011 and then she gave complaint to the police about the incident, whereas in her statement before the police she stated that she came to know about the incident through the villagers and the said VRA was not cited as witness.

12. The VRO PW1 stated in her statement that she visited the scene of offence as per the information of villagers and found that the implements of

BSNL Tower were burnt by using hay and her complaint is also showing that after seeing the spot she has given police complaint. In her cross examination she stated that at first the villagers informed later VRA informed about the incident. Whereas PW2 who is living adjacent to the tower stated that PW1 VRO came to the scene of offence after the police and the police have visited at around 10 to 11 am on 3.11.2011, whereas PW6 the investigating officer stated that basing on the complaint of PW1 he registered the case and visited the scene of offence and prepared rough sketch. The time of registration was shown as 18.30 hrs. From the evidence of PW6 it could be seen that he visited the scene of offence after registration of FIR I.e after 6.30pm whereas the rough sketch is showing that it was prepared on 04.11.2011, as such there is inconsistency in the time of visiting of scene of 7 CC 562/2018 offence by the police.

13. There are so many contradictions on the complaint itself, there is no certainty that who informed her about the incident and at what time she gave report. While giving evidence she stated that she was on leave on 2.11.2011 but the fact was not stated by her in her report and also the investigating officer has not examined the VRA who was having knowledge about the incident as per PW1. The police have also not explained the reason for the delay in giving complaint, if PW1 was really on leave she might have stated the same to the police, thus there are so many contradictions in the evidence of PW1. The non-explanation of prosecution in lodging the complaint is definitely fatal to the prosecution case.

14. According to the prosecution also PW1 the defacto complainant is not an eye witness of the incident of burning of BSNL Tower implements. She came to know about the incident through VRA and villagers and according to their information she visited the scene of offence and has lodged a complainant before the police. The prosecution examined PW2 the resident of

Lambasingi village he stated that his house is situated at a distance of 30 meters to the scene of offence and on the date of incident they saw some fire and experienced some smell of burning of wires from the BSNL Tower by seeing the fire the villagers have raised cries but no one went to the said place. On the next day morning they saw that the tower was burnt.

According to the villagers the act was committed by the extremists. In his cross examination he admitted that in his statement recorded u/s. 161 of

Criminal Procedure Code he has stated that the incident might have occurred due to Electric short circuit and actually he does not know how the BSNL tower was burnt and he has not seen anyone at the time of burning of the tower. Except PW2 no other witness was examined in this regard to show that the BSNL tower was burnt. According to PW2 the village is consisting 50 houses and as per Ex.P7 (the Rough sketch) there are residential houses nearby the scene of offence. But no such residents were examined by the police. According to the PW1 she has seen the hay at the tower and the extremists have burnt the tower by using that hay. But she has not stated about the said fact before the court. According to PW2 statement recorded u/s 161 of Cr.P.C the villagers have observed hay at the spot and the villagers were stating that the tower was burnt by the Maoists and before the court also he stated that they are opining that the incident was happened due to the act of the Maoists. In the cross examination it was clearly admitted that 8 CC 562/2018 neither of the villagers have seen anyone at the tower that means there is no eye witness to the incident and no one has seen anyone while committing the offence.]

15. In the charge-sheet it was mentioned that the accused by forming themselves into an unlawful assembly have caused rioting by armed with fire weapons, axes and knives, After ablaze of the BSNL Tower they created panic in the normal public and fled away towards thick forest. Whereas no witness has seen no one at the scene of offence and also in village with the weapons,

PW1 has also not stated any of such description in her complaint.

16. The police have not examined the officials of the BSNL Tower to show that which part of the tower was burnt and how much loss caused to the government and also they have not taken any expert opinion to establish that whether the tower was burnt due to electric short circuit or by the act of the human being i.e. by burning with other material. Only in the 161 of the statements of the witnesses they have stated that the tower was burnt with the hay. Any of the witnesses including the investigating officer who has prepared the rough sketch has not stated that the tower was burnt by using hay, Hence there is no certainity or proof to say that the tower was burnt with the hay by some persons. There is no proper investigation in finding out the reason for the burning of the Cell tower.

17. There is no proof to show that the accused were in possession of deadly weapons and have created violence by using any of those weapons and have participated in the alleged offence no witness has identified the accused even not stated the names of the accused. The accused were connected to this case as per their confession at the time of their arrest in

Crime No.7/2013 of Chinthapalli P.S in the presence of PW4 and LW6. PW4 while giving his evidence has stated that he has inscribed his signature at the police station on the instructions of CI of Chinthapalli P.S. and he does not know about this case.

18. According to the evidence of PW3 he has connected the accused to 9 CC 562/2018 the present case by executing PT Warrant. By going through the evidence of

PW1 to 6 there is no direct witness to say that the accused have participated in the said offence along with other accused and have committed the said offence. Only on the basis of the confession of the accused they have brought on record and there is no cogent evidence to state that the accused have committed the offence. According to Section 25 of evidence Act the confession of the accused before the police is not at all an evidence and that cannot be proved against the accused as a valid evidence, Hence the involvement of the accused in the present case was not proved by the prosecution.

19. From the above discussion it is clear that there is no evidence on record to show that the accused have committed the offence and the cell tower was burnt by the accused. Thus, the prosecution failed in proving the guilt of the accused beyond reasonable doubt.

20. In the result, the A1 to A6 are found not guilty for the offence under

Section Punishable u/secs. 147,148,435 r/w 149 IPC and section 25 of Arms

Act,1959 and Sec. 4 of PDPP Act and they are acquitted U/sec 248(1) of

Criminal Procedure Code,1973. The bail bonds of accused, if any, shall stand canceled, after appeal time is over.

Typed to my dictation by the Stenographer, Gr-III, corrected

and pronounced by me in the open court, on this the 18 th day of

March, 2020. Sd/- Miss A.Nagamalleswari,

Spl. Judicial Magistrate of First Class (P&E),

VIII A.M.M & VIII Additional Junior Civil Judge,

Visakhapatnam

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence: --Nil--

P.W.1 : Kavadam Nookaratnam, VRO, Borja(P)

P.W.2 : Yaka Satyanarayana, Kirana Shop 10 CC 562/2018

P.W.3 : Y.Tharakeswar Rao, SI of police, Intelligence, Srikakulam

P.W.4 : Sinderi Subbarao, Cultivation

PW.5 :K.N.S.V.Prasad, C.I of police, C.I.D.VSP

PW6 :A.Koteswara Rao, Sub-Inspector of Police, Amudhalavalasa P.S

Srikakulam

No of EXHIBITS MARKED

For Prosecution: For Defence: --Nil--

Ex.P1 : The report

Ex.P2 is The District Collector order vide: RC No.1623/15/C4, dt. 7.10.2015

Ex.P3 is Signatures on the mediators report drafted at 10 am and 4 pm

Ex.P4 is Signatures on the mediators report drafted at 10 am and 4 pm

Ex.P5 Mediator report

Ex.P6: First Information

Ex.P7 Rough sketch Sd/- Miss A.Nagamalleswari,

Spl. Judicial Magistrate of First Class (P&E),

VIII A.M.M & VIII Additional Junior Civil Judge,

Visakhapatnam

Copy to :

1. The Hon’ble Chief Metropolitan Magistrate, Visakhapatnam.

11 CC 562/2018

CALENDAR AND JUDGMENT

IN THE COURT OF SPL. JUDICIAL FIRST CLASS MAGISTRATE (P&E)

AT VISAKHAPATNAM.

CALENDAR CASE NO : CC 562/2018

Date of offence: 01-11-2011

Report or complaint: 03.11.2011

Date of Cognizance 14.09.2018

Apprehension: 01.08.2019

Release on bail : --

Commencement of trial: 04.10.2019

Close of trial: 26.02.2020

Sentence or order : 18-03-2020

Explanation for delay: –

Name of the complainant : State Represented by the Sub Inspector of Police, Chinthapalli Police Station

Name of the accused : A1. Anuguri Venkata Ramana, S/o Chinnabbai, 25 yrs, Kondadora by caste, Korukonda village, Balapam Panchayat, Chintapalli Mandal, Militia member.

A2. Gemmili Nagaraju, S/o Chinnabbai, 26 yrs, Bagatha by caste, Korukonda village, Balapam Panchayat, Chintapalli Mandal, Militia member

A3. Gemmili Sathibabu,S/o Chinnabbai, 26 yrs, Bagatha by caste, Korukonda village, Balapam Panchayat, Chintapalli Mandal, Militia member.

A4. Muvvala Chinnabbai, S/o Birusu, 28 yrs, Kondu by caste, Kistavaram village, Balapam Panchayat, Chintapalli Mandal, Militia member.

A5. Talla Sathibabu, S/o Karranna, 30 yrs, Kondadora by caste, Burugubayalu Turumamidi village, Balapam Panchayat, Chintapalli Mandal Militia member

A6. Vantal Sibu, S/o Bhaskara Rao, 25 yrs, Kondu by caste, Burugubayalu Turumamidi village, Balapam Panchayat, Chintapalli Mandal,

A7. Chalapathai S/o @ Apparao, banned CPI Maoist(absconding)

A8. Kudumula Venkata Rao @ Ravi, S/o Sriramamurthy, 40 yrs, Kommangi village, Chintapalli Mandal, Visakhapatnam District, Banned CPI Maoist(Absconding)

A9. Bakuri Venkata Ramana Murthy @ Prasad, S/o Narasimha Raju, 41 yrs, Bhagatha by caste, Bakuru village, Hukampeta Mandal, Visakhapatnam District. Banned CPI Maoist(Absconding)

A10. Epe Swamy @ Narendra,(died) S/o Narasaiah, 55 yrs, Koya by caste Khammam District. Banned CPI Maoist(Absconding) 12 CC 562/2018

A11. Krishna banned CPI Maoist(Absconding)

A12. Kiran, banned CPI Maoist(Absconding)

A13. Naveen, banned CPI Maoist(Absconding) .

A.14. Santhosh, banned CPI Maoist(Absconding)

A15. Bhavani, banned CPI Maoist(Absconding)

A.16. Jambri, banned CPI Maoist(Absconding)

A.17. Anandh banned CPI Maoist(Absconding)

(A7 to A17 are Absconding)

Offence :Punishable u/secs. 147,148,435 r/w 149 IPC and r Section 25 of IA Act,1959 and Sec. 4 of PDPP Act.

Finding : A1 to A.6 found not guilty

Sentence : In the result, the A1 to A6 are found not guilty for the offence under Section

Punishable u/secs. 147,148,435 r/w 149

IPC and section 25 of Arms Act,1959 and Sec. 4 of PDPP Act and they are acquitted U/sec 248(1) of Criminal

Procedure Code,1973. The bail bonds of accused, if any, shall stand canceled, after appeal time is over.

Sd/- Miss A.Nagamalleswari,

Spl. Judicial Magistrate of First Class (P&E), VIII A.M.M & VIII Additional Junior Civil Judge, Visakhapatnam

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13 CC 562/2018 14 CC 562/2018