Aparna Malladi

1

IN THE COURT OF THE I-ADDL. JUDL. MAGISTRATE OF FIRST CLASS

AT BODHAN.

Present: Ms. Aparna Malladi

I-Addl. Junior Civil Judge – cum - I-Addl. Judicial Magistrate of F.C., Bodhan

Dated on this the 28 thday of April, 2023

CC. No. 384 of 2016

(Crime No. 230 /2016)

Between:

The State of Telangana represented by Sub-Inspector of Police, PS Varni, Bodhan Mandal, District Nizamabad.

…Complainant //AND//

Mohammad Imran S/o Mohammad Ibrahim, Age:30 years, Caste:Muslim, Occ:Driver, R/o H.No.12-5-160/1, Arsapally, Nizamabad.

…Accused

This case coming on this day before me for consideration in

the presence of learned Assistant Public Prosecutor for State and

counsel Sri Mohd. Wajeed Hussain, Advocate for accused and

having stood over, this Court made the following: -

:: JUDGMENT ::

1.The State represented by Sub-Inspector of Police, Varni , District

Nizamabad, has filed charge sheet in Crime No. 230 / 2016 for the offences alleged under Sections 337, 338 of the IPC against the sole accused.

2.Pw1 lodged a report on 30.10.2016, stating interalia, that at 04:00 2

PM on the even date, when his relative, i.e., Pw2 along with Pw3 and Pw4 reached the limits of Chandur Village on their Bajaj Discver B.No. AP 29 AA 0817, one auto B.No. TS 16 UA 4037 came in the opposite direction in a rash and negligent manner and hit the motorbike, due to which Pw2 to Pw4 fell down and sustained injuries, and that they were shifted to hospital for treatment. Pw1 also mentioned in Ex.P1 that the driver of the said auto fled away.

Based on the contents of the report, Pw6 registered a case in Cr.No.

230 / 2016 under section 337 of IPC and took up the investigation.

During the course of investigation, Pw6 examined and recorded the statements of complainant and witnesses, conducted the scene of offence panchanama as well as drew the rough sketch, and issued Sec. 41A CrPC

Notice to the sole accused with a request to cooperate with the investigation. Medical certificates of the injured were collected and finally,

Pw6 laid the Charge Sheet for offences punishable under Sections 337, 338 of the IPC.

3.This case was taken on file on 16.12.2016 for the offences punishable under Sections 337, 338 of the IPC against the sole accused. On appearance of the sole accused, copies were furnished under section 207

CrPC. He was examined under section 251 CrPC for the offences 3 punishable under Sections 337, 338 of the IPC wherein the substance of the accusation was explained to him in his vernacular language for which he pleaded not guilty and claimed to be tried.

4.To prove the guilt of the sole accused, the prosecution examined Pw1 to Pw6 and got Ex. P1 to P6 marked. Learned incharge APP gave up the evidence of Lw6 / Sri K.Abbaiah. The evidence of the rest of the witnesses was closed by this court since the concerned police failed to serve summons despite reasonable adjournments in a 2016 ID matter. On closure of the prosecution evidence, sole accused was examined u/s.313 CrPC and was questioned with respect to the incriminating material appearing in the evidence of the prosecution, for which he denied such circumstances, maintained innocence and reported no defence evidence.

5.Heard both sides. Perused the record. Now the point for determination is whether the prosecution proved the guilt of the sole accused for the offences punishable under Sections 337, 338 of the IPC beyond reasonable doubt.

6.Pw1 is the defacto complainant. The report was marked as Ex.P1 through him. He testified, inter alia, that an auto hit the vehicle of the injured about five years ago on Varni – Chandur road. He identified the accused in the dock as the one who drove the auto on the alleged date of 4 the incident. Now, during cross examination by the accused, Pw1 stated that he was behind the auto when the alleged accident took place and that he does not know the number of the auto. He also stated that he does not know the contents of EX.P1, i.e., the report lodged by him. He even admitted that he did not mention the descriptive particulars of the arrayed accused in Ex.P1 or in his Sec. 161 CrPC Statement. Here, on a careful analysis of the evidence of Pw1, it can be understood that he did not depose the manner in which the auto was driven at the time of the alleged accident. Also, he did not depose the number of the auto and categorically stated in his cross examination that he does not know the contents of the report lodged by him. Now, when the person who lodged the report himself denies knowing its contents, it becomes dangerous to rely on the contents of such report. Also, he never mentioned the injuries sustained by the injured in the report, except mentioning that all the three injured sustained severe injuries. Also, he never mentioned in Ex.P1 about his presence behind the auto, and he also admitted that he did not state in his Sec.161

CrPC Statement about his presence behind the auto. Meaning that, he for the first time, testified in the open court about his presence behind the auto on the alleged date of the incident, after almost five years from the date of alleged accident. This material embellishment, therefore, cannot be relied upon. Also, even if it is assumed that Pw1 was behind the auto, his chances of seeing the auto driver at the time of the alleged accident, are weak. And moreover, he himself mentioned in the report that the auto 5 driver fled away. Now, where is the opportunity of this Pw1 seeing the auto driver on the alleged date of the incident? Without this being established by the prosecution, the identification of the accused for the first time in the court hall, without there being any prior acquaintance or without Pw1 admittedly stating any of the descriptive particulars of the accused in the report or in Sec. 161 CrPC Statement, is inherently weak in character.

Pw2, Pw3 and Pw4 are the injured who rode on a two wheeler on the alleged date of the incident.

7.Pw2, inter alia, deposed that while he along with Pw3 and Pw4 reached the house of one Sri Satyanarayana during evening hours while they were proceeding towards Humnapur to Chandur, one auto came in the opposite direction and hit them. He also deposed that he sustained injuries on his face and that he lost his teeth. Now, this Pw2 never deposed the manner in which the auto was driven. He also never deposed the number of the auto or the involvement of the arrayed accused in the alleged accident. Though it can be understood that he sustained injuries on his face and lost teeth on account of accident, his evidence does not implicate the arrayed accused in any manner.

8.Pw3 is the other injured. He deposed, inter alia, that one auto proceeding from Chandur in the opposite direction came in speed manner 6 and hit their vehicle. He also deposed that they were proceeding towards

Varni on that day, and that he sustained injuries on his left eye brow extending to his forehead, on his left shoulder as well as on his back. Pw2,

Pw3 and Pw4 were on the same bike on the alleged date of the accident.

Pw2 deposed that they were proceeding from Chandur towards Humnapur, and Pw3 deposed that they were proceeding towards Varni at the time of the alleged accident. Now these two are two opposite directions. In any case, though it can be understood from the evidence of Pw3 that an accident took place, none could be implicated from his evidence too, since he did not depose about the number of the auto or the involvement of the arrayed accused in the alleged offence.

9.Pw4 is the other injured. Pw2 and Pw3 mentioned two different and opposite directions. Pw4, now, deposed that the accident took place near the petrol bunk. He did not depose as to the place where the said petrol bunk is situated. Pw4 also deposed that one auto came from the opposite direction and caused accident. He also never deposed the manner in which the auto was driven. Pw4 deposed that he sustained injuries on his neck, abdomen, left shoulder and wrist. Though Pw4 deposed that he does not remember the number of the auto, he identified the accused in the dock as the one who caused the accident. However, during cross examination by the accused, he stated that he did not state before the police about the descriptive particulars of the accused or that he could identify the accused 7 if seen. Moreover, no prior acquaintance between the accused and Pw4 is shown by the prosecution. Therefore, this identification of the accused as the one standing in the dock by Pw4 for the first time during trial cannot be believed.

10. The scene of crime panchanama along with the rough sketch was marked as Ex.P2 through Pw5. He never deposed about its contents. Cross examination of Pw5 proceeded on denial of formal suggestions. Perusal of rough sketch in Ex.P2 reveals that it was conduced on the same date of the alleged accident. However, the point of impact, tyre marks if any or the weather conditions are not at all noted and brought on record. Though this

Ex.P2 is brought on record by the prosecution, it is of little help since the vital aspects as to the manner of driving and the involvement of the accused are not cogently established till now.

11. The IO was examined as Pw6. The FIR and the medical reports of the injured were brought on record through this IO. Pw2 deposed that he sustained injuries on his face and that he lost his teeth. Ex.P4 is his MC which mentions that he sustained injuries on his left cheek, fore head and left shoulder and that the injury on his left shoulder was grievous in nature.

Pw3 deposed that he sustained injuries on his left eye brow extending upto his forehead and back, left shoulder as well as on his back. Ex.P5 is his MC which mentions that he sustained injuries on his left eye brow, left forearm 8 and left head which are all simple in nature. Pw4 deposed that he sustained injuries on his neck, abdomen, left shoulder and wrist. Ex.P6 is his MC which mentions that he sustained simple injuries on his left eye and forehead and that he sustained grievous injury on his neck. The doctor who issued these reports was not examined by the prosecution and these reports were marked through the IO who collected them. It can be understood that the injuries mentioned by the injured are corroborating with the ones in corresponding reports. However, the doctor who issued these reports was not examined and thereby the defence lost an opportunity to cross examine the doctor with respect to the possibility of such injuries through accident. And this court cannot presume that the aforementioned injuries would be possible through road accident and proceed further. Even if it is presumed by this court at this stage that the the injuries were direct result of the accident, the question that now arises is as to who caused the accident? The prosecution has to lead convincing evidence to establish the involvement of the arrayed accused. The number of the auto is not brought on record till now. The defacto complainant / Pw1 identified the arrayed accused as the one who caused the accident, and his presence behind the auto is not convincing, in view of the discussion in supra para no. 06. Out of the three injured, two never even spoke about the involvement of the arrayed accused. The other injured / Pw4 identified the accused, and at the same time, during cross examination by the accused, stated that he never mentioned in his Sec. 161 CrPC Statement 9 that he could identify the accused if seen or the physical descriptive particulars of the accused. No familiarity between the accused and this

Pw4 is shown by the prosecution. In that view of the matter, conducting of

Test Identification Parade was necessitated, since it is settled law that the evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character, (vide Md

Kalam V State of Rajasthan (2008) 11 SCC 352) and that it would not be safe and / or prudent to convict the accused solely on the basis of their identification for the first time in the court, (vide Amrik Singh V State of

Punjab 2022 SCC OnLine SC 861). Therefore, in the facts and circumstances of the instant case, it is not safe to convict the accused solely on his identification by the one of the injured / Pw4 and the defacto complainant / Pw1 for the first time in the open court.

12. The scene of offence panchanama being marked as an exhibit is achieved through Pw5. But, the condition of the road, the measurements of the road and turns or curves on the road, if any, are not at all mentioned.

No photographs of the site and surrounding areas are taken which will enable this court to discern the topography of the scene of crime. The prevalent condition of the road as well as the weather are not noted. In such state of affairs, no criminal court can convict any person merely on the basis of conjectures, assumptions and probabilities. It is settled law that in a criminal trial, the burden of providing everything essential to the 10 establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favor of the accused until the contrary is proved. Hence, the evidence of Pw5 cannot be relied upon to convict the accused.

13. Now, Pw2 and Pw3, who are two out of three injured, deposed that an auto came in “speed manner” and hit them. Pw4, who is the other injured, and Pw1, who is the defacto complainant, never deposed the manner in which the auto was driven. Pw2 and Pw3 deposed identically that the auto came in “speed manner”. Pw1 and Pw4 never deposed about the manner in which the auto was driven. Now, the question is if this “speed manner” could mean rashness or negligence. The oscillating versions about the manner in which the auto was driven did not find corroboration at all. No circumstance or instance is referred by Pw2, Pw3 or

Pw4 so as to prove the point that the auto was driven rashly and negligently. No explanation is given as to how this speed can be called as rash. Also, it is settled law that “high speed” does not bespeak of either rashness or negligence by itself, that high speed is a relative term and that it is for the prosecution to bring on record the material to establish as to what is meant by “high speed” in the facts and circumstances of the case (vide State of Karnataka V Satish (1998) 8 SCC 493). Thus, mere allegation that the auto was driven in a speed manner does not establish that the accused drove the auto rashly or negligently in the absence of any 11 specific evidence in the behalf.

14. Apart from these lacuna, the medical witness is not at all examined by the prosecution though the medical reports are brought on record through the IO / Pw6 who solely collected them. In view of non-examination of the medical witness, the defence lost an opportunity to cross examine with respect to possibility of injuries. Now, when the role of the arrayed accused in the alleged accident could not be effectively and authoritatively established by the prosecution, these medical reports could be of hardly any assistance to convict the arrayed accused. In these lingering doubts, the accused has to be given the benefit of doubt since he enjoys the presumption of innocence. When the affairs stood thus, it can be concluded in short that the prosecution failed to bring home the guilt of the arrayed accused beyond reasonable doubt.

15. In view of the same, this court is of the considered opinion that the story of the prosecution is implausible. The prosecution could not substantiate its allegations by placing infallible and unwavering evidence in connecting the arrayed accused with the alleged offence. In the result, the sole accused is found not guilty for the offences punishable under

Sections 337, 338 of the IPC. Therefore, he is acquitted under section 255 (1) of CrPC for the offences punishable under Sections 337, 338 of the IPC.

The bailbonds and surety bonds of the sole accused shall stand cancelled 12 subject to Sec. 437A of CrPC. Since no property is seized or deposited by the police in this case, there is no order as to property.

Typed by me, corrected and pronounced by me in the open Court, this the 28 th day of April, 2023.

I Addl Junior Civil Judge- cum-

I Addl. Judl. Magistrate of First Class,

Bodhan.

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED ON BEHALF OF)

PROSECUTION: DEFENCE:

Pw-1. Sri Manne Srinivas Nil Pw-2. Sri Manne Sailoo Nil Pw-3. Sri Sunkari Sailu Nil Pw-4. Sri Kammari sailu Nil Pw-5. Sri Sajja Ramakrishana Nil Pw-6. Sri G. Anjaiah Nil

EXHIBITS MARKED

Ex.P1: Report Ex.P2: Scene of crime panchanama along with rough sketch. Ex.P3: FIR Ex.P4: MC of Pw-2 Ex.P5: MC of Pw-3 Ex.P6: MC of Pw-6

I Addl Junior Civil Judge- cum-

I Addl. Judl. Magistrate of First Class,

Bodhan.

13 14 15

CC.No.5 of 2023

Page 1 of 11

IN THE COURT OF JUDL. MAGISTRATE OF FIRST CLASS AT BODHAN

Present: Ms.Aparna Malladi

I-Addl. Judicial Magistrate of F.C. FAC: Judl. Magistrate of F.C., Bodhan.

Dated on this the 8thday of March, 2023

CC. No. 05 of 2023

(Crime No. 355 /2022)

Between:

The State of Telangana represented by Sub-Inspector of Police, PS Bodhan Town, District Nizamabad. …Complainant

AND

Neeradi Arun @ Arun Kumar S/o Ramulu, Age:33 years, SC Mala, Occ:Private Job, R/o Suddapally Village, Dichpally Mandal, N/P Nyalkal Chowrasta, Nizamabad.

...Accused

This case coming on this day before me for consideration in the presence of learned Assistant Public Prosecutor for State and legal aid counsel Sri Nayak Sailu, Advocate for accused and having stood over, this Court made the following: -

:: JUDGMENT ::

1.Sole accused is arrayed before this court for facing trial on the strength of the Charge Sheet filed by the SI of Police, PS Bodhan Town u/s.

173(2) of CrPC for the offences punishable u/s. 420, 379 of the IPC.

2.Pw1 lodged a report at Bodhan Town on 29.07.2022, stating, interalia, that she met the arrayed accused herein in the weekly market in

Jan 2021; that from then onwards, the arrayed accused used to come and frequently stay with her; that in Feb 2021, when the arrayed accused came to her house during night time, they both drank toddy and slept ; and that

CC.No.5 of 2023

Page 2 of 11 when she woke up on the next day morning, she noticed that the arrayed accused escaped with 1) two tulas of gold pustela thaadu, 2) one tula of gold earrings.

In this connection, Lw9 / Sri B.D.Prem Kumar , Inspector of Police, PS

Bodhan Town registered a case in Cr.No. 355 / 2022 u/s. 420, 379 of the IPC and entrusted the investigation to Pw8.

During the course of investigation, Pw8 examined and recorded the statements of witnesses, conducted the scene of offence panchanama, drew the rough sketch, and received information from Lw8 / Sri S.Raman,

CI of Police, PS Sadashivnagar, Kamareddy District that the arrayed accused confessed to have committed this offence during a confession in their case in Cr.No.149/2022 U/s.379 IPC of PS Sadashivnagar. Thereafter, the arrayed accused was remanded to judicial custody in execution of PT

Warrant. On completion of investigation, Pw8 laid the Charge Sheet.

3.Cognizancewastakenforoffencespunishableu/s.

420, 379 of the IPC against the sole accused on 13.01.2023 and copies were furnished to him as contemplated u/s. 207 of CrPC. He was examined u/s. 239 CrPC for offences alleged u/s. 420, 379 of the IPC for which he denied commission of the offences and maintained innocence. Charges for offences punishable u/s. 420, 379 of the IPC were framed, read over and

CC.No.5 of 2023

Page 3 of 11 explained to him in his vernacular language for which he pleaded not guilty and claimed to be tried.

4. To prove the guilt of the sole accused, the prosecution cited ten witnesses and examined eight witnesses as Pw1 to Pw8 and got marked Ex

P1 to Ex P8. Ex.D1 on behalf of the defence was marked. The evidence of the remaining witnesses was given up by the prosecution. On closure of prosecution evidence, sole accused examined u/s. 313 of CrPC and was questioned with respect to the incriminating material appearing in the evidence of the prosecution. Sole accused denied the same and reported no defence evidence.

5. Heard arguments of both sides and perused the material on record.

6.The point, now, for consideration is whether the prosecution proved the guilt of the sole accused beyond reasonable doubt for the offences punishable u/s. 420, 379 of the IPC.

7. Pw1 is the defacto complainant. Pw2 is arrayed as a witness in the charge sheet. Pw3 and Pw4 are arrayed as the panchas in the charge sheet. Pw5 to Pw7 are arrayed as the panchas for the confession cum seizure panchanama of the arrayed accused. Pw8 is the IO who laid the charge sheet.

CC.No.5 of 2023

Page 4 of 11

8. Pw1 deposed in the open court that the arrayed accused came to their house at Rakasipet at 10:00 PM and that he kept on talking, that when they asked him to leave, he threatened them and that he stayed overnight with them, and that on the next day, she found one gold pustela thadu and one pair of gold earrings to be missing. This threatening aspect was not mentioned by Pw1 in the report lodged by her, which was marked as Ex.P1. She further stated in her cross examination by the accused that she knew the arrayed accused from five to six months prior to the alleged incident, that she does not know the village or the address of the arrayed accused, and that she did not reveal to anybody that the arrayed accused threatened them. In Ex.P1, Pw1 mentioned that she and the arrayed accused drank toddy and slept, whereas in the open court, she deposed that he kept on talking and that he threatened then when he was asked to leave. She gave two different versions during two different points of time.

However, the constant thing is that the arrayed accused escaped with the gold items. As per her version, the arrayed accused snatched her gold items and ran away when she slept. Pw1 stated in her cross examination by the accused that she stays with her son in her house. The arrayed accused slept in their house on the alleged date of the incident, and that as per her, it was this arrayed accused who ran away with her gold items.

9. Pw2 deposed that he accompanied Pw1 to the police station when she lodged the report. He categorically admitted in his cross examination

CC.No.5 of 2023

Page 5 of 11 by the accused that he does not know as to who committed the alleged offence. Ex.D1 was marked when Pw2 denied stating before the police that they are neighbors. The IO / Pw8 admitted that Pw2 stated before him that he is the neighbor of Pw1. As per Pw2, Pw1 is his junior maternal aunt. In any case, when Pw2 clearly admitted that he does not know as to who committed the alleged offence, he being a relative or a neighbor of Pw1 hardly assumes any significance.

10. Pw3 and Pw4 are the panchas for the scene of crime panchanama along with the rough sketch.

11. Pw3 deposed that the police came and conducted a panchanama on 25.08.2022 in the house of Pw1 and that he put his signature on it. The scene of crime panchanama was marked as Ex.P2 through him. But during cross examination by the accused, this Pw3 admitted that he does not know the contents of the panchanama and that he signed on the same when the police instructed him to sign. Now, this witness admits that he does not know the contents of the document where he put his signature and also admits that he put his signature as per the instructions of police.

In such case, his evidence cannot be believed by this court to conclude that the scene of crime panchanama was conducted by the police.

Moreover, this PW.3 stated that the scene of crime panchanama was conducted by the police in the house of Pw1. Now where is this house

CC.No.5 of 2023

Page 6 of 11 situated? Ex.P2 mentions the place of offence as “Rakasipet, Bodhan”.

Now, which is that house in Rakasipet, Bodhan? Pw3 also did not depose about the area or the locality where the house of Pw1 is situated. And he further admitted that he does not know the contents of Ex.P2, i.e., the scene of crime panchanama. Now, in that episode, the evidence of Pw3 cannot further the story of the prosecution.

12. Pw4 is the other pancha for the scene of crime panchanama. Pw5 to Pw7 are the panchas for the confession cum seizure panchanama of the arrayed accused. They all deposed that they do not know anything about the case. They were all declared hostile, and during cross examination by the learned APP, they denied suggestions that teh police conducted the aforementioned panchanamas in their presence. Hence, their evidence is of no use to the prosecution.

13. Pw8 is the IO who examined and recorded the statements of witnesses, conducted the scene of crime panachanama and laid the charge sheet. The FIR and the certified copies of the confession cum seizure panchanama of the accused were marked as Ex.P7 and Ex.P8 through this

Pw8. He deposed as to the steps taken by him to complete the investigation and file the charge sheet. During cross examination by the accused, he admitted that the FIR, i.e., Ex.P7 does not mention the date or time or the period of the occurrence of the alleged offence. He also stated

CC.No.5 of 2023

Page 7 of 11 during cross examination by the accused that as per the investigation done by him, the alleged scene of crime is at Bobbilli Village, and that he conducted the scene of crime panchanama at Rakasipet, Bodhan. Now, from these versions, it is unclear as to where and when the alleged offence took place. The confession panchanama was not recorded by this Pw8, he solely collected the copies from the IO who conducted the said panchanama. Now, place as to the alleged offence is not convincingly brought on record. So also, there is no recovery in this case. And the confession panchas turned hostile. The confession cum seizure panchanama was marked by the officer who never conducted it. The date or time or the period of the alleged offence and the place of offence is not brought on record convincingly. The IO / Pw8 himself could not explain as to why the scene of crime panchanama was conducted at Rakasipet when as per him, the scene of crime is at Bobbilli Village. In any case, the procedural nature of evidence of this IO, in the absence of any convincing material, cannot make the prosecution story believable.

14. To sum up, Pw1 woke up to see her ornaments missing. As per her, it was the arrayed accused, who slept in her house, took those away, while she was asleep. She never lodged the report immediately, but deposed in the open court that she waited for five to six months for him to return the ornaments. Now, when the arrayed accused really stole the ornaments from Pw1, why would Pw1 wait for the arrayed accused to return those?

CC.No.5 of 2023

Page 8 of 11 She could lodge the report immediately. Then, Pw2, who accompanied Pw1 to the police station on the date of lodging the report, categorically admitted that he does not know as to who committed the alleged offence.

Ex.P2 was marked through Pw3, i.e., one of the scene of crime panchas.

But he also admitted that he does not know the contents of the panchanama and that he put his signature on Ex.P2 as per the instructions of the police. He appears to be a witness who is unaware of the panchanama. Hence, his evidence cannot aid the prosecution. The other scene of crime pancha and the three confession cum seizure panchas turned hostile. No favourable answer was elicited from them even during cross examination by the learned APP. As such, their evidence is of no use to the prosecution. The IO who laid the charge sheet deposed about the steps taken by him to complete the investigation. Pw1 never mentioned the place where the alleged offence took place. The scene of crime pancha / Pw3 also never deposed about the place of the alleged offence.

This IO / Pw8 stated that the scene of crime is at Bobbilli, but that he conducted the scene of crime panchanama at Rakasipet, Bodhan. Now, from these different versions, it becomes difficult to choose one place as the scene of crime. The panchas for confession and seizure never even supported the story of the prosecution, and the certified copy of the confession cum seizure panchanama was marked as Ex.P8 through an officer who solely collected it. And this officer also admitted that he does not know if any property is recovered by the Sadashivnagar police. Now

CC.No.5 of 2023

Page 9 of 11 this officer appears to be unaware as to the place of crime and also as to property, if any seized. Though Pw1 could name the arrayed accused as the one who stole her gold as per her testimony, the prosecution could not cogently complete the story by connecting the arrayed accused with the alleged offence. Also, the period or date or time of the occurrence of offence is not mentioned in Ex.P7 / FIR. It is also the case of Pw1 that she waited for the arrayed accused to return her property for five to six months. Now, when she was sure that her property was stolen by the arrayed accused, the question as to why the she had to wait for five to six months to lodge a report, is only for the prosecution to explain. In criminal cases, the burden of proving the guilt of the accused beyond reasonable doubt is upon the prosecution and it must stand by itself. The court cannot complete the story of the prosecution by filling its gaps, understand the story in full when insufficient material is placed and then convict the accused. On weighing the entire facts and circumstances of the case and in light of the above mentioned discussion, in the considered opinion of this court, it is rickety to solely act on the nature of the evidence adduced by the prosecution to convict the accused.

15. Under these circumstances, this court is of the opinion that the story of the prosecution is implausible. In the result, the court found arrayed sole accused not guilty for offences punishable u/s. 420, 379 of the IPC, and is accordingly acquitted u/s. 248(1) of CrPC. Since the sole accused is in jail,

CC.No.5 of 2023

Page 10 of 11 the same shall be intimated to the jail authorities with a direction to release the him forthwith if he is not required in any other case. Since no property is seized or recovered by the police pertaining to this case, there is no order as to property.

Typed by me, corrected and pronounced by me in the open Court, this the 8th day of March, 2023.

FAC: Judl. Magistrate of First Class,

Bodhan.

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED ON BEHALF OF)

PROSECUTION: DEFENCE:

Pw-1. Smt. Gandla Thukabai -NONE- Pw-2. Sri Gandla Narayana Pw-3. Sri Kooneta Mutyam Reddy Pw-4. Sri Jangam Ravikumar Pw-5. Sri Kompelly Venkata Papi Reddy Pw-6. Sri Peddapothanna Gaari Veeresh Pw-7. Smt. Potnagar Balamani Pw-8. Sri D.Peter

EXHIBITS MARKED

PROSECUTION: Ex.P1: Report Ex.P2: Scene of crime panchanama along with rough sketch. Ex.P3: Signature of Pw-4 on scene of panchanama with rough sketch. Ex.P4: Signature of Pw-5 on the confession cum seizure panchanama of A1 Ex.P5: Signature of Pw-6 on the confession cum seizure panchanama of A1 Ex.P6: Signature of Pw-7 on the confession cum seizure panchanama of A1 Ex.P7: FIR Ex.P8: CC of confession cum recovery panchanama of accused

DEFENCE: Ex.D1 : 161 Cr.P.C. statement of PW.2.

FAC: Judl. Magistrate of First Class,

Bodhan.

CC.No.5 of 2023

Page 11 of 11

CALENDAR AND JUDGMENT

IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS AT

BODHAN

C.C. No.05 OF 2023

1. Complainant : State, SI of Police, P.S.Bodhan Town.

2. Cr.No. & Nature of Offence : Cr.No.355/2022 U/s.420, 379 IPC

3. Name of the accused :

Neeradi Arun @ Arun Kumar S/o Ramulu, Age:33 years, SC Mala, Occ:Private

Job, R/o Suddapally Village, Dichpally Mandal, N/P Nyalkal Chowrasta,

Nizamabad.

D A T E S:

1.OFFENCEIn February, 2021.

2.COMPLAINT29-07-2022

3.APPREHENSION OF ACCUSED10-09-2022

4.RELEASE OF ACCUSED–

5.COMMENCEMENT OF TRIAL09-02-2023

6.CLOSURE OF TRIAL22-02-2023

7.JUDGMENT08-03-2023

PLEA OF THE ACCUSEDNot Guilty

4.SENTENCE OR ORDER: In the result, this court found the accused is not guilty for the offences U/sec.420 and 379 IPC and he is acquitted under Section 248(1) of Cr.P.C. Since the sole accused is in jail, the same shall be intimated to the jail authorities with a direction to release the him forthwith if he is not required in any other case. Since no property is seized or recovered by the police pertaining to this case, there is no order as to property.

5.REMARKS : -Nil-

FAC: JUDICIAL MAGISTRATE OF FIRST CLASS

BODHAN.

1 CC.No.123 OF 2022 Page 1 of 10

IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS

AT BODHAN

PRESENT:- KUM.APARNA MALLADI,

I ADDL. JUDL. FIRST CLASS MAGISTRATE, BODHAN

FAC: JUDICIAL FIRST CLASS MAGISTRATE, BODHAN

THURSDAY, THIS THE 6 th DAY OF OCTOBER, 2022

C.C.No.123 OF 2022

BETWEEN:- The State of Telangana Rep. by P.S.Bodhan Rural …Complainant

AND

Syed Hameed @ Hymed S/o.Syed Mahaboob, aged about 33 years, Occ: Fruit business, R/o.H.No.10-31, Saibaba Nagar, Dhamaiguda, ECIL, Shameerpet Mandal, Medchal District, N/o.Pochamma Maidanam, Warangal. … Accused

This case coming before me on 30-09-2022 for final hearing in the presence of the learned A.P.P.O for the complainant and of Sri Naik Sailu Yadav, Legal Aid Counsel for the accused and the matter having stood over till this day for consideration, this Court made the following:-

:: J U D G M E N T ::

1.The then Sub-Inspector of Police, P.S.Bodhan Rural filed the charge sheet in

Crime No.165 of 2021 for the offences punishable U/ss.457 and 380 IPC against the sole accused.

2 CC.No.123 OF 2022 Page 2 of 10

2.The brief allegations in the charge sheet are as follows:-

On 15.09.2021 at 4.00 A.M. the de-facto complainant Smt.S.Devubai filed a report stating that on 13.09.2021 she along with her family members went to house of their relatives at Kasrali village. On 14.09.2021 at about 3.00 P.M. her brother namely S.Sairam informed over phone stating that he found that some unknown persons broke thelocks of doors and placed the doors as usually. Upon which, she returned back to her house and noticed that almirah locks are not in working condition from outside. On the intervening night of 13/14.09.2021 some unknown persons entered into the house and took away almirah locks from underneath of sarees which are placed in almirah adn with keys they opened locker of almirah and committed theft of one tula gold chainsm (each half tula), gold nagulu, gold nallapustelu gundlu weighing about three grams, gold pustelu gundlu about three grams, half tula gold vanka ring, half tula gold menchulu about three and half tulas gold, fifty five tulas silver anklets, forty three tulas silver leg chains and some cash, all worth of Rs.90,900/-.

Basing on the above report, LW.8 L.Sandeep, the then Sub Inspector of Police,

Bodhan Rural registered this case and issued FIR. During course of investigation, he examined and recorded the statement of the complainant. Thereafter, he rushed to the 3 CC.No.123 OF 2022 Page 3 of 10 scene of offence place situated at Taggelly village, where he examined and recorded the statement of LW.2 S.Sairam and further he secured the presence of the Lws.3 and 4 namely S.Makkugonda and S.Sayagonda and in their presence conducted the scene of offence panchanama and drawn rough sketch map. On 11.05.2022 LW.7S.Ravi

Babu, Detective Inspector of Police, Saroornagar apprehended the accused and recorded confession cum seizure panchanama of accused herein in Cr.No.759/2021 of PS.Saroornagar in the presence of Lws.5 and 6 namely Madhukar Goud and

R.Sridhar and recovered the case property, including the property in this case viz.

two gold chains weighing about ten grams, two gold pustela gundlu weighing about three grams, gold vanku ring weighing about five grams and gold menchulu weighing about five grams. The accused further confessed that the remaining stolen property viz. Gold nagulu, gold nallapustelu gundlu, fifty five tuals silver anklets, forty three tulas silver leg chains are sold out and spent the cash for his personal.

Then, the LW.8 S.I. of Police, Bodhan Rural filed P.T. warrant before this court and regularized the arrest of accused in this case on execution of P.T. warrant on 25.05.2022. After completion of investigation, the LW.8 L.Sandeep, the then S.I. of

Police, Bodhan filed the charge-sheet against the accused.

4 CC.No.123 OF 2022 Page 4 of 10

3.This court took cognizance of the case for the offences U/ss.457 and 380 of

IPC against the accused on 29.07.2022. On production of the accused from the

District Jail, Nizamabad, the copies of the documents were furnished to him as required U/Sec.207 of Cr.P.C. and when he was examined U/Sec.239 of Cr.P.C, the accused pleaded not guilty and claimed to be tried for the offences U/ss.457 and 380 of IPC. Hence the charges for the offences U/ss.457 and 380 IPC were framed, read over and explained to the accused in vernacular language.

4.In order to bring home the guilt of the accused, the prosecution examined the

PWs.1 and 2 and the Exs.P-1 to P-4 and MO.1 are got marked. No documents and no witnesses are examined on behalf of the accused.

5.After completion of the prosecution evidence, the accused was examined

U/Sec.313 of Cr.P.C. with reference to the prosecution evidence appeared against him, for which the accused denied the incriminating evidence and reported no defense evidence.

6.Heard, the arguments from both sides and perused the case record.

5 CC.No.123 OF 2022 Page 5 of 10

7.Now the point for determination is:-

Whether the prosecution proved its case beyond reasonable doubts for the offences U/ss.457 and 380 IPC against the accused?

8. POINT:- In order to prove the case of the prosecution, it examined and relied upon the oral evidence of the PWs.1 and 2. The PW.1 Smt.S.Devubai is the defacto complainant. The PW.2 L.Sandeep, the then S.I. of Police, PS.Bodhan Rural who investigated into the case and filed charge sheet.

9.In order to prove the case of the prosecution for the offences punishable

U/ss.457 and 380 of IPC the prosecution has to establish two essential ingredients that is the stolen property i.e. gold and silver ornaments belong to the PW.1. The accused with dishonest intention took the MO.1 without knowledge of the owner or the legal custodian of the MO.1 by break opening the door locks of almirah in the house of PW.1. In order to prove the ownership over the stolen property, the prosecution relied upon the oral evidence of PW.1. Coming to the evidence of the

PW-1, she deposed that on one day in the year 2021, she went to sleep at Kasarali village of Maharastra State as per their traditions, after demise of her father by duly locking the house and when she returned to her house at Thaggelli village, she 6 CC.No.123 OF 2022 Page 6 of 10 noticed the almirah broke open and that she also noticed gold nalla pusala gundlu, gold pustelu, one engagement ring, one pair of gold menchulu, two gold chains are missing, as such, she lodged report under Ex.P1 with police. She further deposed that she obtained two gold chains, gold pustelu, gold nalla pusala gundlu, one pair of gold menchulu and one engagement ring towards interim custody from the court. MO.1 is the photograph.

10.Coming to the evidence of the investigating officer who is examined as the

PW.2 deposed on the chronological lines of charge sheet as to the manner of investigation done by him in this case and about filing charge sheet after completion of entire investigation. Through PW.2, Ex.P2 FIR, Ex.P3 scene of offence panchanama with rough sketch and Ex.P4 admissible portion in certified copy of confession cum recovery panchanama of accused are got marked.

10.The evidence of the PW.1 is corroborating with the case of prosecution in respect of theft of the gold and silver ornaments, including some net cash from the house of PW.1. On careful perusal of the evidence of the Pw.1, it reveals that some unknown offenders committed theft of gold and silver ornaments and some net cash.

7 CC.No.123 OF 2022 Page 7 of 10

In these type of offences, the evidence of the panch witnesses for confession and recovery panchanama plays vital role, but in the case on hand the panch witnesses for confession and recovery are not examined for the best reasons known to the prosecution. Apart from that, the evidence of the investigating officer examined as the PW.2 is only available on record and he deposed about the manner of investigation done by him into the case and he is only technical witness deposed on par with that of the contents of charge sheet, and the evidence of the PW.2 is not supported by any other independent evidence. Further, the Investigation Officer who apprehended the accused, recovered the property under cover of panchanama in the presence of mediators is not examined and his non examination is fatal to the case of prosecution as he being the star witness in this case. Notwithstanding that, the testimony of PW.1 does not reveal the exact date of alleged incident and she has attributed nothing against the accused. In cross examination, she clearly admitted that she does not know the contents of Ex.P1 report and that police never examined her and never recorded her statement. Thus, the contents of Ex.P1 report by which the law was set into motion are not at all proved by the prosecution through PW.1.

The prosecution also not examined the panch witnesses for the scene of offence panchanama, thereby, the contents of Ex.P3 are also not proved.

8 CC.No.123 OF 2022 Page 8 of 10

11.Under these facts and circumstances this court feels that the prosecution neither established stolen property nor proved the theft committed by the accused.

Therefore, in the absence of any material adduced by the prosecution connecting to the accused to the offences alleged against him, this court is of considered view that the testimonies of Pws.1 and 2 cannot be believed and as a sequel, the accused is entitled for acquittal. This point is answered against the prosecution.

12.In the result, this court found the accused not guilty for the offences

U/Secs.457 and 380 IPC and he is acquitted U/Sec.248(1) of Cr.P.C. The ornaments which were given towards interim cusotdy to PW.1 hold good and they shall be retained with her, absolutely, after expiry of appeal period. The Superintendent,

Central Prison, Cherlapally is hereby directed to release the accused, forthwith, if he is not required to be detained in any other case. The bail bonds of the accused, if any, shall stands cancelled subjected to Sec.437-A of Cr.P.C.

Typed to my ditation, corrected and pronounced by me in the open court on this the 6th day of October, 2022.

FAC: JUDICIAL FIRST CLASS MAGISTRATE, BODHAN.

9 CC.No.123 OF 2022 Page 9 of 10

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED ON BEHALF OF)

FOR PROSECUTION: FOR ACCUSED:

PW-1 Smt.S.Devubai-NONE- PW-2 L.Sandeep, IO

EXHIBITS MARKED

FOR PROSECUTION:FOR ACCUSED:

Ex.P-1: Report -NIL- Ex.P-2: F.I.R. Ex.P-3: Scene of offence panchanama with rough sketch Ex.P-4: Admission portion in certified copy of confession cum recovery panchanama of accused

M.Os. MARKED

MO.1 : Photograph

FAC: JUDICIAL FIRST CLASS MAGISTRATE, BODHAN.

10 CC.No.123 OF 2022 Page 10 of 10

CALENDAR AND JUDGMENT

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS

AT BODHAN.

C.C. No.123 OF 2022

1. Complainant : State, SI of Police, P.S.Bodhan Rural.

2. Cr.No. & Nature of Offence : Cr.No.165/2021 U/ss.457 & 380 IPC.

3. Name of the accused :

Syed Hameed @ Hymed S/o.Syed Mahaboob, aged about 33 years, Occ: Fruit business, R/o.H.No.10-31, Saibaba Nagar, Dhamaiguda, ECIL, Shameerpet Mandal, Medchal District, N/o.Pochamma Maidanam, Warangal

D A T E S:

1.OFFENCE13/14.09.2021

2.COMPLAINT15.09.2021

3.APPREHENSION OF ACCUSED11.05.2022

4.COMMENCEMENT OF TRIAL16.09.2022

5.CLOSURE OF TRIAL21.09.2022

6.JUDGMENT06.10.2022

7.PLEA OF THE ACCUSEDNot Guilty

4.SENTENCE OR ORDER: In the result, this court found the accused is not guilty for the offences U/Secs.457 and 380 IPC and he is acquitted U/ Sec.248(1) of Cr.P.C.

5.REMARKS : -Nil-

FAC : JUDICIAL MAGISTRATE OF FIRST CLASS BODHAN.

1

IN THE COURT OF THE I-ADDL. JUDL. MAGISTRATE OF FIRST CLASS

AT BODHAN.

Present: Ms. Aparna Malladi

I-Addl. Junior Civil Judge – cum - I-Addl. Judicial Magistrate of F.C., Bodhan

Dated on this the 28 thday of April, 2023

CC. No. 921 of 2018

(Crime No. 189 /2018)

Between:

The State of Telangana represented by Sub-Inspector of Police, PS Yedapally, Bodhan Mandal, District Nizamabad.

…Complainant //AND//

A1- Patan Gouse Khan S/o Saheb Khan, Age: 35 years, Caste:Muslim, Occ:Driver, R/o Vannali Village, Degloor (Tq), Nanded Dist. MH State.

A2- Gadipe Shiva Kumar S/o Shesharao, Age:33 years, Caste:Lingayath, R/o H.NO.2-14/1, Kpperga Village, Bodhan Mandal.

A3- Mosin Khan S/o Maya Khan, Age: 23 years, Caste:Muslim, Occ:Driver, R/o ARP Camp Village, Yedapally Mandal.

A4- Ismail Khan S/o Hisam Khan, Age:38 years, Caste:Muslim, R/o H.NO.2-37/1, Hangarga Village, Bodhan Mandal.

…Accused Nos.1 to 4

This case coming on this day before me for consideration in

the presence of learned Assistant Public Prosecutor for State and

counsel Sri Mohd. Wajeed Hussain, Advocate for accused and

having stood over, this Court made the following: -

:: JUDGMENT ::

1. The Sub-Inspector of Police, P.S. Yedapally has filed the charge sheet 2 in Crime No. 189 of 2018 for the offences punishable U/s.379 of IPC, Sec. 3 of the PDPP Act and Sec. 21(1) of the MMDR Act against A1 to A4.

2.The brief allegations in the charge sheet are as follows:-

That on 03.12.2018, at about 07:15 Hours, Pw1 lodged a report stating , inter alia, that while he along with Pw2 and Lw3 / Sri MA Kareem

HG 425 were performing patrolling duty at Satapoor Gate, they noticed two tippers coming from Pegadapally towards Nizamabad ; that they noticed that the said two tippers B.No. AP 26 Y 1857 and TS 16 UB 6136 loaded with sand ; that on enquiry, the drivers failed to show valid papers to transport sand ; that the drivers revealed their names as arrayed A1 and

A3 herein and further that they had been transporting the said sand from

Koppera Vaagu illegally as per the instructions of the owner, i.e., arrayed

A2 and A4 herein. Pw1 also mentioned in the report that after conducting the said panchnama, he brought the aforementioned sand loaded tippers to the police station.

Based on the report, Pw5 registered a case in Crime No. 189 of 2018 for the offences U/s.379 of IPC, Sec. 3 of the PDPP Act and Sec. 21(1) of the MMDR Act. He also examined and recorded the statements of witnesses, issued Sec. 41A CrPC Notices to the arrayed accused with instructions to cooperate with the investigation, deposited the seized tippers before this court, after penalty amount was imposed by the 3

Tahsildar Yedapally, in CPR No. 493 / 2018 which were released towards interim custody to A2 and A4 respectively in Crl.M.P.No. 1596 / 2018 vide order dated 21.12.2018 and in Crl.M.P. No. 1597 / 2018 vide order dated 21.12.2018. Pw5 finally laid the Chargesheet for offences punishable

U/s.379 of IPC, Sec. 3 of the PDPP Act and Sec. 21(1) of the MMDR Act against A1 to A4 on completion of investigation.

3.This court took cognizance for offences punishable U/s.379 of IPC,

Sec. 3 of the PDPP Act and Sec. 21(1) of the MMDR Act against A1 to A4 on 29-12-2018. After appearance of the accused, the copies of the documents were furnished to them as required U/Sec.207 Cr.P.C. A1 to A4 were examined U/Sec.239 of Cr.P.C. for the offences punishable U/s.379 of IPC,

Sec. 3 of the PDPP Act and Sec. 21(1) of the MMDR Act. They denied allegation and maintained innocence. Charges for the offences punishable

U/s.379 of IPC, Sec. 3 of the PDPP Act and Sec. 21(1) of the MMDR Act were framed, read over and explained to them in their vernacular language for which they pleaded not guilty and claimed to be tried.

4.In order to bring home the guilt of A1 to A4, the prosecution cited six witnesses and got examined five witnesses as Pws 1 to 5. Exs.P-1 to P-8 were marked. The evidence of the rest of witnesses was closed by this court since the concerned police failed to serve summons on them despite reasonable adjournments.

4 5.After completion of the prosecution evidence, A1 to A4 were examined U/Sec.313 of Cr.P.C. with reference to the incriminating material appearing in the prosecution evidence against them, for which they denied such circumstances, maintained innocence and reported no defence evidence.

6.Heard, the arguments from both sides and perused the case record.

7.Now the point for determination is whether the prosecution has proved its case beyond reasonable doubt for the offences punishable

U/s.379 of IPC, Sec. 3 of the PDPP Act and Sec. 21(1) of the MMDR Act against A1 to A4.

8.Five witnesses were examined in this case. Pw1 is the defacto complainant. Pw2 is the witness who accompanied Pw1 for patrolling duty on the alleged date of the incident. Pw3 and Pw4 are the panchas for the scene of crime, seizure and confession panchnamas. Pw5 is the IO who laid the chargesheet.

9. Both the independent witnesses for scene of crime, seizure and confession panchanamas deposed that they do not know anything about this case. Since they failed to support the story of the prosecution, their evidence is of no use to the prosecution.

5 10. Pw1 and Pw2, in identical terms, deposed that they noticed sand loaded tippers coming from Pegadapally at around 05:00 AM on 03.12.2018, and that they failed to produce valid papers to transport sand.

The report as well as confession cum recovery panchanama were brought on record through Pw1 as Ex.P1 and Ex.P2 respectively. Here, interestingly, both these witnesses never deposed about the numbers of the tippers.

They also did not depose about the names of the drivers or the owners of the said tippers. The prosecution also failed to take any step to make these witnesses identify the arrayed accused as the drivers of the ones who drove the sand loaded tippers at the time of the alleged incident. Though

Ex.P1 mentions the names of the drivers as well as the owners and also the numbers of the sand loaded tippers, Pw1 never deposed as to those vital aspects in the open court. Though the confession cum seizure panchanama is brought on record through the witness who conducted it, none of the independent witnesses spoke about it, making the said confession cum seizure panchanama doubtful.

11. The Investigating Officer was examined as Pw5. He deposed about the journey from registering the FIR till the filing of the chargesheet. The

FIR and scene of crime panchanama along with the rough sketch were marked as Ex.P7 and Ex.P8 respectively through him.

6

12. This case is supported only by three witnesses who are all official witnesses. The two independent witnesses failed to support the police story. To sum it up, no independent witness supported the case of the prosecution. This story, till now, derived its strength only on the testimony of three police witnesses, out of whom one is Pw5 / IO. The other two witnesses are Pw1 and Pw2 who happened to witness the alleged incident.

Even they did not depose about the involvement of the arrayed accused.

The numbers of the tippers are also not deposed by them. None of these police witnesses could give an account as to what had happened to the sand. No photograph is brought on record by these witnesses. No cogent evidence is placed on record to connect the araryed accused with the alleged offence. These witnesses did not even depose as to what had happened to the sand, if any, after they brought the sand loaded tipper to the station. Had there been any sand, the IO would have deposed as to what was done by him with the said sand. But surprisingly, none of the official witnesses deposed as to what had happened to the sand, if any. No photograph, in the least, is filed or brought on record. Also, no independent witness supported the case of the prosecution. To sum up, though the panchanamas were marked through the police men who conducted them, in the absence of they being supported by any convincing independent witness or other independent evidence, it becomes rickety to conclude that the arrayed accused infact committed the offences as alleged.

7

13. Under these circumstances, it appears to this court that the story of the prosecution is implausible. Therefore, this court found the arrayed A1 to A4 not guilty for the offences punishable U/s.379 of IPC, Sec. 3 of the

PDPP Act and Sec. 21(1) of the MMDR Act and are accordingly acquitted U/

Sec.248 (1) of Cr.P.C. for the offences punishable U/s.379 of IPC, Sec. 3 of the PDPP Act and Sec. 21(1) of the MMDR Act. The bail bonds of A1 to A4 shall stand cancelled subjected to Sec.437-A of Cr.P.C. The case property deposited before this court vide CPR No. 493 / 2018 and released towards interim custody to A2 and A4 respectively in Crl.M.P.No. 1596 / 2018 vide order dated 21.12.2018 and in Crl.M.P. No. 1597 / 2018 vide order dated 21.12.2018 shall be made absolute.

Typed by me, corrected and pronounced by me in the open Court, this the 28 th day of April, 2023.

I Addl Junior Civil Judge- cum-

I Addl. Judl. Magistrate of First Class,

Bodhan.

8

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED ON BEHALF OF)

PROSECUTION: DEFENCE:

Pw-1. Sri SK. Meeravali Nil Pw-2. Sri Ch. Nagaboi Nil Pw-3. Sri Md. Isac Khan Nil Pw-4. Sri Syed Aziz Nil Pw-5. Sri P. Ramu Naidu Nil

EXHIBITS MARKED

Ex.P1: Report Ex.P2: Confession cum recovery panchanama Ex.P3: Signature of Pw-3 on the scene of crime panchanama along with rough sketch Ex.P4: Signature of Pw-3 on the confession cum seizure panchanama of the accused Ex.P5: Signature of Pw-4 on the scene of crime panchanama along with rough sketch Ex.P6: Signature of Pw-4 on the confession cum seizure panchanama of the accused Ex.P7: FIR Ex.P8: Scene of crime panchanama along with rough sketch.

I Addl Junior Civil Judge- cum-

I Addl. Judl. Magistrate of First Class,

Bodhan.

9 10 11

1

IN THE COURT OF THE I-ADDL. JUDL. MAGISTRATE OF FIRST CLASS

AT BODHAN.

Present: Ms. Aparna Malladi

I-Addl. Junior Civil Judge – cum - I-Addl. Judicial Magistrate of F.C., Bodhan

Dated on this the 28 thday of April, 2023

CC. No. 925 of 2018

(Crime No. 168 /2018)

Between:

The State of Telangana represented by Sub-Inspector of Police, PS Yedapally, Bodhan Mandal, District Nizamabad.

…Complainant //AND//

A1- Patan Gouse Khan S/o Saheb Khan, Age: 35 years, Caste:Muslim, Occ:Driver, R/o Vannali Village, Degloor (Tq), Nanded Dist. MH State.

A2- Gadipe Shiva Kumar S/o Shesharao, Age:33 years, Caste:Lingayath, R/o H.NO.2-14/1, Kpperga Village, Bodhan Mandal.

A3- Syed Ajis S/o Bashu, Age:44 years, Caste:Muslim, R/o H.No.3-4, Kopperaga village, Bodhan Mandal.

A4- MD. Mudhasir S/o Babumiya, Age:32 years, Caste:Muslim, R/o H.NO.2- 46/2, Hangarga Village, Bodhan Mandal.

A5- Mujahid Khan S/o Babumiya, Age:32 years, Caste:Muslim, R/o H.NO.2- 16/2, Hangargar Village, Bodhan Mandal.

A6- Ismail Khan S/o Hisam Khan, Age:38 years, Caste:Muslim, R/o H.NO.2-37/1, Hangarga Village, Bodhan Mandal.

A7- Syed Mateen S/o Syed Jameel, Age:26 years, Caste:Muslim, R/o H.No.10-70/1, Neela Village, Renjal Mandal.

…Accused Nos.1 to 7 2

This case coming on this day before me for consideration in

the presence of learned Assistant Public Prosecutor for State and

counsel Sri Mohd. Wajeed Hussain, Advocate for accused and

having stood over, this Court made the following: -

:: JUDGMENT ::

1. The Sub-Inspector of Police, P.S. Yedapally has filed the charge sheet in Crime No. 168 of 2018 for the offences punishable U/s.379 of IPC, Sec. 3 of the PDPP Act and Sec. 21(1) of the MMDR Act against A1 to A7.

2.The brief allegations in the charge sheet are as follows:-

That on 07.11.2018, at about 08:30 Hours, Pw1 lodged a report stating , inter alia, that while he along with Pw2 and Lw3 / Sri M.

Hanmandlu PC 454 were performing patrolling duty near Yellama Camp at

ARP Shivar, they noticed four sand loaded tippers coming from Pegadapally towards Nizamabad ; that on seeing the police party, the drivers left the tippers and fled away ; that he secured the presence of Pw3 and Lw4 / Sri

Y. John Wesley and conducted seizure panchanama of tippers B.Nos. TS 16

UB 6136, AP 26 Y 1857, TS 16 UB 0958, and TS 16 UA 2283. Pw1 also mentioned in the report that after conducting the said panchanama, he brought the aforementioned sand loaded tippers to the police station.

Based on the report, Pw4 registered a case in Crime No. 168 of 2018 for the offences U/s.379 of IPC, Sec. 3 of the PDPP Act and Sec. 21(1) of the MMDR Act. He also examined and recorded the statements of witnesses, conducted the scene of crime panchanama, issued Sec. 41A 3

CrPC Notices to the arrayed accused with instructions to cooperate with the investigation when they all came to the police station and voluntarily confessed the commission of the offence, deposited the seized tippers

before this court, after penalty amount was imposed by the Tahsidar

Yedapally, in CPR No. 442 / 2018 which were released towards interim custody to the petitioners respectively in Crl.M.P.Nos. 1545 / 2018, 1546 / 2018, 1544 / 2018 and 1543 / 2018 vide orders dated 23.11.2018 respectively. Pw4 finally laid the Chargesheet for offences punishable

U/s.379 of IPC, Sec. 3 of the PDPP Act and Sec. 21(1) of the MMDR Act against A1 to A7 on completion of investigation.

3.This court took cognizance for offences punishable U/s.379 of IPC,

Sec. 3 of the PDPP Act and Sec. 21(1) of the MMDR Act against A1 to A7 on 29-12-2018. After appearance of the accused, the copies of the documents were furnished to them as required U/Sec.207 Cr.P.C. A1 to A7 were examined U/Sec.239 of Cr.P.C. for the offences punishable U/s.379 of IPC,

Sec. 3 of the PDPP Act and Sec. 21(1) of the MMDR Act. They denied allegation and maintained innocence. Charges for the offences punishable

U/s.379 of IPC, Sec. 3 of the PDPP Act and Sec. 21(1) of the MMDR Act were framed, read over and explained to them in their vernacular language for which they pleaded not guilty and claimed to be tried.

4.In order to bring home the guilt of A1 to A7, the prosecution cited six witnesses and got examined four witnesses as Pws 1 to 4. Exs.P-1 to P-5 4 were marked. The evidence of the rest of witnesses was closed by this court since the concerned police failed to serve summons on them despite reasonable adjournments in a 2018 matter.

5.After completion of the prosecution evidence, A1 to A7 were examined U/Sec.313 of Cr.P.C. with reference to the incriminating material appearing in the prosecution evidence against them, for which they denied such circumstances, maintained innocence and reported no defence evidence.

6.Heard, the arguments from both sides and perused the case record.

7.Now the point for determination is whether the prosecution has proved its case beyond reasonable doubt for the offences punishable

U/s.379 of IPC, Sec. 3 of the PDPP Act and Sec. 21(1) of the MMDR Act against A1 to A7.

8.Four witnesses were examined in this case. Pw1 is the defacto complainant. Pw2 is the witness who accompanied Pw1 for patrolling duty on the alleged date of the incident. Pw3 is one of the panchas for the scene of crime, seizure and confession panchnamas. Pw4 is the IO who laid the chargesheet.

5

9. The independent witness for scene of crime, seizure and confession panchanama deposed that he does not know anything about this case.

Since he failed to support the story of the prosecution, his evidence is of no use to the prosecution.

10. Pw1 and Pw2, in identical terms, deposed that they noticed sand loaded tippers at around 07:00 AM on 07.11.2018, and that all the drives ran away on seeing the police party. The report was brought on record through Pw1 as Ex.P1. As per Ex.P1, it was Pw1 who conducted the seizure panchanama. But Pw1 never deposed about the seizure panchanama. And the independent witness for the seizure panchanama also failed to support the story of the prosecution. Resultantly, the seizure panchanama was not at all brought on record. Here, interestingly, both these witnesses never deposed about the numbers of the tippers. Though Ex.P1 mentions the numbers of the sand loaded tippers, Pw1 and Pw2 never deposed as to those vital aspects in the open court.

11. The Investigating Officer was examined as Pw4. He deposed about the journey from registering the FIR till the filing of the chargesheet. The

FIR and scene of crime panchanama along with the rough sketch were marked as Ex.P4 and Ex.P5 respectively through him.

12. This case is supported only by three witnesses who are all official witnesses. The only independent witness / Pw3 failed to support the police 6 story. To sum it up, the only independent witness who was examined did not support the case of the prosecution. This story, till now, derived its strength only on the testimony of three police witnesses, out of whom one is Pw5 / IO. The other two witnesses are Pw1 and Pw2 who happened to witness the alleged incident. Even they did not depose about the numbers of the tippers. Pw1, as per Ex.P1 conducted the seizure panchnama. But he never even spoke about it in the open court. None of these police witnesses could give an account as to what had happened to the sand. No photograph is brought on record by these witnesses. No cogent evidence is placed on record to connect the arrayed accused with the alleged offence.

These witnesses did not even depose as to what had happened to the sand, if any, after they brought the sand loaded tipper to the station. Had there been any sand, the IO would have deposed as to what was done by him with the said sand. But surprisingly, none of the official witnesses deposed as to what had happened to the sand, if any. No photograph, in the least, is filed or brought on record. To sum up, though the scene of crime panchanama was marked through the police man / IO who conducted it, in the absence of it being supported by any convincing independent witness or other independent evidence, it becomes rickety to conclude that the arrayed accused infact committed the offences as alleged. Also, the seizure panchanama is not at all brought on record by the prosecution.

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13. Under these circumstances, it appears to this court that the story of the prosecution is implausible. Therefore, this court found the arrayed A1 to A7 not guilty for the offences punishable U/s.379 of IPC, Sec. 3 of the

PDPP Act and Sec. 21(1) of the MMDR Act and are accordingly acquitted U/

Sec.248 (1) of Cr.P.C. for the offences punishable U/s.379 of IPC, Sec. 3 of the PDPP Act and Sec. 21(1) of the MMDR Act. The bail bonds of A1 to A7 shall stand cancelled subjected to Sec.437-A of Cr.P.C. The case property deposited before this court vide CPR No. 442 / 2018 and released towards interim custody to the petitioners respectively in Crl.M.P.Nos. 1545 / 2018, 1546 / 2018, 1544 / 2018 and 1543 / 2018 vide orders dated 23.11.2018 respectively shall be made absolute.

Typed by me, corrected and pronounced by me in the open Court, this the 28 thday of April, 2023.

I Addl Junior Civil Judge- cum-

I Addl. Judl. Magistrate of First Class,

Bodhan.

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APPENDIX OF EVIDENCE

(WITNESSES EXAMINED ON BEHALF OF)

PROSECUTION: DEFENCE:

Pw-1. Sri S. Narsingarao Nil Pw-2. Sri A. Vishnuvardan Goud Nil Pw-3. Sri Nenavath Gopal Nil Pw-4. Sri P. Ramu Naidu Nil

EXHIBITS MARKED

Ex.P1: Report Ex.P2: Signature of Pw-3 on the confession panchanama of the accused Ex.P3: Signature of Pw-3 on the scene of crime panchanama along with rough sketch Ex.P4: FIR Ex.P5: Scene of crime panchanama along with rough sketch.

I Addl Junior Civil Judge- cum-

I Addl. Judl. Magistrate of First Class,

Bodhan.

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