IN THE COURT OF THE ADDITIONAL ASSISTANT SESSIONS JUDGE,
MACHILIPATNAM
Present: Smt. B.H.V. Lakshmi Kumari,
Additional Assistant Sessions Judge, Machilipatnam.
Monday, this the 7 th day of February, 2022.
Sessions Case No.96/2019
(PRC 3/2019 on the file of IIAddl. Judicial Magistrate of IClass, Machilipatnam)
Between:
The State represented by the Inspector of Police, Chilakalapudi Police Station, Krishna District. …Complainant.
And
1. Madivada Siva Sankar, S/o Sitaramaiah, 44 years, C/o Kapu, Dr.No.17/251, Bukkavaari street, Edepalli, Machilipatnam.
2. Madivada Rajya Lakshmi, W/o Siva Sankar, 32 years, C/o Kapu, Dr.No.17/251, Bukkavaari street, Edepalli, Machilipatnam.
3. Shaik Anif, S/o Hussain Jani, 34 years, C/ Muslim, Rustumbada, Machilipatnam at present Residing at Ramaraopet, Kakinada.
4. Mohammad Hafeez, S/o Rafi, 29 years, C/Muslim,
Dr.No.22/2061, Englishpalem, Machilipatnam. ...Accused
This case come before for hearing in the presence of Sri A. Murali Krishna, Addl. Public Prosecutor on behalf of the Prosecution and Sri S. Santhi Prasad, Advocate on behalf of the Accused 1 and 2, Sri P. Suresh Babu, Advocate for the Accused No.3 and Sri G.V. Ramana, Advocate for the Accused No.4, and upon considering the material available on record and having stood over till this day for consideration, this Court delivered the following :
JUDGMENT
The accused arraigned before this Court for the charge under Sections 120 B, 201, 380 r/w 34 of Indian Penal Code.
Brief facts:
2. The State represented by the Inspector of Police, Chilakalapudi Police
Station laid charge sheet against the accused in Cr.No.156/2014 alleging that the case record or documents in Cr.No.198/2012 vide S.C.No.339/2013 on the file of the VI Additional District Judge’s Court, Machilipatnam, was stolen from the court premises prior to 16.9.2014 at the court premises. The complainant reported that he learnt through the concerned bench clerk that the record in
Sessions Case No.339/2013 connected with PRC No.17/2013 on the file of II
Additional Judicial Magistrate of IClass, Machilipatnam in Cr.No.198/2012 of
Chilakalapudi Police Station, was found missing since 19.6.2014.
Basing on the complaint, the Sub Inspector of police, Chilakalapudi
Police Station, registered FIR in Cr.No.156/2014 under Section 379 of IPC, took up investigation, during the course of investigation, he visited the scene of offence, prepared rough sketch of the scene, examined and recorded the statements of the witnesses. On 26.7.2018, the L.W.6/VRO Block
No. IV recorded the confessional statement of A.3, that A.1 to A.3 called A.4 and said that he can only save them from the murder case by vanishing the evidence in Cr.No.198/2012 vide S.C.No.339/2013 on the file of the
VI Additional District Judge’s Court, Machilipatnam and asked to bring the original record and hand over to them, promissed to give him Rs.40,000/ and gave advance of Rs.20,000/, accordingly on 18.6.2018, A.3 met A.1 and A.2 at their house, informed that A.4 will handover the record and at about 6.30 pm, A.4 handed over the record to A.3 and A.3 handed over another cash of
Rs.20,000/ to A.4. A.4 committed the theft of key of iron safe and then committed this offence. A.3 went to the house of A.1 and handed over the record to A.1 and A.2. Basing on the confession of A.3, the section of law was altered from Section 379 of IPC to Sections 120B, 201 and 380 r/w 34 of IPC and filed charge sheet against the accused 1 to 4.
3. The learned IIAddl. Judl. Magistrate of First Class, Machilipatnam had taken cognizance for the offence under Sections 120 B, 201 and 380 r/w
34. Later, as the offence leveled against the accused being under Section 380 of IPC, which is an exclusively triable by Court of Sessions, it was committed to the Hon'ble Principal District Court, Machilipatnam u/s.209 (a) of Code of
Criminal Procedure serving copies of the case to the accused u/s.207 of Cr.P.C.
Subsequently the Hon'ble Principal District and Sessions Judge, Machilipatnam had registered it as Sessions Case No.96/2019 and it was made over to this
Court for trial.
4. This Court had framed the charges for the offence i.e., for the offence under Sections 120 B, 201 and 380 r/w 34 against the accused 1 to 4. Such charge was read over and explained to the accused 1 to 4 in
Telugu, for which the accused 1 to 4 denied the offence, pleaded not guilty and claimed to be tried.
5. During the course of the trial of the case, the prosecution examined
P.W.1 to P.W.9 and got marked Ex.P1 to Ex.P.5 and on the other side, no witnesses were examined, but Ex.D.1 is marked through the cross examination of P.W.2, Ex.D.3 and Ex.D.4 are marked through the cross examination of
P.W.9.
6. On 10.1.2022, the accused 1 to 4 were examined under Section 313 (1)(b) of Cr.P.C., and the incriminating evidence appearing against the accused 1 to 4, was read over and explained to them in Telugu, for which the accused 1 to 4 denied the incriminating evidence and reported no defence evidence.
7. Heard the counsel for the Prosecution i.e., Addl. Public Prosecutor and the Counsel for the accused.
9. The point for determination is :
Whether the prosecution did prove the guilt of the accused
1 to 4 beyond all reasonable doubt for the offence punishable
under Sections 120B, 201 and 380 r/w 34 of IPC ?
Point:
10. It is the case of the prosecution that a record vide S.C.No.339/2013 on the file of VI–Additional District and sessions Judge’s Court, Krishna,
Machilipatnam, was missing since 19.6.2014 and on that on 16.9.2014, the
P.W.1/A. Rama Chandra Rao had presented Ex.P.2/report and basing on the same, the P.W.8/Sk. Abdul Nabee, Sub Inspector of Police, Chilakalapudi Police
Station had registered the Ex.P.5/First Information Report in Cr.No.156/2014 under Section 379 of IPC. During the course of investigation, the Chilakalapudi
Police had examined P.Ws.1 to 5 and recorded their statements. As per the evidence of P.W.8/ Sk. Abdul Nabee coupled with the evidence of P.W.9/
G. Durga Prasad, the crime was registered on 16.9.2014 and the investigation in the Cr.No.156/2014 was commenced from 16.9.2014.
11. The P.W.8/Sk. Abdul Nabee, Sub Inspector of Police, Chilakalapudi
Police Station during his cross examination by the learned counsel for A.1 and
A.2, had categorically admitted that “It is true that the P.W.1/A. Rama Chandra
Rao had given Ex.P.2/report on 9.9.2014 with regard to the missing of the record prior to 19.6.2014 and the same was registered on 16.9.2014”. The P.W.8/
Sk. Abdul Nabee during his cross examination by the learned counsel for A.3 had categorically admitted that “It is true that the Ex.P2/report was prepared and signed on 09.09.2014. It is true that on Ex.P2 /report the dispatch date was mentioned as 09.09.2014. It is true that while dispatching any thing from the court the dispatch date and number shall be mentioned on the said document and the same shall be sent to us. It is true that on Ex.P.2 report the Dispatch number is mentioned as 229 dt:09.09.2014”. Though the P.W.8/Sk. Abdul Nabee, Sub
Inspector of Police, Chilakalapudi Police Station had denied the suggestion that he registered the Ex.P2 report which was received on 09.09.2014, on 16.09.2014 and that only to cover the delay caused in registering the FIR, he is deposing false that he had received the Ex.P2 report on 16.09.2014, on perusal of Ex.P.2/report, the receive endorsement made by the P.W.8 clearly shows that, the same was received on 9.9.2014.
12. The P.W.9/G. Durga Prasad, Inspector of Police, Chilakalapudi Circle during his cross examination by learned counsel for the A.1 and A.2 had categorically admitted that “The exact date or time of offence is not confirmed during my investigation. As per the record the date of offence is 18.06.2014. In column 3 of Ex.P5/First Information Report, the date of offence is mentioned as prior to 19.06.2014. The commission of the offence was reported to the
Chilakalapudi Police Station on 16 .09.2014”.
13. Thus from Ex.P.5/First Information Report, it is clear that the
Cr.No.156/2014 was registered under Section 379 of IPC and the punishment for committing the offence under Section 379 of IPC, is for a period of three years or with fine or with both . As per Section 468 of the Code of Criminal
Procedure, an offence punishable with maximum period of three years, the period of limitation to take cognizance of the offence is three years, but in the present case on hand, the Cr.No.156/2014 was registered in the year 2014 and as per the admission made by the P.W.9/G. Durga Prasad, Inspector of Police,
Chilakalapudi Circle, during his cross examination, it is clear that the charge sheet was filed by him in the present case on 25.1.2019 though his signature underneath the charge sheet is mentioned as 26.2.2019, which clearly shows that the police had not followed the procedure laid down in Section 468 of
Cr.P.C..
14. Though the prosecution had submitted written arguments and argued that basing on the Ex.P.3/Confessional statement given by A.3, the
P.W.9/G. Durga Prasad, Inspector of Police, Chilakalapudi Circle had deleted the Section 379 of IPC and registered the Crime under Section 120 B, 201 and 380 of IPC. But, no alternation memo nor any altered FIR was filed before the
Magistrate Court. The P.W.9/G. Durga Prasad, Inspector of Police,
Chilakalapudi Circle during his cross examination had categorically admitted that “It is true that subsequent to the arrest of A3 only the section of law in
Cr.NO.156/2014 was deleted and altered. It is true that the Cr.No.156/2014 was primarily registered Under Section 379 of IPC. It is true that the confession recorded in the police station it is mentioned that the statement of A3 was being recorded in Cr.NO.156/2014 under Section 380 of IPC”. The learned counsels for A.1 to A.4 had all together submitted that only with an intention to detained the A.1 further beyond the bars , the Section of Law was altered from
Section 379 of IPC to Sections 120 B, 201 and 380 of IPC. As per the prosecution, the Section 379 of IPC was deleted and Section 120B , 201 and 380 of IPC, were added in the year 2019 which means till the date of the alleged confession by A.3, the Cr.No.156/2014 was registered under Section 379 of IPC only and only to cover up the latches of the police, it appears that
Ex.A.3/statement of A.3 had been created.
15. As per the prosecution case, P.W.2/N. Salma Begum had informed
P.W.1/A. Rama Chandra Rao about the missing of the record SC 339/2013 on the file of the VIAdditional District and Sessions Judge’s Court, Krishna,
Machilipatnam, and the same was informed by the P.W.1/A. Rama Chandra
Rao to the Honourable IAdditional District and Sessions Judge,
Machilipatnam, who was holding FAC to the Honourable VIAdditional District and Sessions Judge, Krishna, Machilipatnam, and as per the instructions given by the Judicial Officer, the P.W.1/A. Rama Chandra Rao had presented
Ex.P.2/Report, basing on the Ex.P.1/Official Memo dt.6.9.2014. As per the evidence of P.W.1/A. Rama Chandra Rao, it is clear that the concerned Bench
Clerk is having the responsibility to look after the case records in the Court and they are only responsible for the maintenance of the records. The P.W.2/
N. Salma Begum during her cross examination had categorically admitted that “After one month of the missing of the record an official memo was given to me and I had also given written explanation. It is true that a Departmental enquiry was held with regard to missing of the record. It is true that in the departmental enquiry and statement given to the police I had stated that the record was misplaced. It is true that in the departmental enquiry, the enquiry officer had given a report with a finding “found guilty”.
16. P.W.3/Y. Khatumbi, who was working as Stenographer in the
VIAdditional District and Sessions Judge’s Court, Krishna, Machilipatnam, had deposed that from 10.6.2014 to 19.6.2014, she was on Earned Leave and she again joined on 20.6.2014 and on 20.6.2014, the P.W.2/N. Salma Begum had informed about the missing of the Sessions Record on 19.6.2014 and missing of the keys of the almyrah on 18.6.2014 and she also deposed that in the month of August 2014, the P.W2/N. Salma Begum had informed her that the keys of the said almyrah were found in the desk of the table of L.W.4/P. Srinivas, who was examined as P.W.4/P. Srinivas.
17. P.W.4/P. Srinivas had deposed that “From 17.06.2014 to 20.06.2014
I was on leave. On 21.06.2014 when I again came to the office the P.W.1 and
P.W.2 had informed about the missing of the S.C.339/2013. The P.W.1 had asked me and other staff members to search for the missing record and we had searched all the almarahs in the court but in vain. From 22.06.2014 I was again deputed to work in Nazarath section for about 10 days. After 10 days I again came to
Hon’ble VI Additional District and Sessions Judge’s court, Machilipatnam and the
P.W.1 had informed that the keys of the almarah were also missing and asked us to search for keys but in vain. After one month I had found the keys of the almarah in the desk of the table of P.W.1 and I informed the same to the P.W.1 and immediately I along with the other staff members went to Hon’ble
I Additional District and Sessions Judge’s court FAC Hon’ble Principal District and
Sessions Judge’s Court, Krishna, Machilipatnam and informed about the keys”.
18. The P.W.5/B. Venkateswara Rao had not supported the case of the prosecution, on that the learned Additional Public Prosecutor had declared the witness as hostile. As per the evidence of P.Ws. 1 to 5, there is no corroborative evidence with regard to the keys of the almyrah of the P.W.2 and
P.Ws. 1 to 5 had not deposed as to due to whose negligence, the keys of the almyrah was missing.
19. The entire case of the prosecution was solely based upon the
Ex.P.3/Confessional statement given by the A.3 to P.W.6/Shaik Mohaboob
Jani, VRO Gollamuri. As per the evidence of P.W.6 /Shaik Mohaboob Jani “On 26.7.2018 at about 7.00 AM, while he was present at his office in Edepalli, one by name Anif came to my office and informed me that he is an accused in one case and requested me to record his statement, on that I had recorded the statement of the said person and I had handed over the said person along with his statement in
Chilakalapudi Police station.”
20. During the cross examination by the learned counsel for A.3, P.W.6 had categorically admitted that “ As per Ex.P.3/statement of A.3 recorded by
P.W.6, the name of the person giving the statement is mentioned as ‘Haneedh’ and that in the covering letter also, he had got mentioned as the statement of ‘ Sk. Haneedh’ , whereas as per the charge sheet filed by the Chilakalapudi Police, the name of the A.3, who was identified by the P.W.6/Shaik Mohaboob Jani,
VRO, Gollamuri, was mentioned as Shaik Anif. Though the P.W.6/Shaik
Mohaboob Jani, VRO, Gollamuri had deposed that one person by name Anif came to his office and the P.W.6/Shaik Mohaboob Jani, VRO, Gollamuri had recorded his statement, but during the cross examination the P.W.6/Shaik
Mohaboob Jani, VRO, Gollamuri had deposed that “The place where I had said to have been recorded the statement of Shaik Anif is not my office, but the place where I stay”.
21. The P.W.6/Shaik Mohaboob Jani, VRO, Gollamuri during his cross examination had categorically admitted that “ It is true that it must be mentioned below the statement that the statement recorded is true or the statement recorded is as per the statement given. It is true that if the person giving the statement does not admit the contents of the statement before me the same cannot be considered. It is true that in Ex.P3 statement it is not mentioned that the same was read over to the person given the statement nor he had gone through the contents of the statement and he admits the contents of the statement as true. It is true that in general while recording the statement in a criminal case it must be mentioned that the said statement is being given as per his will but not due to any pressure, but the same is not mentioned in Ex.P3 statement.
It is true that in Ex.P3 statement it does not appear that the same was recorded as stated by A3”.
22. “ Confessions are admissible only when they are made voluntarily and the burden for proving that a confession was made voluntarily rests with the prosecution and the prosecution must show that the confession was not extracted by any sort of threat or violence or obtained by any promise or exertion of in proper influence”. Where as during the examination of A.3 under Section 313(1)(b) of the Code of Criminal Procedure, the A.3 had denied the giving of the Ex.A.3/Confessional statement to P.W.6/Shaik Mohaboob
Jani, VRO, Gollamuri”.
23. Though the P.W.6/Shaik Mohaboob Jani, VRO, Gollamuri had deposed that the A.3 had approached him and confessed about the commission of the offence in the present case, during his cross examination, he categorically admitted that “ It is true that the police had got a white paper having the signature of A3 and as per the directions of the police I had filled the contents of Ex.P3 statement in the said paper and as there is no place
I had put my signature and mentioned as recorded by me underneath the signature of the A3”.
24. A confession made to any private person outside the court is called extra judicial confession and the said extra judicial confession are proved by calling the person as witness before whom the extra judicial confession was made. But as per the evidence of P.W.6, in one instance he is deposing that on the request of A.3, he recorded his statement, but in the other instance, he is deposing that, the police had filled the contents in Ex.P.3/Statement and they just obtained his signature on the same. Hence in these circumstances, the evidence of P.W.6 cannot be taken into consideration.
25. The evidence of P.W.7/G. Madhu Sekar, VRO, Block III
Machilipatnam, it appears that on the request of Chilakalapudi Police, the
P.W.7 and L.W.8/Ch. Aswani Kumar are acted as mediators at the time of recording the confessional statement of A.3 on 26.7.2018 at about 8.30 A.M., but as per the evidence of P.W.7/G. Madhu Sekar, VRO, Block III
Machilipatnam as the said confessional statement was made in the presence of police, the same was hit by Section 26 of the Indian Evidence Act”.
26. The evidence of P.W.7/G. Madhu Sekar, VRO, Block III
Machilipatnam further reveals that on 19.1.2019 at about 11.00 AM, he along with L.W.8/Ch. Aswini Kumar and P.W.8/Shaik Abdul Nabee went to Hundai
Show room, Vijayawada and police had arrested one person by name Hafeez and he confessed about the offence in the present case in the presence of police and the said Hafeez was arrested by P.W.9/G. Durga Prasad, Inspector of
Police, Chilakalapudi Circle in their presence under cover of Ex.P.4/mediators report which was drafted by a police constable.
27. The P.W.7/G. Madhu Shekar, VRO, Arisepalli during his cross examination by learned counsel by A.3 had categorically admitted that “It is true that myself nor L.W.8 had not drafted any mediators report in the present case. It is true that on 26.07.2018 by the time myself and L.W.8 reached the
Chilakalapudi P.S. the A3 is already in the police station in the custody of police.
I do not know whether the police had enquired A3 prior to confessing before us. It is not mentioned in the said mediators report that the VRO had handed over the
A3 to the police in Chilakalapudi P.S”. The learned counsel for A.1 to A.4 had pleaded that only as an after thought, only for the support of the alleged confessional statement given by A.3 to P.W.7 and L.W.8/Ch. Aswani Kumar, the Ex.P.3/Statement of A.3 was created by the police, and the same is clearly evident from the evidence of P.W.7”.
He further admitted that “It is true that in the mediators report it is mentioned that the A3 came to Machilipatnam to talk with A2 as to what had happened and at that time the Chilakalapudi Police had arrested him. It is true that in general after recording the statement of the accused, the signature of the accused shall be taken underneath the statement only but not on the side of the statement”.
He further admitted that “It is true that being a VRO I shall cooperative with the police when I receive summons to act as a mediator. The
Chilakalapudi police had not served any summons to act as mediator. It is true that in general only after obtaining written permission from the MRO only
I shall act as a mediator. I had not obtained any written permission from MRO to act as a mediator in the present case”.
28. During the cross examination by the learned counsel for A.4, the
P.W.7/G. Madhu Shekar, VRO, Arisepalli had categorically admitted that “It is true that as a VRO I can discharge my duties only within the jurisdiction of the areas covered under Block III. It is true that if I am requested to act as a mediator in the area beyond my jurisdiction I have to necessarily obtain written permission from my higher authorities. It is true that the Vijayawada is one Revenue division and the remaining areas around Vijayawada comes under other Revenue division.
I does not come under the Vijayawada Revenue division. I had not obtained any written permission from the MRO to act as a mediator within the Vijayawada
Revenue division as that is beyond my jurisdiction. My higher officials had not informed the RDO of Vijayawada Revenue division with regard to I acting as a mediator in Vijayawada Revenue division. There are no written proceedings permitting me to act as a mediator in Vijayawada Revenue division. I do not know A4 and I am never acquainted with him. I came to know about A4 only through the police as they had informed me. It is true that I had signed in the mediators report which was drafted by the police”. Thus the P.W.7 had acted as mediator only on the request of the police without obtaining permission from his higher authorities though he is not having any jurisdiction.
29. The P.W.9/G. Durga Prasad, Inspector of Police, Chilakalapudi
Circle during his cross examination had categorically admitted that he had verified the investigation of P.W.8/Sk. Abdul Nabi and found the same in correct lines and gone through the Ex.P.2/report dt.9.9.2014 and the Section 161 Cr.P.C. Statements of the P.Ws. 1 to 5 after taking up investigation in the present case, but the statements of P.Ws. 1 to 5 does not reveal the names of
A.1 to A.4 though as per the prosecution case, the P.Ws. 1 to 3 are the key witnesses in the present case.
30. During the cross examination by the learned counsel for A.3, the
P.W.9 categorically admitted that “ There is no record in the investigation to show that the A1 to A4 are suspects in the present case till 26.07.2018. The A3 was arrested on 26.07.2018 at 8.15 A.M. The confession statement of A3 was recorded in the police station from 8.30 AM to 9.30 AM and in the last sentences it was mentioned that A3 was arrested at 9.30 AM. It is true that in the confession statement recorded in the police station it is mentioned that on 06.08.2018 the murder case was posted for Judgment and as I was suspected by the police in that case I came to Machilipatnam to meet A2, at that time the police had taken me into their custody. It is true that the name of A3/Shaik Anif is not appearing in Ex.P3.”
31. As per the charge sheet filed by the P.W.9/G. Durga Prasad,
Inspector of Police, Chilakalapudi Circle, the A.1 to A.3 after their release in SC
No.339/2013 , had got acquaintance with one court employee Hafeez(A.4) and
A.4 used to move closely with A.1 to A.3 and informed about the case adjournments and on one night , A.1 to A.3 had called A.4 and requested A.4 that he can only save them from the murder case i.e, SC 339/2013 and asked his help to vanish the evidence i.e, records and documents in Cr.No.198/2012 vide SC 339/2013 on the file of Honourable VIAddl. District and Sessions
Judge, Krishna, Machilipatnam, for exchange of Rs.40,000/ and gave
Rs.20,000/ as advance to A.4. As per the charge sheet on 18.6.2014 the A.1 to
A.4 had conspired and that in the evening on 18.6.2014 the A.4 shall hand over the record at the District Court centre and gave Rs.20,000/ to A.3 to hand over the said amount to A.4 after the A4 hands over the required record. As per their conspiracy A.4 handed over their murder case record to A.3 at around 6.30 PM on 18.6.2014 and A.3 handed over Rs.20,000/ to A.4 and thus A.4 committed the theft of keys of iron safe and A.3 handed over the record to A.1 and A.2 at their house.
32. Though the Chilakalapudi police had conducted investigation in the present case from the year 2014 to the year 2019, no piece of evidence was produced before the court to prove the said conspiracy between the A.1 to A.4 to attract the offence under Section 120B of IPC. Further, though the prosecution had alleged that the keys of the almyrah were committed theft by
A.4, none of the prosecution witnesses had supported the version of the prosecution to attract the Section 380 of IPC. Moreover as per Ex.P.2/report, the said report was given to the police on the ground that the record in
SC 339/2013 was lost, but none of the prosecution witnesses had deposed that
the evidence of the offence in SC 339/2013 was disappeared and that it was due to A.1 to A.4, to attract the offence under Section 201 of IPC.
33. The P.W.9/G. Durga Prasad, Inspector of Police, Chilakalapudi
Circle, during his cross examination had deposed that “It is true that to prove a case under section 379 or 380 of IPC, Section 411 of IPC should be followed. It is true that the missing property in the present case is not recovered. No piece of document was filed or no investigation was done to prove the contents to attract the Section 201 of IPC. No piece of evidence or document was filed to show that a conspiracy had taken place in between A1 to A4. I had not drawn any rough sketch of scene of offence nor got drafted any scene observation report in the present case. It is true that the rough sketch prepared by PW8 was not filed along with the charge sheet in the present case. It is true that alteration memo with regard to altering the section of law from 379 of IPC to Section 120 B, 201, 380 r/w 34 of IPC was not filed in the court or along with the charge sheet. It is not mentioned in the charge sheet that the A3 was produced by PW6 and subsequently in the police station I again recorded the statement of A3 in the presence of PW7 and LW8. Except the Ex.P3 statement of A3 there is no documentary or oral evidence procured during my investigation to say that A1 to A4 had committed the offence under section 120 B, 201, 380 r/w 34 of IPC. In Ex.P3 statement the A3 had confessed that he had handed over the record to A1 and A2 but I had not recorded the statements of A1 and A2 to prove the same. I had not initiated any search proceedings or any other proceedings from my higher authorities for securing the missing record.” Though the evidence of P.W.9 reveals that P.W.8 had drawn rough sketch of the scene of offence, the same is not filed to support the case of prosecution.
34. As per the evidence of P.W.9/G. Durga Prasad, Inspector of Police,
Chilakalapudi Circle, he categorically admitted during the cross examination by the learned counsel for A.1 and A.2 that “I know that the case registered in
Cr.No.156/2014 is triable by a Magistrate. I am having knowledge about the serving of notice under Section 41 A to the accused in cases for the offences with punishment less than 7 years. I do not know whether violation of the said order given by the Honourable Supreme Court of India amounts to contempt of court.”
On the request of the learned counsel for the A.1 and A.2 to the bench, the question and the answer given by the witness were recorded in the same lines.
Q: Have you tried to serve Section 41 A Cr.P.C. notice to A1 as per the Judgment passed in Arnesh Kumar case as the Section of law in
Cr.NO.156/2014 are chargeable with punishment less than 3 years ?
Ans: As there are previous crimes registered against A1 and at the time of crime we may not secure the presence of A1.
35. The P.W.9/ G. Durga Prasad, Inspector of Police, Chilakalapudi
Circle had deposed that “I know the fact that the A1 was granted bail in all the crimes registered against him and he was also enlarged on bail. It is true that on 26.07.2018 the A1 had obtained bail and was also enlarged on bail in the evening hours at about 6.00 PM. It is true that on 26.07.2018 only for the first time the names of A1 to A4 were mentioned in the present case crime record.” He further deposed that “Section 41 A Cr.P.C. notice was not served upon A.2 though she is a lady as she would not be made herself available at the time of trial and further admitted that “It is true that on the date of producing of A.2 before the Judicial
Magistrate of I Class, the Officer had directed the police to follow the guidelines in
Arnesh Kumar Case and refused for the remand of A.2.”
36. The P.W.9/G. Durga Prasad, Inspector of Police, Chilakalapudi
Circle during his cross examination had further admitted that “The A4 is shown as one of the accused for committing the offence under Section 380 of IPC. It is true that for the offence under section 380 of IPC is punishable upto 7 years. There are no crimes registered against A4 in any police station to my knowledge. I had not issued Section 41 A CrPC notice to A4 but he was arrested and forwarded to the court for Judicial remand. As where about of A4 were not known and we could not trace A4 inspite of efforts made by us due to that reason the A4 was not served with Section 41 A CrPC notice.”
37. The learned counsel for the A.1 and A.2 had submitted that the
P.W.9/G. Durga Prasad, Inspector of Police, Chilakalapudi Circle had admitted during his cross examination as “It is true that in Crl.M.P.70/2018 in
S.C.339/2013 dt:03.03.2018 on the file Hon’ble VI Additional District and
Sessions Judge’s Court, Machilipatnam the court had opined that “Basing on the
registration of the said crime and in the absence of the filing of the charge sheet it is difficult to accept that the said record in this case was stolen away by this petitioner/A1/Madivada Siva Sankar Rao @ Sankar”. Ex.D3 is the certified copy of order in Crl.M.P.70/2018 in S.C.339/2013 dt:03.03.2018 on the file Hon’ble
VI Additional District and Sessions Judge’s Court, Machilipatnam. It is true that the Judgment in S.C.339/2013 on the file of Hon’ble VI Additional District and
Sessions Judge’s Court, Machilipatnam was delivered on 06.08.2018 in which the
Officer had mentioned in Para No.14 “ On the report given by Superintended a crime is registered as Cr.No.156/2014 of Chilakalapudi Police station. It appears that so far the investigation is not concluded in the said crime for the reasons best known to the investigating officer”. Ex.D4 is the certified copy of Judgment in
S.C.339/2013 on the file of Hon’ble VI Additional District and Sessions Judge’s
Court, Machilipatnam.”
38. Thus except Ex.P.3/Statement of A.3, none of the prosecution witnesses nor the investigation of P.Ws.8 and 9, does not prove the case that
A.1 to A.4 had committed the offences under Sections 120B, 201, 380 r/w 34 of IPC, and the prosecution had also failed to prove the Ex.P.3/statement of
A.3, beyond reasonable doubt and there are many contradictions in the evidence of the prosecution witnesses.
Result:
In the result, the accused 1 to 4 are found not guilty for the offence under Sections 120B, 201, 380 r/w 34 of IPC and as such, the accused 1 to 4 are acquitted under Section 235 (1) of Cr.P.C. The bail bonds of the accused 2 to 4 and that of their sureties shall remain in force for a period of 6 months as contemplated under Section 437A of Cr.P.C. The unmarked case property if any shall be destroyed after lapse of appeal time. The accused No.1 shall be released if he is not involved in any other case.
Directly typed by steno to my dictation, corrected and pronounced by me in the Open Court, this the 7 th day of February, 2022.
Addl. Asst. Sessions Judge, Machilipatnam.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR PROSECUTION: PW.1: A. Ramachandra rao PW.2: N. Salma Begum PW.3: Y. Khatumbi PW.4: P. Srinivas PW.5: B. Venkateswara rao P.W.6:Sk. Mahaboob Jani P.W.7:G. Madhu Shekar P.W.8:Sk. Abdul Nabee P.W.9: G. Durga Prasad
WITNESSES EXAMINED FOR ACCUSED: None
DOCUMENTS MARKED FOR PROSECUTION: Ex.P.1: Official memo dt.6.9.2014, issued by the Honourable Prl. District Court, Krishna, Machilipatnam. Ex.P.2:Report dt.9.9.2014 Ex.P.3: Statement of A.3 recorded by P.W.6, along with the covering letter. Ex.P4: Mediator’s report, dt.19.1.2019 Ex.P5: First Information Report.
DOCUMENTS MARKED FOR ACCUSED : Ex.D.1: Relevant portion in Sec.161 Cr.P.C. Statement of P.W.2. Ex.D.2: Relevant portion in Sec.161 Cr.P.C. Statement of P.w.4 Ex.D.3: Certified copy of order in Crl.M.P.70/2018 in SC 339/2013 dt.3.3.2018 on the file of the Honourable VI Addl. Dist. & Sessions Judge’s Court, Machilipatnam. Ex.D.4: Certified copy of Judgment in S.C.339/2013 on the file of Honourable VI Addl. Dist. & Sessions Judge’s Court, Machilipatnam.
(Ex.D.1 is marked through the cross examination of P.W.2, Ex.D.3 and Ex.D.4 are marked through the cross examination of P.W.9. )
MATERIAL OBJECTS MARKED FOR PROSECUTION: Nil
Addl. Asst. Sessions Judge, Machilipatnam.
FORM TO BE APPEARED TO THE FAIR COPY OF THE JUDGMENT
IN ACCORDANCE WITH RULE 71 OF CRIMINAL RULES OF PRACTICE IN
SESSIONS CASE No.96/2019
ON THE FILE OF ADDL. ASST. SESSIONS JUDGE'S COURT,
MACHILIPATNAM.
1Sessions Case No: Sessions Case No.96/2019 2Complainant:The State represented by the Inspector of Police, Chilakalapudi Police Station, Krishna District. 3Description of the accused:1. Madivada Siva Sankar, S/o Sitaramaiah, 44 years, C/o Kapu, Dr.No.17/251, Bukkavaari street, Edepalli, Machilipatnam.
2. Madivada Rajya Lakshmi, W/o Siva Sankar, 32 years, C/o Kapu, Dr.No.17/251, Bukkavaari street, Edepalli, Machilipatnam.
3. Shaik Anif, S/o Hussain Jani, 34 years, C/ Muslim, Rustumbada, Machilipatnam at present Residing at Ramaraopet, Kakinada.
4. Mohammad Hafeez, S/o Rafi, 29 years, C/Muslim, Dr.No.22/2061, Englishpalem, Machilipatnam.
4Date of occurrence:Prior to 19.06.2014 5Date of complaint:16.09.2014 6Date of apprehension of:26.07.2018/A.2&A.3 accused27.07.2018/A.1 19.01.2019/A.4 7Date of committal order:15.04.2019 8Date of commencement of Trial:20.11.2019 9Date of close of Trial:03.01.2022 10Date of sentence or Order:07.02.2022 11Charges:Under Sections 120B, 201 & 380 r/w 34 of IPC
RESULT:
Accused 1 to 4 are found not guilty for the offence under Sections 120B, 201, 380 r/w 34 of IPC and as such, the accused 1 to 4 are acquitted under Section 235 (1) of Cr.P.C. The bail bonds of the accused 2 to 4 and that of their sureties shall remain in force for a period of 6 months as contemplated under Section 437A of Cr.P.C. The unmarked case property if any shall be destroyed after lapse of appeal time. The accused No.1 shall be released if he is not involved in any other case.
EXPLANATION FOR DELAY
This case is received as made over from the Hon'ble District & Sessions Court, Krishna Machilipatnam, on 05.07.2019. Charges were framed against the accused 1 to 4 on 06.11.2019. The trial commenced on 20.11.2019 and it was concluded on 03.01.2022. PW.1 to PW.9 were examined and Ex.P1 to Ex.P5 and Ex.D.1 to Ex.D.4 were marked. On 10.01.2022, the accused 1 to 4 were examined u/s.313(1)(b) of Cr.P.C. On 17.01.2022, written arguments filed by the learned APP and on 18.01.2022 heard arguments on both sides. On 07.02.2022, Judgment was pronounced. Hence, no delay in conducting trial of this case.
Addl. Asst. Sessions Judge, Machilipatnam.
Submitted to: The Hon’ble Registrar (Judl.) High Court of Andhra Pradesh, Hyderabad through the
Hon’ble Sessions Judge, Krishna, Machilipatnam.