Sri Ch.L.Srinivasa Rao

C.C.No.178/2017 1 XI Addl. Metropolitan Magistrate

Date 29.5.2020 Anakapalli

IN THE COURT OF THE XI Addl. METROPLITAN MAGISTRATE :: ANAKAPALLI

PRESENT: SRI Ch. L. Srinivasa Rao, B.A.L., B.L., XI Addl. Metropolitan Magistrate

Friday, the 29 th day of May, 2020

Calendar Case No.178/2017

Between:

The State Represented by the Inspector of Police, Anakapalli Traffic Police Station.

...Complainant.

And

Vusirikala Gangaraju, S/o. Apparao, r/o. Singavaram village, Kasimkota mandal, Visakhapatnam.

… Accused

This case coming on 13.3.2020 for final hearing before me in the presence of Smt M.Chiranjeevi Kumari, Asst., P.P., for complainant and of Sri S. Divakar, Advocate

for the accused and the matter having stood over for consideration to this day, this

court delivered the following:

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

The State represented by its Sub-Inspector of Police, Anakapalli Traffic P.S laid a charge sheet against the accused in Crime No.58/2016 for the offence punishable u/s.304-A, 337 and 279 of IPC alleging that on 24.12.2016 at about 3.30 p.m., the accused herein being the driver of a lorry bearing registration No.AP 31 TF 3978 while coming from Visakhapatnam to Yellamanchili drove the same in a rash and negligent manner dashed two motor cycles of L.W.1 (Dadi Kumar) bearing registration No.AP 31

BL 3007 and one Dadi Atchiyyanaidu (deceased No.2) bearing registration No.AP 31 CN 0923 at Nookalamma Arch, on NH 16 road, Anakapalle. As a result, L.W.1 (Dadi Kumar) and his nephew, by name, Konathala Baneeth (15 months) who were travelling on the motor cycle bearing registration No.AP 31 BL 3007 fell on the road and L.W.1 (Dadi

Kumar) sustained head injury and bleeding injuries on his left leg and Baneeth sustained simple injuries on his both hands, whereas, Dadi Atchiyyanaidu (deceased

No.1) and Dadi Eswsara Rao (deceased No.2) who were travelling on the another motor cycle bearing registration No.AP. 31 CN 0923 fell on the road and sustained severe head injuries. All the injured were shifted to Usha Prime Hospital, Anakapalle for treatment. Basing on the statement of L.W.1 (Dadi Kumar), L.W.15 (K. Malleswara Rao,

Sub-Inspector of Police, Anakapalle Traffic P.S.) registered the same as a case in Crime

No.58/2016 for the offences punishable U/Sec.338 and 337 of IPC and investigated into.

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Date 29.5.2020 Anakapalli

While undergoing treatment, Dadi Eswara Rao (deceased No.1) succumbed to injuries while undergoing treatment on the same day at Usha Prime Hospital, Anakapalle. On receipt of the death intimation of Dadi Eswara Rao (deceased No.1), L.W.15 (K.

Malleswara Rao, Sub-Inspector of Police, Anakapalle Traffic P.S.,) added Section 304-A of

IPC and investigated into. During the course of investigation, he visited the scene of offence and got drafted the scene observation report and prepared rough sketch of the scene of offence and examined the witnesses. He held inquest over the dead body of the deceased No.1 Dadi Eswara Rao and sent the dead body for Post Mortem examination. Subsequently, on 2.1.2016, deceased No.2 Dadi Atchiyya Naidu died due to the injuries sustained by him in the accident at 8 a.m., at NTR Hospital, Ankapalle.

L.W.15 (K. Malleswara Rao, Sub-Inspector of Police, Anakapalle Traffic P.S.) held inquest over the dead body of the deceased No.2 Dadi Atchiyya Naidu and handed over the dead body to the Duty Doctor for autopsy and examined the witnesses. On 26.12.2016, he served Section 41 A Cr.P.C., notice on the accused and gave requisition to L.W.14 (I. Venugopala Rao, M.V. Inspector, Anakapalle) to inspect the crime vehicle.

After obtaining M.V. Inspector’s report, Post Mortem Examination reports of both the deceased and wound certificates of L.W.1 (Dadi Kumar) and Konathala Baneeth, L.W.15 (K. Malleswara Rao, Sub-Inspector of Police, Anakapalle Traffic P.S.,) laid charge sheet against the accused.

2.Basing on the charge sheet allegations and on perusal of other material available on record, this court took cognizance of the offence U/s.304-A and 337 of

I.P.C against the accused.

3. On appearance of the accused before this court, the relevant copies of documents were furnished to the accused as contemplated U/s.207 Cr.P.C.

4.Appearance and consideration, the accused was examined u/s.251 Cr.P.C for the offence punishable U/s.304-A and 337 of I.P.C against the accused, read over and explained to him in Telugu, for which the accused pleaded not guilty and claimed to be tried.

5.To prove its case, the prosecution examined PWs.1 to 9 and got marked Exs.P.1 to P.14 on its behalf. None of the witnesses were examined and no documents were got marked on behalf of the accused. The details of which are mentioned hereunder in

Appendix of Evidence.

C.C.No.178/2017 3 XI Addl. Metropolitan Magistrate

Date 29.5.2020 Anakapalli

6.On being closed the prosecution side evidence, the incriminating circumstances that appearing in the testimony of the prosecution witnesses were explained to the accused u/s.313(1)(b) Cr.P.C, for which the accused denied the incriminating circumstances from the testimony of the prosecution witnesses.

7.Heard the learned A.P.P for prosecution and the learned counsel for the accused.

Perused the evidence of Pws.1 to 9 and Exs.P.1 to P.14.

8. Now the point that would arise for determination is –

Whether the prosecution is able to prove the guilt of the accused

for the offence punishable U/s.304-A and 337 of I.P.C beyond

reasonable doubt?

9.The learned Asst., Public Prosecutor argued that the evidence of P.Ws.1 to 9 and

Exs.P1 to P5 and P7 to P14 proved the case of the prosecution and prayed to convict the accused as per law.

10.The learned defence counsel argued that accused is no way concerned with alleged accident and PW.1 foisted this false case against the accused to claim insurance on the crime vehicle. He further argued that except P.W.1, none of the prosecution witnesses identified the accused was driver of the crime vehicle at the time of accident and caused accident to the deceased No.1 and 2. P.W.9 did not seize any incriminating material against the accused. So many doubts arose in the entire case of the prosecution and prayed to acquit the accused on benefit of doubt.

11. P O I N T:-

Heard. Perused the record. I have carefully scrutinized the oral and documentary evidence apart from giving my anxious consideration to the rival contentions.

12.P.W.1 who is the de facto-complainant and injured in this case. P.W.1 deposed that on 24.12.2016, himself, Baneeth and deceased No.1 and 2 were going on two separate motor cycles from Gavarla Anakapalle to Anakapalle and at about 3.30 p.m., when they reached to Nookalamma Arch on NH16 road and while they were crossing

NH 16 road, one lorry came from Lankelapalem towards Anakapalle first dashed the motor cycle of the deceased No.1 and 2 and later it dashed his motor cycle. He further deposed that deceased No.1 and 2 sustained head injuries and he sustained bleeding injury on his head and left leg and Baneeth sustained simple injuries and the nearby people shifted them to Usha Prime Hospital, Anakapalle for treatment in an auto. He also deposed that the Police came to the Hospital and recorded his EX.P1 statement.

C.C.No.178/2017 4 XI Addl. Metropolitan Magistrate

Date 29.5.2020 Anakapalli

He further deposed that the deceased No.1 died on the same day at Usha Prime

Hospital, Anakapalle and the deceased No.2 died on 2.1.2017 at Government Hospital,

Anakapalle due to injuries sustained by them in the accident. He further deposed that he gave EX.P2 report to Police. He further deposed that he saw the driver of the crime vehicle at the scene of offence. He identified the accused as the driver of the crime vehicle at the time of the accident.

13. Here, it is pertinent to note here that P.W.1 stated during his cross-examination that he stated before the Police that he saw the driver of the crime vehicle at the scene of offence. But, as can be seen from EX.P1 statement of P.W.1 or his 161 Cr.P.C., statement, nowhere, he mentioned that he saw the driver of the lorry and that he can identify him. Even P.W.1 did not mention the name, address and descriptive particulars of the driver of the crime vehicle in EX.P1 statement and in 161 Cr.P.C., statement. P.W.1 never stated that the driver of the crime vehicle stopped the vehicle at the scene of offence immediately after the accident and got down the crime vehicle and P.W.1 saw him. Further, P.W.1 has no prior acquaintance with the accused and he is stranger to P.W.1. It is also not the case of the prosecution that the

Investigating Officer got conducted test identification parade of the accused and got identified the accused through P.W.1 during the course of investigation. However, the evidence of mere identification of the accused at trial for the first time from its very nature being inherently a weak character. It is a safe rule of prudence to look for corroboration of sworn testimony of the witnesses in Court as to the identity of the accused who is stranger to him. As can be seen from the evidence of the prosecution witnesses, none of the prosecution witnesses identified the accused as the driver of the crime vehicle at the time of the accident by corroborating with the evidence of P.W.1.

So, without having any corroboration from independent witnesses, basing on the sole testimony of P.W.1, the accused cannot be convicted. Therefore, the identification of the accused, if any, made by prosecution through P.W.1 cannot be believed in the above said facts and circumstances of the case. Therefore, the prosecution failed to prove the identity of the accused through P.W.1.

C.C.No.178/2017 5 XI Addl. Metropolitan Magistrate

Date 29.5.2020 Anakapalli

14. Further, I relied upon a citation in between

Syed Zameer

vs

State of A.P.,

Reported in 2002(1) ALD (Crl) 903 (A.P).,

His lordships held at para 7 that

name of the accused did not find place at the earliest

point of time i.e., at the time of giving FIR. It is for the

prosecution to show that the accused was driving the

vehicle at the time of the incident and he was responsible

for causing the accident. If really the driver is known to

them, the injured would have identified the accused-

driver at the earliest point of time. The lorry and its trip

that were not seized. These are some of the

circumstances which carry doubt about the identity of the

person by the injured. They do not in any way inspire

confidence regarding the identify of the person who drove

the vehicle.

15. In an another case between

Piginaraji Ranga Rao

vs

State of A.P.,

reported in 2009(1) ALD (Cr.) 971 (A.P).,

His lord ships held that

the circumstances that there was no prior acquaintance

between the witness and accused and the fact that the

lorry was stopped at a distance of 20 or 25 feet from the

place of accident and the driver after stopping the lorry,

ran away from the place of accident, show that the

witnesses had no opportunity to have a good look at the

accused. In such circumstances, it is obligatory on the

part of the Investigating Officer to elicit the descriptive

particulars of the accused from the witnesses and to hold

Test Identification Parade, which would establish the case

of the prosecution beyond all reasonable doubt. When a

witness, who had no prior acquaintance with the accused

and who had seen the accused for the first time, for a few

seconds , states to the police that he can identify the

accused, the Investigating Officer should take steps for

holding the test identification parade to enable the

witness to identify the person involved in the offence who

was not previously known to them.

So, it is obligatory on the part of the Investigating Officer to elicit the descriptive particulars of the accused from the witnesses by holding test identification parade. When the witnesses identified the accused in the test identification parade also before the court thus there would be no doubt to accept the evidence of such witnesses with regard to the identity of the accused as the driver of the crime vehicle.

But there is no such evidence with regard to identity of the accused as the driver of the

C.C.No.178/2017 6 XI Addl. Metropolitan Magistrate

Date 29.5.2020 Anakapalli

crime vehicle. So, the evidence of P.W.1 is not inspiring confidence over the case of the prosecution and creating doubt with regard to identification of the accused as the driver of the crime vehicle at the time of the accident and due to his rash and negligent driving accident was caused to deceased No.1 and 2, injuries to P.W.1 and one Konathala Baneeth.

16.The prosecution also examined P.W.4 who is an eye witness to the accident.

P.W.2 stated that on 24.12.2016 at about 3.30 p.m., while he was going from Gavarla

Anakapalle to Anakapalle and when he reached Nookalamma Arch on NH 16 road, he noticed that both the deceased were going on motor bike from Gavarla Anakapalle towards Anakapalle and while they were crossing the road at Nookalamma Arch, on NH 16 road, one lorry came in a high speed manner from Visakhapatnam towards

Kasimkota in wrong route and dashed against both the deceased and due to which both the deceased fell down from the motor cycle and sustained bleeding injuries and they were shifted to Government Hospital, Anakapalle for treatment and from there to Usha

Prime Hospital, Anakapalle for better treatment. He also deposed that deceased No.1 died on the same day due to the injuries sustained by him in the accident, whereas, deceased No.2 died due to injuries sustained by him in the accident in a hospital at

Visakhapatnam. He further deposed that he does not know the registration number of the crime vehicle and who drove the crime lorry at the time of the accident. It is pertinent to note here that though P.W.4 stated before the Police in his 161 Cr.P.C., statement that the driver of the lorry bearing registration No.AP 31 TF 3978, by name,

Usirika Gangarajum, S/o. Apparao drove the lorry in high speed in a rash and negligent manner and dashed two motor cycles, as stated above, he deposed that he does not know the registration number of the lorry and who drove the lorry at the time of the accident.

17.It is to be noted from the evidence of P.W.4 that nowhere he deposed that the crime lorry also dashed the motor cycle of P.W.1 and Baneeth and that both of them sustained injuries in the said accident. Even he did not depose that P.W.1 and Baneeth were also shifted to Hospital along with the deceased No.1 and 2. Further, it is the evidence of P.W.2 that the lorry came in a wrong route and dashed against the motor cycle of the deceased. But, P.W.1 who is the injured and direct witness to the accident has nowhere deposed that the lorry came in a wrong route and hit their motor cycle.

C.C.No.178/2017 7 XI Addl. Metropolitan Magistrate

Date 29.5.2020 Anakapalli

So, it is a discrepancy in the evidence of P.Ws 1 and 2 who are said to be the direct witnesses to the accident. Even EX.P14 rough sketch said to have prepared by the

Investigating Officer i.e., P.W.9 did not depict correct position of vehicles in it to come to a conclusion that who are at fault whether it is the driver of the crime lorry or the deceased persons and P.W.1. However, P.W.2 did not identify the accused as the driver of the crime lorry at the time of the accident. Therefore, the prosecution failed to prove the identity of the accused as the driver of the crime vehicle at the time of the accident and due to his rash and negligent driving of the crime lorry, the accident was caused to deceased No.1 and 2 and injuries to P.W.1 and Baneeth.

18.P.W.2 is M.V. Inspector who examined the crime vehicle and issued EX.P3 M.V.

Inspector’s report to Police. P.W.2 stated that he did not find any damages on the crime vehicle. If really, the crime vehicle dashed against the deceased, certainly, some part of the crime vehicle should be damaged. But, he did not find any damages on the crime vehicle. Any how, P.W.3 stated that the accident was not occurred due to any mechanical defects of the crime vehicle. Here, it is pertinent to note that the

Investigating Officer P.W.9 did not subject the motor cycles of P.W.1 and deceased No.1 and 2. When a fatal accident occurred of like nature, it is the duty of the Investigating

Officer to subject both the vehicles for inspection by Motor Vehicle Inspector to ascertain that the vehicles which were effected in the accident have no mechanical defects and the accident was caused only due to the rash and negligent driving of the crime vehicle by accused persons. P.W.3 is Medical Officer who issued EX.P4 and P5

Post Mortem Examination reports of deceased No.2 and 1 respectively. As per the opinion of P.W.3, both the deceased died due to shock and haemmorrage leading to cardio respiratory failure. Accused did not deny the evidence of P.W.3. P.W.8 is the

Medical Officer, who examined P.W.1 and one Konathala Baneeth and issued EX.P10 and P11 wound certificates. Here, the evidence of P.W.8 and Exs.10 and P11 wound certificates are not denied by the accused. P.Ws 6 and 7 who are present at the time of inquest held over the dead bodies of the deceased No.1 and 2 and they stated that

Police held inquest over the dead bodies of deceased No.1 and 2 in their presence and they have signed on EX.P7 and P9 respectively. P.W.5 is also one of the witness who was present at the time of the inquest held over the dead body of deceased No.1 and he deposed that in his presence Police held inquest over the dead body of deceased

C.C.No.178/2017 8 XI Addl. Metropolitan Magistrate

Date 29.5.2020 Anakapalli

No.1 and he signed on EX.P7 inquest report. P.W.5 also deposed that the Police also observed scene of offence in his presence and he signed on EX.P8 scene observation report. The accused did not deny the evidence of P.W.5 to 7 and Exs.P7, P9 inquest reports of deceased No.1 and 2 and EX.P8 scene observation report. However, the evidence of P.Ws2,3 and 5 to 8 is not at all helpful to the case of the prosecution to establish that the accused is the driver of the crime vehicle as on the date of the accident and he drove the same in a rash and negligent manner and caused the accident to the deceased No.1 and 2 and injuries to P.W.1 and one Konathala Bhaneeth.

Further, P.W.9 who is the Investigating Officer did not seize the records of the crime vehicle and did not collect any incriminating material against the accused. Even he did not examine the surrounding people of the scene of offence to elicit that the accused is the driver of the crime vehicle at the time of the accident and due to his rash and negligent driving, the accident occurred to the deceased.

19. In view of the above said circumstances, I am of the opinion that the prosecution miserably failed to bring home the guilt of the accused for the offence punishable under Sec.304-A and 337 of I.P.C beyond reasonable doubt. As such, benefit of doubt is given to the accused. Accordingly, this point is answered in favour of the accused against the prosecution.

20.In the result, the accused is found not guilty for the offence

punishable u/s.304-A and 337 of I.P.C. Accordingly, he is acquitted u/s.255(1)

Cr.P.C. The bail bonds of accused shall be in force for a period of six months

as per Section 437-A of Cr.P.C. As per the charge sheet, no property was

shown. Hence, no order as to the property.

Dictated to the Stenographer (Superintendent), transcribed by him, corrected and

pronounced by me in the open court on this the 29th day of May, 2020.

XI Addl. Metropolitan Magistrate, Anakapalle

Appendix of evidence //No. of Witnesses examined for // Prosecution: Defence: None: PW.1: Dadi Kumar (De facto-complainant and injured) PW.2: I. Venugopala Rao (M.V. Inspector) P.W.3:Dr. P. Ratna Kumar (Medical Officer – Autopsy) P.W.4:Alla Nooka Sreenivasa Rao (Direct witness) P.W.5:Alla Maheswara Rao (Witness for inquest report of deceased No.1 and scene observation report)

C.C.No.178/2017 9 XI Addl. Metropolitan Magistrate

Date 29.5.2020 Anakapalli

P.W.6:Dadi Venkata Suri Apparao (Witness for inquest reports of deceased No.1 and 2) P.W.7:Boddeda Venkata Rao (Witness for inquest report of deceased No.1) P.W.8:Dr. K. Raja Sagar (Medical Officer- Wound certificates of P.W.1 and Baneeth) P.W.9:K. Malleswara Rao (Sub-Inspector of Police and Investigating Officer) // No. of Exhibits marked for // Prosecution:Defence: Nil EX.P1/24.12.2016Statement given by P.W.1 to Anakapalle Traffic P.S. EX.P2/25.12.2016Death intimation given by P.W.1 with regard to the death of deceased No.1 Dadi Eswara Rao. EX.P3/26.12.2016M.V. Inspector’s report. EX.P4/2.1.2017Post Mortem examination report of deceased No.2 Dadi Atchiyyanaidu. EX.P5/25.12.2016Post Mortem examination report of deceased No.1 Dadi Eswara Rao. EX.P6/25.12.2016161 Cr.P.C., statement of P.W.4. EX.P7/25.12.2016Inquest report of deceased No.1 Dadi Eswara Rao. EX.P8/25.12.2016Scene observation report. EX.P9/2.1.2017Inquest report of deceased No.2 Dadi Atchiyyanaidu. EX.P10/24.12.2016Wound certificate of P.W.1 EX.P11/24.12.2016Wound certificate of P.W.2. EX.P12/24.12.2016Original FIR in Crime No.58/2016 of Anakapalle Traffic P.S., registered U/Sec.338 and 337 of IPC. EX.P13/25.12.2016 Altered FIR in Crime No.58/2016 of Anakapalle Traffic P.S., U/Sec.304-A of IPC. EX.P14/25.12.2016Rough sketch of the scene of offence.

MATERIAL OBJECTS

– Nil –

XI Addl. Metropolitan Magistrate, Anakapalli.

C.C.No.178/2017 10 XI Addl. Metropolitan Magistrate

Date 29.5.2020 Anakapalli

CALENDAR AND JUDGMENT

IN THE COURT OF THE XI Addl. METROPOLITAN MAGISTRATE: ANAKAPALLE

C.C.178/2017

01.Date of offence:24.12.2016

02.Date of Complaint :31.3.2017

03.Date of Apprehension of :30.7.2019 the accused

04. Release on bail :--

05.Commencement of trial:24.9.2019

06.Closure of trial:13.3.2020

07. Date of Judgment:29.5.2020

08.Explanation for delay:Cognizance of the offence U/sec.304-A and 337 of IPC was taken against the accused on 31.3.2017. On 24.9.2019, he was examined U/s.251 Cr.P.C on the substance of accusation. He denied the accusation and claimed to be tried. On 18.2.2020, he was examined U/s.313 Cr.P.C. on the incriminating material. He denied the incriminating material. On 13.3.2020 arguments heard. On 29.5.2020, Judgment

pronounced in the open court. Hence the

delay. The delay is due to non-production of witnesses by prosecution. No witness is retained beyond three days. (Due to Covid 19 Pandemic, as the Hon’ble High Court suspended the works of the Courts, the Judgment is pronounced on 29.5.2020 instead of pronouncing the Judgment on the given date i.e., on 27.3.2020)

09.Name of the complainant:The Sub-Inspector of Police, Anakapalle Traffic P.S. in Crime No.58/2016.

10. Name of the accused:Vusirikala Gangaraju, S/o. Apparao, r/o. Singavaram village, Kasimkota mandal, Visakhapatnam. 11Offence :U/Sec.304-A and 337 of IPC

12.Plea of the accused:Not guilty

13.Finding:Not Guilty

14.Sentence: In the result, the accused is found not guilty for the offence punishable u/s.304-A and 337 of I.P.C. Accordingly, he is acquitted u/s.255(1) Cr.P.C. The bail bonds of accused shall be in force for a period of six months as per Section 437-A of Cr.P.C. As per the charge sheet, no property was shown. Hence, no order as to the property.

XI Addl Metropolitan Magistrate, Anakapalle Copy Submitted to:

Hon'ble Chief Judicial Magistrate-cum-

Principal Senior Civil Judge,

Visakhapatnam.

C.C.No.178/2017 11 XI Addl. Metropolitan Magistrate

Date 29.5.2020 Anakapalli

Identification of the accused: PW.1 who is the injured in the accident categorically stated that she do not know who drove the car at the time of the accident. On perusal of Ex.P.1 statement wherein.

it clearly shows that P.W.1 did not disclose the name of the driver of the crime vehicle bearing registration No.AP 16 DH 9149 in it. She only stated before the police that the driver of the car bearing registration No.AP 16 DH 9149 drove the vehicle. P.W.7 who is said to be the owner of the crime vehicle bearing registration No.AP 16 DH 1949 deposed in his evidence that he hired his car to another person and he do not know the accused in this case. From the evidence of P.W.7, it is clear that though he is the owner of the crime vehicle, he stated that he do not know the accused herein. The only evidence available on record is the evidence of P.W.2. P.W.2 during her chief examination on 5.9.2018 deposed that she can identify the driver of the crime vehicle and her examination in chief is differed for continuation. On 26.9.2018, P.W.2 identified the accused as the driver of the crime vehicle at the time of the accident. As can be seen from the evidence on record, P.W.2 stated in her cross-examination that L.W.3 P.

Lakshmi informed her about the accident. It shows that P.W.2 is not a direct witness to the accident. So, the identification of the accused by P.W.2 in later course of her chief- examination in the Court for the first time cannot be believed. It is also not the case of the prosecution that the Investigating Officer got conducted test identification parade of the accused and got identified the accused through P.W.2 during the course of investigation. Therefore, the identification, if any, made by prosecution through P.W.2 cannot be believed in the above said facts and circumstances of the case. Therefore, the prosecution failed to prove the identity of the accused through P.Ws.1,2 and 7.

27. I relied upon a citation in between

Syed Zameer

vs

State of A.P.,

Reported in 2002(1) ALD (Crl) 903 (A.P).,

His lordships held at para 7 that

name of the accused did not find place at the earliest

point of time i.e., at the time of giving FIR. It is for the

prosecution to show that the accused was driving the

vehicle at the time of the incident and he was responsible

for causing the accident. If really the driver is known to

them, the injured would have identified the accused-

driver at the earliest point of time. The lorry and its trip

C.C.No.178/2017 12 XI Addl. Metropolitan Magistrate

Date 29.5.2020 Anakapalli

that were not seized. These are some of the

circumstances which carry doubt about the identity of the

person by the injured. They do not in any way inspire

confidence regarding the identify of the person who drove

the vehicle.

28. In an another case between

Piginaraji Ranga Rao

vs

State of A.P.,

reported in 2009(1) ALD (Cr.) 971 (A.P).,

His lord ships held that

the circumstances that there was no prior acquaintance

between the witness and accused and the fact that the

lorry was stopped at a distance of 20 or 25 feet from the

place of accident and the driver after stopping the lorry,

ran away from the place of accident, show that the

witnesses had no opportunity to have a good look at the

accused. In such circumstances, it is obligatory on the

part of the Investigating Officer to elicit the descritpive

particulars of the accused from the witnesses and to hold

Test Identification Parade, which would establish the case

of the prosecution beyond all reasonable doubt. When a

witness, who had no prior acquaintance with the accused

and who had seen the accused for the first time, for a few

seconds , states to the police that he can identify the

accused, the Investigating Officer should take steps for

holding the test identification parade to enable the

witness to identify the person involved in the offence who

was not previously known to them.

So it is obligatory on the part of the Investigating Officer to elicit the descriptive particulars of the accused from the witnesses by holding test identification parade. When the witnesses identified the accused in the test identification parade also before the court thus there would be no doubt to accept the evidence of such witnesses with regard to the identity of the accused as the driver of the crime vehicle.

But there is no such evidence with regard to identity of the accused as the driver of the crime vehicle.

***

C.C.No.320/2016 1 XI Addl. Metropolitan Magistrate

Date: 28.5.2020 Anakapalli

IN THE COURT OF THE XI Addl. METROPLITAN MAGISTRATE :: ANAKAPALLI

PRESENT: SRI Ch. L. Srinivasa Rao, B.A.L., B.L., XI Addl. Metropolitan Magistrate

Thursday, the 28 th day of May, 2020

Calendar Case No.320/2016

Between:

The State represented by the Sub-Inspector of Police, Anakapalle Rural Police Station.

...Complainant.

And

Koppala Govinda, S/o. Apparao, 20 yrs., SC Mala, Driver, SC Colony, Kundram village, Anakapalle mandal.

… Accused

This case coming on 13.3.2020 for final hearing before me in the presence of Smt. M.Chiranjeevi Kumari, Asst., Public Prosecutor for the State and of Sri S. Divakar, Advocate for the accused and the matter having stood over for consideration to this day, this court delivered the following:

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

The State represented by its Sub-Inspector of Police, Anakapalle Rural P.S laid a charge sheet against the accused in Crime No.39/2016 for the offence punishable

U/Sec.332 of IPC alleging that L.W.1 (Maddu Venkata Ramana) and L.W.2 (Mamidi Tata) are working as Conductor and Driver respectively in APSRTC, Anakapalle Depot. On 22.4.2016 at about 5.15 p.m., they were on duty in APSRTC bus bearing registration

No.AP 11 Z 716 and left from Thattabanda village to go to Anakapalle. At about 7.30 p.m., when the said bus reached Kundram village, L.W.5 (Koppala Kunti Devi) came and boarded the bus. While L.W.2 (Mamidi Tata) about to move the bus, the accused came there and warned L.W.2 (Mamidi Tata) who is the driver of the said bus to stop the bus or otherwise he will break the glasses of the bus. While the accused was pulling down L.W.5 (Koppala Kunti Devi) from the bus, L.W.1 (Maddu Venkata Ramana) who is the Conductor of the said bus asked the accused not to pull her as she would fell down. On that, the accused revolted on L.W.1 (Maddu Venkata Ramana) and assaulted him by beating him twice on his cheeks. L.Ws 3 to 5 (Pudi Varahalu, Kntada Raju and

Koppala Kunti Devi) witnessed the incident. Basing on the report of L.W.1 (Maddu

Venkata Ramana), L.W.8 (K. Sreenivasa Rao, Sub-Inspector of Police, Anakapalle Rural

P.S.,) registered the same as a case in Crime No.39/2016 for the offence punishable

U/Sec.332 of IPC and investigated into. During the course of investigation, he

C.C.No.320/2016 2 XI Addl. Metropolitan Magistrate

Date: 28.5.2020 Anakapalli

examined the witnesses, visited the scene of offence, observed the same and prepared rough sketch of the scene of offence. He served Section 41 A Cr.P.C., notice on the accused on 25.4.2016 when he surrendred before him. After completion of the investigation, L.W.8 (K. Srinivasa Rao, Sub-Inspector of Police, Anakapalle Rural P.S.) laid charge sheet against the accused for the offences punishable U/Sec.332 of IPC.

2.Basing on the charge sheet allegations and on perusal of other material available on record, this Court took cognizance of the offence U/s.332 of IPC against the accused.

3. On appearance of the accused before this Court, the relevant copies of documents were furnished to the accused as contemplated U/s.207 Cr.P.C.

4.Appearance and consideration, the accused was examined U/Sec.239 of Cr.P.C for the offence punishable U/s.332 IPC. A charge U/Sec.332 of IPC is framed against the accused U/Sec.240 Cr.P.C., read over and explained to him in Telugu, for which, the accused pleaded not guilty and claimed to be tried.

5.To prove its case, the prosecution examined PWs.1 to 8 and got marked Exs.P.1 to P8 on its behalf. None of the witnesses were examined on behalf of the accused.

The details of which are mentioned hereunder in Appendix of Evidence.

6.On being closed the prosecution side evidence, the incriminating circumstances that appearing in the testimony of the prosecution witnesses were explained to the accused u/s.313(1)(b) Cr.P.C, for which the accused denied the incriminating circumstances from the testimony of the prosecution witnesses.

7.Heard the learned A.P.P for prosecution and the learned counsel for the accused.

Perused the evidence of Pws.1 to 8 and Exs.P.1 to P.8.

8.Now the point that would arise for determination is –

Whether the prosecution is able to prove the guilt of the accused

for the offences punishable U/Sec.332 of IPC beyond reasonable

doubt?

9.The learned Asst., Public Prosecutor argued that the evidence of P.Ws1, 3, 4, 6 and 8 to 4 and Exs.P3 to P5 and P7 proved the case of the prosecution and prayed to convict the accused as per Law.

10.Learned Counsel for the accused argued that the accused never committed any offence against P.W.3 and P.Ws 1, 3 and 4 got filed a false case against him. He further argued that though P.W.3 identified the accused, the remaining direct witnesses did not

C.C.No.320/2016 3 XI Addl. Metropolitan Magistrate

Date: 28.5.2020 Anakapalli

corroborate with the evidence of P.W.3. Except the evidence of P.W.3, no other independent witnesses were examined by the Investigating Officer to prove the case of the prosecution. Learned Counsel for the accused further argued that there is no record showing that P.Ws. 1 and 3 were on duty at the time of the incident. He further argued that there is a delay of one day in lodging EX.P1 report by P.W.3 with the Police and no valid reasons are explained either by P.W.1 or the Investigating Officer i.e., P.W.

4. So many doubts arose in the entire version of the prosecution case and prayed to acquit the accused on benefit of doubt.

11.P O I N T :

Heard. Perused the record. I have carefully scrutinized the oral and documentary evidence apart from giving my anxious consideration to the rival contentions.

12.It is the case of the prosecution that on 22.4.2016 while P.W.1 being the driver and P.W.3 being the Conductor of an RTC Bus bearing registration No.AP 11 Z 716 were coming from Thattabanda village to Anakapalle and when they reached Kundram village, P.W.2 boarded the said bus. In the mean time, the accused came there and asked P.W.1 not to move the bus otherwise he would break the glasses of the bus. It is the further case of the prosecution that while he was pulling down P.W.2 from the bus, when P.W.3 asked him not to pulling down her from the bus, then the accused slapped twice on his cheeks. There is no dispute with regard to the fact that P.W.1 and 3 are working as driver and conductor respectively in APSRTC, Anakapalle Depot. The accused did not dispute the above fact. However, it is pertinent to note here that there is no documentary evidence produced by the Investigating Officer P.W.4 showing that P.Ws.1 and 3 were on duty as on the date of offence. P.W.4 did not collect the trip sheet or statistical return of the RTC bus bearing registration No.AP 11 Z 716 from P.W.3 to show that P.Ws 1 and 3 were on duty as on the date of the incident. Though P.W.8 then then Depot Manager of Anakapalle Depot stated in her cross-examination that

P.W.3 handed over the statistical return of the bus to Police, the evidence on record shows that the Investigating Officer P.W.4 did not seize the statistical return of the said bus. Even P.W.8 though deposed that P.Ws.1 and 3 are working as Driver and

Conductor in APSRTC, Anakapalle Depot, she did not produce any document before this

Court to show that P.Ws 1 and 3 were on duty as on the date of the incident. In the cases where criminal force or assault is made against the public servants by the

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Date: 28.5.2020 Anakapalli

accused persons while discharging their legitimate duties, it is prerequisite for the

Prosecution to establish that the said Public Servants were discharging their legitimate duties at the time of the incident. Here, the prosecution failed to prove that

P.Ws 1 and 3 were on duty as on the date of the incident.

13. However, it is to be noted from the cross-examination of P.W.3 that a large crowd of passengers were waiting to travel in their bus on that day. He denied the suggestion that while the driver of their bus was driving the bus to Anakapalle without stopping the same at Kudnram village, some of the passengers of that village stopped the bus at Kundram village and asked the driver of the bus why he was not stopped their bus at the bus stop of Kundram village as large crowd of passengers were waiting for the said bus. P.W.3 further denied the suggestion of the accused that the accused never stopped their bus by coming in front of the bus and never tried to beat the driver of the bus. When the above suggestions are read together, it shows that the accused has impliedly admitting the fact that P.Ws 1 and 3 were on duty as driver and conductor on the RTC bus bearing registration No. AP 11 Z 716 as on the date of the incident. Though the prosecution failed to prove that P.Ws 1 and 3 were on duty on the date of the incident in the RTC bus bearing registration No. AP 11 Z 716, the evidence on the record shows from the suggestions of the accused given to P.W.3 that P.Ws 1 and 3 were on duty as driver and conductor on the date of the incident in the RTC bus bearing registration No. AP 11 Z 716.

14.As per the case of the prosecution the on the date of the incident, when the RTC bus bearing registration No. AP 11 Z 716 was stopped at Kundram village, P.W.2 boarded the said bus and in the mean time, the accused came there and asked P.W.1 who was the driver of the said bus not to move the bus or else he would break the glasses of the said bus and later while he was trying to pull down P.W.2 from the bus,

P.W.3 asked the accused not to pull her and on that the accused revolted against P.W.3 and slapped twice on his cheeks. As per the case of the prosecution, P.Ws.1,2, 5 and 7 are direct witnesses to the incident, whereas, P.W.3 is the victim in the said incident.

P.W.1 who was the driver of the bus on the alleged date of the incident deposed that when they reached to Kundram village at about 7.30 p.m., on the date of the incident, one lady boarded their bus with her children and one person caught hold the hand of the said lady and pulled her down from the bus and in the meanwhile P.W.3 asked the

C.C.No.320/2016 5 XI Addl. Metropolitan Magistrate

Date: 28.5.2020 Anakapalli

said person either to come into the bus or get down from the bus, the said person slapped P.W.3 on his cheeks with hands. It is important to note here that though P.W.1 stated the name of the said person as Govindu, he stated that he cannot identify the said person even if the said person is shown to him. Therefore, P.W.1 who is the direct witness in this case did not depose any incriminating evidence against the accused.

Even he deposed that he cannot identify the said person even if he is shown to him.

Further, P.Ws 2, 5 and 7 who are said to be the eye witnesses to the incident completely turned hostile and did not support the case of the prosecution. However, during the cross-examination by the learned Asst., Public Prosecutor, P.Ws.1,2, 5 and 7 stated that they never stated before the Police as in their respetive Exs.P1, P2, P6 and

P8 161 Cr.P.C., statements. Nothing was drawn during their cross-examination in favour of the prosecution. So, from the evidence of P.Ws.1,3, 5 and 7, the prosecution miserably failed to prove the case against the accused.

15.When coming to the evidence of P.W.3 who is the conductor of the RTC bus bearing registration No.AP 11 Z 716 and victim in this case deposed that on 22.4.2016 in between 7.15 to 7.30 p.m., their bus reached Kundram village and the own sister and brother-in-law of the accused also boarded their bus along with other passengers and in the mean time, the accused came to the bus and raised cries to stop the bus by beating the bus with hands. He also deposed that the accused suddenly came in front of the bus and stopped the bus and asked the driver of the bus why he did not stop the bus even though he asked him to stop the bus and the accused came into the bus and tried to beat the driver of the bus. P.W.3 further deposed that he intervened between the accused and driver of the bus to rescue the driver of the bus and in that process the hand of the accused touched to his left cheek. The above evidence of P.W.3 is totally deviating from the case of the prosecution. Here, it is the clear case of the prosecution that the accused assaulted P.W.3 who is the conductor of the bus, but not in the manner as deposed by P.W.3. Even it is also the evidence of P.W.1 that one person beat P.W.3 twice on his cheeks with his hands. Even P.W.8 who is the then

Depot Manager of Anakapalle also deposed that P.W.3 informed her that he was slapped by one person. Even according to his EX.P3 report given to Police at the earliest point of time, it is the version of P.W.3 that the accused assaulted him. Even though the Medical Officer P.W.6 deposed that he examined P.W.3 on 23.4.2016 at

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about 8 p.m., and issued EX.P7 wound certificate, his evidence is noway helpful to the case of the prosecution in view of the contrary evidence given by P.W.3. Therefore, the evidence given by P.W.3 before this Court is quite contrary to the version of the prosecution and the evidence of P.W.1 and 8. Though P.W.3 identified the accused in the Court, his evidence cannot be taken into consideration as his evidence is not in accordance with his earlier version in EX.P3 report and his 161 Cr.P.C., statement.

P.W.3 deposed his own version than what he had earlier narrated in EX.P3 report.

Further, even the evidence of P.W.6 Medical Officer is also not at all helpful to the case of the prosecution as the injured i.e., P.W.3 himself deposed that accused was trying to beat P.W.1, but not P.W.3. Therefore, the evidence of P.W.3 cannot be countenanced at any cost and consequently obviated from consideration.

16.As can be seen from the material available on record, the incident occurred on 22.4.2016. As can be seen from EX.P3 report, it is dated 22.4.2016. But, EX.P3 report was registered by P.W.4 on 23.4.2016 at 7.30 p.m. Even as per the evidence of P.W.4

Investigating Officer, P.W.3 presented EX.P3 report on 23.4.2016. So, there is ambiguity with regard to the actual giving of report by P.W.3 to Police. It is remained unexplained by prosecution when EX.P3 report was given by P.W.1 whether it is on 22.4.2016 or 23.4.2016. So, it creates a doubt with regard to the giving of EX.P3 report given by P.W.1 to Police. Even assuming for a moment that EX.P3 report was given on 23.4.2016, there is a delay of one day from the date of occurrence. Admittedly, the incident occurred at 7.30 p.m., on 22.4.2016. The distance between the scene of offence and nearby Police Station i.e., Anakapalle Rural P.S., is only 10 kilometers. But, surprisingly, at column No.8 of EX.P4 FIR, P.W.4 mentioned it as ‘no delay’. In this context, I relied upon the decision between:

Govu Narasamma

vs

State of AP

Reported in 2007(2) ALD (Crl) Page 553 AP (D.B)

Their lordships held that

“FIR lodged 20 hours after the occurrence of incident,

though the Police Station was at a distance of 3km

from the scene of offence. No explanation was offered

for the said delay. On account of delay the report only

gets bereft of advantage of spontaneity, the danger

creeps in of introduction of coloured version

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Date: 28.5.2020 Anakapalli

exaggerated account or concocted story as a result of

deliberation and consultation of his friends and hence

it is unsafe to base conviction”. Even though the scene of offence is situated near to Anakapalle Rural Police

Station, P.W.3 did not lodge the report with the Police against the accused immediately after the incident. Further, the delay was not explained satisfactorily either by P.W.3 or

P.W.4 Investigating Officer. Here, on account of the said delay, which can be said that

Ex.P.3 report only gets their bereft of advantage of the spontaneity and danger creeps in of introduction of the coloured version, exaggerated account or concocted story as a result of deliberation and consultation of his friends, hence it is unsafe to base on conviction.

17.In view of the above said circumstances, I am of the opinion that the prosecution miserably failed to bring home the guilt of the accused for the offence punishable under Sec.332 of IPC beyond reasonable doubt. Accordingly, this point is answered in favour of the accused against the prosecution.

18.In the result, the accused is found not guilty for the offence

punishable u/sec.332 of IPC. Accordingly, he is acquitted U/Sec.248 (1)

Cr.P.C., for the said charge. The bail bonds of accused shall be in force for a

period of six months as per Section 437-A of Cr.P.C. As per the charge sheet,

no property was shown. Hence, no order as to the property.

Directly typed to my dictation by the Stenographer (Superintendent) , corrected and

pronounced by me in the open court on this the 28th day of May, 2020.

XI Addl. Metropolitan Magistrate, Anakapalle

Appendix of evidence //No. of Witnesses examined // Prosecution: Defence: None: PW.1: Mamdi Tata (Direct witness) P.W.2:Koppala Kunti Devi (Direct witness) P.W.3:Maddu Venkata Ramana (De facto-complainant) P.W.4:K. Sreenivasa Rao (Sub-Inspector of Police and Investigating Officer) P.W.5:Kintada Raju (Direct witness) P.W.6:Dr. D. Simhachalam Naidu (Medical Officer) P.W.7:Pudi Varahalu (Direct witness) P.W.8:Pakki Udayasri (the then Depot Manager, Anakapalle Depot) // No. of Exhibits marked for // Prosecution: EX.P1/23.4.2016161 Cr.P.C., statement of P.W.1. EX.P2/23.4.2016161 Cr.P.C., statement of P.W.2.

C.C.No.320/2016 8 XI Addl. Metropolitan Magistrate

Date: 28.5.2020 Anakapalli

EX.P3/22.4.2016Report given by P.W.1 to Anakapalle Rural Police. EX.P4/23.4.2016Original FIR in Crime No.39/2016 of Anakapalle Rural Police. EX.P5/23.4.2016Rough sketch of the scene of offence. EX.P6/23.4.2016161 Cr.P.C., statement of P.W.5. EX.P7/23.4.2016Wound certificate of P.W.3. EX.P8/23.4.2016161 Cr.P.C., statement of P.W.7. Defence: Nil

MATERIAL OBJECTS

– Nil –

XI Addl. Metropolitan Magistrate, Anakapalli.

C.C.No.320/2016 9 XI Addl. Metropolitan Magistrate

Date: 28.5.2020 Anakapalli

CALENDAR AND JUDGMENT

IN THE COURT OF THE XI Addl. METROPOLITAN MAGISTRATE: ANAKAPALLE

C.C.No.320/2016

01.Date of offence:22.4.2016

02.Date of Complaint :5.8.2016

03.Date of Apprehension of :28.8.2017 the accused

04. Release on bail :--

05.Commencement of trial:26.4.2019

06.Closure of trial:13.3.2020

07. Date of Judgment:28.5.2020

08.Explanation for delay:Cognizance of the offence U/sec.332 of IPC was taken against the accused on 5.8.2016. On 26.4.2019, he was examined U/s.251 Cr.P.C on the substance of accusation. He denied the accusation and claimed to be tried. On 4.3.2020, he was examined U/s.313 Cr.P.C. on the incriminating material. He denied the incriminating material. On 13.3.2020, arguments heard. On 28.5.2020, Judgment

pronounced in the open court. Hence the

delay. The delay is due to non-production of witnesses by prosecution. No witness is retained beyond three days. (Due to Covid 19 Pandemic, as the Hon’ble High Court suspended the works of the Courts, the Judgment is pronounced on 28.5.2020 instead of pronouncing the Judgment on the given date i.e., on 26.3.2020)

09.Name of the complainant:The Sub-Inspector of Police, Anakapalle Rural P.S., in Crime No.39/2016.

10. Name of the accused:Koppala Govinda, S/o. Apparao, 20 yrs., SC Mala, Driver, SC Colony, Kundram village, Anakapalle mandal. 11Offence U/SecU/Sec.332 of IPC :

12.Plea of the accused:Not guilty

13.Finding:Not Guilty

14.Sentence:In the result, the accused is found not guilty for the offence punishable u/sec.332 of IPC. Accordingly, he is acquitted U/Sec.248 (1) Cr.P.C., for the said charge. The bail bonds of accused shall be in force for a period of six months as per Section 437-A of Cr.P.C. As per the charge sheet, no property was shown. Hence, no order as to the property.

XI Addl Metropolitan Magistrate, Anakapalle Copy Submitted to:

Hon'ble Chief Judicial Magistrate-cum-

Principal Senior Civil Judge,

Visakhapatnam.

C.C.No.320/2016 10 XI Addl. Metropolitan

Magistrate

Date: 28.5.2020 Anakapalli

C CC.1095/2019 XI Addl Metropolitan Magistrate, 

Dated: 29.5.2020 1 Anakapalle 

IN THE COURT OF THE XI ADDL. METROPOLITAN MAGISTRATE: ANAKAPALLE

Present: - Sri Ch.L.Srinivasa Rao, B.A.L., B.L., XI Addl., Metropolitan Magistrate,

Friday, the 29 th day of May, 2020.

Calendar Case No.1095/2019

Between : The State, represented by Prohibition & Excise Sub-Inspector,

P & E Station, Anakapalli. ...Complainant

A n d: Adari Ananda Rao, S/o. Late Nookayya, 44 yrs., Gavara, Near Ramalayam, Venkupalem village, Anakapalle mandal, Visakhapatnam District.

...Accused

This case coming on 18.3.2020 for final hearing before me in the presence of Smt. M.Chiranjeevi Kumari, learned Asst., Public Prosecutor for complainant and Sri A.R.K. Appa Rao, Advocate for the accused and the matter having stood over for consideration till this day, this Court delivered the following:

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

1. The State represented by Proh. & Excise Sub-Inspector, P & E Station, Anakapalli laid a charge sheet against the accused in Crime No.93/2018 for the offence punishable u/s.34(a) of A.P. Excise Act, 1968.

2.The case of the prosecution may briefly be stated as follows:

On 4.8.2018 at about 4.45 p.m., L.W.3 (Smt. P. Santhi Lakshmi P & E., Sub-Inspector,

Anakapalle) along with her staff L.W.1 and 2 (Ch. Ramesh and M. Venkatalakshmi, P & E.,

Constables, Anakapalle) during the course of patrolling reached Venkupalem village and at vacant place beside Ramalayam of the said village, they noticed gathering of mob. On seeing them, the mob ran away from there and the accused was found with a white polythene bag in his hand. When the accused was trying to escape from that place,

L.W.3 (Smt. P. Santhi Lakshmi P & E., Sub-Inspector, Anakapalle) and her staff detained the accused and when she asked the accused about the contents of the said bag, the accused revealed that the said bag contained Liquor bottles. Then, L.W.3 (Smt. P. Santhi Lakshmi, P & E., Sub-Inspector, Anakapalle) deputed L.W.1 (Ch. Ramesh, P & E., Constable, Anakapalle) to secure mediators. As they could not secure mediators, L.W.3 (Smt. P. Santhi Lakshmi P &

E., Sub-Inspector, Anakapalle) verified the said bag in the possession of the accused and found five nip bottles of Director’s Special Fine Whisky 180 ml., each and four nip bottles of Officer’s Choice Reserve Whisky 180 ml., each. The accused further confessed that he purchased the said liquor bottles from near by wine shops and used to sell them at higher

C CC.1095/2019 XI Addl Metropolitan Magistrate, 

Dated: 29.5.2020 2 Anakapalle 

price for profit. The accused further confessed that he has no valid permit or licence to possess or sell the said liqour bottles. L.W.3 (Smt. P. Santhi Lakshmi P & E., Sub-Inspector, Anakapalle) arrested the accused, seized the contraband from the possession of the accused and drew sample under cover of an occurrence report. Later,

L.W.3 (Smt. P. Santhi Lakshmi P & E., Sub-Inspector, Anakapalle) registered the said occurrence report as a case in Crime No.131/2018 for the offence punishable U/Sec.34 (a) of A.P. Excise Act, 1968 and served Section 41 A Cr.P.C., notice on the accused. L.W.3 (Smt.

P. Santhi Lakshmi P & E., Sub-Inspector, Anakapalle) sent the sample bottle to the

Government Chemical Examiner for opinion. The Government Chemical Examiner examined the sample and opined that the sample is Indian Liquor. L.W.3 (Smt. P. Santhi Lakshmi P &

E., Sub-Inspector, Anakapalle) destroyed the remaining contraband as per the proceedings of the Dy. Commissioner of Prohibition and Excise, Visakhapatnam. After completion of the investigation, L.W.4 (B. Sreenivasa Rao, P & E., Sub-Inspector, Anakapalle) filed charge sheet against the accused for the offence punishable U/Sec.34 (a) of A.P. Excise Act.

3.On perusal of the material available on record, this court took cognizance for the offence u/s.34(a) of A.P Excise Act, against the accused.

4.On appearance of the accused before this court, the relevant copies of documents were furnished to the accused as contemplated U/s.207 Cr.P.C.

5.On hearing both parties, accused was examined u/s.239 Cr.P.C and framed charges u/s. 240 Cr.P.C for the offence U/Sec.34 (a) of A.P. Excise Act, 1968 against the accused, read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

6.To prove its case, the prosecution examined PW.1 and PW2 and got marked Exs.P.1 to P.3 besides M.Os.1 and 2 on its behalf. None of the witnesses were got examined and no documents were got marked on behalf of the accused. The details of which are mentioned hereunder in Appendix of Evidence.

7.After closure of the prosecution evidence, the accused was examined u/s.313 Cr.P.C.

by putting the incriminating evidence, read over and explained to him in Telugu, for which he denied the same. When the accused was called upon to enter upon his evidence, he reported no defence evidence.

8.Heard the learned Asst., Public Prosecutor for the State and the learned counsel for accused. Perused the evidence of P.W.1 and PW2, Exs.P.1 to P.3 and M.Os.1 and 2.

C CC.1095/2019 XI Addl Metropolitan Magistrate, 

Dated: 29.5.2020 3 Anakapalle 

9.The point for determination is -

Whether the prosecution has established the guilt of the accused

beyond reasonable doubt for the charge u/s.34 (a) of A.P. Excise Act?

10.The learned Asst., Public Prosecutor argued that the evidence of Pws.1 and PW2 and the contents of Exs.P.1 to P.3 and M.Os.1 and 2 proved the case of prosecution and prayed to convict the accused as per Law.

11.The learned defence counsel argued that PW.2 never seized any liquor bottles from the possession of the accused under the cover of Ex.P.1 occurrence report and he foisted this false case against the accused for statistical purpose only. He further argued that the prosecution did not choose to examine the Analyst, who issued Ex.P.3 Analysis Report and prayed to acquit the accused on benefit of doubt.

12. P O I N T:- Heard and perused the record. I have carefully scrutinized the oral and documentary evidence apart from giving my anxious consideration to the rival contentions.

13. P.W.2 is Sub-Inspector of Excise Police, Anakapalle who seized the alleged liquor bottles from the possession of the accused. PW.1 is Constable Pro., & Excise, Anakapalli who accompanied P.W.1.

14.P.W.2 deposed that on 4.8.2018 at about 4.45 p.m., during the inspection she seized the alleged five nip bottles of Director’s Special Fine Whisky 180 ml., each and four nip bottles of Officer’s Choice Reserve Whisky 180 ml., each under the cover of Ex.P.1

Occurrence report. According to the evidence of PW.1, he accompanied P.W.2 at the time of arrest of the accused and seizure of the property from the possession of the accused under cover of EX.P1 occurrence report.

15. But, here in the present case, the only evidence for the prosecution is that of PW1 and PW2. PWs.1 and 2 admitted in their cross examination that the scene of offence is situated in residential locality. When the scene of offence is situated in residential locality, naturally, the independent witnesses would be available to seize the alleged contraband in their presence. But, they did not do so. Even PW.2 did not issue any summons to the surrounding people of the scene of offence to act as mediators. P.W.2 did not issue any summons to the Village Revenue Officer or Village Revenue Assistant of Venkupalem village of Anakapalle mandal. Further, P.W.2 did not issue any seizure memo to the accused after seizing the alleged liquor bottles. On perusal of M.Os.1 and 2 wherein they clearly show that M.Os.1 and 2 sample bottles did not contain the signatures of either of

C CC.1095/2019 XI Addl Metropolitan Magistrate, 

Dated: 29.5.2020 4 Anakapalle 

accused or PW.2 on the slips affixed on it. Even she did not mention the batch numbers of the liquor bottle in Ex P1 occurrence report.

16.As per the evidence of PW.2, she seized the alleged contraband on 4.8.2018, but but as per EX.P3 Chemical Analysis report, P.W.1 sent the samples to Chemical Examiner on 10.8.2018. So, there is a delay of six days in sending the samples to the Analyst and the same was not explained by the prosecution.

In a case between –

S.Babu Saheb @ Babu

Vs.

The State of A.P.

Reported in 2009(4) A.P.L.J Page 57, (H.C)

His Lordships held at Para 24 that –

“It is held that the confession recorded by the Excise

Officials is in admissible evidence and it is further held that

the delay about three months in sending the sample bottle

to the chemical examiner is fatal to the case of prosecution

in the absence of explanation”.

So, as per the above decision, the delay in sending sample bottle to the

Chemical Examiner is fatal to the case of prosecution in the absence of explanation.

Further, the prosecution failed to explain above delay in sending the sample bottle to the

Chemical Examiner, as such it is fatal to the case of prosecution. Further, the chemical examiner was not cited as a witness in this case and was not examined by the prosecution to prove that he/she issued Ex.P.3 chemical analysis report stating that M.Os.1 and 2 are containing Indian Made Liquor.

17.Admittedly, PWs.1 and 2 are the official witness and interested witness to the prosecution case. No independent witness supported the case of the prosecution. Here,

PW.2 is the complainant and she is also the Investigating Officer in this case and she cannot be treated as an independent witness.

In the case reported in

Karolla Chinnaiah and another

Vs.

State of Andhra Pradesh

Reported in 2014(2) ALD (Crl.) 641 A.P

C CC.1095/2019 XI Addl Metropolitan Magistrate, 

Dated: 29.5.2020 5 Anakapalle 

His Lordship held at para 6 that –

“On the sole self-serving testimony of defacto-

complainant-cum-Investigating Officer is not at all correct.

Particularly, when the evidence of PW.1 creates some doubt

as to the correctness of his search on 5.7.2002, both trial

Court and appellate Court have grossly erred in accepting

the evidence of PW.1, without any corroboration. In fact,

this objection was raised before the trial Court, but the

learned Trial Judge referring to Sec.134 of Evidence Act

observed that as there is no quantum fixing the minimum

number of witnesses, the Court can act on the solitary

testimony. No doubt, there is no quantum fixing any

number of witnesses to be examined and solitary testimony

can be accepted. But that solitary testimony should be free

from all doubts highly trustworthy and convincing. But,

here this PW.1 being the complainant and Investigating

Officer is naturally interested in getting a conviction. He

cannot be treated as an independent witness and he cannot

be compared on par with a prosecutorix in a rape case or a

victim in an offence of outraging the modesty of woman. On

a scrutiny of the material, I am of the view that both trial

Court and appellate Court have committed error in relying

on solitary testimony of PW.1 for convicting the revision

petitioners and therefore, the judgment of Courts below are

liable to be set aside.”

As per above decision, PW.2 being the complainant and Investigation Officer of this case, naturally she is interested in getting conviction to the accused. The sole self serving statement of PW.2 is not at all acceptable without any corroboration of any independent witness.

18.Further, the entire prosecution case was based on the confessional statement given by the accused. According to Sec.25 and 26 of the Indian Evidence Act, the confessional statement of the accused before the Police cannot be admissible in evidence and fatal to the case of the prosecution.

19.In view of the above said circumstances, I am of the opinion that the prosecution miserably failed to bring home the guilt of the accused for the offence punishable U/Sec.34

(a) of A.P. Excise Act beyond all reasonable doubt. As such the accused is given benefit of doubt for the said charge. Accordingly, this point is answered in favour of the accused and against the prosecution.

20. In the result, the accused is found not guilty for the charge punishable

u/s.34 (a) of A.P, Excise Act. Accordingly, the accused is acquitted u/s.248(1)

Cr.P.C. The bail bonds of the accused shall be in force for a period of six months

as per Section 437-A of Cr.P.C. M.Os.1 and 2 sample bottles (Vide Item

C CC.1095/2019 XI Addl Metropolitan Magistrate, 

Dated: 29.5.2020 6 Anakapalle 

No.56/2020) shall be destroyed after expiry of appeal time.

Typed to my dictation by Stenographer (Superintendent), corrected and pronounced by me in open court on this the 29th day of May, 2020.

XI Addl. Metropolitan Magistrate,

Anakapalle.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION: PW.1 N. Ramesh, (P & E., Constable, Anakapalle) P.W.2Smt.P. Santhi Lakshmi ( P & E., Sub-Inspector, Anakapalle)

DEFENCE: None

DOCUMENTS MARKED

PROSECUTION: DEFENCE:

Ex.P.1/4.8.2018 Occurrence report Ex.P.2/4.8.2018 Original FIR in Crime No.93/2018 of P & E., Station, Anakapalle. EX.P3/10.8.2018 Chemical Analysis report

MATERIAL OBJECTS

M.O.1 – Sample bottle of Director’s Special Elite Whisky. M.O.2 -Sample bottle of Officer’s Choice Reserve Whisky.

XI AMM/AKP

C CC.1095/2019 XI Addl Metropolitan Magistrate, 

Dated: 29.5.2020 7 Anakapalle 

CALENDAR AND JUDGMENT

IN THE COURT OF THE XI Addl. METROPOLITAN MAGISTRATE: ANAKAPALLE

Calendar Case No.1095/2019

01.Date of offence:On 4.8.2018

02.Date of report or :18.10.2019 Complaint

03.Date of Apprehension of :6.1.2020 the accused

04. Date of Release on bail :--

05.Date of commencement of :3.2.2020 trial

06.Date of closure of trial:18.3.2020

07. Date of Judgment:29.5.2020

08.Explanation for delay:Cognizance of the offence U/sec.34 (a) of A.P. Excise Act was taken against the accused on 18.10.2019. On 3.2.2020, he was examined U/s.239 Cr.P.C on the substance of accusation. He denied the accusation and claimed to be tried. On 11.3.2020, he was examined U/s.313 Cr.P.C. on the incriminating material. He denied the incriminating material. On 18.3.2020, arguments heard. On 29.5.2020, Judgment

pronounced in the open court. Hence the delay.

The delay is due to non-production of the witnesses by prosecution. No witness is retained beyond three days. (Due to lock down, as the Hon’ble High Court suspended the works of the Courts, the Judgment is pronounced on 29.5.2020 instead of given date i.e., on 31.3.2020)

09.Name of the complainant:The State, represented by Prohibition & Excise Sub-Inspector, P & E Station, Anakapalli in Crime No.93/2018

10. Name of the accused:Adari Ananda Rao, S/o. Late Nookayya, 44 yrs., Gavara, Near Ramalayam, Venkupalem village, Anakapalle mandal, Visakhapatnam District. 11Offence : U/Sec.34(a) of A.P. Excise Act

12.Plea of the accused:Not guilty

13.Finding:Not guilty

14.Sentence: In the result, the accused is found not guilty for the charge punishable u/s.34 (a) of A.P, Excise Act. Accordingly, the accused is acquitted u/s.248(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as per Section 437-A of Cr.P.C. M.Os.1 and 2 sample bottles (Vide Item No.56/2020) shall be destroyed after expiry of appeal time.

XI Addl. Metropolitan Magistrate, Anakapalle

Copy Submitted to:

Hon'ble Chief Judicial Magistrate-cum-

Principal Senior Civil Judge, Visakhapatnam.

In Dis.No. dt.

C CC.1086/2019 XI Addl Metropolitan Magistrate, 

Dated: 29.5.2020 1 Anakapalle 

IN THE COURT OF THE XI ADDL. METROPOLITAN MAGISTRATE: ANAKAPALLE

Present: - Sri Ch.L.Srinivasa Rao, B.A.L., B.L., XI Addl., Metropolitan Magistrate,

Friday, the 29 th day of May, 2020.

Calendar Case No.1086/2019

Between : The State, represented by Prohibition & Excise Sub-Inspector,

P & E Station, Anakapalli. ...Complainant

A n d: Golagani Tata, S/o.late Ramulu, 55 yrs., Mangali, D.No.2-33, Jagannadhapuram village, Anakapalle mandal, Visakhapatnam.

...Accused

This case coming on 18.3.2020 for final hearing before me in the presence of Smt. M.Chiranjeevi Kumari, learned Asst., Public Prosecutor for complainant and Smt. K. Lakshmi, Legal Aid Counsel for the accused and the matter having stood over for consideration till this day, this Court delivered the following:

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

1. The State represented by Proh. & Excise Sub-Inspector, P & E Station, Anakapalli laid a charge sheet against the accused in Crime No.16/2019 for the offence punishable u/s.34(a) of A.P. Excise Act, 1968.

2.The case of the prosecution may briefly be stated as follows:

On 29.1.2019 at about 1.10 p.m., L.W.3 (Smt. P. Santhi Lakshmi P & E., Sub-

Inspector, Anakapalle) along with her staff L.W.1 and 2 (B. Chalam Naidu,, P & E., Head

Constable, Anakapalle and Smt. L. Umadevi, P & E., Constable) during the course of patrolling reached Jagannadhapuram village of Anakapalle mandal and there at a vacant place, they noticed that the accused was coming in their opposite direction with a white polythene bag. On seeing them, when the accused was trying to escape from that place,

L.W.3 (Smt. P. Santhi Lakshmi P & E., Sub-Inspector, Anakapalle) and her staff detained the accused and when she asked the accused about the contents of the said bag, the accused revealed that the said bag contained Liquor bottles. Then, L.W.3 (Smt. P. Santhi Lakshmi P & E., Sub-Inspector, Anakapalle) deputed L.W.1 (B. Chalam Naidu, P & E., Head Constable,

Anakapalle) to secure mediators. As they could not secure mediators, L.W.3 (Smt. P. Santhi

Lakshmi P & E., Sub-Inspector, Anakapalle) verified the said bag in the possession of the accused and found twelve nip bottles of Director’s Special Elite Whisky 180 ml., each.

The accused further confessed that he purchased the said liquor bottles from near by wine shops and used to sell them at higher price for profit. The accused further

C CC.1086/2019 XI Addl Metropolitan Magistrate, 

Dated: 29.5.2020 2 Anakapalle 

confessed that he has no valid permit or licence to possess or sell the said liqour bottles. L.W.3 (Smt. P. Santhi Lakshmi P & E., Sub-Inspector, Anakapalle) arrested the accused, seized the contraband from the possession of the accused and drew sample under cover of an occurrence report. Later, L.W.3 (Smt. P. Santhi Lakshmi P & E., Sub-

Inspector, Anakapalle) registered the said occurrence report as a case in Crime No.16/2019 for the offence punishable U/Sec.34 (a) of A.P. Excise Act, 1968 and served Section 41 A

Cr.P.C., notice on the accused. L.W.3 (Smt. P. Santhi Lakshmi P & E., Sub-Inspector,

Anakapalle) sent the sample bottle to the Government Chemical Examiner for opinion. The

Government Chemical Examiner examined the sample and opined that the sample is Indian

Liquor. L.W.3 (Smt. P. Santhi Lakshmi P & E., Sub-Inspector, Anakapalle) destroyed the remaining contraband as per the proceedings of the Dy. Commissioner of Prohibition and

Excise, Visakhapatnam. After completion of the investigation, L.W.4 (B. Sreenivasa Rao, P &

E., Sub-Inspector, Anakapalle) filed charge sheet against the accused for the offence punishable U/Sec.34 (a) of A.P. Excise Act.

3.On perusal of the material available on record, this court took cognizance for the offence u/s.34(a) of A.P Excise Act, against the accused.

4.On appearance of the accused before this court, the relevant copies of documents were furnished to the accused as contemplated U/s.207 Cr.P.C.

5.On hearing both parties, accused was examined u/s.239 Cr.P.C and framed charges u/s. 240 Cr.P.C for the offence U/Sec.34 (a) of A.P. Excise Act, 1968 against the accused, read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried. As the accused represented before this Court that he has no means to engage an

Advocate to defend this case, this Court appointed Smt. K. Lakshmi, Legal Aid Counsel to defend the accused in this case.

6.To prove its case, the prosecution examined PW.1 and PW2 and got marked Exs.P.1 to P.3 besides M.O.1 on its behalf. None of the witnesses were got examined and no documents were got marked on behalf of the accused. The details of which are mentioned hereunder in Appendix of Evidence.

7.After closure of the prosecution evidence, the accused was examined u/s.313 Cr.P.C.

by putting the incriminating evidence, read over and explained to him in Telugu, for which he denied the same. When the accused was called upon to enter upon his evidence, he reported no defence evidence.

C CC.1086/2019 XI Addl Metropolitan Magistrate, 

Dated: 29.5.2020 3 Anakapalle 

8.Heard the learned Asst., Public Prosecutor for the State and the learned counsel for accused. Perused the evidence of P.W.1 and PW2, Exs.P.1 to P.3 and M.O.1.

9.The point for determination is -

Whether the prosecution has established the guilt of the accused

beyond reasonable doubt for the charge u/s.34 (a) of A.P. Excise Act?

10.The learned Asst., Public Prosecutor argued that the evidence of Pw.1 and PW2 and the contents of Exs.P.1 to P.3 and M.O.1 proved the case of prosecution and prayed to convict the accused as per Law.

11.The learned defence counsel argued that PW.2 never seized any liquor bottles from the possession of the accused under the cover of Ex.P.1 occurrence report and he foisted this false case against the accused for statistical purpose only. He further argued that the prosecution did not choose to examine the Analyst, who issued Ex.P.3 Analysis Report and prayed to acquit the accused on benefit of doubt.

12. P O I N T:- Heard and perused the record. I have carefully scrutinized the oral and documentary evidence apart from giving my anxious consideration to the rival contentions.

13. P.W.2 is Sub-Inspector of Excise Police, Anakapalle who seized the alleged liquor bottles from the possession of the accused. PW.1 is the Constable Pro., & Excise,

Anakapalli who accompanied P.W.2.

14.P.W.2 deposed that on 29.1.2019 at about 1.10 p.m., during the inspection she seized the alleged twelve nip bottles of Director’s Special Elite Whisky 180 ml., each under the cover of Ex.P.1 Occurrence report. According to the evidence of PW.1, she accompanied P.W.2 at the time of arrest of the accused and seizure of the property from the possession of the accused under cover of EX.P1 occurrence report.

15. But, here in the present case, the only evidence for the prosecution is that of PW1 and PW2. PWs.1 and 2 admitted in their cross examination that the scene of offence is situated in residential locality. When the scene of offence is situated in residential locality, naturally, the independent witnesses would be available to seize the alleged contraband in their presence. But, they did not do so. Even PW.2 did not issue any summons to the surrounding people of the scene of offence to act as mediators. P.W.2 did not issue any summons to the Village Revenue Officer or Village Revenue Assistant of

Jaggannadhapuram village of Anakapalle mandal. Further, P.W.2 did not issue any seizure memo to the accused after seizing the alleged liquor bottles. On perusal of M.O.1 wherein

C CC.1086/2019 XI Addl Metropolitan Magistrate, 

Dated: 29.5.2020 4 Anakapalle 

it clearly shows that M.O.1 sample bottle did not contain the signatures of either of accused or PW.2 on the slips affixed on it. Even she did not mention the batch numbers of the liquor bottle in Ex P1 occurrence report.

16.As per the evidence of PW.2, she seized the alleged contraband on 29.1.2019, but as per EX.P3 Chemical Analysis report, P.W.2 sent the samples to Chemical Examiner on 2.2.2019. So, there is a delay of four days in sending the samples to the Analyst and the same was not explained by the prosecution.

In a case between –

S.Babu Saheb @ Babu

Vs.

The State of A.P.

Reported in 2009(4) A.P.L.J Page 57, (H.C)

His Lordships held at Para 24 that –

“It is held that the confession recorded by the Excise

Officials is in admissible evidence and it is further held that

the delay about three months in sending the sample bottle

to the chemical examiner is fatal to the case of prosecution

in the absence of explanation”.

So, as per the above decision, the delay in sending sample bottle to the

Chemical Examiner is fatal to the case of prosecution in the absence of explanation.

Further, the prosecution failed to explain above delay in sending the sample bottle to the

Chemical Examiner, as such it is fatal to the case of prosecution. Further, the chemical examiner was not cited as a witness in this case and was not examined by the prosecution to prove that he/she issued Ex.P.3 chemical analysis report stating that M.O.1 is containing

Indian Made Liquor.

17.Admittedly, PWs.1 and 2 are the official witness and interested witness to the prosecution case. No independent witness supported the case of the prosecution. Here,

PW.2 is the complainant and she is also the Investigating Officer in this case and she cannot be treated as an independent witness.

In the case reported in

Karolla Chinnaiah and another

Vs.

State of Andhra Pradesh

Reported in 2014(2) ALD (Crl.) 641 A.P

C CC.1086/2019 XI Addl Metropolitan Magistrate, 

Dated: 29.5.2020 5 Anakapalle 

His Lordship held at para 6 that –

“On the sole self-serving testimony of defacto-

complainant-cum-Investigating Officer is not at all correct.

Particularly, when the evidence of PW.1 creates some doubt

as to the correctness of his search on 5.7.2002, both trial

Court and appellate Court have grossly erred in accepting

the evidence of PW.1, without any corroboration. In fact,

this objection was raised before the trial Court, but the

learned Trial Judge referring to Sec.134 of Evidence Act

observed that as there is no quantum fixing the minimum

number of witnesses, the Court can act on the solitary

testimony. No doubt, there is no quantum fixing any

number of witnesses to be examined and solitary testimony

can be accepted. But that solitary testimony should be free

from all doubts highly trustworthy and convincing. But,

here this PW.1 being the complainant and Investigating

Officer is naturally interested in getting a conviction. He

cannot be treated as an independent witness and he cannot

be compared on par with a prosecutorix in a rape case or a

victim in an offence of outraging the modesty of woman. On

a scrutiny of the material, I am of the view that both trial

Court and appellate Court have committed error in relying

on solitary testimony of PW.1 for convicting the revision

petitioners and therefore, the judgment of Courts below are

liable to be set aside.”

As per above decision, PW.2 being the complainant and Investigation Officer of this case, naturally she is interested in getting conviction to the accused. The sole self serving statement of PW.2 is not at all acceptable without any corroboration of any independent witness.

18.Further, the entire prosecution case was based on the confessional statement given by the accused. According to Sec.25 and 26 of the Indian Evidence Act, the confessional statement of the accused before the Police cannot be admissible in evidence and fatal to the case of the prosecution.

19.In view of the above said circumstances, I am of the opinion that the prosecution miserably failed to bring home the guilt of the accused for the offence punishable U/Sec.34

(a) of A.P. Excise Act beyond all reasonable doubt. As such the accused is given benefit of doubt for the said charge. Accordingly, this point is answered in favour of the accused and against the prosecution.

20. In the result, the accused is found not guilty for the charge punishable

u/s.34 (a) of A.P, Excise Act. Accordingly, the accused is acquitted u/s.248(1)

Cr.P.C. The bail bonds of the accused shall be in force for a period of six months

as per Section 437-A of Cr.P.C. M.O.1 tsample bottle (Vide Item No.54/2020)

C CC.1086/2019 XI Addl Metropolitan Magistrate, 

Dated: 29.5.2020 6 Anakapalle 

shall be destroyed after expiry of appeal time.

Typed to my dictation by Stenographer (Superintendent), corrected and pronounced by me in open court on this the 29th day of May, 2020.

XI Addl. Metropolitan Magistrate,

Anakapalle.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION: PW.1 L. Uma Devi, (P & E., Constable, Anakapalle) P.W.2Smt.P. Santhi Lakshmi ( P & E., Sub-Inspector, Anakapalle)

DEFENCE: None

DOCUMENTS MARKED

PROSECUTION: DEFENCE:

Ex.P.1/29.1.2019 Occurrence report Ex.P.2/29.1.2019 Original FIR in Crime No.16/2019 of P & E., Station, Anakapalle. EX.P3/5.2.2019 Chemical Analysis report

MATERIAL OBJECTS

M.O.1 – Sample bottle of Director’s Special Elite Whisky.

XI AMM/AKP

C CC.1086/2019 XI Addl Metropolitan Magistrate, 

Dated: 29.5.2020 7 Anakapalle 

CALENDAR AND JUDGMENT

IN THE COURT OF THE XI Addl. METROPOLITAN MAGISTRATE: ANAKAPALLE

Calendar Case No.1086/2019

01.Date of offence:On 29.1.2019

02.Date of report or :14.10.2019 Complaint

03.Date of Apprehension of :6.1.2020 the accused

04. Date of Release on bail :--

05.Date of commencement of :27.1.2020 trial

06.Date of closure of trial:18.3.2020

07. Date of Judgment:29.5.2020

08.Explanation for delay:Cognizance of the offence U/sec.34 (a) of A.P. Excise Act was taken against the accused on 14.10.2019. On 27.1.2020, he was examined U/s.239 Cr.P.C on the substance of accusation. He denied the accusation and claimed to be tried. On 11.3.2020, he was examined U/s.313 Cr.P.C. on the incriminating material. He denied the incriminating material. On 18.3.2020, arguments heard. On 29.5.2020, Judgment

pronounced in the open court. Hence the delay.

The delay is due to non-production of the witnesses by prosecution. No witness is retained beyond three days. (Due to Covid 19 Pandemic, as the Hon’ble High Court suspended the works of the Courts, the Judgment is pronounced on 29.5.2020 instead of pronouncing the Judgment on the given date i.e., on 31.3.2020)

09.Name of the complainant:The State, represented by Prohibition & Excise Sub-Inspector, P & E Station, Anakapalli in Crime No.16/2019

10. Name of the accused:Golagani Tata, S/o.late Ramulu, 55 yrs., Mangali, D.No.2-33, Jagannadhapuram village, Anakapalle mandal, Visakhapatnam. 11Offence : U/Sec.34(a) of A.P. Excise Act

12.Plea of the accused:Not guilty

13.Finding:Not guilty

14.Sentence:In the result, the accused is found not guilty for the charge punishable u/s.34 (a) of A.P, Excise Act. Accordingly, the accused is acquitted u/s.248(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as per Section 437-A of Cr.P.C. M.O.1 sample bottle (Vide Item No.54/2020) shall be destroyed after expiry of appeal time.

XI Addl. Metropolitan Magistrate, Anakapalle

Copy Submitted to:

Hon'ble Chief Judicial Magistrate-cum-

Principal Senior Civil Judge, Visakhapatnam.

In Dis.No. dt.

1

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE AT

ANAKAPALLE

Present : Sri Ch.L.Srinivasa Rao

I Addl.Junior Civil Judge / Anakapalle

(FAC) Principal Junior Civil Judge / Anakapalle

Thursday, the 12 th day of March, 2020

ORIGINAL SUIT NO.89/2017

Between:

Boddeda Padmavathi, Wo.Sanjeevarao, Hindu, aged 49 years, Household duties, resident of D.No. 5-6-72, Lakshmidevipeta, Anakapalle, Visakhapatnam District.

…..… Plaintif

And

Boddeda Krishna Rao, S/o. Kondala Rao, Hindu, aged 55 years, employee in Andhra Bank, Woodpeta, Anakapalle, Visakhapatnam District

…...... Defendant

This suit came up on 5-3-2020 for final hearing before me in the presence of Sri K.V.S.S.Raju, Learned counsel for plaintif and Sri K.Siva Kesava Rao and Ch.I.Micheal, Learned counsels for defendant and upon hearing their arguments and having stood over for consideration till this day, the court delivered the following:

JUDGMENT

This suit is filed for recovery of an amount of Rs.1,60,200/- being the principal and interest due under promissory note 12-12-2014 borrowed and executed by the defendant in favour of plaintif for Rs.1,00,000/- with interest at 24% p.a., for costs.

2.The case of the plaintiff as set out in the plaint as follows:

The plaintif submit that the defendant borrowed an amount of Rs.1,00,000/- from her on 12-12-2014 for his family 2 expenses and executed suit promissory note on the even date and agreeing to repay the same with interest @ 24% p.a. either to the plaintif or her order on demand.

Subsequently, in spite of repeated demands made by the plaintif both orally, through legal notice dt. 8-3-2017, the defendant failed to pay the suit promissory note amount to her and postponing the same on some pretext or other. Hence, the plaintif is constrained to file present suit against the defendant.

3.The defendant filed written statement by denying the allegations of the plaintif and inter-alia contending that he never borrowed any amount from the plaintif and never executed suit promissory note in her favour and suit promissory note is forged one and brought into existence in collusion with the henchmen of the plaintif and the suit promissory note is also materially altered. There is no cause of action against the defendant and the suit is not maintainable under law and it is barred by limitation and prayed to dismiss the suit with costs.

4. Basing on the above pleadings, my predecessor framed following issues for trail :

1. Whether the suit promissory note is true, valid and binding on the defendant ?

2.Whether the suit promissory note is supported by consideration ?

3.Whether the plaintif is entitled to recover the suit amount from the defendant as prayed for ?

4.Whether the suit promissory note forged document ?

5. To what relief ?

5.On behalf of plaintif, PW1 and PW2 were examined and 3 Ex.A1 to A3 were got marked. On behalf of the defendant, himself examined DW1 and no documents were marked on his behalf.

6.Heard on both sides

7.Perused the pleadings and evidence of both parties and documents of the plaintif.

8. Issue No.1 to 4 : It is the contention of PW1 that defendant borrowed an amount of Rs.1,00,000/- from her on 12- 12-2014 and executed Ex.A1/suit promissory note on the even date in her favour. Per contra whereas it is the contention of defendant that Ex.A1 suit promissory note is created by the plaintif by forging the signature of the defendant. Since the defendant is denying the allegations of the plaintif the initial burden lies on him to prove the execution of Ex.A1 suit promissory note by the defendant.

9.In order to prove her case, the plaintif herself examined as

PW1. She also examined one K.Hari who is one of the attestor of the Ex.A1 suit promissory note as PW2 and she is relied upon

Ex.A1 to A3. PW1 deposed that on 12-12-2014 the defendant borrowed an amount of Rs.1,00,000/- from her and on the even date the defendant executed Ex.A1 suit promissory note in her favour agreeing to repay the same with interest @ 24% p.a.

either to the plaintif or her order on demand. She further deposed that the defendant received an amount of Rs. 1,00,000/- from PW1 in the presence of PW2 and one A.Rama Koteswara

Rao. PW1 further deposed that one Miriyala Venkata Satya Surya

Krishna Prasad scribed the Ex.A1 suit promissory note and PW2 and A.Rama Koteswara Rao attested on suit promissory note and 4 defendant signed on Ex.A1 suit promissory note as an executant in their presence after receiving the Rs.1,00,000/- under the consideration of Ex.A1 suit promissory note amount. She further deposed that subsequently, the defendant failed to repay the

Ex.A1 suit promissory note amount to her in spite of issuing

Ex.A2 legal notice to the defendant.

10.PW2 who is one of the attestors of Ex.A1 suit promissory note deposed that in the presence of PW2, one A.Rama

Koteswara Rao and Miriyala Venkata Satya Surya Krishna Prasad the defendant received an amount of Rs.1,00,000/- from PW1 and executed Ex.A1 suit promissory note in her favour evidencing the same. He further deposed that Miriyala Venkata

Satya Surya Krishna Prasad scribed Ex.A1 suit promissory note in the presence of PW1 and PW2 and defendant and A.Rama

Koteswara Rao and he was signed on Ex.A1 suit promissory note as a scribe. PW2 and Adari Rama Koteswara Rao attested on

Ex.A1 as attestors. The defendant subscribed his signature on

Ex.A1 in their presence as an executant. Further PW2 deposed that the entire Ex.A1 suit promissory note transaction took place in the presence of PW1 and PW2, A.Rama Koteswara Rao and

Miriyala Venkata Satya Surya Krishna Prasad and defendant. As can be seen from the evidence of Pws 1 and 2 wherein PW1 and 2 denied the suggestion of the defendant that he never borrowed any amount from the PW1 and never executed Ex.A1 suit promissory note in her favour and it is created by forgery. Except the suggestion denial nothing was elicited by the defendant, during cross examination of PW1 and PW2 to disbelieve their 5 testimony. No ill-feelings were attributed against PW1 and 2 to go to the extend of creating the Ex.A1 suit promissory note by forging the signature of the defendant. On perusal of Ex.A1 suit promissory note wherein it is clearly establishes that the defendant received an amount of Rs. 1,00,000/- from the PW1 on 12-12-2014 in the presence of PW2 and one A.Rama Koteswara

Rao and Miriyala Venkata Satya Surya Krishna Prasad and execution of Ex.A1 suit promissory note in her favour in their presence evidencing the same. The contents of Ex.A2 legal notice also clearly corroborating with the evidence of PW1 and

PW2 and Ex.A1. So, I find no reasons to deny the evidence of

PW1 and 2 and Ex.A1 to A3. So, the evidence of PW1 and 2 and

Ex.A1 to A3 clearly establishes that Ex.A1 is true one but not forged one.

11.Since the plaintif discharged her initial burden the burden shifted on the defendant to disprove the execution of Ex.A1. To disprove that the defendant himself examined as DW1. He categorically reiterated the averments of written statement in his chief examination affidavit by stating that he never borrowed any amount from the plaintif and he never executed Ex.A1 suit promissory note in her favour, and is created by forgery. If really,

Ex.A1 suit promissory note is created by the plaintif by forging the signature of the defendant with the help of attestors and scribe of Ex.A1. Certainly the defendant would have sent Ex.A1 suit promissory note to the expert along with his admitted and contemporaneous signatures for comparison purpose. But, he did not do so. As can be seen from the cross examination of PW1 6 wherein the defendant stated that he cannot say whether he will send Ex.A1 suit promissory note to the expert for comparison purpose or not. So, the evidence of DW1 clearly shows that he has no interest to send the Ex.A1 suit promissory note to the expert for comparison purpose. So, from this it is appears that the defendant must be sure that the signature on Ex.A1 suit promissory note is that of DW1 that is why the defendant has not taken any steps to send the Ex.A1 suit promissory note along with his admitted and contemporaneous signature to the expert for comparison purpose. Even the defendant has not adduced any evidence on his behalf to establish that Ex.A1 suit promissory note is created by forgery.

12.As can be seen from the cross examination of PW1 wherein

DW1 has admitted that the plaintif has got issued a legal notice

Ex.A2 to the defendant through his counsel prior to the filing of this suit and he received the said notice under Ex.A3 acknowledgment. Further, Ex.A2 and A3 also clearly establishing the same. If really, Ex.A1 suit promissory note is created by forgery as to what prevented the defendant to send the reply notice either personally or through his counsel either to the plaintif or to her counsel by mentioning facts of his written statement in the reply notice. But, he did not do so. Even he has not explained any valid reasons for not sending the reply notice to the plaintif. Even he has not taken any steps to call for the copy of alleged promissory note prior to the filing of the suit to note to know that whether it was executed by him or not and it is created by forgery or not. So,except oral testimony of PW1 7 there is no either cogent or convenience evidence on behalf of defendant to disprove the execution of Ex.A1 suit promissory note by the defendant in favour of plaintif. So, it can be safely be held that DW1 miserably failed to disprove the execution of

Ex.A1 suit promissory note in favour of PW1. Since the plaintif has been established the execution of Ex.A1 by the defendant, the presumption envisaged U/Sec.118 of Negotiable Instrument

Act has to be drawn till contrary is proved. It is rebuttal presumption. Except the allegations of the defendant that no consideration is passed under Ex.A1 suit promissory note from

PW1, he did not adduce any cogent or convenience evidence to rebut the presumption.

13.Further, DW1 has stated in his cross examination that he has no idea whether he borrowed an amount of Rs.1,00,000/- from the plaintif and executed Ex.A1 suit promissory note in favour of plaintif. So, this part of the evidence is sufficient to concluded that the defendant received an amount of Rs.

1,00,000/- from the plaintif by execution of Ex.A1 suit promissory note in her favour. As can be seen from the Ex.A1, it is clearly shows that Ex.A1 was executed on 12-12-2014. Plaintif has filed suit on 21-6-2017 within 3 years within the time of limitation. So, this suit is not barred by limitation and it is within time. So, the evidence of PW1 and PW2, Ex.A1 to A3 clearly shows that the defendant received an amount of Rs.1,00,000/- from the plaintif under Ex.A1 suit promissory note. Certainly defendant has to pay the suit amount to PW1. Accordingly these issues are answered in favour of plaintif and against the 8 defendant.

14.In the result, the suit is decreed with costs for an

amount of Rs. 1,60,200/- in favour of plaintiff and against

the defendant with subsequent interest at the rate of

12% p.a on principal amount of Rs.1,00,000/- from the

date of filing of suit, till the date of decree and thereafter

at the rate of 6% p.a. till the date of realization.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in Open Court, this the 12th day of March 2020.

Sd/- Ch.L.Srinivasa Rao

I Addl. Junior Civil Judge Anakapalle (FAC) Prl. Junior Civil Judge Anakapalle

Appendix of Evidence

Witnesses examined

For plaintiff: For defendant:

PW.1 : B.Padmavathi DW1 : B.Krishna

PW2 : K.Hari

Exhibits marked on behalf of Plaintiff:

Ex.A1 : Promissory note dt. 12-12-2014

Ex.A2 : Office copy of legal notice dt. 8-3-2017

Ex.A3 : Postal acknowledgment

Exhibits marked on behalf of defendant:

-Nil-

Sd/- Ch.L.Srinivasa Rao

I Addl. Junior Civil Judge Anakapalle (FAC) Prl. Junior Civil Judge Anakapalle 9

Date of presentation : 21-06-2017Date of filing :29-06-2017

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE AT

ANAKAPALLE

Present : Sri Ch.L.Srinivasa Rao

I Addl.Junior Civil Judge / Anakapalle

(FAC) Principal Junior Civil Judge / Anakapalle

Thursday, the 12 th day of March, 2020

ORIGINAL SUIT NO.89/2017

Between:

Boddeda Padmavathi, Wo.Sanjeevarao, Hindu, aged 49 years, Household duties, resident of D.No. 5-6-72, Lakshmidevipeta, Anakapalle, Visakhapatnam District.

…..… Plaintif

And

Boddeda Krishna Rao, S/o. Kondala Rao, Hindu, aged 55 years, employee in Andhra Bank, Woodpeta, Anakapalle, Visakhapatnam District

…...... Defendant

This suit is filed for recovery of an amount of Rs.1,60,200/- being the principal and interest due under promissory note 12-12-2014 borrowed and executed by the defendant in favour of plaintif for Rs.1,00,000/- with interest at 24% p.a., for costs.

Value of the suit for the purpose of court fee and jurisdiction is Rs.1,60,200/- and court fee of Rs.4,126/- is paid

U/sec.20 Art 1(b) & (C) of Sch.I of APCF & SV Act.

This suit came up on 5-3-2020 for final hearing before me in the presence of Sri K.V.S.S.Raju, Learned counsel for plaintif and Sri K.Siva Kesava Rao and Ch.I.Micheal, Learned counsels for defendant and upon hearing their arguments and having stood over for consideration till this day, the court doth order ; and 10

D E C R E E

1)That the suit be and same is hereby decreed with costs;

2)that the defendants do pay a sum of Rs.1,60,200/-

(Rupees one lakh sixty thousand and two

hundred only) to the plaintif with subsequent interest at the rate of 12% p.a., on principal amount of Rs.1,00,000/- (Rupees one lakh only) from the date of filing of the suit i.e. 21-06-2017 till the date of decree and thereafter at the rate of 6% p.a., thereon till the date of realisation; and

3) that the defendants do also pay to the plaintif a sum of

Rs.10,338/- (Rupees Ten thousand Three Hundred

and thirty three only) towards institution costs of the suit.

Given under my hand and seal of this court, this the 12th day of March, 2020.

Sd/- Ch.L.Srinivasa Rao

I Addl. Junior Civil Judge Anakapalle (FAC) Principal Junior Civil Judge, Anakapalle

Memorandum of Costs

Plaintiff Defendant

Vakalat - : Rs. 2.00No costs memo filed

Plaint fee : Rs.4126.00

Process fee : Rs. 60.00

Advocate fee: Rs.6100.00

Type Charges: Rs. 50.00 ----------------------- institution costs : Rs.10,338.00 –--------------------

Sd/- Ch.L.Srinivasa Rao

I Addl. Junior Civil Judge Anakapalle (FAC) Principal Junior Civil Judge, Anakapalle

Note : The parties should apply as soon as possible for

the return of all exhibits which they may wish to

preserve, as the record will be liable to be destroyed

after three (3) years from this date.

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