Smt. D. Satyavathi

IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE

AT VIJAYAWADA.

Present: Smt. D. Satyavathi,

Chief Metropolitan Magistrate, Vijayawada

Friday, this the 24th day of April, 2023

C.C. No.3221 /2018

Between:

The State: Sub-Inspector of Police,

A.S. Nagar Police Station , Vijayawada City …Complainant

A N D

Duru Yesu Dasu S/o. Aseervadam, 35 yers, D.No.42-80-22, near

Railway track, Lenin centre, AS.Nagr, Vijayawada.

...Accused

This case is coming on 21-04-2023 this day for final hearing before me in the presence of Sri B. Krishna Kishore, APP

for Complainant and Sri. P. Babu Rao, Sri. P. Narasa Reddy

advocates of 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

The Sub Inspector of police, A.S. Nagar Police

Station laid a charge sheet against the accused under section 324 of IPC in Cr.No. 269/2018.

02. The brief facts of the prosecution are that :

On 20-05-2018 afternoon at 13.00 hours LW.1/Duru

Chandra Sekhar together with his kith and kin attended a function held in their relatives house at Baptistpalem, where the accused who is no other than the son of his paternal uncle asked share in the house site belongs to his grandmother. PW.1 also said that he is also having share in the site. In connection with the same the accused had a brawl with PW.1 thereafter he returned to home.

On the same day night at 10.30 pm the accused came to his house, took him to excel plant road end saying for talking about the house site and poked in his mouth with rod bending implement named after Chilaka, which is used for rounding the iron wires, resulted in he sustained bleeding injury to his jaw in mouth and etc.

03. Basing on the report of LW1 D. Chandra Sekhar, case was registered by LW.6/K. Srinivasa rao, Head Constable in Cr.No.

269/2018 under section 324 IPC on 22-05-2018 at about 17.00 hours and investigated into.

04.During the course of investigation LW.6/K. Srinivasa

Rao, Head Constable visited the scene of offence prepared the rough sketch, examined as 4 witnesses LW.6 K. Srinivasa Rao,

Head Constable issued notice under section 41(a) (1) Cr.P.C to the accused, when the accused came and surrendered before him in the Police Station. LW.5/Dr. A. Krishna Veni, Government

General Hospital, Vijayawada, who gave a treatment to the injured (LW1) and certified that the injuries sustained by him are simple in nature. After completion of the investigation LW.7/B.

Siva Prasad, Sub-Inspector of police filed a charge sheet against the accused before the Court.

05. This court took cognizance of offence under section 324 of IPC. Copies of case record furnished to the accused as required under section 207 of Cr.P.C. The accused was examined under section 239 of Cr.P.C. and charge under section 324 was framed, read over and explained to him in Telugu. He denied the charges and claimed to be tried.

06.To prove the case, the prosecution examined PW.1 to 6 and got marked Exs. P1 to P4. The evidence of LW.4 was given up by APP. After closure of prosecution evidence, the accused was examined under section 313 of Cr.P.C. to enable him to explain the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the evidence and did not choose to let him either oral or documentary evidence.

07.The arguments of APP and defence counsel have been heard.

08.Now the point for determination is “Whether the prosecution proved the guilt of the accused for the offence punishable under section

324 of IPC beyond a reasonable doubt”?

POINT:

09.In order to prove its case prosecution examined as many as PW.s 1 to 6. PW.1 is the defacto complainant and injured person, PW.2 and 3 are the sister’s of the PW1, PW 4 and 5 are the Investigation officers, PW.6 is the medical officer.

10. The learned APP argued that PW.s 1 evidence is consistent to the evidence of PW 6. PW1 to PW3 were clearly stated that the accused beat the PW1 with Iron chilaka and he sustained injuries. Their evidence itself is sufficient to proceed against the accused and prayed to convict the accused according to law.

11. On the other hand the learned defence counsel argued that PW.s1 to 3 are the interested witnesses and family members.

PW2 and PW3 are came to know the incident through PW1. PW.4 to PW.6 are the official witnesses. PW.1 to PW.6 evidence is not consistent to each other. The prosecution failed to examined the independent witnesses and neighbors of the scene of offence and there are so many material contradictions in the evidence of prosecution witnesses and prayed to acquit the accused.

12. With regard to the offence under section 324 of

IPC under which the accused was charged to punish the accused the Prosecution needs to prove any of the following circumstance.

“Whoever, except in the case provided for by section 324 of

IPC, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting or any instrument which used as a weapon of offence is likely to cause death or by means of fire or any heated substance or by means of any poison or any corrosive substance or by means of any explosive substance or by means of any substance which is it is deleterious to the human body to inhale, to swallow or to receive in to the blood or by means of any animal shall be punished “.

13. Prosecution further PW.1 D. Chandra Sekhar, who is the defacto complainant and injured deposed that on 20-05-2018 at about 01.00 P.M. he along with the accused attended a function at Baptistpalem and the said function a wordily altercation taken place with the accused with regard to shares of the house site belongs to his paternal grand mother. He further deposed that returned to the house of his sister LW.2 B. Santhi at A.S.Nagar and sleeping in the night and at about 10.30 P.M. the accused came to his sister’s house LW.2B. Santi and woke up him from sleep. He further deposed that his sister did not sent him at first time and then again he came and called him out and informed that he wants to talk with him with regarding to house site.

14. He further deposed that then he took him to X.L.

Plant and he inserted the rod bending iron chilaka into his mouth on the left side and pulled, due to which his left side mouth was torn and lips also torn. He further deposed that he pressed on the right side neck and received bleeding injury and went to the house of LW.2 B. Santhi and she took him to A.S. Nagar Police

Station. He further deposed that then the police took him to

Government General Hospital, Vijayawada and due to bleeding injuries he could not talk. Therefore he gave a report to police .Ex.P1 written report.

15.Prosecution further examined PW.2/B. Santhi, who is sister of the PW1 deposed that the accused is her cousin brother and on 20-05-2018 at about 01.00 P.M. she along with

PW.1, LW. 3, 4 and the accused were attended to function at

Baptistpalem. She further deposed that her brother and accused are altercation to each other for house site of her grand mother and later she along with her brother returned to her house. She further deposed that on the same day at about 10.30 P.M. the accused came to her house and call to her brother to talk the house site of her grand mother and after half an hour her brother came to her house with bleeding injuries on mouth. She further deposed that enquired her brother “why are you sustaining injuries” and pw 1 informed her the accused pocked on his mouth, then he inserted the rod bending iron chilaka into his mouth on the left side and pulled. She further deposed that due to which her brother right side mouth was torn and lips also torn and immediately she along with her brother went to Police

Station.

16.Prosecution further examined PW.3/J. Kumari, who is elder sister of PW1 deposed that the accused is her cousin brother and on 20-05-2018 at about 01.00 p.m. she along with

PW.1, LWs. 3, 4 and accused were attended to function at

Baptistpalem. She further deposed that her brother and the accused are altercation to each other for the house site of her grand mother and later she along with her brother returned to

PW.2 house. She further deposed that on the same day at about 10.30 P.M. the accused came to her house and call to her brother to talk the house site of her grand mother and after 15 to 20 minutes her brother came to her house with bleeding injuries on his mouth. She further deposed that enquired her brother “why are you sustaining injuries” and Pw 1 informed her the accused pocked on his mouth, then he inserted the rod bending iron chilaka into his mouth on the left side and pulled. She further deposed that due to which her brother right side mouth was torn and lips also torn and immediately she along with her brother went to Police Station.

17.Prosecution further examined PW.4/K. Srinivasa Rao,

Assistant Sub Inspector of police, who is conducted the investigation deposed that on 22.05.2018 P.W.1 gave a report basing on the report case was registered in Cr. NO.269/2018 under section 324 of IPC. Ex.P2 is the FIR. He further depose that examined P.W.1 and send the injured to Government General

Hospital, Vijayawada. He further deposed that on the same day he visited the scene of offence at XL Plant Road, Singh Nagar,

Vijayawada and prepared the rough sketch. Ex.P3 is the Rough sketch. He further depose that examined P.W.2 and P.W.3 and issued under Section 41-A Cr.P.C. notice to the accused and he handed over the CD file to the L.W.7/ B.Siva Prasad, Sub Inspector of police.

18.Prosecution further examined PW.5/B.V. Siva Prasad,

Sub Inspector of Police, who is filed a charge sheet before the court deposed that he received CD file from P.W.4 and verified it and found it in correct lines. After completion of the investigation, he filed a charge sheet against the accused.

19.Prosecution further examined PW.6/Dr. K. Krishnaveni,

Medical Officer, who gave treatment to PW1 depose that on 21.05.2018 at 12.58 A.M. P.W1 D.Chandra Sekhar was examined and found the following injuries:

1. Laceration of 2 X 1 CM in the inner aspect of left cheek near lower lip.2). Multiple scratch marks over the front of the neck and right side of upper chest. X- rays were taken. Showed no bony in- juries. Patient treated as Out patient. Ex.P5 is the wound certifi- cate. she is the opinion that the above injuries are simple in na- ture.

20. After going through the evidence of pw1 stated that

LW.2 B. Santi scribed Ex.P1 report. He denied the suggest that did not state before the police that the accused inserted the rod bending iron chilaka into his mouth on the left side and pulled.

He further stated that he has given to medical treatment particu- lars to the police and on the date of incident X.L. Plant area was an isolated place. He further stated that it will take 15 minuets to go to Police Station from X.L. Plant. He further stated that he used to take alcohol occasionally. PW2 stated that she along with

PW1 went to Police Station and his brother(PW1) is consuming al- cohol and PW1 was working as a centering work. PW3 denied the suggest that she has stated before the police the accused her brother came to her house with bleeding injuries on mouth and enquired to him “why are you sustained injuries ‘’and the ac- cused pocked on his mouth then he inserted rod bending iron Chi- laka into his mouth on the left side of mouth and pulled.

21. PW.4 stated thatP.W.1 did not stated before him he returned to the house of his sister LW.2 B. Santi at A.S. Nagar and sleeping in the night at about 10.30 P.M. the accused came to his sister’s house LW.2 B. Santi and woke up him from sleep. He fur- ther stated that his sister did not sent him at first time and then again he came and called him out and informed that he wants to talk with him with regarding house site and he took him to X.L.

Plant. He further stated that P.W.1 did not stated before him that then the accused inserted the rod bending iron chilaka into his mouth on the left side and pulled, due to which his left side mouth was torn and lips also torn and also he pressed on the right side neck on that he received bleeding injury. He further stated P.W.1 did not stated before him he went to the house of LW.2 B. Santi and she took him to A.S. Nagar Police Station and the police took him to Government General Hospital, Vijayawada. Due to bleeding injuries he could not talk, due to injuries he could not eat meals and only drink butter milk for a period of one month.

22.He further stated that did not examine the neighbors of scene of offence and after receiving of Ex.P1 report and immedi- ately he sent to P.W.1 to Government General Hospital, Vi- jayawada. He further stated that P.W.1 to 3 are residing in differ- ent addresses and P.W.2 did not stated before him that then the accused inserted the rod bending iron chilaka into his mouth on the left side and pulled, due to which her brother’s right side mouth was torn and lips also torn. He further stated that Immedi- ately she along with her brother went to Police Station and Police referred to Government General Hospital, Vijayawada. Due to bleeding injuries PW.1 could not talk. He further stated that P.W.3 did not stated before him that on enquiry his brother why he sus- tained injuries, the accused pocked on his mouth, then he in- serted the rod bending iron chilaka into her brother mouth on the left side and pulled, due to which her brothers left side mouth was torn and lips also torn, immediately she along with her brother went to Police Station. Police referred to Government General

Hospital, Vijayawada. Due to bleeding injuries PW.1 could not talk.

PW5 stated that did not seized the Iron chilaka.

22. PW1 stated that the accused also having share in the house site belongs to his paternal grand mother. PW2 and PW3 stated that the disputes are pending between his brother and the accused. So, possibility of the falsely filed the case against the accused.

23. PW1 to PW 3 stated that the accused came to the house of PW2 at about 10.30 p.m. and called to the PW1 for talk to with the regarding house site of his grand mother. PW2 stated that after half an hour her brother came to her house with bleed- ing injuries on his mouth. PW3 stated that after 15 to 20 minutes her brother came to her house with bleeding injuries on his mouth. PW 4 stated that the incident was occurred on 20.05.2018, but P.W.1 gave report on 22.05.2018 and P.W.1 did not mentioned the reasons for delay in giving the report. He fur- ther stated that after receiving of the Ex.P1 report, immediately sent the PW1 to Government General Hospital, Vijayawada. PW6 stated that she was examined PW1 on 21.05.2018 at about 12.58 a.m. and issued Ex.P4 is wound certificate. Ex.P4 is clearly shows that the accused has been caused the injuries on 20.5.2018 at 9.30 p.m. The evidence of PW1 to PW4 and PW6 is not consistent to each other

24. In a the land mark decision rendered by the

Hon’ble Apex court between Rokalla Dharama Rao @ Busayya

Vs. State of Andhra Pradesh as reported in AIR 2018(1) ALD (Crl) 599 it was held that:

“ Under Section 154 of Cr.P.C. FIR- Delay in registration of

Burden on prosecution to explain delay - Even in absence of any question being put by defence to prosecution witnesses, this burden on prosecution, is absolue- And prosecution cannot be heard to say that in absence of any question having put by defence in this regard, it is not liable to discharge such burden- it is so because delay in registration of First

Information gives rise to a reasonable doubt about manipulation or false implications.

25.In view of the above finding and in view of the circumstances of this case that the defacto complainant presented report before the police after an in ordinate delay which is un explained and such delay is necessarily effect the case of the Prosecution.

26.The defence counsel further argued that

Investigation Officer did not seize the material object like Iron chilka in grievous hurt case, the prosecution must seized material objects. PW2 stated that her brother right side mouth was torn. PW3 stated that her brother left side mouth was torn .

PW2 and PW3 are not the direct witnesses to the alleged incident, but they are came to know the incident through P.W.1. Ex.P4 was clearly shows that Police Constable 2751 of A.S.Nagar police station accompanied by the accused and went to Government

General Hospital, Vijayawada. Prosecution failed to examined the police constable 2751 and not cited the Police Constable 2751 of A.S. Nagar police station in list of witness. PW.4 further admitted that in his cross examination did not examine the neighbors of the scene of offence and did not examined independent witnesses. He further admitted that PW1 to Pw3 are residing in different places and he has not seized the blood stained clothes and Iron chilaka which are not marked as an exhibits or material objects. PW6 stated that x-rays were taken, but it shows that no bony injuries. Prosecution failed to produce x-ray of the PW1 and materials objects before the court.

27.So after evaluation of entire evidence on record, there are discrepancies and inconsistencies in the evidence of prosecution witnesses. The only evidence i.e, P.W.1 to PW.3 who are material evidence with regard to the alleged incident. PW.1 to PW.3 are the family members and interested witnesses. PW.4 to PW.6 are the official witnesses, they deposed basing on the record. There are discrepancies and contradictions in the evidence of PW.1 to PW 6 . Therefore there are severe contradictions between the case of the prosecution as narrated in the charge sheet , under section 161 cr.p.c. statements and

Ex.P.1.

28.There are so many material infirmities in their evidence. All the circumstances discussed above create a doubt whether P.W.1 received injuries in the hands of the accused or elsewhere. All the above discussed facts and circumstances shows that P.W.1 did not come to the Court with real facts and the evidence of P.W.1 to PW.6is not inspiring the confidence of this Court and this Court believed that their evidence is not trustworthy.

29.After gone through the evidence available on record, it is clear that the evidence of P.W.1, PW4 and PW.6 is not consistent to each other . The injury stated by P.W.1 is not tallying with the injuries mentioned in wound certificate. The evidence of P.W.1 and PW.6 is not consistent with each other.

30. In view of my foregoing discussion though P.W.1 sustained injuries, but the accused was not responsible for those injuries. Accordingly the prosecution failed to bring home the guilt of the accused for the offences under sections 324 of I.P.C.

beyond all reasonable doubt. Accordingly this point is answered.

31. In the result, the accused is found not guilty for the offence punishable under section 324 of I.P.C., and he is acquitted under section 248(1) Cr.P.C. The bail bonds of the accused as well as his sureties shall be inforce for period of six months as per section 437 -A Cr.P.C. The unmarked property if any shall be destroyed after appeal time is over.

Dictated to the Stenographer directly on the computer,

corrected and pronounced by me in the open court, on this the 24th day of April, 2023

Chief Metropolitan Magistrate,

Vijayawada.

APPENDIX OF EVIDENCE:

WITNESSES EXAMINED FOR:

PROSECUTION:- ACCUSED/DEFENCE:-

PW.1 : D. Chandra Sekhar -None-

PW.2 : B. Santhi

PW.3 : J. Kumari

PW.4: K. Srinivasa Rao

Pw.5: B.V. Siva Prasad

Pw.6:Dr. K. Krishnaveni

DOCUMENTS MARKED FOR :

PROSECUTION :-

ACCUSED/DEFENSE :-

Ex.P1: Written report ---Nil---

Ex.P2: Original FIR

Ex.P3: Rough Sketch

Ex.P4: Wound certificate

MATERIAL OBJECTS MARKED :

--Nil--

Chief Metropolitan

Magistrate,

Vijayawada.

1

IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE AT

VIJAYAWADA.

Present: Smt. D. Satyavathi,

Chief Metropolitan Magistrate, Vijayawada.

Thursday, this the 20th day of April, 2023.

C.C No.667 of 2022

Between: The State: Sub-Inspector of Police, I - Town P.S., Vijayawada City …Complainant A N D

1. Chekaram Batta Sai Sharan, S/o. Bala Lingaiah Gupta, aged 28 years, C/Vysya, R/o. Flat No.102, Modal Towers, Gayathri Estates, Near Viswabharath Hospital, Kurnool

2. Marudi Venkata Girish Kumar Reddy, S/o. Venkateswara Reddy, aged 25 years, C/Reddy, R/o. H.No.10B, Maruthi Nagar, Jai Jawan Colony, Secunderabad.

` ... Accused no.1

and 2

This case is coming on 19-04-2023 for final hearing before me in the presence of Sri B. Krishna Kishore, APP for Complainant and Sri. P. Siva Rama Krishna; advocateof the accused Nos.1 and 2 and the matter having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

The Sub Inspector of police, I - Town police station laid a charge sheet against the accused Nos.1 and 2 under section 188, 269 of IPC and Sec. 34(a) of A.P. Excise Act in

Cr.No.472/2020.

02. The brief facts of the prosecution are that:

On 25.052020 at 5.00 pm, Lw.6 K.Tirupathi Rao/Sub

Inspector of Police received credible information about illegal transportation of liquor from Telangana State to Andhra Pradesh, then he made an entry in the GD and rushed near Low Bridge, near Gadda Bomma Center along with Lw.1. N. Mohan Krishna and Lw.2 N. Tirupathi Rao and the mediators were started checking vehicles. At about 5.00 pm, they noticed a Java motorcycle bearing No.AP 16 YH TR 3277 was coming from 2

Vinayak Temple side to Gadda Bomma Center side and the pillion possessed with a bag. On seeing the police, the rider of the motorcycle tried to turn back to fly away from the spot. But they surrounded the vehicle and questioned them to inform their names and address particulars. The accused no.1 and 2 revealed their names and address particulars and voluntarily confessed that they were eking livelihood by doing as Security

Assistants at True Jet Airlines, Gannavaram Airport. The

Government had issued orders for lock down and that there was no work to them and that they felt into debts. On 25.05.2020 the accused no.1 and 2 were went to Kodada on motorcycle bearing No.AP 16 YH TR 3277 and they purchased 08 liquor bottles with an intention to sell those bottles at higher price in their village and to clear their debts by way of easy earning. On verification of two bags in the possession of the 1st accused, it contains (1) Royal Stag 375 ml bottles -02, (2) Royal Challenge

Clanic Malt Whiskey 750ml bottles -2, (3) Signature Ultra Premier

Grain Whiskey 750ml bottles -2, (4) Mansion House XO Brandy 750ml bottles -2 in American Tourist Black Colour Bag. LW.6/

K.Tirupathi Rao, Sub Inspector of Police lifted one bottle each variety for sending for chemical analysis and seized the remaining bottles and motor cycle in the presence of mediators.

03. Basing on the mediator report LW.6/ K.Tirupathi Rao, Sub

Inspector of Police registered a case in Cr.No.472/2020 under sections 188 and 269 of IPC and Section 34 (a) of A.P. Excise Act 1968 and investigated into.

04.During the course of investigation LW.6/ K.Tirupathi

Rao , Sub Inspector of police visited the scene of offence, prepared the rough sketch and examined the witnesses. During the course of further investigation LW.6/ K.Tirupathi Rao, Sub

Inspector of police served notices under section 41-A of Cr.P.C to the accused, and forwarded the sample bottles for chemical analysis to Chemical Examiner, Kakinada for analysis and the

Examiner opined that the samples are Indian Made Liquor.

3

05.During the course of further investigation the entire property was confiscated to the State as per the orders of

Deputy Commissioner of Prohibition and Excise, Vijayawada vide

Orders No.RC.131/2020/B.3 dt.19.07.2020. After completion of the investigation L.W.7/K. Swathi, Women Sub Inspector of police filed a charge sheet for the offence punishable under sections 188, 269 of IPC and Section 34 (A) of AP Excise Act 1968 against the accused Nos.1 and 2.

06. This court took cognizance of offence under sections 188, 269 of IPC and Section 34 (A) of AP Excise Act 1968. Copies of case record furnished to the accused Nos.1 and 2 as required under section 207 of Cr.P.C. The accused Nos.1 and 2 were examined under section 239 of Cr.P.C. and charge under sections 188, 269 of IPC and Section 34 (A) of AP Excise Act 1968 was framed, read over and explained to the accused Nos.1 and 2 in Telugu. They denied the charges and claimed to be tried.

07.To prove the case, the prosecution examined Lws.1N.

Mohana Krishna , LW 5 P. Venkateswara Rao, LW4 K. Durga Rao ,

LW7 K. Swathi and LW6/ K. Tirupathi Rao as P.Ws.1 to 5; Exs.P1 to P-9 and M.Os.1 to 4 are marked. The evidence of Lws.2 and 3/Nakkaboina Tirupathi Rao and Viswanadhapalli Sai Krishna were given up by APP. After closure of prosecution evidence, the accused Nos.1 and 2 were examined under section 313 of

Cr.P.C. to enable them to explain the incriminating circumstances appearing against them in the evidence of prosecution witnesses. The accused Nos.1 and 2 denied their evidence and did not choose to let them either oral or documentary evidence.

08.The arguments of APP and defence counsel have been heard.

09.Now the point for determination is “Whether the prosecution proved the guilt of the accused Nos.1 and 2 for the offence punishable under sections 188, 269 of IPC and 4

Section 34 (A) of AP Excise Act 1968 beyond a reasonable doubt”?

POINT:

10. The case of the accused Nos.1 and 2 are total denial and they contend that this case is foisted against them for statistical purpose and they did not commit any offence and that (1) Royal

Stag 375 ml bottles -02, (2) Royal Challenge Clanic Malt Whisky 750ml bottles -2, (3) Signature Ultra Premier Grain Whisky 750ml bottles -2, (4) Mansion House XO Brandy 750ml bottles -2 were seized from the possession of the accused Nos.1 and 2.

Therefore, the burden is upon the prosecution to establish that the accused Nos.1 and 2 were found in their possession of above said liquor bottles on 25-05-2020 and that the same were seized from the accused Nos.1 and 2.

11. Therefore, to prove its case the prosecution firstly examined P.W.1/N. Mohana Krishna, Police constable, deposed that on 25.05.2020 himself, L.W.2/N.Tirupathi, mediators, accompanied with L.W.6/K. Tirupathi Rao, Sub-Inspector of Police went to the Gaddabomma center, Near Kaleswara Rao market, while conducting vehicle checking at about 5.00 P.M. two persons coming on motor cycle bearing No.AP16 TR 3277 coming towards Gadda Bomma center , on seeing them, the accused no.1 and 2 tried to skulk away. They caught hold the accused no.1 and 2 and enquired. He further deposed that the accused no.1 and 2 were revealed their names and address particulars and they voluntarily confessed the offence that they purchased the liquor bottles at Kodada of Telangana state for selling them for higher price in Vijayawada. He further deposed that L.W.6/K. Tirupathi Rao, Sub-Inspector of Police opened said gunny bag and found 8 bottles I.e 1) Royal stag 375 ml -2 bottles

2) Royal challenge 750 ml -2 bottles 3) Signature whiskey 750 ml-2 bottles 4) Mansion house brandy 750 ml- 2 bottles. L.W.6/K.

Tirupathi Rao, Sub-Inspector of Police lifted one bottle each variety for sample and affixed ID slips duly signed by mediators 5 and accused Nos.1 and 2 and L.W.6/K. Tirupathi Rao, Sub-

Inspector of Police prepared the Mediator Report and returned to the police station along with the accused no 1 and 2, seized property and motor cycle.

12.Prosecution further examined PW.2/P. Venkateswara

Rao, who is present at the time of arrest of the accused and seizure of the property deposed that due to lock down police called him to the police station and obtained his signature on written paper, but he does not know its contents on it and does not know the accused. Ex.P1 is the signature on mediator report.

13.Prosecution further examined PW.3/K. Durga Rao, who is present at the time of arrest of the accused and seizure of the property deposed that who is present at the time of arrest of the accused and seizure of the property deposed that due to lock down police called him to the police station and obtained his signature on written paper, but he does not know its contents on it and does not know the accused. Ex.P2 is the signature on mediator report.

14. P.W.s 2 and 3 were not supported the case of the prosecution the learned A.P.P. declared them as hostile witnesses. Though, the learned A.P.P. cross-examined Pws.2 and 3 nothing was elicited in favour of the prosecution and Exs.P1 and 2 which their signatures on mediators report were marked.

15. Prosecution further examined P.W.4/K. Swathi, Woman

Sub Inspector of Police, who is filed the charge sheet deposed that on 25-05-2020 she received CD file from L.W.6/ K.Tirupathi

Rao/ Sub Inspector of Police then she visited the scene of offence on the same day and prepared Rough Sketch. Ex.P3 is the Rough Sketch. After completion of investigation she filed a

Charge Sheet against the accused no. 1 and 2.

6

16. Prosecution further examined P.W.5/K. Tirupathi Rao,

Sub Inspector of Police, who is arrested the accused and seized the property from the possession of the accused deposed that on 25-05-2020 at about 05:00 PM, he received credible information and secured two mediators(L.W.3 and 4) and P.Ws.1 and 2 proceeded to Low Bridge Near Gadda Bomma Center for vehicle checking. He further deposed that at that time, he noticed two persons coming on motor cycle bearing No.AP16 YH

TR 3277 coming from Vinayak Temple to Gadda Bomma Center and on seeing police, the said person tried to turned back. He further deposed that then stopped the said persons with the assistance of his staff and found a bag with the 1st accused and enquiry the said persons revealed his name and address particulars as accused herein. He further deposed that they revealed that due to COVID restrictions there is no income as such they intended to purchase liquor from nearby villages of

Vijayawada to sell the same in Vijayawada as there is a scarcity of liquor. He further deposed that the 1st accused and A2 were opened the box and showed the liquor and he checked the box and found 8 liquor bottles. 1) Royal Stag 375 ml-2 bottles, 2)

Royal challenge classic Malt whiskey 750 ml-2 bottles, 3)

Signature Ultra premier grain whiskey 750ml-2 bottles, 4)

Mansion House XO brandy 750 ml-2 bottles. He further deposed that he lifted the one bottle each one variety and prepared mediator report. Ex.P4 is the mediator report. M.O.1 to 4 are the samples. He further deposed that seized the liquor bottles, motorcycle and arrested the accused no .1 and 2 and returned to Police Station along with the no .1 and 2.

17. He further deposed that basing on the mediator report registered a case in Cr.No.472/2020 under sections 188, 269 of IPC and Section 34 (A) of A.P. Excise Act and served 41-A notices on accused Nos.1 and 2 . Ex.P5 is the First Information

Report . He further deposed that visited the scene of offence and examined P.W.1, L.W.2./.Tirupathi Rao, LW3/S Krishna and 7 sent sample bottles to Kakinada for Chemical analysis through

A.C.P. Ex.P6 is the letter of advice. Ex.P7 is the covering letter.

He further deposed that sent the remaining property to Deputy

Commissioner of Excise for destruction and Motorcycle for confiscation. Ex.P8is the chemical analysis report, Ex.P9 is the destruction proceedings . He further deposed that after completion of the investigation he handed over the CD file to

P.W.4.

18. The learned defence counsel would argue that evidently neither a rough sketch was prepared nor the boundaries were mentioned in Ex.P3 with regard to the scene of offence and the said fact indicates that as the investigating agency did not arrest the accused as alleged, no such details could be produced before the court. I consider for a case like this, there would not be any necessity to fix up the specific scene of offence and hence mentioning of boundaries or drawing of any rough sketch of the place of the arrest would by themselves would not lead to any further proof and their non mentioning would not cause any prejudice to the accused and hence the said contention is not tenable. PW 1 stated that the descriptive particulars of bag was not mentioned. PW4 stated that he has not examined the neighbors shown in the Ex.P3.

PW5 stated that the scene of offence is very busy locality and did not examine shop owner and did not enquired the accused where purchase the liquor bottles and did not mentioned the batch number and manufacturing date of the seized liquor bottles.

19. So after evaluation of entire evidence on record.

There are discrepancies and inconsistencies in the evidence of prosecution witnesses i.e.PW.1, PW.4 and PW5 . The only evidence of PW.1, PW.4 and PW5 are the official witnesses, who are material witnesses with regard to the alleged incident. Pw2 and 3 are the independent witnesses, but they did not deposed 8 anything against the accused. Hence P.W. 1 to PW5 evidence is not consistent to each other.

20. Therefore, all the above circumstances would compel that the case of the prosecution should not be accepted and I consider the prosecution has failed to prove that the accused no1 and 2 were found in possession of the liquor bottles and thereby committed the offence under Section 34 (A) of AP Excise

Act 1968 beyond all reasonable doubt. Thus I answer the above point.

21. In the result, the accused No.1 and 2 are found not guilty for the offence under sections 188, 269 of IPC and Section 34 (A) of AP Excise Act 1968 and hence, they are acquitted

Under Section 248 (1) of Cr.P.C., for the said offence. The bail bonds of the accused No.1 and 2 as well as their sureties shall be in-force for a period of six months as per Section 437-A

Cr.P.C. MO.1 to MO.4 are shall be destroyed after the appeal time is over.

Dictated to the Stenographer directly on the computer,

corrected and pronounced by me in the open court, on this the 20th day of April, 2023.

Chief Metropolitan Magistrate, Vijayawada.

APPENDIX OF EVIDENCE: WITNESSES EXAMINED FOR:

PROSECUTION:- ACCUSED/DEFENCE:-

PW.1 : N. Mohana Krishna -None- PW.2 : P. Venkateswara Rao PW.3 : K. Durga Rao PW.4 : K. Swathi PW.5 : K. Tirupathi Rao

DOCUMENTS MARKED FOR:

PROSECUTION:- ACCUSED/DEFENSE:-

Ex.P1: Signature of Pw.2 on Mediators report -Nil- Ex.P2: Signature of Pw.3 on Mediators report 9

Ex.P3: Rough Sketch Ex.P4: Mediator Report Ex.P5: FIR Ex.P6: Letter of advice Ex.P7: Covering Letter Ex.P8: Chemical Analysis Report Ex.P9: Destruction Proceedings

MATERIAL OBJECTS MARKED: MO.1) Royal Stag 375 ml-1bottle, MO.2) Royal challenge classic Malt whiskey 750 ml-1 bottle MO.3) Signature Ultra premier grain whiskey 750ml-1 bottle MO.4) Mansion House XO brandy 750 ml-1 bottle

Chief Metropolitan Magistrate, Vijayawada.

10

1

IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE AT

VIJAYAWADA.

Present: Smt. D. Satyavathi, Chief Metropolitan Magistrate, Vijayawada.

Thursday, this the 20th day of April, 2023

CC No.4675/2020

Between: The State: Sub-Inspector of Police, I Town Police Station, Vijayawada City …Complainant A N D Dhubasi Pavan, S/o. Srinivasa Rao, 26 years, Kapu, D.No.31-24- 53/1, Veeraiah Street, Maruthinagar, Chuttugunta, Vijayawada.

...Accused

This case is coming on 19-04-2023 for final hearing

before me in the presence of Sri B. Krishna Kishore, APP for

Complainant and Sri. Kotari Subrahmanyam, learned counsel for advocate of 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

The Sub-Inspector of Police, I Town police station laid a charge sheet against the accused under Section 34 (a) of A.P.

Excise Act in Cr.No.509/2020.

02. The brief facts of the prosecution are that:

On 09.06.2020 LW.6/G.Sankara Rao, Sub Inspector of Policereceived credible information about illegal transportation of liquor; then he made an entry in the GD and rushed near Model Guest House along with LWs.1 and 2 and mediators (LWs.4 and 5) and started vehicles checking. At about 15.20 Hrs, they noticed a motorcycle bearing No. AP 39 DH 7507 coming from Kummaripalem side to Prakasam Barrage side possessed with a gunny bag. On seeing the police, the rider of the motorcycle tried to turn back to fly away from the spot. But they surrounded the vehicle with the assistance of LWs.1 and 2 and questioned him to inform his name and address particulars.

03. On suspicious circumstances, LW.6/ G.Sankara Rao,

Sub Inspector of Police served under section 41 (A) Cr.P.C. notice to the motor cycle rider and on questioning him repeated, he 2 voluntarily confessed that he is eking out livelihood by doing fruits business. Recently, the Government has issued orders for lock down and that there is no work to him and the fruits he purchased were damaged and that he felt into debts. On 09-06- 2020, the accused was went to Velagaleru of Krishna District on motorcycle bearing NO. AP. 39 DH 7507 purchased 26 liquor bottles with his earning with an intention to sold the bottles at higher price in their village and to clear their debts by way of easy earning. But in the meantime, on verification of bag in the possession of the accused, it contains 1. Aristocrat Premium 180 ml classic whiskey bottles, total 08 bottles belongs to Andhra

Pradesh State. LW.6/ G.Sankara Rao, Sub Inspector of Police separated one bottle for sending to chemical examination at

RPEL, kakinada. He kept those three bottles in a card board box packed it, got affixed slips containing the signatures of mediators and countersigned by him. He seized the remaining bottles along with the black colour bag, got affixed slips containing the signatures signatures of the mediators and counter signed by him.

04. Basing on the mediator LW.6/G.Sankara Rao, Sub

Inspector of Police brought the accused to Police Station, along with the seized liquor bottles and motorcycle. He registered the case on basing of the to mediators report as FIR in

Cr.No.509/2020 under section 34 (A) of AP Excise Act on 09-06- 2020 at about 16.35 hours. Original FIR was sent to the Hon'ble

Court, Vijayawada, copies of the FIR submitted to all the concerned officers and took up investigation in this case.

05.During course of investigation, he secured the presence of LWs.1 to 3 examined them and the Andhra Pradesh

Excise (Amendment) Act 2020 came into force from 20.05.2020 it was published as per Gazette dated 02.07.2020 vide

G.O.Ms.No.34 of Law Department. Hence, LW.6/G.Sankara Rao,

Sub Inspector of Police served notices under section 41(A) Cr.P.C to the accused. Later, he prepared letter of advice and sent 3 seized sample bottle for Chemical Examination to Kakinada, through ACP, West Division. Vijayawada city. On 19.07.2020.

LW.6/G.Sankara Rao, Sub Inspector of Police received the CE's report from Kakinada, where the expert opined that, the samples are Indian made liquor. Except the Sample bottles, entire property is Confiscated to the state under Section 46(2) of AP.

Excise Act, 1968 a per orders of Deputy Commissioner of

Prohibition and Excise, Vijayawada vide orders Rc.131/2020/B3

Dt. 19.07.2020. Hence Sample bottle is produced before the

Hon'ble Court. The vehicle involved in this case bearing no.

AP39 DH 7507 Honda Dio is Confiscated under Section 46 (2) of

A, Excise Act-1968 as per orders of the Commissioner of Police and Additional District Magistrate, Vijayawada Vide Orders

C.No.20/C-4/2020 D1.01.11.2020. Thereafter filed a charge sheet against the accused.

06.This court took cognizance of offence under Section 34 (A) of AP Excise Act 1968. Copies of case record furnished to the accused as required under section 207 of Cr.P.C. The accused was examined under section 239 of Cr.P.C. and charge under

Section 34 (A) of AP Excise Act 1968 was framed, read over and explained to the accused in Telugu. He denied the charges and claimed to be tried.

07.To prove the case, the prosecution examined PW.1 to 4; exhibited Exs.P1 to P7 and MO.1 is marked. The evidence of

Lw.2/Abdul Hakeem and LW.5/Purama Venkateswara Rao were given up by APP. After closure of prosecution evidence, the accused was examined under section 313 of Cr.P.C. to enable him to explain the incriminating circumstances appearing against him in the evidence of prosecution witnesses. The accused was denied his evidence and did not choose to let him either oral or documentary evidence.

08.The arguments of APP and defence counsel have been heard.

09.Now the point for determination is 4 “Whether the prosecution proved the guilt of the accused for the offence punishable under Section 34 (A) of AP Excise Act 1968 beyond a reasonable doubt”?

POINT:

10. The case of the accused is total denial and he contend that this case is foisted against him for statistical purpose and he did not commit any offence. Therefore, the burden is upon the prosecution to establish that the accused was found in his possession of the liquor bottles and that the same was seized from the accused.

11. Therefore, to prove its case the prosecution firstly examined PW.1/U. Lokesh, Head Constable, who is present at the time of arrest of the accused and seizure of the property deposed that on 09-06-2020 at about 3.00 P.M. he along with

LW.4/Durga Rao, LW.5/P. Venkateswara Rao accompanied with

LW.6/B. Sankara Rao, Sub Inspector of Police were conducting vehicle checking when they reached to Model Guest House, they noticed one Duo two wheeler vehicle bearing No.AP. 39 DH 7509 coming from Kummaripalem center and one person on that bike holding a gunny bag, on seeing the police he tried to escape from there. As per instructions of LW.6 G.Shanka Rao, Sub

Inspector of Police he caught hold the said person and he confessed his name and address particulars as here in. On instructions LW.6 G.Shanka Rao, Sub Inspector of police the accused was opened the Gunny bag and found 26 bottles I.e 1)Extract premium whiskey 180-24 bottles and seized the liquor bottles and scribed the Mediator report. He further deposed that

LW.6 G.Shanka Rao, Sub Inspector of police, Mediators and accused signed on Mediator report. He further deposed that

LW.6 G.Shanka Rao, Sub Inspector of police returned to the

Police station along with seized property, motor cycle and accused.

5

12. Prosecution further examined PW.2/N. Prasad,

Carpenter, who is present at the time of arrest of the accused and seizure of the property deposed that on 09-06-2020 at about 12.00 noon he gave motor cycle to the accused. He further deposed that on the same day at about 05.00 pm, I town PS., informed him that they caught hold the accused while in possession of liquor bottles from him along with motor cycle.

13.Prosecution further examined PW.3/K. Durga Rao, who is present at the time of arrest of the accused and seizure of the property deposed on 09-06-2020 on the request of Sub Inspector of police of I Town, he went to the PS where in

LW.5/Venkateswara Rao present, they accompanied LW.6/SI of police and proceeded to the Model guest house, in their presence police conducted vehicle checking at about 03.30 pm one person coming on two wheeler motor cycle, on seeing them he tried to turn back, police stopped him. He further on inquiry he revealed his name and address particulars as here in and found one bag containing liquor bottles. He further deposed that

LW.6 G.Shanka Rao, Sub Inspector of police opened the bag and found 26 liquor bottles and lifted one bottle for sample and prepared the Mediator report. LW.5, accused, Mediators and he signed on the mediator report. Ex.P1 is the Mediator report. He further deposed that LW.6 G.Shanka Rao, Sub Inspector of police arrested the accused and returned to the Police station along with the accused, seized property and Motor cycle.

14.Prosecution further examined PW.4/G. Sankara Rao,

Sub-Inspector of Police, who is conducting the investigation deposed that on 09-06-2020 he received credible information about illegal transport of liquor, then he proceeded to model guest house along with PW.1 and 2 and mediators and started conducting vehicle checking at Model guest house. He further deposed that at that time the accused was coming on motor cycle bearing No.AP. 39 DH 7507 coming from Kummaripalem center to Prakasam Barrage and on seeing police the said the 6 accused was tried to turned back. He further deposed that he stopped the accused with the assistance of his staff and found a bag with the accused.

15. He further deposed that on enquiry the accused was revealed his names and address particulars and he checked the bag and found liquor bottles. i.e 1) Aristocrat Premium 180 ml classic whiskey bottles- 26. He further deposed that lifted the one bottle for the purpose of chemical analysis. He further deposed that prepared Mediator report and seized the liquor bottle and arrested him. Ex.P1 Mediator report. M.O.1 is the sample bottle. He further deposed that he returned to Police

Station along with the accused and seized property and Motor cycle and basing on the mediator report registered a case in

Cr.No.509/2020 Under Sec.34 (A) of A.P. Excise Act . Ex.P2 is the original FIR. He further deposed that he served 41-A notice of the accused and bind over him and he visited the scene of offence and prepared the rough sketch. Ex.P3 is the rough sketch. He further deposed that examined PW.1, L.W.3/N.

Prasad, L.Ws.4/K. Durga Rao, and sent sample bottles to

Kakinada for Chemical analysis report through A.C.P. Ex.P4 is the letter of advice. Ex.P5 is the covering letter. He further deposed that after receipt of the chemical analysis report he filed the Charge Sheet against the accused and sent the remaining property to Deputy Commissioner of Excise for destruction and Motor cycle for confiscation. Ex.P6 is the chemical analysis. Ex.P7 is the destruction proceedings of

Deputy Commissioner of Excise, Vijayawada. After completion of investigation he file a charge sheet against the accused.

16. The learned defence counsel would argue that evidently neither a rough sketch was prepared nor the boundaries were mentioned in Ex.P3 with regard to the scene of offence and the said fact indicates that as the investigating agency did not arrest the accused as alleged, no such details could be produced before the court. I consider for a case like 7 this, there would not be any necessity to fix up the specific scene of offence and hence mentioning of boundaries or drawing of any rough sketch of the place of the arrest would by themselves would not lead to any further proof and their non mentioning would not cause any prejudice to the accused and hence the said contention is not tenable. Pw1 stated that did not produce any documentary proof to show that he was present on duty on the date of offence and did not sign on mediators report and also identity slips. PW 2 stated that does not know the case facts. PW4 stated that there is no availability of CC camera footage at the model guest house center and did not conduct any enquiry where the accused purchased the liquor bottles.

17. PW2 stated that does not know the case facts.

PW3 stated that he acted as mediator in 15 cases approximately and he along with LW5 acted as mediator in police cases.

18. The above evidence of the mediator goes to shows that his evidence is not trust worthy and his evidence in chief is discredited by the defence counsel during cross examination.

19.Relating to this aspect in a decision reported in

A.I.R. 1971 Supreme Court 356 between Hira Lal Vs. State of

Haryana in wherein their Lordships held that “Police witness –

Person appearing as prosecution witness four or five times in police cases pertaining to particular police witness – Evidence of such witness does not carry any value”. The above decision is also applicable to the facts of present case. The above evidence of the mediator goes to shows that his evidence is not trust worthy and his evidence in chief is discredited by the defence counsel during cross examination.

20. So after evaluation of entire evidence on record.

There are discrepancies and inconsistencies in the evidence of the prosecution witnesses. The only evidence of PW.1 and PW.4 are the official witnesses, who are material witnesses with 8 regard to the alleged incident,. PW.2 is the independent witnesses, but he did not deposed anything against the accused.

Hence P.W. 1 to PW4 evidence is not consistent to each other.

21. Therefore, all the above circumstances would compel that the case of the prosecution should not be accepted and I consider the prosecution has failed to prove that the accused was found in possession of the liquor bottles and thereby committed the offence under Section 34 (A) of AP Excise Act 1968 beyond all reasonable doubt. Thus I answer the above point.

22. In the result, the accused is found not guilty for the offence under Section 34 (A) of AP Excise Act 1968 and hence, he is acquitted Under Section 248 (1) of Cr.P.C., for the said offence. The bail bonds of the accused as well as his sureties shall be in-force for a period of six months as per Section 437-A

Cr.P.C. MO.1 is shall be destroyed after the appeal time is over.

Dictated to the Stenographer directly on the computer,

corrected and pronounced by me in the open court, on this the 20th day of April, 2023.

Chief Metropolitan Magistrate, Vijayawada. APPENDIX OF EVIDENCE: WITNESSES EXAMINED FOR:

PROSECUTION:- ACCUSED/DEFENCE:-

PW.1 : U. Lokesh-None- PW.2 : N. Prasad PW.3 : K. Durga Rao PW.4 : G. Sankara Rao

DOCUMENTS MARKED FOR:

PROSECUTION:- ACCUSED/DEFENSE:-

Ex.P1: Mediator Report-Nil- Ex.P2: Original FIR Ex.P3: Rough Sketch Ex.P4: Letter of advice Ex.P5: Covering Letter Ex.P6: Chemical analysis Report 9

Ex.P7: Destruction proceedings

MATERIAL OBJECTS MARKED: MO.1:Aristocrat Premium 180 ml-1 bottle

Chief Metropolitan Magistrate, Vijayawada.

10

IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE AT

VIJAYAWADA.

Present: Smt. D. Satyavathi, Chief Metropolitan Magistrate, Vijayawada.

Friday, this the 20th day of April, 2023

CC No.599/202 1

Between: The State: Sub-Inspector of Police, I Town Police Station, Vijayawada City …Complainant A N D

1. Gundapu Anil S/o. Apparao, 34 years, Kapu, Sundariah Nagar, 11th road, Mahanadu, Tadepalli, Guntur District.

2.Dhulipudi Nagendrababu S/o. Babu Rao, 38 years, Kapu, D.No.74-6/6-18A, VSR Road Ayyappanagar, Patamata,

Vijayawada. ...Accused and 2

This case is coming on 19-04-2023 for final hearing before me in the presence of Sri B. Krishna Kishore, APP for Complainant and Smt. B. Visalakshi; learned counsel for advocate of 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

The Sub-Inspector of Police, I Town police station laid a charge sheet against the accused No.1 and 2 under Section 34 (a) of

A.P. Excise Act in Cr.No.507/2020.

02. The brief facts of the prosecution are that:

On 09.06.2020, at about 06.35, p.m. LW.6/G. Sankara

Rao/Sub Inspector of Police, received credible information about illegal transportation of liquor from Telangana State to AP: then he made an entry in the GD and rushed near Model Guest House along with LWs.1 Shaik Ibbrahim , LW2 K. Sreenu and mediators (LWs.4 and

5) and started vehicles checking. At about 06.35 pm , they noticed a motor cycle bearing No. AP 39 CB 9759 coming from Kummaripalem side to Prakasam Barrage side and the pillion possessed with a bag.

On seeing the police, the rider of the motorcycle tried to turn back to fly away from the spot. But they surrounded the vehicle with the assistance of LWs.1 and 2 and questioned them to inform their names and address particulars.

03. On suspicious circumstances, LW.6/G. Sankara Rao, Sub

Inspector of Police served under section 41 (A) Cr.P.C. notice to both the motor cycle rider and pillion and on questioning them repeated, they voluntarily confessed that both are running Kanakaduraga Hero

Honda service mechanic shed at Gandhinagar. Recently, the

Government has issued orders for lock down and that there is no work to them and that they felt into debts. On 08-06-2020, both the accused went to Kodada on motorcycle bearing NO. AP. 39 CB 9759 and purchased 35 liquor bottles with their earning with an intention to sell those bottles at higher price in their village and to clear their debts by way of easy earning. But in the meantime, with the assistance of LWs.1 and 2 and they were caught hold them. On verification of bag in the possession of the accused, it contains 1.

Sterling Reserve B7 whiskey 750 ml bottles 02, 2. Officer choice 90 ml Bottles-30, 3) Sterling reserve B7 whiskey 180 ml bottles-02, 4)

Royal Challenge whiskey 180 ml bottle-01, total 35 bottles belongs to

Telangana State and prepared the mediator report. LW.6/G. Sankar

Rao, Sub Inspector of Police separated one bottle of every brand for sending them to chemical examination at RPEL, kakinada. He kept those bottles in a cupboard box packed it, got affixed slips containing the signatures of mediators and countersigned by him. He seized the remaining bottles along with the bag, motorcycle got affixed slips containing the signatures on mediators and countersigned by him.

04.Basing on the mediators report LW.6/G. Sankar Rao,

Sub Inspector of Police case registered in Cr.No.507/2020 under section 34 (A) of AP Excise Act on 09-06-2020 at about 08.05 hours.

Original FIR was sent to the Hon'ble Court, Vijayawada, copies of the

FIR submitted to all the concerned officers and took up investigation in this case.

05.During course of investigation, he secured the presence of LWs.1 to 3 examined them and the Andhra Pradesh

Excise (Amendment) Act 2020 came into force from 20.05.2020 it was published as per Gazette dated 02.07.2020 vide G.O.Ms.No.34 of

Law Department. Hence, LW.6/G. Sankara Rao, Sub Inspector of

Police served notices under section 41(A) Cr.P.C to the accused.

Later, he prepared letter of advice and sent seized sample bottles of every brand for Chemical Examination to Kakinada, through ACP,

West Division. Vijayawada city. On 25-06-2020. LW.6/G. Sankara

Rao, Sub Inspector of Police received the CE's report from Kakinada, where the expert opined that, the samples are Indian made liquor.

Except the Sample bottles, entire property is Confiscated to the state under Section 46 (2) of AP. Excise Act, 1968 a per orders of Deputy

Commissioner of Prohibition and Excise, Vijayawada vide orders

Rc.131/2020/B3 Dt. 19.07.2020. Hence Sample bottles are produced

before the Hon'ble Court. The vehicle involved in this case bearing

no. AP39 CB 9759 Suzuki is Confiscated under Section 46 (2) of A,

Excise Act-1968 as per orders of the Commissioner of Police and

Additional District Magistrate, Vijayawada Vide Orders C.No.03/C-

4/2020 Dt.09.11.2020. There after filed a charge sheet against the accused No.1 and 2.

06.This court took cognizance of offence under Section 34 (A) of AP Excise Act 1968. Copies of case record furnished to the accused as required under section 207 of Cr.P.C. The accused No.1 and 2 were examined under section 239 of Cr.P.C. and charge under

Section 34 (A) of AP Excise Act 1968 was framed, read over and explained to the them in Telugu. They denied the charges and claimed to be tried.

07.To prove the case, the prosecution was examined

PWs.1 to 4; got marked Exs.P1 to P9 and MO.1 to MO.4. The evidence of LW.2/Shaik Ibrahim and LW.3/Thamalapakula Raja

Ratnam were given up by APP. After closure of prosecution evidence, the accused No.1 and 2 were examined under section 313 of Cr.P.C.

to enable them to explain the incriminating circumstances appearing against them in the evidence of prosecution witnesses. The accused

No.1 and 2 were denied his evidence and did not choose to let them either oral or documentary evidence.

08.The arguments of APP and defence counsel have been heard.

09.Now the point for determination is “Whether the prosecution proved the guilt of the accused No.1 and 2 for the offence punishable under Section 34 (A) of AP Excise Act 1968 beyond a reasonable doubt”? POINT:

10.The case of the accused No.1 and 2 are total denial and they contend that this case is foisted against them for statistical purpose and they did not commit any offence. Therefore, the burden is upon the prosecution to establish that the accused No.1 and 2 were found in their possession of the liquor bottles and that the same was seized from the accused No.1 and 2.

11.Therefore, to prove its case the prosecution firstly examined PW.1/K. Srinu, Constable, who is present at the time of arrest of the accused and seizure of the property deposed that on 09- 06-2020 at about 07.15 P.M., he accompanied with the LW.6

G.Sankara Rao, Sub Inspector of police along with two mediators and went to Model Guest house, Beside Sri Durga Malleswara Swamy

Vaarla Devasthanam, I Town, Vijayawada and there they conduct the vehicle checking. He further deposed that they found two persons coming on motor cycle bearing No. AP 39 CB 9759 from

Kummaripalem towards Vijayawada. Then the Sub Inspector of police tried to stop the motor cycle and they person are tried to skulk away.

He further deposed that constable caught hold of them and brought to the LW.6 G.Sankara Rao ,Sub Inspector of police and conducted enquiry they revealed their names and address particulars as accused herein.

12. He further deposed that they confessed that they purchased liquor bottles from Kodada in Telangana State and for resale the said bottles at higher prices. He further deposed that on instructions of the LW.6 G.Sankara Rao, Sub Inspector of Police opened the said bag and found that it contains the liquor bottles i.e., 1)Sterling Reserve of 750 ml – 2 bottles, 2) Officers choice of 90 ml – 30 bottles 3) Sterling Reserve 180 ml -2 bottles 5) Royal challenge 180 ml -1 bottles in total 35 bottles from the accused A1 and A2. He further deposed that LW.6 G.Sankara Rao, Sub Inspector of Police was lifted the sample from each variety for chemical analysis and seized the liquor bottles. He further deposed that LW.5 prepared the mediators report basing on the confession statement of the accused the Sub Inspector of police seized the liquor bottles from the accused and arrested the accused and came to Police Station along with the accused and seized property and also seized the motor cycle.

13. Prosecution further examined PW.2/K. Durga Rao, who is present at the time of arrest of the accused and seizure of the property deposed that in the month of June, 2020 in the evening time police called him to the police station and obtained signature on written paper, but he does not know its contents. Ex.P1 is the signature on mediator report.

14.Prosecution further examined PW.3/P. Venkateswara Rao, who is present at the time of arrest of the accused and seizure of the property deposed that in the month of June, 2020 in the evening time police called him to the police station and obtained signature on written paper, but he does not knew its contents. Ex.P2 is signature on mediator report.

15. P.W.s 2 and 3 were not supported the case of the prosecution the learned A.P.P. declared them as hostile witnesses.

Though, the learned A.P.P. cross-examined Pws.2 and 3 nothing was elicited in favour of the prosecution and Exs.P1 and 2 which their signatures on mediators report were marked.

16. Prosecution further examined PW.4/G. Sankara Rao, who is arrested the accused and seized the property deposed that on 09- 06-2020 at about 06.35 AM he along with Mediators, L.W3 and P.W.2, 3 were conducting vehicle checking at Model guest house. He further deposed that at that time two persons coming on motor cycle bearing

No. AP 39 CB 9759 coming from Kummaripalem center and on seeing the police the said persons tried to turned back. He further deposed that found a bag with them and enquiry they revealed their name and address particulars as the accused herein. He further deposed that they further reveal that they purchased the liquor bottles from

Kodada of Telangana state and intended to purchase liquor from near by villages of Vijayawada to sell the same in Vijayawada. He further deposed that he checked the bag and found liquor bottles i.e 1)

Sterling Reserve B7 Whiskey 750ml bottles -2, 2)Officers choice

Reserve whiskey 90 ml -30, 3) Sterling Reserve B7 whiskey 180 ml-2 bottles, 4) Royal challenge whiskey 180ml -1. Total 35 bottles. M.O.1 to Mo.4 are the sample bottles. He further deposed that he lifted each one variety bottle for sample and prepared the mediator report and seized the liquor and Motor cycle and arrested the accused.

Ex.P3 is the Mediator report .

17.He further deposed that he returned to Police Station along with the accused, seized property and Motor cycle and on basing of the mediator report registered a case in Cr.No.507/2020

Under Section 34 (A) of A.P. Excise Act . Ex.P4 is the original FIR .

He further deposed that served under section 41-A notices on the accused and bind over him and he visited the scene of offence and prepared the rough sketch. Ex.P5 is the rough sketch. He further deposed that examined PW.1, LWs.2/K. Srinu, LW.3/T.Raja Ratnam and sent sample bottles to Kakinada for Chemical analysis report through A.C.P.. Ex.P6 is the letter of advice . Ex.P7 is the covering letter. He further deposed that after receipt of chemical analysis report and he sent the remaining property to Deputy Commissioner of

Excise for destruction and Motor cycle for confiscation .Ex.P8 is the chemical analysis report. Ex.P9 is the destruction proceedin .Commissioner of Excise, Vijayawada. After completion of investigation he file a charge sheet against the accused.

18. The learned defence counsel would argue that evidently neither a rough sketch was prepared nor the boundaries were mentioned in Ex.P4 with regard to the scene of offence and the said fact indicates that as the investigating agency did not arrest the accused as alleged, no such details could be produced before the court. I consider for a case like this, there would not be any necessity to fix up the specific scene of offence and hence mentioning of boundaries or drawing of any rough sketch of the place of the arrest would by themselves would not lead to any further proof and their non mentioning would not cause any prejudice to the accused and hence the said contention is not tenable. PW 1 stated that the mediator report was prepared at the scene of offence at Model Guest

House and did not put his signature on mediator report and identity slips and LW6 seized the three varieties of liquor bottles. Pw4 stated that he did not conducted any enquiry the accused where purchase the liquor bottles.

19. So after evaluation of entire evidence on record. There are discrepancies and inconsistencies in the evidence of prosecution witnesses. The only evidence of PW.1 and PW.4 are the official witnesses, who are material witnesses with regard to the alleged incident. Pw2 and 3 are the independent witnesses, but they did not deposed anything against the accused No.1 and 2. Hence P.W. 1 to

PW4 evidence is not consistent to each other.

20. Therefore, all the above circumstances would compel that the case of the prosecution should not be accepted and I consider the prosecution has failed to prove that the accused no1 and 2 were found in possession of the liquor bottles and thereby committed the offence under Section 34 (A) of AP Excise Act 1968 beyond all reasonable doubt. Thus I answer the above point.

21. In the result, the accused No.1 and 2 are found not guilty for the offence under Section 34 (A) of AP Excise Act 1968 and hence, they are acquitted Under Section 248 (1) of Cr.P.C., for the said offence. The bail bonds of the accused No.1 and 2 as well as their sureties shall be in-force for a period of six months as per Section 437-A Cr.P.C. MO.1 to MO.4 are shall be destroyed after the appeal time is over.

Dictated to the Stenographer directly on the computer,

corrected and pronounced by me in the open court, on this the 20th day of April, 2023.

Chief Metropolitan Magistrate, Vijayawada.

APPENDIX OF EVIDENCE: WITNESSES EXAMINED FOR: PROSECUTION:- ACCUSED/DEFENCE:- PW.1 : K. Srinu -None- PW.2 : K. Durga Rao PW.3 : P. Venkateswara Rao PW.4 : G. Sankara Rao

DOCUMENTS MARKED FOR: PROSECUTION:- ACCUSED/DEFENSE:- Ex.P1: Signature on Mediator Report-Nil- Ex.P2: Signature on Mediator Report Ex.P3: Mediator report Ex.P4: Original FIR Ex.P5: Rough Sketch

Ex.P6: Letter of advice Ex.P7: Covering letter Ex.P8: Chemical analysis Report

Ex.P9: Destruction proceedings

MATERIAL OBJECTS MARKED: MO.1: Sterling Reserve B7 whisky 750 ml-1 MO.2: Officers choice Reserve Whisky 180 ml-1 MO.3: Sterling Reserve B7whisky 180 ml-01 MO.4: Royal challenge whisky 180 ml-1

Chief Metropolitan Magistrate, Vijayawada.

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IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE AT

VIJAYAWADA.

Present: Smt. D. Satyavathi,

Chief Metropolitan Magistrate, Vijayawada.

Monday, this the 24th day of April, 2023.

C.C No. 6983 of 2018

Between: The State: Sub-Inspector of Police, Ajith Singh Nagar P.S., Vijayawada City …Complainant A N D

1.Nakkala Sundar S/o Nagaraju, Aged 37 years, R/o. GF- 2, GF-3 Apartment, F- Block, New RR Peta, Vijayawada City

2.Dasari Mahesh S/o Venkaiah (Late), A/23 years, C/Pamula, Plot No- 2777, New RR Peta, Vijayawada

City ...Accused no 1 and 2

(Case is split up against A1 in C.C. Number no.464/2017)

This case is coming on 21-04-2023 for final hearing

before me in the presence of Sri B. Krishna Kishore, APP for

Complainant and Sri. B. Panduranga Rao advocate of the 2nd 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

The Sub Inspector of police, Ajith Singh Nagar police station laid a charge sheet against the accused no.1 and 2 under section 8 R/w.20(b) of NDPS Act in Cr.No.222/2017.

02. The brief facts of the prosecution are that:

On 20.04.2017 at 10.30 a.m. on information

LW.8/Ch. Krishnam Rau, Sub Inspector of Police along with

LW2/Ch. Nagababu, LW.3/K. Anjaneyulu and LW.4/T.Pulla Rao were reached Devi Nagar, 8th lane, Near Railway track open place, Vijayawada along with mediators and found the accused no. 1 and 2 under suspicious circumstances. They were smoking something and it was smelling ganja. LW.8/Ch. Krishnam Raju,

Sub Inspector of Police rounded up them with the assistance of 2 staff and when questioned the A1, he voluntarily confessed that they purchased 4 packets each for Rs. 100/- for 4 packets total 8 packets. They consumed each one packet and they are having 3 packets each in their possession. When questioned the accused no 1 and 2 corroborated the confession statement of the A1 with regard to purchase of 4 small quantity ganja packets from unknown rickshaw puller of Rs 100/- for 4 packets and they consumed one packet each and they are having 3 packets each one.

03. When LW.8/Ch. Krishnam Raju, Sub Inspector of

Police searched there is small quantity ganja in each packet and there are total 6 ganja packets. LW.8/Ch. Krishnam Raju, Sub

Inspector of Police conducted weight of 6 packets and weighing 100 grams total 6 packets which were found in possession of the

A1 and A2.

04.During the course of further examination after informing the grounds of arrest, LW.8Ch. Krishnam Raju, Sub

Inspector of Police arrested the accused no. 1 and 2 and seized 06 ganja packets from the accused no. 1 and 2 before mediators under cover of mediators report and packed the same and affixed identity slips with the signatures of himself and mediators were pasted on the packets.

05. Basing on the mediators report LW.8/Ch. Krishnam

Raju, Sub Inspector of Police registered a case in Cr.No.222/2017 under section 8 R/w.20 (b) of NDPS Act and investigated into.

06.During the course of further investigation LW.8/Ch.

Krishnam Raju, Sub Inspector of police examined the witnesses and served notices under section 41-A of Cr.P.C to the accused no.1 and 2, and forwarded the samples for chemical analysis with letter of advice. After completion of the investigation

LW.8/TV Naresh Kumar, Sub Inspector of police filed a charge sheet for the offence punishable under sections 8 R/w.20 (A) of

NDPS Act against the 1st accused and 2nd accused.

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07. This court took cognizance of offence under sections 8

R/w.20 (A) of NDPS Act. Copies of case record furnished to the accused Nos.1 and 2 as required under section 207 of Cr.P.C.

The case was split up against 1st accused. The 2nd accused was examined under section 251 of Cr.P.C. and charge under sections 8 R/w.20 (b) of NDPS Act was framed, read over and explained to the 2nd accused in Telugu. He denied the charges and claimed to be tried.

08.To prove the case, the prosecution examined as

P.Ws.1 to 5 and got marked Exs.P1 to P-5 . The evidence of

Lws.3/K. Anjaneyulu and LW4 K. Pulla Rao were given up by

APP. After closure of prosecution evidence, the 2nd accused was examined under section 313 of Cr.P.C. to enable him to explain the incriminating circumstances appearing against him in the evidence of prosecution witnesses. The 2nd accused was denied their evidence and did not choose to let him either oral or documentary evidence.

09.The arguments of APP and defence counsel have been heard.

10.Now the point for determination is “Whether the prosecution proved the guilt of the 2 nd accused for the offence punishable under sections 8 R/w.20 (A) of NDPS Act beyond a reasonable doubt”?

POINT:

10. The learned APP argued that PW1 to PW.5 witnesses clearly stated that the accused A1 and A2 are purchase the ganja from unknown rickshaw puller and they are selling the same and the evidence itself is sufficient to proceed against the 2nd accused and prayed to convict the 2nd accused according to law.

11. On the other hand the learned defence counsel argued that PW.1 to PW. 5 evidence is not corroborated to each other. PW1 and PW3 are the independent witnesses are 4 not local inhabitants of the scene of offence. The prosecution has not placed any evidence before the court to show that the 2nd accused was purchased the ganja from unknown Rickshaw

Puller and for selling in Vijayawada and prayed to acquit the 2nd accused.

12.ProsecutionfirstlyexaminedPW1 K.

Subramanyam, who is weighed the ganja deposed that on 17- 05-2017 at about 09.00. a.m. he went to Police station and weighed a cover which contains 100 grams ganja.

13.Prosecution further examined PW2 Ch.Chanti

Babu, Police Constable, who is present at the time of arrest of the accused and seizure of the property deposed that on 17.05.2017 he along with LW 3 Anjaneyulu , two mediators, accompanied with LW7. Ch. Krishnam Raju, Sub-Inspector police when they reached to Railway track, New RR Peta near Tejasri bar at about 8.00 a.m. and they noticed two persons. He further deposed that on seeing them they tried to escape from the place, they caught hold two persons and LW7. Ch. Krishnam

Raju, Sub-Inspector police enquired in the presence of the mediators. He further deposed the said persons revealed their names and address particulars i.e. Dasari Mahesh, Nakkala

Sundar accused here in and they voluntarily confessed that they purchased 8 packets of Ganja from unknown persons and consumed one packet each one. He further deposed that the remaining packets kept for selling for higher price and seized 6 packets of ganja and prepared the mediator report. He further deposed that arrested the accused no.1 and 2 and seized the property and produced before the Inspector of police and weighing the ganja was 100 grams and prepared the mediator report.

14. Prosecution further examined P.W.3 M. Chenna

Kesava Reddy, who is the mediator and he was present at the time of arrest of the accused and seizure of the property deposed that on 17-05-2017 at about 7.30 a.m. Sub Inspector of 5

Police, Ajithsingh Nagar, Vijayawada called him and he went to

Tejaswini Bar. He further deposed that on seeing the Police, the accused try to escape from the place, police caught hold the persons and enquired them on that they disclosed their names and address particulars. He further deposed that the Police searched the accused and found three ganja packets from each of the accused, in their pockets. He further deposed that Police enquired them and they told that they purchased four packets each for Rs.25/- and one packet each one consumed by them.

He further deposed that they confessed that they try to selling the remaining packets and the police caught hold them and prepared Mediators Report on 17.05.2017 at 8.00 AM. Ex.P1 is the mediator report. He further deposed that the accused along with seized property brought to the police station and produced

before the Inspector of Police and on weighing the ganja in his

presence is about 100 grams and prepared the mediator report. Ex.P2 is the mediator report on 17.05.2017 at about 8.30 a.m.

15. Prosecution further examined P.W.4 T.V.Naresh

Kumar, Inspector of Police, who is arrested the accused and seized the ganja from the possession of the accused deposed that on 17.05.2017 at about 8.00 a.m. on reliable information secured the mediators i.e. PW3, LW6 E.Raju along with his staff proceeded to New Raja Rajeswari Peta Near Tejaswari bar, near

Railway tract, they found two persons and on seeing them they try to escape from there. He further deposed that he caught them with the help of his staff and on enquiry they confessed that they purchased 4 ganja packets from unknown persons each packet worth of Rs.25/- . He further deposed that each one consumed one packet the remaining three packets try to sell the same and they seized the 6 packets of Ganja from the A1 and A2 . He further deposed that the property brought to the police and produced before the Inspector of Police and the accused again voluntarily confessed the same as above prepared 6 mediator report. Ex.P2 is the mediator report dated. 17.05.2017 at 8.30 a.m.

16. He further deposed that basing on the mediator report registered the case in Cr. no. 222/2017 under sections 8 © r/w 20 (b) (ii) (B) of NDPS Act, 1985. Ex.P3 is the first information Report. He further deposed that on the same day visited the scene of offence and the accused produced before the court for judicial remand. He further deposed that send the seized property to the RFSL, Kakinada and received the chemical analysis report. Ex.P4 is the letter of advice. Ex.P5 is the chemical analysis report. After completion of the investigation filed a charge sheet against the accused no.1 and 2.

17. Prosecution further examined P.W 5. Ch. P. Krishnam

Raju,Inspector of Police, who is present at the time of search and seizure of the ganja from the possession of the accused deposed that on 17.05.2017 at about 09.30 A.M. PW.4 produced the accused along with seized property before him in the presence of mediators and examined the accused. He further deposed that they voluntarily confessed about the offence and the accused were produced the 6 packets of Ganja and weighing the

Ganja it is about 100 grams and lifted sample from the property and prepared a mediator report. Ex.P2 is the mediator report which was marked.

18. After going through the evidence of pw 1 stated that does not know the names of the constable and weighed a cover at police station. Pw 2 stated that place of arrest of the accused is frequent movement of the public and

Sub Inspector of police did not secure the local inhabitant of the scene of offence . He further stated that Sub Inspector of Police did not prepare the seizure list and scribed the mediator report.

PW3 stated that place of arrest of the accused is very busy locality and also residential area and on seeing the police two persons try to skulk away. He further stated that does not 7 know how the police secured the appraiser to the police station.

PW4stated that did not secure the local inhabitants of the place of arrest of the accused and he did not send the accused for medical checkup. He further stated that did not examined local inhabitants of the place of arrest of the accused and did not examined the Rickshaw puller and did not prepared the rough sketch of the scene of offence. He further stated that did not obtained the signatures of the accused on seized property and scribe name was not mentioned in Ex.P1 and Ex.P2. He further stated that after 22 days of the arrest of the accused, send the samples for chemical analysis. PW5 stated that the scribe name was not mentioned in mediator report and did not put his signature on seized property.

19. PW2 to PW4 were clearly stated that basing on the confession of the accused PW4 was arrested the accused no.1 sand 2.Ex.P1 and P2 mediators reports were drafted by PW4.

PW2, PW4 and PW6 are the official witnesses and they are stated to be interested witnesses. PW1 and PW3 are the independent witnesses . PW2 to PW5 clearly stated that place of arrest is busy locality and frequent movement of the public, but investigation officer did not secure the mediators. Therefore, there are severe contradictions between the case of the prosecution as narrated in the charge sheet , Ex.P1 and Ex.P2.

20.According to section 100 (4) of Cr.P.C. the prosecution has to secure the local inhabitants of the locality at the time of arrest of the accused and seizure of property as far as possible, otherwise it has to prove the sincere effort in securing mediators.

21. When the efforts of the prosecution in securing the mediators is doubtful, the recovery of the ganja alleged to be made from the possession of the accused is also not believable fro lack independent evidence. So after evaluation of entire evidence on record, there are discrepancies and inconsistencies in the evidence of prosecution witnesses.

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22. In view of my above discussion, I hold a view that the prosecution failed to prove the arrest of the accused and recovery of ganja from their possession through independent evidence, since PW 2, PW4 and PW5 are the police offcials.

PW1 to PW5 evidence is not consistent to each other. I hold a view that the proesecution failed to bring home the guilt of the 2nd accused beyoned all reasonable doubt and the 2nd accused is entitled for acuittal.

23. In the result, the 2nd accused is found not guilty for the charge under sections 8 (c) R/w 20 (b) (ii) (A) of NDPS Act and he is acquitted under section 255 (1) of Cr.P.C. for the offence. The bail bonds of the 2nd accused as well as his sureties shall be in-force for period of six months as per section 437 of Cr.P.C. The un marked property if any shall be destroyed after expiry of appeal time is over.

Dictated to the Stenographer directly on the computer,

corrected and pronounced by me in the open court, on this the 24th day of April, 2023.

Chief Metropolitan Magistrate, Vijayawada.

APPENDIX OF EVIDENCE:

WITNESSES EXAMINED FOR:

PROSECUTION:- ACCUSED/DEFENCE:-

PW.1: K. Subrahmanyam --- none – PW.2: CH. Chanti Babu PW.3:Chennakesava Reddy PW.4:T.V. Naresh Kuamr] PW.5: Ch. P. Krishna Raju

OCUMENTS MARKED FOR: D

PROSECUTION:- ACCUSED/DEFENCE:-

Ex.P1: Mediator Report---Nil--- Ex.P2: Mediator Report Ex.P3: FIR Ex.P4: Letter of advice Ex.P5: Chemical analysis report.

MATERIAL OBJECTS MARKED:

--Nil--- 9

Chief Metropolitan Magistrate, Vijayawada.

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