Smt D. Soni

C.C.No: 359 of 2008Page 1 of 10

IN THE COURT OF ADDITIONAL JUNIOR CIVIL JUDGE ::

MANGALAGIRI

Present: Smt. D.Soni,

Additional Junior Civil Judge, Mangalagiri

Thursday, this the 6 th day of October , 2016.

C.C.No:359 of 2008

Between:-

State: Sub-Inspector of Police, (Cr.No.42/2008 of Tadepalli P.S.)

..Complainant.

And

1. Vemula Durga Rao Venkaiah47 yrsWadderaPrakash Nagar, Tadepalli (M)

2.Buraga VenkateswarluVenkataiah40 yrsMalaSecretary, Krishna Nagar, Tadepalli (M)

3.Darsanapu Hussain(Case against A3 Abated)

4.Addakattla Sowry Rayanna46 yrsPadmasaliNulakpet, Krishna BirthlamNagar, Tadepalli (M)

5.Bathula ThirupataiahSangaiah48 yrsYadava-do-

6.Kolakaluri Venkata Radha Krishna32yrsMadiga-do- Ratnam

7.Choragudi BabjiBasaviah28 yrs-do--do-

8.Duricheti Panduranga (Case against A8 is split up and numbered as CC.74/2014) Chari

9.Baddigam Ram Mohan Gopy Reddy41 yrsReddyTadepalli (V) & (M) Reddy @ Mohan Reddy 10Rampalli SitammaButchaiah40 yrsKapuluNear bose statue, Tadepalli (V) & (M) 11Vandringi Satyavathi Anjaneya Vara 28 yrsKammaSundaraiah Nagar, now @ BujjiPrasadat Krishna Nagar, Tadepalli 12Donthireddy Srinivasa Venkata Reddy44 yrsReddy3rd Ward, Tadepalli (V). Kumari

….....Accused.

C.C.No: 359 of 2008Page 2 of 10

This case is coming before me for final hearing on this day in the presence of Learned Assistant Public Prosecutor for State and Sri K.Venkata

Prasad, Counsel for A1, A2, A4 to A7, A9 to A12, upon hearing both sides and matter have stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01.The Sub-Inspector of police, Tadepalli Police station, filed a charge sheet in

Cr.No.42/2008 for the offences punishable under sections 147, 148, 447, 427, 353, 506, 188 r/w 149 of Indian Penal Code, 1860 (herein after referred as 'IPC' for the sake of brevity) and Section 4 of Prevention of Damage to Public Property Act, 1984 (herein after referred as 'PDPP' for the sake of brevity) against A1, A2, A4 to

A7, A9 to A12.

02. The case of the prosecution, in a nut shell, is that:

a)On 09-02-2008 at about 7.00 am., all the accused being the members of CPI (M) Party, formed into an unlawful assembly, trespassed into the Reserve Forest, Krishnanagar Area of Tadepalli, occupied the Government land, pitched the CPI (M) flags, divided the area into the plots, erected boundaries as well as huts by destroying the forest, when the defacto complainant, who is

Forest beat officer along with his officials, went and requested the accused to vacate the land. All of them turned against them and bluntly refused to vacate the area.

b)Based on the report of the defacto complainant, on 09-02- 2008, the investigating officer registered the case, investigated into, visited the scene of offence, examined the witnesses and recorded their statements and photographed the scene of offence. Finally, he arrested all the accused and produced them before the court for judicial. On completion of investigation, he filed charge sheet. Hence, the charge.

C.C.No: 359 of 2008Page 3 of 10

03.On receipt of charge sheet, this case was taken on file for the offences under sections 147, 148, 447, 427, 353, 506, 188 r/w 149 IPC and Section 4 of

PDPP Act against A1, A2, A4 to A7, A9 to A12.

04.On appearance of A1, A2, A4 to A7, A9 to A12, copies of documents were furnished to them as contemplated under Section 207 of Criminal Procedure

Code, 1973 (herein after referred as 'Cr.P.C.' for the sake of brevity).

05.When examined under section 239 of Cr.P.C., A1, A2, A4 to A7, A9 to A12 denied the allegations levelled against them. After perusing the entire material on record and on hearing both sides, charges had been framed against the accused under sections 147, 148, 447, 427, 353, 506, 188 r/w 149 IPC and Section 4 of PDPP Act, which were read over and explained to the accused in Telugu language, for which, they pleaded not guilty and claimed the case to be tried.

06.During the course of trial, on behalf of the prosecution, P.Ws.1 to 5 were examined out of the thirteen cited witnesses in the charge sheet and Ex.P1 to

P3 were exhibited. The evidence of L.Ws.3 to 8, 11 & 13 was given up by the learned Assistant Public Prosecutor as hear say witnesses.

07.On closure of evidence let in by the prosecution, the accused were examined under section 313 of Cr.P.C., with regard to the incriminating material available against them, for which, they denied and reported no defence evidence.

08.Heard both sides.

09.Now the point germane for determination is :

“Whether the prosecution is fruitful in bringing home

the guilt of A1, A2, A4 to A7, A9 to A12 for the charges

framed against them under section 147, 148, 447, 427,

C.C.No: 359 of 2008Page 4 of 10

353, 506, 188 r/w 149 IPC and Section 4 of PDPP Act

beyond reasonable doubt?”

10. POINT:

a)To establish its case, the prosecution has examined P.Ws.1 to 5, out of which, P.W.1 is the defacto complainant, P.W.2 is the Deputy Range

Officer. P.Ws.3 & 4 are the independent witnesses, P.W.5 is the investigating officer. The prosecution also relied upon the strength of Exs.P1 to P3 to substantiate its case.

b)The crux of the prosecution story is that on 09-02-2008 at about 7.00 am., all the accused being the members of CPI (M) Party, formed into an unlawful assembly, trespassed into the Reserve Forest, Krishnanagar Area of

Tadepalli, occupied the Government land, pitched the CPI (M) flags, erected boundaries as well as huts by destroying the forest, when the defacto complainant, who is Forest beat officer along with his officials, went and requested the accused to vacate the land, all of them turned against them and bluntly refused to vacate the area. On that, he preferred a report before Tadepalli police.

c)Supporting the version of prosecution, P.W.1, who is the Forest

Beat Officer deposed that in the month of August, 2007, some persons being the followers of CPM Party encroached forest area at Tirupal Quary, Tadepalli Reserve

Forest and erected huts by cutting trees. On knowing about the same, he issued notice to those people to vacate the forest land, but they did not do so. He further deposed that on 09-02-2008 with the help of Revenue and police officials, they tried to evict the accused, but the accused opposed with sticks, knives, spades and crowbars and caused inconvenience, while they were discharging their legitimate duties. Then, he gave a report before police, marked as Ex.P1.

During cross-examination by the defence counsel, he stated that nearly 700 to 800 persons were present at the scene of offence at the time of offence and

C.C.No: 359 of 2008Page 5 of 10 he could not specifically say the accused are the persons, who had erected huts in the scene of offence. He also admitted that based on the information furnished by his sub-ordinates, he gave the names of the accused and he can not identify the accused by their names. He further stated that except Ex.P1, there is no any other material available on record to show that the accused are the persons, who criminally trespassed into the public property and erected huts and also categorically admitted that he has not seized any incriminating material i.e., knives, spades from the scene of offence to show that the accused damaged the government land by cutting trees.

d)P.W.2, who is the Deputy Range officer deposed in the same lines of P.W.1 about the incident.

During cross-examination by the defence counsel, he stated that nearly 700 to 800 persons were present at the scene of offence and he could not say the accused are the persons, who exactly encroached into the forest area and erected huts. Further more, he admitted that he has not seized any incriminating material i.e., knives, spades from the scene of offence to show that the accused damaged the government land by cutting trees and occupied the same. He further stated that he could not say the date of encroachments made by the accused and he stated the names of the accused based on the information given by the offenders. During cross-examination, he denied the suggestion that the land in dispute is not forest land but it belongs to one person by name Tirupal.

e)P.W.3, who is the then Revenue officer, Civil Supplies,

Tadepalli deposed that 09-02-2008 at about 8.00 am., upon the instructions of

Tahsildar, Tadepalli he proceeded to Forest area in Krishnanagar Panchayat and noticed 300 to 400 huts were erected in the forest area and the Forest officers removed those encroachments and in that process, the encroachers tried to obstruct the Forest Officer, police, who were present there, took the custody of the said encroachers. He failed to identify the accused are the persons, who criminally trespassed into the Forest land and erected huts. Further more, nothing could be

C.C.No: 359 of 2008Page 6 of 10 elicited during his cross-examination by the learned defence counsel to corroborate the version of the prosecution.

f)P.W.4, who is the then VRO of Tadepalli deposed that on 09- 02-2008 at about 7.00 am., as per instructions of MRO, Tadepalli, he along with

P.W.3 went to Reserve Forest and found nearly 500 to 600 persons gathered at the scene of offence and raised thatched huts in the forest area and also obstructed the forest officials, who were trying to remove their huts. Then, police came there and arrested some persons and went away. He further stated that though he identified the accused in the open court, he could not say the names of the accused.

During cross-examination by the defence counsel, he stated that police arrested only some people among the encroachers and left the other people and he acted as mediator in 100 cases and Tadepalli police frequently call him to act as mediator in many cases. He further admitted that except his oral testimony, there is no proof to show that he proceeded to the scene of offence at the time of the alleged offence.

g)P.W.5, who is the investigating officer deposed that on 08-02- 2008 while he was present at police station, he received proceedings under 144 of

Cr.P.C., from Executive Magistrate, Tadepalli in view of eviction of encroachments in 15 acres of Reserve Forest at Tadepalli Quary. According to that proceedings, on 09-02-2008 at about 6.00 am., all the police officers along with Forest range officer and staff proceeded to Tirupal quary, Tadepalli and found 700 to 800 persons and all of them are raising slogans against the government. Then, they instructed them to remove the encroachments, which were made in the forest land.

But, they did not heed their words. Then, he along with the Inspector took 25 persons into their custody and detained them. Then, P.W.1 came to the police station and presented a written report.(Ex.P1).

h)He further deposed that based on it, he registered the same as a case in Cr.No. 42/2008 and issued Ex.P2 original FIR and took up investigation,

C.C.No: 359 of 2008Page 7 of 10 proceeded to the scene of offence situated at Tirupal Quary, Prakash Nagar, and prepared rough sketch of the scene of offence marked as Ex.P3, examined the witnesses and recorded their statements. He further stated that on the same day, he arrested A3 to A9 at the scene of offence and produced them before the court for judicial remand. Later, on 11-02-2008 and on 18-02-2008 he arrested A1, A2, A10,

A11, A12 and produced them before the court for judicial remand. On completion of investigation, L.W.13-SV.Rajasekhar Reddy, SI of Police, Tadepalli P.S., filed charge sheet.

During cross-examination, he stated that he has not furnished the material relating to the incident to L.W.13-SI of Police, Tadepalli, who filed charge sheet and he has not seized any incriminating material in the scene of offence to show that the accused are the persons, who encroached the forest land and erected huts.

i)On a careful scrutiny of testimonies of prosecution witnesses on record, it is found that PW.1 who is the defacto complainant is the Forest Beat officer, P.W.2 is the Deputy Range Officer and remaining two prosecution witnesses are the Revenue officials. Apart from the investigating officer, Revenue officials and defacto complainant, no other eye-witness is examined by the prosecution for reasons best known to the prosecution. Further more, it is important to mention here that all the prosecution witnesses stated that there is a mob of 700 to 800 persons at the scene of offence at the time of the alleged incident. But, the prosecution did not examine even a single eye-witness to the alleged incident, which is fatal to the case of prosecution.

j)Referring to arrest of the accused, P.W.4 during his cross- examination stated that police arrested only some people among the encroachers and left the other people and also stated that he could identify 50 members, who were present at the scene of offence at the time of incident. More over, P.W.5 during his chief-examination stated that he took around 25 persons into their custody and brought them to Tadepalli police station for detention. Later, P.W.1

C.C.No: 359 of 2008Page 8 of 10 came to police station and presented a report, based on it, he filed FIR and filed charge sheet only against A1 to A12. Hence, there is a difference in the testimonies of Pws.4 & 5 with regard to arrest of the accused and this itself creates a reasonable doubt in the judicial mind as to the genesis of the incident. Further more, P.W.1 during his cross-examination admitted that he does not know the names of the accused and he got the particulars of the accused from his subordinates. More over,

P.W.2 In this context, the evidence of P.Ws.1, 4 & 5 is not inspiring confidence with regard to arrest of the accused.

k)More over, P.W.2 stated that though he identified the accused, by persons, he does not know their names and also stated that he could not say, who exactly encroached into the forest. Then, how P.W.2 came to a conclusion that the accused are the persons, who committed the offence is not clarified by prosecution. Further more, P.W.3 admitted that he could not identify the accused as there is a mob of 700 to 800 persons. In such circumstances, a doubt arises in the mind of the court that how the prosecution came to a conclusion that the accused are the persons, who criminally encroached into the forest land, damaged the same by cutting trees and erected huts when there is a mob of 700 to 800 persons. To substantiate the same, the prosecution did not examine any of the eye-witness in the said mob, which is highly doubtful in the eye of the Court. More over, there are lot of inconsistencies and omissions in the evidence of all prosecution witnesses.

l)On the other hand, except Forest officials, Revenue Officials and investigating officer, no other witness is examined by the prosecution. In the circumstances, the evidence available on record, is found unworthy of credence and it is not inspiring the confidence of the court. In view of latches on part of the prosecution which remains unexplained, this court is of the considered view that the prosecution failed to bring home the guilt of the accused beyond all reasonable doubt and hence all the accused are entitled for an order of acquittal on the ground of benefit of doubt. Point is answered accordingly in favour of the accused and against the prosecution.

C.C.No: 359 of 2008Page 9 of 10

m)In the light of the above discussion, this is court is of considered opinion that in view of the infirmities and failure of the prosecution as discussed above, this court is of the considered opinion that where the prosecution, could not establish its case beyond reasonable doubt and the testimonies of the prime witnesses in this case has lost credibility, it is not safe to base conviction on the testimonies of prosecution witnesses, which are found unworthy of credence.

n)More over, the material particulars as attributed by the prosecution against the accused is not appealing to the conscience of the court with convincing, cogent reasons so as to fasten guilt to the accused for the charges framed against them under section 147, 148, 447, 427, 353, 506, 188 r/w 149 IPC and Section 4 of PDPP Act. In these circumstances, it is inevitable to hold that benefit of doubt extends to the accused and on that ground, A1, A2, A4 to A7, A9 to A12 are entitled for an order of acquittal on the ground of benefit of doubt.

Point is answered accordingly in favour of A1, A2, A4 to A7, A9 to A12 and against the prosecution.

11.In the result, A1, A2, A4 to A7, A9 to A12 are found not guilty of the offence punishable under section 147, 148, 447, 427, 353, 506, 188 r/w 149 IPC and Section 4 of PDPP Act. Accordingly, they are acquitted under section 248(1)

Cr.P.C. Their bail bond shall stand cancelled. A1, A2, A4 to A7, A9 to A12 shall furnish a bond under section 437-A Cr.P.C that they shall appear before the

Appellate court in the event they receive summons within six months from today.

Directly typed to my dictation, corrected and pronounced by me in open court, this the 6 th day of October, 2016.

Sd/- D.Soni

ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI.

C.C.No: 359 of 2008Page 10 of 10

APPENDIX OF EVIDENCE

Witnesses examined

For Prosecution :-

P.W.1 : Thiruveedhula Srinivasa Rao

P.W.2 : Sanikommu Venkata Srinivasa Reddy

P.W.3 : Kollimarla Venkateswara Prasad

P.W.4 : Kathika Purnachandra Rao

P.W.5 : A.Aruna Giri, I/c SI of Police, Tadepalli P.S.,

For Defence:- --Nil--

Documents marked

For Prosecution :-

Ex.P1/-- : Statement of P.W.1

Ex.P2/-- : FIR in Cr.No.42/2008 of Tadepalli P.S.,

Ex.P3/-- : Rough sketch

For Defence :- ---Nil---

MATERIAL OBJECTS MARKED

---Nil---

Sd/- D.Soni

ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI.

C.C.No: 359 of 2008Page 11 of 10

CALENDAR AND JUDGMENT

IN THE COURT OF THE ADDITIONAL JUNIOR CIVIL JUDGE ::

MANGALAGIRI

Calendar in C.C.359/2008

Date of Offence : 09-02-2008 Date of Report : 09-02-2008 Date of arrest of Accused : 09-02-2008 Date of commencement of Trial : 26-03-2014 Date of close of Trial : 23-09-2016 Date of sentence or order : 06-10-2016 Crime No. and Name of P.S. : Cr.No.42/2008 of Tadepalli P.S. Name of the Complainant : State : Sub-Inspector of Police, Tadepalli P.S.. Description of Accused

No. Name of the accused Father’s Name Age Calling Residence

1. Vemula Durga Rao Venkaiah47 yrsWadderaPrakash Nagar, Tadepalli (M)

2.Buraga VenkateswarluVenkataiah40 yrsMalaSecretary, Krishna Nagar, Tadepalli (M)

3.Darsanapu Hussain(Case against A3 Abated)

4.Addakattla Sowry Rayanna46 yrsPadmasaliNulakpet, Krishna BirthlamNagar, Tadepalli (M)

5.Bathula ThirupataiahSangaiah48 yrsYadavaNulakpet, Krishna Nagar, Tadepalli (M)

6.Kolakaluri Venkata Radha Krishna32yrsMadigaNulakpet, Krishna RatnamNagar, Tadepalli (M)

7.Choragudi BabjiBasaviah28 yrs-do--do-

8.Duricheti Panduranga (Case against A8 is split up and numbered as CC.74/2014) Chari

9.Baddigam Ram Mohan Gopy Reddy41 yrsReddyTadepalli (V) & (M) Reddy @ Mohan Reddy 10Rampalli SitammaButchaiah40 yrsKapuluNear bose statue, Tadepalli (V) & (M) 11Vandringi Satyavathi Anjaneya Vara 28 yrsKammaSundaraiah Nagar, now @ BujjiPrasadat Krishna Nagar, Tadepalli 12Donthireddy Srinivasa Venkata Reddy44 yrsReddy3rd Ward, Tadepalli (V). Kumari

Section of Law : U/ sections 147, 148, 447, 427, 353, 506, 188 r/w 149 IPC Section 4 of PDPP Act Plea of Accused : Pleaded not guilty Finding of Court : Found not guilty

C.C.No: 359 of 2008Page 12 of 10

Sentence or Order :

In the result, A1, A2, A4 to A7, A9 to A12 are found not guilty of the offence punishable under section 147, 148, 447, 427, 353, 506, 188 r/w 149 IPC and Section 4 of PDPP Act. Accordingly, they are acquitted under section 248(1) Cr.P.C. Their bail bonds shall stand cancelled. A1, A2, A4 to A7, A9 to A12 shall furnish a bond under section 437-A Cr.P.C that they shall appear before the Appellate court in the event they receive summons within six months from today. No orders are passed as no property was marked.

Explanation for delay :

This case was filed on the file of Additional Junior Civil Judge Court, Mangalagiri, and taken on file for the offence section 147, 148, 447, 427, 353, 506, 188 r/w 149 IPC and Section 4 of PDPP Act. Copies furnished to A1, A2, A4 to A7, A9 to A12 on 14-02- 2014 and the accused was examined under section 239 of Cr.P.C., on 18-02-2014. On 05-05-2016 P.W.1 was examined and Ex.P1 was marked. On 09-06-2016 P.W.2 was examined. On 17-06-2016 P.W.3 was examined. On 19-07-2016 P.W.4 was examined. On 23-09-2016 P.W.5 was examined and Exs.P2 & P3 were marked and closed the prosecution side evidence. On 03-10-2016 the accused was examined under section 313 of Cr.P.C., and arguments were heard on 05-10-2016. Judgment pronounced on 06-10-2016. Hence, the delay.

Sd/- D.Soni

ADDITIONAL JUNIOR CIVIL JUDGE

MANGALAGIRI

Copy submitted to:- The Hon'ble Chief Judicial Magistrate, Guntur.

1

IN THE COURT OF THE ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI

Present: Smt. D.Soni,

Additional Junior Civil Judge, Mangalagiri

Wednesday, this the 5 th day of October, 2016.

C.C.No. 501 of 2016

Between:-

State: Prohibition and Excise Inspector

Mangalagiri P.S. ...Complainant.

And

Muppuri Venkata Swamy, S/o Venkateswarlu,

Age 58 years, Togateelu, R/o Nekkallu village,

Thulluru Mandal. ... Accused.

This case is coming before me for final hearing on this day in the presence of Learned Assistant Public Prosecutor for State and Sri B. Nayudamma, Advocate for accused, upon hearing both sides and matter have stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01.The Prohibition and Excise Inspector, Mangalagiri Police station, filed a charge sheet in PR. No.259/2015-2016 for the offence punishable under section 34 (a) of A.P. Excise Act against the accused.

02. The conspectus of the case of prosecution is that:

On 04-03-2016 at about 1:15 p.m, the Inspector of police,

Prohibition and Excise, Mangalagiri, along with staff members i.e. Lws.1 to 4 by name

M. Venkateswarlu (P & E Head Constable), G. Ravi Kishore (P&E Head constable),

B. Venkateswara Rao (P&E constable) and K.V. Sekhar Rao (P & E, S.I) while conducting patrolling at Nekkallu village, noticed the accused by holding a white polythene bag in his right hand and on seeing the police officials, the accused tried to skulk away. Then, L.W4-K.V. Sekhar Rao, caught hold the accused and questioned him, then he stated that he is disposing the same without any license for monitory 2 benefits and basing on his confession, L.W4 seized 11 bottles i.e Old Tavern Fine

Whiskey with a capacity of 180ml each from the possession of the accused and took one sample bottle from the variety, affixed identity slips on the contraband since none came forwarded to act as mediators and returned to police station along with property and accused and registered the said report as a case in PR.No.259/2015-16 for the offence under section 34 (a) of AP Excise Act. During the course of investigation, he observed all formalities and sent the accused to court for judicial custody. Later, he sent the sample for chemical examination. After receipt of FSL report and after completion of investigation, L.W.5-D. Balaiah, P & E Inspector, Mangalagiri filed charge sheet.

Hence the charge.

03.On receipt of charge sheet, this case was taken on file for the offence under

Section 34 (a) AP. Excise Act, against the accused.

04.On appearance of the accused, copies of documents were furnished to him as contemplated under Section 207 of Criminal Procedure Code, 1973 (herein after referred as 'Cr.P.C.' for the sake of brevity).

05.When examined under section 239 of Cr.P.C., the accused denied the allegations levelled against him. After perusing the entire material on record and on hearing both sides, a charge had been framed against the accused under section 34 (a) of A.P Excise Act, which was read over and explained to the accused in Telugu, for which, he pleaded not guilty and claimed the case to be tried.

06.During the course of trial, on behalf of the prosecution, P.Ws.1 and 2 were examined out of the five cited witnesses in the charge sheet and Ex.P1 to P3 and Mo.1 were exhibited. The evidence of L.Ws.2, 3 and L.W5 by name G. Ravi Kishore (P & E Head constable), B. Venkateswara Rao (P&E constable) and D. Balaiah,

Inspector, Proh & Excise, Mangalagiri was given up by the prosecution.

07.On closure of evidence let in by the prosecution, the accused was examined under section 313 of Cr.P.C., with regard to the incriminating material available against him, for which, his plea was total denial and reported no defence evidence.

08.Heard both sides.

3

a)The learned Assistant Public Prosecutor argued that the evidence of

PWs.1 and 2 coupled with Exs.P1 to P3 and Mo.1 go to show that the accused has committed the offence and the prosecution proved the case beyond all reasonable doubt against the accused.

b)The defence counsel argued that no independent witnesses by the prosecution, no local mediators secured at the time of seizure of contraband, the entire case is depending upon the case proceedings which is an infirmity. Hence, prays to acquit the accused on the ground of benefit of doubt.

09.The point for determination is :

“Whether the prosecution is successful in bringing home

the guilt of accused for the charge framed against him

under section 34(a) of A.P. Excise Act, beyond all

reasonable doubt?”

10. POINT:

a)PW.1, one of the eye witness and Excise official deposed that on 04-03-2016 at 9:00 a.m he along with P.W2 and two constables proceeded to Nekkallu village to conduct patrolling and when they reached near Sivalayam temple of Nekkallu village, they found one person in possession of white polythene bag and on seeing them, he tried to skulk away. Then, P.W2 stopped him and questioned and found liquor bottles in his possession and that P.W2 sent him to the village to secure the mediators and though he made attempts, he could not secure any persons to act as mediator as they are not willing. On that, he intimated the same to P.W.2 and he narrated a special report drafted by L.W2-G. Ravi Kishore and seized the liquor bottles in their presence. There are 11 bottles (i.e Old Tavern Fine whiskey bottles with a capacity of 180 ml., each) and P.W.2 seized one bottle as sample and took the accused along with property to the Prohibition and Excise police station, Mangalagiri.

PW.1 stated during cross-examination that the scene of offence is busy locality and he has not served notices to any persons to act as mediators and no persons came forward to act as mediators.

4

b) PW.2 who is the Sub-Inspector of police, Prohibition and Excise, deposed in corroboration to the evidence of PW.1 in addition to the evidence of PW.1,

PW.2 after bringing the accused to the police station, he registered a case in PR No.

259/2015-2016 under Sec. 34 (a) of A.P Excise Act, issued FIR under Ex.P2, produced the accused before the court for remand to judicial custody and on the same day, he forwarded the sample to Government Chemical examiner for analysis. On 30-03-2016, he received analysis report from the Chemical examiner marked as Ex.P3, in which it was opined that the seizure sample is Indian liquor. Then he handed over further investigation to L.W5-D. Balaiah, Prohibition & Excise Inspector, Mangalagiri and on completion of investigation, he filed charge sheet.

PW.2 stated during cross-examination that the scene of offence is busy locality and he has not personally summoned any village officials and that the bottles do not have any labels and the price on the bottles is not visible.

c) In order to prove the case of prosecution, the prosecution has examined PWs.1 and 2. As per the evidence of PW.1 and 2 who are present at the time of arrest and seizure deposed that the accused was found in possession of seized 11 bottles (i.e Old Tavern Fine Whiskey with a capacity of 180ml each) of liquor bottles and P.W.2 arrested the accused and seized the contraband under cover of Ex.P1 special report. Admittedly, the alleged offence is situated at Nekkallu village which is a busy locality. As per the case of prosecution though, they tried to secure the mediators but none were came forwarded to act as mediators for the seizure of contraband.

d) Adverting to the plea of defence counsel about arrest of accused and seizure of contraband in the absence of mediators, it is pertinent to mention that the place of offence is situated at Nekkallu village, which is a busy locality. As per the case of prosecution though they tried to secure the mediators, none came forward to act as mediators for the seizure of contraband. When the place of offence is busy locality where there is movement of the public and there is a possibility to public to act as mediators, it is highly improbable to believe the version of prosecution that none came forward to act as mediators for the seizure of contraband. Further PWs.1 and 2 could not say the names of the persons whom approached to act as the mediators and stated that they have not served notices to any persons or village officials to act as mediators.

5

e)In the such circumstances, the testimonies of PWs.1 and 2 cannot be relied upon as they are highly interested for getting the success of prosecution. On bare reading of Ex.P1 special report, it discloses that the raid party could not secure the mediators. Immediately after accused coming to know about the possession of contraband, they ought to have securing the mediators. All these facts lead to inference that the Excise officials have failed to secure two or more independent or respectable inhabitants of locality for seizure of contraband. Consequently, the seizure of contraband as alleged from Ex.P1 special report vitiated.

f) Further more, PW.2 who is the complainant in the case is the investigating officer. In this context, it is pertinent to refer to the observations of

Hon'ble High Court of AP in Podhuturi Satyam Reddy Vs. State of AP reported in

2001(1) ALT (Crl.) 66 AP wherein his lord ship held that:

The position of law is well settled. In this case PW.2 was

informant rather the complainant. He himself took up the

investigation and filed charge sheet. Certainly, this is an

infirmity in this case. This certainly reflects the credibility of the

investigation done in the matter. The prosecution cannot rely

upon the evidence of PW.2 solely. The courts below were not

correct in relying upon this evidence. Hence, the benefit of this

procedural irregularity is given to the accused

The facts and circumstances in Satyam Reddy case are similar to the case on hand. In the present case as can be seen from Ex.P2, PW.2 is the investigating officer and complainant in the case. Though the charge sheet is filed by the LW.5-D. Balaiah formally, the entire investigation done by PW.2. As rightly pointed out by the defence counsel it certainly effects the investigation.

g) Apropos, the contention of the defence counsel that mere supporting the analysis report does not establish the case against the accused, Ex.P3-analysis report only speaks about the facts. The material report for chemical analysis was found to be Indian liquor but is the prosecution to establish that such samples were refer to chemical analysis seized from the possession of the accused.

6 h)In view of the above decision, it can be rightly concluded that mere registering the crime and securing the analysis report in favour of the prosecution by itself does not prove the case of prosecution. Except the evidence of PWs.1 and 2 who are Excise officials are highly interested in securing the conviction for the accused, there is no other independent evidence on record to bring home the guilt of the accused. Consequently, this court is inclined to hold a considered view that the prosecution has miserably failed in bringing home the guilt of the accused for the charge framed against the accused under Sec. 34 (a) of A.P Excise Act, and hence, accused is entitled for an order of acquittal on the ground of benefit of doubt. Point is answered accordingly in favour of the accused and against the prosecution.

11. In the result, accused is found not guilty of the offence punishable under section 34 (a) of AP Excise Act. Accordingly, he is acquitted under section 248(1)

Cr.P.C. His bail bonds shall stand cancelled. Accused shall furnish a bond under Sec.

437-A Cr.P.C, that he shall appear before the Appellate court in the event he receives summons within the six months from today.

The case property i.e., M.O.1 in C.P.R.No.174 of 2016 is ordered to be destroyed on lapse of appeal time.

Typed to my dictation, corrected and pronounced by me in open court, this the 5th day of October, 2016.

Sd/- D. Soni.

ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution :-

PW1 :M. Venkateswarlu P&E Head constable, Mangalagiri

PW2 : K.V. Sekhar Rao, Sub-Inspector of police, Prohibition & Excise P.S

For Defence:-

None

DOCUMENTS MARKED

For Prosecution :-For Defence:-

Ex.P1 :Special Report. --Nil--

Ex.P2 :FIR.

Ex.P3 :Analysis report.

MATERIAL OBJECTS

M.O. 1 Sample Bottle. Sd/- D. Soni.

ADDL. JUNIOR CIVIL JUDGE,

MANGALAGIRI.

7

CALENDAR AND JUDGMENT

IN THE COURT OF THE ADDL.JUNIOR CIVIL JUDGE, MANGALAGIRI

C.C. No. 501 of 2016

1. Offence : 04-03-2016

2. Filing: 27-06-2016

3. Apprehension of Accused : 08-07-2016

4. Commencement of Trial : 30-08-2016

5. Closure of Trial : 27-09-2016

6. Judgement: 05-10-2016

7. Complainant: The State : Prohibition & Excise, Inspector, Mangalagiri.

8. Name of accused : Muppuri Venkata Swamy, S/o Venkateswarlu, Age 58 years, Togateelu, R/o Nekkallu village, Thulluru Mandal.

9. Offence: U/Sec. 34 (a) of A.P. Excise Act.

10. Plea of accused : NOT GUILTY

11. Finding: NOT GUILTY 12. Sentence or Order :

In the result, accused is found not guilty of the offence punishable under section 34(a) of AP Excise Act. Accordingly, he is acquitted under section 248(1) Cr.P.C. His bail bonds shall stand cancelled. Accused shall furnish a bond under Sec. 437-A Cr.P.C, that he shall appear before the Appellate court in the event he receives summons within the six months from today.

The case property i.e., M.O.1 in C.P.R.No.174 of 2016 is ordered to be destroyed on lapse of appeal time.

13. Explanation for delay: After appearance of accused, copies of documents were furnished to him as contemplated U/Sec.207 Cr.P.C on 08-07-2016. On 14-07-2016, he was examined U/sec.239 Cr.P.C. for the offence U/secs.34(a) of A.P. Excise Act. PW.1 was examined on 30-08-2016 and Ex.P1 and Mo.1 were exhibited. P.W2 was examined on 27-09-2016 and Exs.P2 and P3 were exhibited and the prosecution evidence was closed on the same day. On 03-10-2016, accused was examined U/s.313 Cr.P.C, for which, he denied and reported no defence. Heard arguments on 04-10-2016. Judgment pronounced on 05-10-2016. Hence, the delay.

Sd/- D. Soni

ADDL.JUNIOR CIVIL JUDGE,

MANGALAGIRI

Copy submitted to :

The Hon'ble Chief Judl. Magistrate, Guntur.

//True copy//

AJCJ, Mangalagiri.

8

CC. No.17 of 2016 1

CALENDAR AND JUDGMENT

IN THE COURT OF THE ADDL.JUNIOR CIVIL JUDGE, MANGALAGIRI

C.C. No.17 of 2016

1. Offence : 19-08-2015

2. Filing: 19-08-2015

3. Apprehension of Accused : 19-08-2015

4. Commencement of Trial : 23-02-2016

5. Closure of Trial : 15-03-2016

6. Judgment: 21-03-2016

7. Complainant: The State : Prohibition & Excise, Mangalagiri.

8. Name of accused : Polam Lakshmi W/o Krishna, 45 yrs, Gowda R/o Ganganammapeta, Kolanukonda (V) Tadepalli (M).

9. Offence: U/Sec. 34 (a) of A.P. Excise Act.

10. Plea of accused : NOT GUILTY

11. Finding: NOT GUILTY

12. Sentence or Order :

In the result, accused is found not guilty of the offence punishable under section 34(a) of AP Excise Act. Accordingly, she is acquitted under section 248(1) Cr.P.C. Her bail bonds shall stands cancelled. Accused shall furnish a bond under Sec. 437-A Cr.P.C, that she shall appear before the Appellate court in the event she receives summons within the six months from today. The case property i.e., M.O.1 in C.P.R.No.30 of 2016 is ordered to be destroyed on lapse of appeal time.

13. Explanation for delay:

After appearance of accused, copies of documents were furnished to him as contemplated U/Sec.207 Cr.P.C on 09-02-2016. On 16-02-2016, he was examined U/sec.239 Cr.P.C. for the offence U/secs.34(a) of A.P. Excise Act. On 23-02-2016 P.W.1 was examined and Ex..P1, M.O.1 was marked. PWs.2 and 3 were examined on 15-03-2016 and Exs.P2 & P3 were marked and the prosecution evidence was closed on the same day. On 16-03-2016, accused was examined U/s.313 Cr.P.C, for which, he denied and reported no defence. Heard arguments on 17.03.2016. Judgment pronounced on 21-03-2016. Hence, the delay.

Sd/- D.Soni

ADDL.JUNIOR CIVIL JUDGE,

MANGALAGIRI

Copy submitted to :

The Hon'ble Chief Judl. Magistrate, Guntur.

CC. No.17 of 2016 2

IN THE COURT OF THE ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI

Present: Smt. D.Soni,

Additional Junior Civil Judge, Mangalagiri

Monday, this the 21 st day of March, 2016.

C.C.No.17 of 2016

Between:-

State: Prohibition and Excise Inspector

Mangalagiri P.S. ..Complainant.

And

Polam Lakshmi

W/o Krishna, 45 yrs, Gowda

R/o Ganganammapeta,

Kolanukonda (V)

Tadepalli (M)... Accused.

*****

This case is coming before me for final hearing on this day in the presence of Learned Assistant Public Prosecutor for State and Sri P.Nageswara Rao, Counsel for accused, upon hearing both sides and matter have stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01.The Prohibition and Excise Inspector, Mangalagiri Police station, filed a charge sheet in PR.No.93/2015-2016 for the offence punishable under section 34(a) of

A.P. Excise Act against the accused.

02. The conspectus of the case of prosecution is that:

On 19-08-2015 the Sub- Inspector of police, Prohibition and Excise,

Mangalagiri, along with staff members i.e., L.Ws.1 to 5 namely TVLN Murthy,

B.Srilath, M.Chinna Babu, G.Sambaiah, while conducting patrolling at Ganganamma

CC. No.17 of 2016 3

Temple, Tadikonda Mandal, noticed the accused by holding a black polythene bag in her right hand and on seeing the police officials, the accused tried to skulk away. Then, the

Sub-Inspector of police, Prohibition & Excise, Mangalagiri, caught hold the accused and questioned, then she stated that she is disposing the same without any license for monitory benefits and basing on her confession, Sub-Inspector of police seized 7 bottles of 180 ml., each Old Tavern Fine Whisky from the possession of the accused and took one sample bottle, affixed identity slips on the contraband since none came forwarded to act as mediators, prepared special report and returned to police station along with property and accused, then L.W.7-R.Venkateswarlu, P & E, SI, Mangalagiri registered the said special report as a case in P.R.No.93/2015-2016 for the offence under section 34

(a) of AP Excise Act. During the course investigation, he observed all formalities and sent the accused to court for judicial custody. Later, he sent the sample for chemical examination. On receipt of FSL report and after completion of investigation, L.W.8-

D.Balaiah, P & E Inspector, Mangalagiri filed charge sheet. Hence the charge.

03.On receipt of charge sheet, this case was taken on file for the offence under

Section 34 (a) AP. Excise Act, against the accused.

04.On appearance of the accused, copies of documents were furnished to her as contemplated under Section 207 of Criminal Procedure Code, 1973 (herein after referred as 'Cr.P.C.' for the sake of brevity).

05.When examined under section 239 of Cr.P.C., the accused denied the allegations levelled against her. After perusing the entire material on record and on hearing both sides, a charge had been framed against the accused under section 34(a) of

A.P Excise Act, which was read over and explained to the accused in Telugu, for which, she pleaded not guilty and claimed the case to be tried.

06.During the course of trial, on behalf of the prosecution, P.Ws.1 to 3 were examined out of the Eight cited witnesses in the charge sheet and Exs.P1 to P3 and

M.O.1 were exhibited. The evidence of L.Ws.2 to 5 & 8 namely TVLN Murthy,

B.Srilath, M.Chinna Babu, G.Sambaiah & D.Balaiah, Inspector Proh & Excise,

Mangalagiri was given up by the prosecution.

CC. No.17 of 2016 4

07.On closure of evidence let in by the prosecution, the accused was examined under section 313 of Cr.P.C., with regard to the incriminating material available against her, for which, her plea was total denial and reported no defence evidence.

08.Heard both sides.

a)The learned Assistant Public Prosecutor argued that the evidence of

PW's.1 to 3 coupled with Exs.P1 to P3 and M.O.1 goes to show that the accused had committed the offence and the prosecution proved the case beyond all reasonable doubt against the accused.

b)The defence counsel argued that no independent witnesses by the prosecution, no local mediators secured at the time of seizure of contraband, the entire case is depending upon the case proceedings which is infirmities. Hence, prays to acquit the accused on the ground of benefit of doubt.

09.The point for determination is :

“Whether the prosecution is successful in bringing home the

guilt of accused for the charge framed against her under

section 34(a) of A.P. Excise Act, beyond all reasonable

doubt?”

10. POINT:

a)P.Ws.1 & 2 who are the eye witnesses and Excise official unequivocally deposed that on 19-08-2015 at about 6-00 am., they along with P.W.3 and two constables proceeded to Kolanukonda village to conduct patrolling, when they reached near Ganganamma Temple of Kolanukonda village, they found one person in possession of black Polythene bag and on seeing them, she tried to skulk away. Then, they stopped her and questioned, found liquor bottles in her possession and the said person stated that she is going to sell the same at her house. On that, P.W.2 drafted a special report and seized the liquor bottles in their presence under the cover of special report. There are 07 bottles of 180 ml., each Old Tavern Fine Whisky and P.W.2 seized one bottle as sample and took the accused along with property to the Prohibition &

Excise station.

CC. No.17 of 2016 5

Pws.1 & 2 stated during cross-examination that the scene of offence is busy locality and no persons came forward to act as they have not served notices to any persons to act as mediators.

b) PW.3 who is the Sub-Inspector of police, Mangalagiri, deposed in corroboration to the evidence of PWs.1 & 2 and in addition to the evidence of PWs.1 & 2, PW.3 deposed that after bringing the accused to the Prohibition and Excise station, he registered a case in Pr.No.93/2015-2016 under Sec. 34(a) of A.P Excise Act, issued FIR, and sent him to court for judicial remand and on the same day, he forwarded M.O.1 to

Government Chemical examiner for analysis. Later, on 30-09-2015, he received analysis report from the Chemical examiner marked as Ex.P3, in which it was opined that the seizure samples are Indian liquor. Then, he handed over the investigation to

LW.8 – D.Balaiah, P & E, Inspector of Mangalagiri. He further deposed that the remaining bottles of liquor seized from the possession of the accused is confiscated as per the proceedings of Deputy Commissioner, Prohibition and Excise, Guntur and on completion of investigation, he filed charge sheet against the accused.

c)In order to prove the case of prosecution, the prosecution has examined PW's.1 to 3. As per the evidence of PW's.1 to 3 who are present at the time of arrest and seizure deposed that the accused was found in possession of 07 bottles of 180 ml., each Old Tavern Fine Whisky and P.W.2 arrested the accused and seized the contraband under cover of Ex.P1 special report. Admittedly, the alleged scene of offence is situated near Ganganamma Temple of Kolanukonda village, which is a busy locality. As per the case of prosecution though, they tried to secure the mediators but none were came forwarded to act as mediators for the seizure of contraband.

d)Adverting to the plea of defence counsel about arrest of accused and seizure of contraband in the absence of mediators, it is pertinent to mention that the place of offence is situated near Ganganamma Temple of Kolanukonda village, which is a busy locality. As per the case of prosecution though they tried to secure the mediators, none came forward to act as mediators for the seizure of contraband. When the place of offence is busy locality where there is movement of the public and there is a possibility to public to act as mediators, it is highly improbable to believe the version of prosecution that none came forward to act as mediators for the seizure of contraband.

Further PW's.1 to 3 could not say the names of the persons whom approached to act as

CC. No.17 of 2016 6

the mediators and stated that they have not served notices to any persons or village officials to act as mediators.

e)In the such circumstances, the testimonies of PWs.1 to 3 cannot be relied upon as they are highly interested for getting the success of prosecution. On bare reading of Ex.P1 – special report, it discloses that the raid party could not secure the mediators. Immediately after accused coming to know about the possession of contraband, they ought to have securing the mediators. All these facts lead to inference that the Excise officials have failed to secure two or more independent or respectable inhabitants of locality for seizure of contraband. Consequently, the seizure of contraband as alleged from Ex.P1 – special report vitiated.

f) Further more, PW.3 who is the complainant in the case is the investigating officer. In this context, it is pertinent to refer to the observations of

Hon'ble High Court of AP in Podhuturi Satyam Reddy Vs. State of AP reported in

2001(1) ALT (Crl.) 66 AP wherein his lord ship held that:

“The position of law is well settled. In this case PW.2 was

informant rather the complainant. He himself took up the

investigation and filed charge sheet. Certainly, this is an infirmity

in this case. This certainly reflects the credibility of the

investigation done in the matter. The prosecution cannot rely

upon the evidence of PW.2 solely. The courts below were not

correct in relying upon this evidence. Hence, the benefit of this

procedural irregularity is given to the accused”.

The facts and circumstances in Satyam Reddy case are similar to the case on hand. In the present case as can be seen from Ex.P2, PW.3 is the investigating officer and complainant in the case. Though the charge sheet is filed by the LW.8 formally, the entire investigation done by PW.3. As rightly pointed out by the defence counsel it certainly effects the investigation.

g) Apropos, the contention of the defence counsel that mere supporting the analysis report does not establish the case against the accused, Ex.P3 - analysis report only speak about the facts. The material report for chemical analysis was found to

CC. No.17 of 2016 7

be Indian liquor but is the prosecution to establish that such samples were refer to chemical analysis seized from the possession of the accused.

h)In view of the above decision, it can be rightly concluded that mere registering the crime and securing the analysis report in favour of the prosecution by itself does not prove the case of prosecution. Except the evidence of PWs.1 to 3 who are

Excise officials and highly interested in securing the conviction for the accused, there is no other independent evidence on record to bring home the guilt of the accused.

Consequently, this court is inclined to hold a considered view that the prosecution has miserably failed in bringing home the guilt of the accused for the charge framed against the accused under Sec. 34(a) of A.P Excise Act, and hence, accused is entitled for an order of acquittal on the ground of benefit of doubt. Point is answered accordingly in favour of the accused and against the prosecution.

11.In the result, accused is found not guilty of the offence punishable under section 34(a) of AP Excise Act. Accordingly, she is acquitted under section 248(1)

Cr.P.C. Her bail bonds shall stands cancelled. Accused shall furnish a bond under Sec.

437-A Cr.P.C, that she shall appear before the Appellate court in the event she receives summons within the six months from today.

The case property i.e., M.O.1 in C.P.R.No.30 of 2016 is ordered to be destroyed on lapse of appeal time.

Typed to my dictation, corrected and pronounced by me in open court, this the 21 st day of March,2016.

Sd/- D.Soni

ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution :-

PW1 – D.V.Ramana Rao, Proh & Excise Head Constable, Mangalagiri.

PW2 – A.Radha Krishna Murthy, Proh. & Excise Inspector, ESTF, Guntur

PW3 – R.Venkateswarlu, P & E, SI of Police, Mangalagiri.

CC. No.17 of 2016 8

For Defence:-

None

DOCUMENTS MARKED

For Prosecution :- For Defence:-

Ex.P1 :Special report prepared by P.W.1 --Nil--

Ex.P2 :FIR in PR.No.93/2015-2016 of P & E Station, Mangalagiri.

Ex.P3 :Analysis report.

MATERIAL OBJECTS

M.O.1 – 180 ml., Old Tavern Fine Whisky

Sd/- D.Soni

ADDL. JUNIOR CIVIL JUDGE,

MANGALAGIRI.

CC.No.53 of 2015 Page 1

IN THE COURT OF ADDITIONAL JUNIOR CIVIL JUDGE :

MANGALAGIRI

PRESENT: Smt. D.Soni,

Additional Junior Civil Judge, Mangalagiri.

Friday, this the 7 th day of October, 2016

C.C.No: 53 of 2015

Between :

State : Sub- Inspector of Police, (Cr. No.197/2014 of Mangalagiri Rural P.S., ) … …COMPLAINANT.

And

Katari Gopi,

S/o Nageswara Rao, 22 yrs,

Uppara, Bosu Bomma Centre,

Tadepalli.

….… ACCUSED.

*******

This case is coming before me for final hearing on this day in the presence of learned Assistant Public Prosecutor for the Complainant and

Sri Md.Shoukat Hussan, Counsel for the accused, upon hearing both sides and the matter having stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01.The Sub-Inspector of police, Mangalagiri Rural police station filed a charge sheet against the accused in Cr. No.197/2014 for the offence under sections 457, 380 or 411 of Indian Penal Code, 1860 ( herein after referred as 'IPC' for the

CC.No.53 of 2015 Page 2

sake of brevity ).

02. The case of the prosecution, succinctly, is that :

a) On the night of 07-08-2013 some unknown offenders gained entrance into Sri Kodandaramaswamy Temple, Kaja by break opening the locks of the temple and committed theft of gold and silver ornaments worth Rs.40,000/- and decamped with booty. After found missing of the same, the defacto complainant preferred a report before Mangalagiri Rural P.S.,

b)Based on the report preferred by the defacto complainant,

L.W.7 - Sub-Inspector of Police, Mangalagiri Rural P.S., registered it as a case in

Cr.No.197/2014 u/sec.457, 380 IPC of Mangalagiri Rural P.S., and investigated into the case. During the course of investigation, he visited the scene of offence, examined all the witnesses in this case and recorded their statements, prepared rough sketch. Later, on 18-09-2014 at about 11.30 am., L.W.8-SI of Police,

Mangalagiri Rural P.S., arrested the accused in the presence of mediators and seized stolen property from his possession under the cover of mediator report, produced the accused before court for judicial remand. Later, L.W.4-Rompicherla

Satyaprasad, being the Poojari of the said temple identified and took interim custody of the property in the presence of mediators under the cover of property identification parade. After completion of investigation, he filed charge sheet.

Hence, the charge.

03.On receipt of charge sheet, the case was taken on file against the accused for the offences under sections 457, 380 or 411 of IPC.

04.On appearance of accused, copies of documents were furnished to him as contemplated under Section 207 of Code of Criminal Procedure, 1973 ((herein after referred as 'Cr.P.C' for the sake of brevity).

CC.No.53 of 2015 Page 3

05.The accused examined under section 239 of Cr.P.C., he denied the substance of accusation. After perusing the entire material on record and hearing both sides, a charges had been framed against the accused under sections 457, 380 or 411 of IPC, which was read over and explained to him in Telugu, for which, he pleaded not guilty and claimed the case to be tried.

06.During the course of trial, on behalf of the prosecution, P.W's.1 to 4 were examined out of the list of Eight cited witnesses and Exs.P1 to P6, M.Os.1 to 11 were exhibited. The evidence of L.Ws.2 to 5 namely B.Srinivasa Reddy,

P.Srinivasa Rao, R.Satyaprasad, A.Prasannakumar was given up by the learned

Assistant Public Prosecutor as hear say.

07.On closure of the evidence let in by the prosecution, the accused was examined under section 313 of Cr.P.C., with regard to the incriminating material found against him, for which, he denied and reported no defence evidence.

08.Heard both sides.

09. The point germane for determination is :

“Whether the prosecution is fruitful in bringing home the

guilt of the accused for the charges framed against him

under sections 457, 380 or 411 of IPC beyond all

reasonable doubt?”

10. POINT :

a)To unfold its case, the prosecution has examined P.Ws.1 to 4, out of which, P.W.1 is the defacto complainant, P.W.2 is the mediator for the arrest of the accused and seizure of property. P.Ws.3 & 4 are the investigating officers.

The prosecution also relied upon the strength of Exs.P1 to P6, M.Os.1 to 11 to substantiate its case.

CC.No.53 of 2015 Page 4

b)The prosecution with regard to the ownership particulars of material objects subjected to theft, relied upon the testimony of P.W.1. P.W.1 stated that on 07-08-2013, he received a phone call from L.W.4-R.Satya Prasad, being priest of the temple stated that some unknown offenders gained entrance into the temple and committed theft of gold and silver ornaments of the idols in the temple worth Rs.3,00,000/-. Immediately, he went to the temple and found missing of the same, in turn, he went to police station and presented Ex..P1 report before police.

He further deposed that after 10 months after the incident, police called him and informed that the stolen articles i.e., M.O.1-3 Silver Keeritams, M.O.2-3 Gold

Bindees, M.O.3-Silver Janjam (Utsavamurthulu), M.O.4-Silver bow and arrow,

M.O.5-Gold Mangalasutram (Moolavirat) M.O.6-1 Gold Necklace, M.O.7-Silver

Satagopuram, M.O.8-1 Silver Padalu, M.O.9-3 Silver Keeritamulu (Utsavamurthulu), M.O.10-2 Gold Mangalasuthram (Utsavamurthulu), M.O.11-

Silver Janjam (Moolavirat) were recovered and he took the same for his interim custody.

c)Apart from the evidence of P.W.1, coming to the evidence of investigating officer i.e., P.W.3, her evidence also shows based on the report preferred by P.W.1 as in Ex..P1, she registered the same and issued Ex..P3 FIR.

During her investigation, she visited the scene of offence, examined the witnesses, recorded their statements, prepared rough sketch marked as Ex..P4. Later, P.W.4 took up investigation in this case, arrested the accused, recovered the property and produced the accused before the judicial remand. P.W.1 also testified that after knowing about recovery of the material objects, he obtained the same in interim custody, which are marked as M.Os.1 to 11.

d)There is no dispute with regard to the ownership of M.Os.1 to 11 to show that they belonging to P.W.1 being the custodian of the same. More over, the accused did not claim the ownership of M.Os.1 to 11. Thus, the prosecution established that M.Os.1 to 11 are absolutely belonging to P.W.1 which were

CC.No.53 of 2015 Page 5

subjected to theft on the date of the incident.

e)As far as the arrest of accused and recovery of M.Os.1 to 11 by the police is concerned, the prosecution mainly relied upon the testimony of P.W.2.

P.W.2 stated that he never acted as mediator in this case and he does not know anything about the facts of this case. He further deposed that police obtained his signature on a paper. He admitted his signature i.e., Ex.P2 on mediator report.

Thus, he turned hostile and nothing relevant could be elicited during his cross- examination by the learned Assistant Public Prosecutor.

f)On appraisal of the testimonies of these witnesses, it is found that the prosecution established that there is no dispute with regard to the ownership of M.Os.1 to 11 to show that the property belonging to P.W.1, which were subjected to theft on the date of the incident. But, P.W.1 is not the direct witness to the alleged incident, he only came to about the incident through priest of the said temple. Hence, there is no corroborative evidence on record to show that the accused is the person, who committed theft of M.Os.1 to 11 from the temple.

Hence, the evidence of P.W.1 is no way helpful to the case of prosecution. Thus, the prosecution failed to establish that the accused gained entrance into the temple and committed theft of M.Os.1 to 11 and thereby committed the offences under sections 457, 380 of IPC.

g)Coming to the evidence of P.W.2, he stated that he never acted as mediator for the arrest of the accused and seizure of the stolen property and also for identification of the property. As per the prosecution’s case, in pursuance of the confession made by the accused, P.W.4 recovered M.Os.1 to 11 from the possession of the accused in the presence of P.W.2. But, P.W.2 turned hostile and nothing could be elicited during his evidence in support of the case of prosecution.

As mediator turned hostile to the case of prosecution, it is highly unsafe to conclude that the stolen property was recovered from the possession of the accused. More over, P.W.4 questioned the accused by taking him into his custody.

CC.No.53 of 2015 Page 6

As confession made before the police officials is not valid in the eye of law as contemplated under section 25 of Indian Evidence Act, the said confession cannot be considered by the court in evidence to arrive at conclusion with regard to involvement of the accused in the alleged offence. As per P.W.4, the accused confessed about the committing of offence, while the accused was in his custody.

Hence, this court is of the opinion that it is not safe to convict the accused under section 411 of IPC. Without any independent evidence on record, the objectives find by P.Ws.3 & 4 is no way helpful to the case of prosecution. The prosecution failed to substantiate that the accused has committed theft of M.Os.1 to 11 and the same were recovered from his possession.

h)In property offences like theft, the evidence of mediators in whose possession the property was seized and also the investigating officer, who arrested the accused and recovery of stolen property from the possession of the accused plays a pivotal role, because the defacto complainant has no chance to have acquaintance with the accused, whether the offence was committed in the absence of inmates. The prosecution failed to establish its case in these aspects.

i) In the light of the foregoing discussion, this court is of the considered opinion that though the prosecution established the ownership particulars of M.Os.1 to 11 belonging to P.W.1, the prosecution failed to establish beyond all reasonable doubt that M.Os.1 to 11 were seized from the possession of the accused in the presence of P.W.2 under the cover of Ex.P5. Hence, the accused is entitled for an order of acquittal on the ground of benefit of doubt. Point is answered accordingly, in favour of the accused and as against the prosecution.

11.In the result, the accused is found not guilty for the offence punishable under sections 457, 380 or 411 of IPC. Accordingly, he is acquitted under section 248 (1) Cr.P.C. The accused shall be released forthwith, if he is not required in any other cases. Accused shall furnish a bond u/s 437-A Cr.P.C that he shall appear

before the appellate court in the event he receives summon within six months from

today. M.Os.1 to 11 in CPR.No.141/2015 which were given to interim custody to

CC.No.53 of 2015 Page 7

P.W.1 as per the orders in Crl.M.P.No.6514/2015, dated 30-09-2015 shall be made absolute after expiry of appeal time.

Typed to my dictation, corrected and pronounced by me in the open court on this the 7 th day of October, 2016.

Sd/- D.Soni

ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI.

APPENDIX OF EVIDENCE

WITNESS EXAMINED

For Prosecution: For Defence:

PW1: Duggirala Krupal Reddy None

PW2: Bethapudi Adam

PW3: S.Naga Kumari, SI of Police, Mangalagiri Rural P.S.,

PW4: Y.Satyanarayana, Sub-Inspector of police, Mangalagiri Rural P.S.

EXHIBITS MARKED

For Prosecution:

Ex.P1: Report of PW.1 given to police.

Ex.P2:Signature portion of P.W.2 on Mediator report

Ex.P3: FIR in Cr.No.197/2014 of Mangalagiri Rural P.S.,

Ex.P4: Rough sketch of the scene of offence.

Ex.P5: Mediator report report.

Ex.P6: Property identification report.

For Defence:

---Nil----

CC.No.53 of 2015 Page 8

MATERIAL OBJECTS

M.O.1/--3 Silver Keeritams

M.O.2/--3 Gold Bindees

M.O.3/--Silver Janjam (Utsavamurthulu)

M.O.4/--Silver bow and arrow

M.O.5/--Gold Mangalasutram (Moolavirat)

M.O.6/--1 Gold Necklace

M.O.7/--Silver Satagopuram

M.O.8/--1 Silver Padalu

M.O.9/--3 Silver Keeritamulu (Utsavamurthulu)

M.O.10/--2 Gold Mangalasuthram (Utsavamurthulu)

M.O.11/--Silver Janjam (Moolavirat)

Sd/- D.Soni

ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI.

CC.No.53 of 2015 Page 9

CALENDAR AND JUDGMENT

IN THE COURT OF THE ADDL.JUNIOR CIVIL JUDGE, MANGALAGIRI

C.C. No.53 of 2015

1. Offence : 07-08-2013

2. Filing: 07-08-2013

3. Apprehension of Accused : 18-09-2014

4. Commencement of Trial : 28-07-2016

5. Closure of Trial : 14-09-2016

6. Judgment: 07-10-2016

7. Complainant: The State : Sub-Inspector police, Mangalagiri Rural P.S (Cr.No.197/2014 )

8. Name of Accused : Katari Gopi, S/o Nageswara Rao, 22 yrs, Uppara, Bosu Bomma Centre, Tadepalli.

9. Offence: U/Secs. 457, 380 or 411 IPC.

10. Plea of Accused: NOT GUILTY

11. Finding: NOT GUILTY

12. Result: In the result, the accused is found not guilty for the offence punishable under sections 457, 380 or 411 of IPC. Accordingly, he is acquitted under section 248 (1) Cr.P.C. The accused shall be released forthwith, if he is not required in any other cases. Accused shall furnish a bond u/s 437-A Cr.P.C that he shall appear before the appellate court in the event he receives summon within six months from today. M.Os.1 to 11 in CPR.No.141/2015 which were given to interim custody to P.W.1 as per the orders in Crl.M.P.No.6514/2015, dated 30-09-2015 shall be made absolute after expiry of appeal time.

13. Explanation for delay : After appearance of accused, copies of documents were furnished to him as contemplated U/Sec.207 Cr.P.C on 09-04-2015. The accused was examined U/sec.239 Cr.P.C., for the offence U/sec.457, 380 or 411 IPC on 19-07-2016. On 28-07-2016 P.W.1 was examined and Ex..P1, M.Os.1 to 11 were marked. On 14-09-2016 P.Ws.2 to 4 were examined and Exs.P2 to P6 were marked and the prosecution evidence was closed on the same day. On 19-09-2016, the accused was examined under Sec. 313 Cr.P.C, for which, he denied and reported no defence. Arguments of both sides were heard on 05-10-2016. Judgment pronounced on 07-10-2016. Hence, the delay.

Sd/- D.Soni

ADDL. JUNIOR CIVIL JUDGE,

MANGALAGIRI

Copy submitted to : The Hon'ble Chief Judl. Magistrate, Guntur.

CC.No.423 of 2015 Page 1

IN THE COURT OF ADDITIONAL JUNIOR CIVIL JUDGE :

MANGALAGIRI

PRESENT: Smt. D.Soni,

Additional Junior Civil Judge, Mangalagiri.

Friday, this the 7 th day of October, 2016

C.C.No: 423 of 2015

Between :

State : Sub- Inspector of Police, (Cr. No.97/2015 of Mangalagiri Rural P.S., ) … …COMPLAINANT.

And

Katari Gopi,

S/o Nageswara Rao, 22 yrs,

Uppara, Bosu Bomma Centre,

Tadepalli.

….… ACCUSED.

*******

This case is coming before me for final hearing on this day in the presence of learned Assistant Public Prosecutor for the Complainant and

Sri S.Tarun Sai, G.Pranav Teja, Amrutha L, Counsel for the accused, upon hearing both sides and the matter having stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01.The Sub-Inspector of police, Mangalagiri Rural police station filed a charge sheet against the accused in Cr. No.97/2015 for the offence under sections 457, 380 or 411 of Indian Penal Code, 1860 ( herein after referred as 'IPC' for the sake of brevity ).

CC.No.423 of 2015 Page 2

02. The case of the prosecution, succinctly, is that :

a) On the intervening night of 30/31-03-2015 some unknown offenders gained entrance into the house of the defacto complainant by break opening the locks of the almarach and committed theft of gold and silver ornaments worth Rs.1,20,000/- and decamped with booty. After found missing of the same, the defacto complainant preferred a report before Mangalagiri Rural P.S.,

b)Based on the report preferred by the defacto complainant,

L.W.9 - Sub-Inspector of Police, Mangalagiri Rural P.S., registered it as a case in

Cr.No.97/2015 u/sec.457, 380 IPC of Mangalagiri Rural P.S., and investigated into the case. During the course of investigation, he visited the scene of offence, examined all the witnesses in this case and recorded their statements, prepared rough sketch. Later, on 25-06-2015 at 17.00 hrs, L.W.10-SI of Police, Mangalagiri

Rural P.S., arrested the accused in the presence of mediators and seized stolen property from his possession under the cover of mediator report, produced the accused before court for judicial remand. Later, on 26-06-2015, mediators conducted property identification parade, where P.W.1 identified the property in the presence of mediators under the cover of property identification parade. After completion of investigation, he filed charge sheet. Hence, the charge.

03.On receipt of charge sheet, the case was taken on file against the accused for the offences under sections 457, 380 or 411 of IPC.

04.On appearance of accused, copies of documents were furnished to him as contemplated under Section 207 of Code of Criminal Procedure, 1973 ((herein after referred as 'Cr.P.C' for the sake of brevity).

05.The accused examined under section 239 of Cr.P.C., he denied the substance of accusation. After perusing the entire material on record and hearing both sides, a charges had been framed against the accused under sections 457, 380 or 411 of IPC, which was read over and explained to him in Telugu, for which, he

CC.No.423 of 2015 Page 3

pleaded not guilty and claimed the case to be tried.

06.During the course of trial, on behalf of the prosecution, P.W's.1 to 4 were examined out of the list of Eight cited witnesses and Exs.P1 to P6, M.Os.1 to 3 were exhibited. The evidence of L.Ws.2 to 6 & 8 namely S.Srinivasu, K.Lakshmi,

B.Rama Krishna, G.Naganjaneyulu, Shaik Jafar and Ch.Srinivasa Rao was given up by the learned Assistant Public Prosecutor as hear say.

07.On closure of the evidence let in by the prosecution, the accused was examined under section 313 of Cr.P.C., with regard to the incriminating material found against him, for which, he denied and reported no defence evidence.

08.Heard both sides.

09. The point germane for determination is :

“Whether the prosecution is fruitful in bringing home the

guilt of the accused for the charges framed against him

under sections 380 or 411 of IPC beyond all reasonable

doubt?”

10. POINT :

a)To unfold its case, the prosecution has examined P.Ws.1 to 4, out of which, P.W.1 is the defacto complainant, P.W.2 is the mediator for the arrest of the accused and seizure of property. P.Ws.3 & 4 are the investigating officers.

The prosecution also relied upon the strength of Exs.P1 to P6, M.Os.1 to 3 to substantiate its case.

b)The prosecution with regard to the ownership particulars of material objects subjected to theft, relied upon the testimony of P.W.1. P.W.1 stated that on 29-03-2015, she went to sleep in the house of her mother, which is situated

CC.No.423 of 2015 Page 4

in the next lane and on the next day, morning at about 9-00 she received information through L.W.3-K.Lakshmi, who is her neighbour that the doors of her house were break open, then, she immediately, went to her house and found that some unknown persons committed theft of gold and silver articles, in turn, she went to police station and presented Ex..P1 report before police. He further deposed that after 3 months after the incident, police called her and informed that the stolen articles i.e., M.O.1-Gold Necklace, M.O.2-Four pairs of ear studs,

M.O.3-One gold ring were recovered and she took the same for her interim custody.

c)Apart from the evidence of P.W.1, coming to the evidence of investigating officer i.e., P.W.3, his evidence also shows based on the report preferred by P.W.1 as in Ex..P1, he registered the same and issued Ex..P3 FIR and handed over the further investigation to P.W.4. During the course of investigation,

P.W.4 visited the scene of offence, examined the witnesses, recorded their statements, prepared rough sketch marked as Ex..P4. Later, P.W.4 took up investigation in this case, arrested the accused, recovered the property and produced the accused before the judicial remand. P.W.1 also testified that after knowing about recovery of the material objects, she obtained the same in interim custody, which are marked as M.Os.1 to 3.

d)There is no dispute with regard to the ownership of M.Os.1 to 3 to show that they belonging to P.W.1. More over, the accused did not claim the ownership of M.Os.1 to 3. Thus, the prosecution established that M.Os.1 to 3 are absolutely belonging to P.W.1 which were subjected to theft on the date of the incident.

e)As far as the arrest of accused and recovery of M.Os.1 to 3 by the police is concerned, the prosecution mainly relied upon the testimony of P.W.2.

P.W.2 stated that he never acted as mediator in this case and he does not know

CC.No.423 of 2015 Page 5

anything about the facts of this case. He further deposed that police obtained his signature on a paper. He admitted his signature i.e., Ex.P2 on mediator report.

Thus, he turned hostile and nothing relevant could be elicited during his cross- examination by the learned Assistant Public Prosecutor.

f)On appraisal of the testimonies of these witnesses, it is found that the prosecution established that there is no dispute with regard to the ownership of M.Os.1 to 3 to show that the property belonging to P.W.1, which were subjected to theft on the date of the incident. But, P.W.1 is not the direct witness to the alleged incident, she only came to about the incident through L.W.3-

Lakshmi. Hence, there is no corroborative evidence on record to show that the accused is the person, who committed theft of M.Os.1 to 3 from the house of

P.W.1. Hence, the evidence of P.W.1 is no way helpful to the case of prosecution.

Thus, the prosecution failed to establish that the accused committed theft of

M.Os.1 to 3 and thereby committed the offence under section 380 of IPC.

g)Coming to the evidence of P.W.2, he stated that he never acted as mediator for the arrest of the accused and seizure of the stolen property and also for identification of the property. As per the prosecution’s case, in pursuance of the confession made by the accused, P.W.4 recovered M.Os.1 to 3 from the possession of the accused in the presence of P.W.2. But, P.W.2 turned hostile and nothing could be elicited during his evidence in support of the case of prosecution.

As mediator turned hostile to the case of prosecution, it is highly unsafe to conclude that the stolen property was recovered from the possession of the accused. More over, P.W.4 questioned the accused by taking him into his custody.

As confession made before the police officials is not valid in the eye of law as contemplated under section 25 of Indian Evidence Act, the said confession cannot be considered by the court in evidence to arrive at conclusion with regard to involvement of the accused in the alleged offence. As per P.W.4, the accused confessed about the committing of offence, while the accused was in his custody.

Hence, this court is of the opinion that it is not safe to convict the accused under section 411 of IPC. Without any independent evidence on record, the objectives

CC.No.423 of 2015 Page 6

find by P.Ws.3 & 4 is no way helpful to the case of prosecution. The prosecution failed to substantiate that the accused has committed theft of M.Os.1 to 3 and the same were recovered from his possession.

h)In property offences like theft, the evidence of mediators in whose possession the property was seized and also the investigating officer, who arrested the accused and recovery of stolen property from the possession of the accused plays a pivotal role, because the defacto complainant has no chance to have acquaintance with the accused, whether the offence was committed in the absence of inmates. The prosecution failed to establish its case in these aspects.

i) In the light of the foregoing discussion, this court is of the considered opinion that though the prosecution established the ownership particulars of M.Os.1 to 3 belonging to P.W.1, the prosecution failed to establish beyond all reasonable doubt that M.Os.1 to 3 were seized from the possession of the accused in the presence of P.W.2 under the cover of Ex.P5. Hence, the accused is entitled for an order of acquittal on the ground of benefit of doubt. Point is answered accordingly, in favour of the accused and as against the prosecution.

11.In the result, the accused is found not guilty for the offence punishable under sections 380 or 411 of IPC. Accordingly, he is acquitted under section 248 (1) Cr.P.C. The accused shall be released forthwith, if he is not required in any other cases. Accused shall furnish a bond u/s 437-A Cr.P.C that he shall appear

before the appellate court in the event he receives summon within six months from

today.

M.Os.1 to 3 in CPR.No.53/2015 which were given to interim custody to

P.W.1 as per the orders in Crl.M.P.No.5492/2015, dated 03-07-2015 shall be made absolute after expiry of appeal time.

Typed to my dictation, corrected and pronounced by me in the open court on this the 7 th day of October, 2016.

Sd/- D.Soni

ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI.

CC.No.423 of 2015 Page 7

APPENDIX OF EVIDENCE

WITNESS EXAMINED

For Prosecution: For Defence:

PW1: Mallula Siva Kumari None

PW2: Kondamudi Monoj Kumar

PW3: D.Vinod Kumar, SI of Police, Mangalagiri Rural P.S.,

PW4: Ch.Koteswara Rao, Sub-Inspector of police, Mangalagiri Rural P.S.

EXHIBITS MARKED

For Prosecution:

Ex.P1: Report of PW.1 given to police.

Ex.P2:Signature portion of P.W.2 on Mediator report

Ex.P3: FIR in Cr.No.97/2015 of Mangalagiri Rural P.S.,

Ex.P4: Rough sketch of the scene of offence.

Ex.P5: Mediator report report.

Ex.P6: Property identification report.

For Defence:

---Nil----

MATERIAL OBJECTS

M.O.1/--Gold Necklace

M.O.2/--Four pairs of ear studs

M.O.3/--One gold ring

Sd/- D.Soni

ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI.

CC.No.423 of 2015 Page 8

CALENDAR AND JUDGMENT

IN THE COURT OF THE ADDL.JUNIOR CIVIL JUDGE, MANGALAGIRI

C.C. No.423 of 2015

1. Offence : 30/31-03-2015

2. Filing: 31-03-2015

3. Apprehension of Accused : 25-06-2015

4. Commencement of Trial : 19-07-2016

5. Closure of Trial : 13-09-2016

6. Judgment: 07-10-2016

7. Complainant: The State : Sub-Inspector police, Mangalagiri Rural P.S (Cr.No.97/2015 )

8. Name of Accused : Katari Gopi, S/o Nageswara Rao, 22 yrs, Uppara, Bosu Bomma Centre, Tadepalli.

9. Offence: U/Secs. 457, 380 or 411 IPC.

10. Plea of Accused: NOT GUILTY

11. Finding: NOT GUILTY

12. Result: In the result, the accused is found not guilty for the offence punishable under sections 457, 380 or 411 of IPC. Accordingly, he is acquitted under section 248 (1) Cr.P.C. The accused shall be released forthwith, if he is not required in any other cases. Accused shall furnish a bond u/s 437-A Cr.P.C that he shall appear before the appellate court in the event he receives summon within six months from today. M.Os.1 to 3 in CPR.No.53/2015 which were given to interim custody to P.W.1 as per the orders in Crl.M.P.No.5492/2015, dated 03-07-2015 shall be made absolute after expiry of appeal time.

13. Explanation for delay : After appearance of accused, copies of documents were furnished to him as contemplated U/Sec.207 Cr.P.C on 22-06-2016. The accused was examined U/sec.239 Cr.P.C., for the offence U/sec. 380 or 411 IPC on 05-07-2016. On 19-07-2016 P.W.1 was examined and Ex..P1, M.Os.1 to 3 were marked. On 28-07-2016 P.W.2 was examined and Ex..P2 was marked. On 13-09-2016 P.Ws.3 & 4 were examined and Exs.P3 to P6 were marked and the prosecution evidence was closed on the same day. On 19-09-2016, the accused was examined under Sec. 313 Cr.P.C, for which, he denied and reported no defence. Arguments of both sides were heard on 05-10-2016. Judgment pronounced on 07-10-2016. Hence, the delay.

Sd/- D.Soni

ADDL. JUNIOR CIVIL JUDGE,

MANGALAGIRI

Copy submitted to : The Hon'ble Chief Judl. Magistrate, Guntur.