Kum. Dasari Arundathi

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IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE-CUM-

I ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS : TADEPALLIGUDEM. PRESENT: Ms. D.Arundhati,

I ADDIONAL JUNIOR CIVIL JUDGE-CUM-

I ADDL JUDL MAGISTRATE OF FIRST CLASS

TADEPALLIGUDEM.

Friday, this the 14th day of July, 2023 CALENDAR CASE No. 123/2022 Between: The State represented by the Sub-Inspector, Tadepalligudem Town Police Station. ---Complainant

And

Gudala Rambabu, S/o Chandra Rao, A: 38 years Settibalija, Near Ramalayam, Chinna Ranganipalem I Town, Bhimavaram Town. -----Accused This case is coming up for final hearing since 29.03.2023 in the presence of Sri. A. Ravi Prasad, Assistant Public Prosecutor for the Prosecution and of Smt. T. Muralikrishna, Advocate for Accused upon perusing the material papers on record and having stood over for consideration, this Court delivered the following.

J U D G M E N T

1.The Sub-Inspector of Police, Tadepalligudem Town PS, filed charge sheet against accused for the offence under section 34-a of A.P. Excise Act, 2020 in Cr.No. 36/2022 of Tadepalligudem Town P.S.

2. The case of the prosecution in brief is that:

On 26.01.2022 at 06.30 pm at Lokamirtra bar and Restaurant, KN Road, Tadepalliguem, on credible information about the stealthy liquor business, then LW.5/B Raju, SI of Police, Tadepalligudem Town PS, conducted raid along with his staff, when they reached scene of offence place, at that time accused transporting illegal liquor bottles, meantime on seeing the police accused tried to escape from there, but Lw.5 and his staff caught hold the accused and questioned about his address particulars, then accused revealed his name and address particulars, then Lw.5 arrested the accused for selling illegal liquor and seized ie., 1) 5 bottles of Royal Green Premium Blended whisky-180 ml,2) 4 bottles of Royal Palace Vsop Brandy-180ml, 3) 1 bottles of Mansion House brandy-180 mls, 1 bottles of 8PM premium black exclusive -180ml, and seized cash of Rs.8,700/- from accused’s possession under mediators report and accused is habituated offender and he purchased above said liquor bottles from the various wines shops and sell it at highest price after closure brandy shops without having any license from the Government. Then, L.W.5 send sample for chemical examination to Chemical Examiner P&E Regional Laboratory, Kakinada and the report sent the Chemical examiner Kakinada reveals that the contraband seized from accused is India made liquor, hence, accused is committed the above said offence. LW.5-,S.I. of Police, Tadepalligudem Town PS, has registered a case in Cr.No. 36/2022 under Section 34-a of A.P. Excise Amendment and took up investigation, and after completion of investigation LW.5 filed charge sheet against accused for the offence under section 34(A) of A.P. Excise Act, 1968.

3.This court has taken cognizance for the offence punishable under section 34-a of A.P. Excise Act, 1968 against the accused.

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4.On appearance of accused before the Court, copies of documents were furnished to him under section 207 Cr.P.C. The accused was examined under section 239 Cr.P.C the substance of accusation made in the charge sheet was explained to him and he denied it as false. A Charge was framed under section 34-a of A.P. Excise Act, 2020 it was read over and explained to him in Telugu, which he pleaded not guilty and claimed to be tried.

5.In the course of trial, prosecution examined PWs.1 to 5 and got marked Exs.P1 to P8 and MOs.1 to 5 on its behalf.

6.After closure of the prosecution evidence, the accused was examined under section 313(1)(b) of Cr.P.C. by granting an opportunity to offer his explanation on the incriminating material available against him, in the prosecution evidence he denied the same as false and reported no defence evidence on his behalf.

7.Heard the learned Assistant Public Prosecutor (herein after referred as APP) and the learned counsel for accused. Perused the record.

8.The learned APP submitted that the prosecution has proved the guilt of the accused beyond reasonable doubt the evidence of P.W1 to P.W5, the exhibits and material objects marked under Exs.P1 to P8 and MOs.1 to 5 have substantially established the accusation, the mediator in whose presence the liquor bottles were seized has supported the case and his evidence is amply corroborating the prosecution case and establishes the guilt of the accused beyond reasonable doubt, hence she prays to punish the accused in the interest of justice.

9.On the other hand the learned defence counsel has submitted his arguments stating that there is no truth in the prosecution version, the case was foisted against them for their statistical purpose and there are no independent eye witnesses to the alleged offence and PW.4 is the VRO who is also official witness. PW.4 the mediator is the man of prosecution, he deposed on its behalf on the influence of the police, there is no truth in his evidence, his admission in the cross-examination reflects that fact. Except on the alleged mediators report his signature is not there on any of the seized bottles. He has not signed on the identity slips affixed to the samples to say that the alleged bottles were seized in his presence. The mediators report was also prepared at the police station by obtaining the signatures of the concerned. The investigating officer/PW5 failed to conduct investigation in a proper way, he just filed charge sheet without enquiring the true facts. There are several lacunas in his investigation and inconsistencies in the evidence of prosecution witnesses. Hence, by considering the same the accused may be acquitted in the interest of justice as the prosecution failed to prove the guilt of accused beyond all reasonable doubt.

10.Now the point for determination is: Whether the prosecution is able to prove the charge under section 34-a of A.P. Excise Act, 2020 that the accused was in possession of liquor bottles for selling the same without valid license or permit? POINT:

11.To prove the offence punishableunder Section 34-a of A.P. Excise Act, 2020 the prosecution has to prove that the accused was found in possession of seized ., 1) 5 bottles of Royal Green Premium Blended whisky-180 ml,2) 4 bottles of Royal Palace Vsop Brandy-180ml, 3) 1 bottles of Mansion House brandy-180 mls, 1 bottles of 8PM premium black exclusive -180ml, and seized cash of Rs.8,700/-. The prosecution has examined the independent mediators as PW.3 and eye witnesses as PWs 1 and 2 in whose presence the alleged contraband was seized. The investigating officer was examined as PW4.

12.The prosecution has examined P.Ws.1 to 3 as eye witnesses who have said to be the witnesses to the seizure of liquor bottles from the accused. PWs.1 to 3 both deposed that they do not know anything about the case and police did not examine them. Their 161 Cr.P.C. statements were marked as Exs.P1 to P3.

13.They both were cross examined by the learned Additional Public Prosecutor after obtaining permission of the court and posed questions that can be asked in the cross examination by the adverse party under section 154 of Indian Evidence Act, 1872. By cross examination also she could not elicit anything about the recovery of the property from the accused. They completely denied the prosecution version.

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14.PW.4/Y Sahadeva Raju, Village Revenue Officer, deposed that on 26.01.2022 the S.I. of Police, Tadepalligudem Town P.S., called him by informing to come to their police station, then he went to the police station along with Mahila police. Then they accompanied the S.I. of Police along with his staff and went to Lokamitra bar near Prasad hospitals, Tadepalligudem. There they noticed one male person moving suspiciously with a plastic bag then, the police caught him. The police enquired about the identity of the accused in his presence, on that they disclosed his name Kodali Ravibabu. On verification of the bag, found with the accused, the police found ., 1) 5 bottles of Royal Green Premium Blended whisky-180 ml,2) 4 bottles of Royal Palace Vsop Brandy-180ml, 3) 1 bottles of Mansion House brandy-180 mls, 4) 1 bottles of 8PM premium black exclusive - 180ml, and seized cash of Rs.87000/- from the possession of accused. Then, the police seized the above said liquor bottles in their presence of mediators and prepared a report there at the scene of offence and they have also drawn one bottle as sample from each bottle for the purpose of chemical examination. Police drafted the mediator report on his dictation at the scene of offence.

15. During his cross examination, he admitted that police did not secure the signature of the accused on Mos.1 to 4. He admitted that on Mo.5 the police did not affix slips and signatures also. He denied the suggest that before giving his evidence the police was shown the accused today in the court and he know the facts of the case.

16. P.W.5/B Raju, Sub-Inspector of Police, Tadepalligudem Town PS, deposed that on 26.01.2022 at about 06.00 a.m., he received credible information about sale of liquor illegally KN road, Lokamtira Bar and Restaurant, then he along with his staff and mediators rushed to the said place and he found one male person was trying to run away on seeing them in Police uniform. Then, he caught hold of them with the help of his staff. On enquiry, the he revealed his name and address particular. Further in his confessional statement that he is bringing the liquor bottles from the nearby wine shops at lower price to sell the same at higher price when the Govt. Outlets are closed. ., then PW.5 seized teh liquor bottles ie., 1) 5 bottles of Royal Green Premium Blended whisky-180 ml,2) 4 bottles of Royal Palace Vsop Brandy-180ml, 3) 1 bottles of Mansion House brandy-180 mls, 4) 1 bottles of 8PM premium black exclusive -180ml, and seized cash of Rs.87000/- He drew one bottle as sample for the purpose of chemical analysis in the presence of mediators. He seized all the liquor bottles under the cover of mediator report and also took the accused in to his custody and forwarded the accused along with seized property to our police station. He registered a case in Cr.No. 36/2022 U/s. 34(a) of AP Excise Act. Ex.P.5 is the original FIR. He submitted the original FIR to the Hon’ble Court and copies to other concerned officials and he went to the scene of offence and got prepared rough sketch on the same day he has examined P.Ws. 1 to 3 and recorded their statements. Ex.P.6 is the rough sketch. He produced the accused before the Hon’ble Court along with remand report seeking judicial custody. He sent sample bottles to the chemical examiner, Kakinada along with letter of advice on 29.01.2022 for analysis through their DSP of Police, Eluru. Analyst after examining the sample liquor bottle issued report dated 2.02.2022 stating that the sample is Indian made liquor. Ex.P.7 is the letter of advice. Ex.P.8 is the analyst report. On 14.02.2022 he sent proposals to Deputy Commissioner Prohibition and Excise, Eluru for confiscation of remaining contraband and he received destruction proceedings. After completion of investigation he filed charge sheet against the accused.

17. During his cross examination, he denied the suggest that PW.4 and LW.5 are the stock witnesses to his station. He admitted that Mos.1 to 4 are available in open market. He admitted that he did not mentioned the denomination of Mo.5.

18. It is the case of the prosecution that they have seized liquor bottles from the possession of accused in the presence of mediators and the same was witnessed by Pws.1 to 3 and it has shown them as witnesses and has examined them before the court. It is the contention of learned defence counsel that the prosecution failed to examine any local inhabitants to prove their version, except PW.4&5, who are official witness, The PW.1 to 3 turned hostile to the prosecution and they were cross examined by the learned APP.

19. Non-mentioning of the reasons for not securing independent witnesses from the area at which seizure made is fatal to the case of the prosecution. The Hon'ble

High Court of Andhra Pradesh in the case reported on 27-11-2001 Yeduru

Srinivasulu Reddy Vs. State of Andhra Pradesh observed that the prosecution has to --4-- bring on record while charging the accused that they have followed the procedure contemplated u/s. 100(4) of the code. If it fails to prove that they had followed such procedure the search and seizure becomes vitiate. Before making a search under this chapter the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any other locality if no such inhabitants of the said locality is available or is willing to be a witness to the search to attend and witness the search and may issue an order in writing to them or any of them so to do.

20. The observation made by the Hon'ble Supreme Court in case of State of UP Vs. Arun Kumar Gupta, reported in AIR 2003 SC 801. The Hon'ble Supreme Court in the above cited judgmentobserved that 'the prosecution must offer reasonable explanation as to why they did not secure the residents of the houses in the immediate proximity of the alleged incident particularly when there was large number of people were present at the time of recovery.

21. In this case, it is not the case of the prosecution that the alleged place where the seizure was made is located in a remote area, and that there were no persons available at the time of alleged recovery. Therefore, in view of the ratio laid down by the

Hon'ble Supreme Court in the above said citation, this Court is of the opinion that non-

securing of the residents of the locality to act as mediators makes this Court to disbelieve the very recovery of the contraband from the possession of the accused.

22. With regard to the seizure the Hon'ble High Court of A.P. Observed that if any seizure is made in contravention of Section 100 (4) of Cr. P.C. entire seizure proceedings are deemed to have been vitiated. The observations of the Hon'ble High Court of A.P. in the case of S. Babu Saheb @ Babu Vs. State of A.P., reported in 2010(1) ALT (Crl.) 32 AP, are very much relevant which are extracted hereunder: “Admittedly PW-5 accompanied the police officials from Srikalahasti. The excise officials were proceeding on information. When they were proceeding on information they were right in taking mediators along with them where there is no possibility of securing any local mediators then probably they will be justified in conducting seizure proceedings in the presence of mediators brought by them from a different place. But when they are conducting the search in a colony or at a place wherein there is possibility of securing the presence of independent mediators, the excise officials or Prohibition officers are bound to take the local respectable independent inhabitants.They must make sincere efforts to secure the local respectable mediators, that is the mandate of Section 100(4) of Cr.P.C., but excise officials are also authorized to issue an order in writing asking them to act as mediators under Section 100(4) of Cr.P.C. The object of section 100(4) of Cr.P.C., is to ensure confidence in the neighbours and in the public in general. That is genuine search has been made and incriminating material has been really found and not planted. The presence of independent respectable mediators at a search is always desirable and the persons of mediators of any other locality would not only weaken but sometimes destroy the prosecution case.”

23. In the present case also the scene of offence is existing in busy locality and the police have not secured anyone as mediator from the scene of offence and they have not made any efforts for securing the mediators from the said place. PW4 admitted that he did not receive summons from PW.5 to act as mediator. The prosecution has not produced the seized bottles at the time of examination of the mediator for identification purpose, the court could have believed his evidence if he had identified the bottles before the court but the prosecution failed to elicit identification of the seized property by the mediator and absence of his signature on the identity slip strengthens the doubt about his presence at the time of seizure of the alleged liquor bottles, as such his testimony becomes incredible. According to prosecution the investigating officer has examined the PW.s 1 to 3 at the time scene observation and recorded their statements, but before the court they deposed that they were not examined by the police and they do not know anything about this case, hence their evidence is also not giving any aid to the prosecution.

24. The entire case of the prosecution relied on the testimony of PW.5 who is interested witness. PW.5 is an investigating officer, who conducted the raid and investigation and filed charge-sheet. Hence, the above said evidence should be scrutinized carefully. He has not brought any proof before the court that at the alleged place the accused was selling liquor illegally by examining the inhabitant of that locality and there is no investigation on the point that who supplied the liquor bottles to the accused. PW.5 has mentioned in Ex.P.4 that the accused confessed that he purchased the liquor bottles from various wine shops of surrounding villages, but he has not examined anyone in that area to ascertain the fact of purchasing the liquor bottles by the accused and also not examined the neighbors of the accused to prove the sale of liquor at his house. The identity slip is not containing the signature of the accused and mediators and also the date of seizure to --5-- show that the bottles were seized by him in the presence of PW.4 from the possession of the accused on the said date at the alleged place and time. Thus, except the testimony of interested witness and the confession of the accused which is not at all an evidence there is no material on record to prove that the accused has committed the offence.

25. There are several lacuna's and infirmities in the evidence of PW.5. His evidence cannot be believed unless there is corroboration from independent witness. Further, without there being any corroboration from independent witnesses, basing on the evidence of police official, it is not safe to conclude that prosecution proved the guilt of the accused, Hence it is held that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt. Therefore, the benefit of doubt goes in favour of the accused. Hence, this point is answered accordingly.

26. IN THE RESULT, Accused is found not guilty for the offence under section 34-a of A.P. excise Act, 1968, hence he is acquitted under section 248 (1) Cr.P.C. The bail bonds of accused shall be in force for a period of six months as per section 437-A Cr.P.C. MOs.1 to 4 shall be destroyed and Mo.5 cash of Rs.8700/- shall be confiscated to the state, after appeal time is over.

Typed to my dictation by the Stenographer, corrected and pronounced by me in open court this the 14th day of July, 2023.

I ADDL. JUNIOR CIVIL JUDGE-CUM-

I ADDL. JUDICIAL MAGISTRATE OF I CLASS,

TADEPALLIGUDEM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE: PW1 : M John -- NONE -- PW2 : B Srinivasa Rao PW3 : G. Krishna PW4 : Y Sahadeva Raju, VRO PW.5 : B Raju, SI of Police,

EXHIBITS MARKED

FOR PROSECUTION: Ex.P1 : 161 Cr.P.C. Statement of PW1 Ex.P2 : 161 Cr.P.C. Statement of PW2 Ex.P3 : 161 Cr.P.C. Statement of PW3 Ex.P4 : Mediator report Ex.P5 : FIR in Cr.NO. 36 of 2022 Ex.P6 : Rough Sketch Ex.P7 : Letter of advice Ex.P8 : Analysis report FOR DEFENCE: -- NIL –

MATERIAL OBJECTS MARKED

MO1: One Sample bottle of Royal Green Premium Blended Whisky MO2: One Sample bottle of Royal Palace VSOP MO3:One Sample bottle of Mansion MO4: One Sample bottle of 8 PM Premium Black MO.5: Cash of Rs. 8,700/-

I AJFCM, TPG

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CALENDAR & EXTRACT

IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE-CUM-I ADDITIONAL

JUDICIAL MAGISTRATE OF FIRST CLASS : TADEPALLIGUDEM.

CALENDER CASE No.123/2022

1. Date of offence : 26.01.2022

2. Date of complaint or report : 26.01.2022

3. Date of apprehension of Accused : 26.01.2022

4. Date of release on bail of Accused : 28.01.2022

5. Date of commencement of trial : 24.01.2023

6. Date of close of trial : 13.07.2023

7. Date of sentence or Order : 14.07.2023

8. Explanation of delay if any : No delay COMPLAINANT: The State represented by the Sub Inspector of Police, Tadepalligudem Town Police Station. ACCUSED:

Gudala Rambabu, S/o Chandra Rao, A: 38 years Settibalija, Near Ramalayam, Chinna Ranganipalem I Town, Bhimavaram Town.

Cr.No. : Cr.No.36/2020 Section of Law : Under Section 34-a of AP Excise Act, 2020 Plea of the accused : Pleaded not guilty Finding of Court : Found not guilty Sentence/Order:

. IN THE RESULT, Accused is found not guilty for the offence under section 34-a of

A.P. excise Act, 1968, hence he is acquitted under section 248 (1) Cr.P.C. The bail bonds of accused shall be in force for a period of six months as per section 437-A Cr.P.C. MOs.1 to 4 shall be destroyed and Mo.5 cash of Rs.8700/- shall be confiscated to the state, after appeal time is over.

I ADDL. JUNIOR CIVIL JUDGE-CUM-

Seal I ADDL. JUDICIAL MAGISTRATE OF I CLASS,

TADEPALLIGUDEM.

Copy submitted To the Hon'ble I Addl. District & Sessions Judge, West Godavari District through CD.

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IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE-CUM-

I ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS : TADEPALLIGUDEM.

PRESENT: Ms. D.Arundhati,

I ADDIONAL JUNIOR CIVIL JUDGE-CUM-

I ADDL JUDL MAGISTRATE OF FIRST CLASS

TADEPALLIGUDEM.

Tuesday, this the 04th day of April, 2023

CALENDAR CASE No. 90/2023

Between The State represented By the Sub-Inspector, Ganapavaram Police Station. ---Complainant

And

A1: Gollipalli Suresh, S/o Dhanayya,A:35 years, C: SC Mala,Jallikakinada Village, Ganapavaram Mandal.

A2: Ogirala Srinu, S/o Anjaneyulu,A: 38 years, C :SC Mala, Jallikakinada Village,Ganapavaram Mandal.

---Accused This case is coming up for final hearing since 31.03.2023 in the presence of Sri A. Ravi Prasad, Assistant Public Prosecutor for the Prosecution and of Sri A Vijay Ratnam, Advocate for Accused; upon perusing the material papers on record and having stood over for consideration, this Court delivered the following.

J U D G M E N T

1.The Sub-Inspector of Police, Ganapavaram Police Station, filed charge sheet against accused 1 and 2 for the offence under section 34 (a) of A.P. Excise Act,1968 in Cr.No. 10/2023 of Ganapavaram Police Station.

2. The case of the prosecution in brief is that:

On 12.01.2023 at about 08.00 a.m. on receiving credible information about illegal sale and possession of liquor, LW-5/Sub-Inspector of Police, Ganapavaram Police Station along with his staff rushed at near Arch, Ardhavara Village, Ganapavaram Mandal and found that the accused 1 and 2 were possessing and transporting liquor bottles and the accused were tried to escape but the police apprehended them and ascertained names and address particulars of the accused. On interrogation the accused 1 and 2 admitted that they were possessing and transporting the liqour bottles for sale to gain easy money and they further confessed that they were selling the liquor at profit on each bottle. LW.5 seized the liquor bottles of various brands i.e.1) 84 bottles of Party Special Deluxe Whisky-180 ml from the possession of A1 and 2) 90 bottles of Kings Well Deluxe Whisky-180ml from the possession of Accused.No.2, total worth of Rs. 26,100/- and seized them under the cover of occurrence report, LW-5 brought accused 1 and 2 to the police station along with seized property and registered a case in Cr.No.10/2023 U/Section 34(a) of A.P. Excise Act 1968 and he served 41- A Cr.P.C notice to the accused 1 and 2.

Later, LW.5/ Sub-Inspector of Police, Ganapavaram Police Station, visited the scene of offence, drawn rough sketch of the scene and examined witnesses and recorded their statements, after that he produced the accused 1 and 2 before the court seeking judicial custody. He sent the samples to the Chemical Examiner, Kakinada for analysis and the analyst --2-- issued report stating that the sample is containing Indian Made Liquor and after completion of investigation he filed charge sheet against the accused 1 and 2.

3.This court has taken cognizance for the offence punishable under section 34 (a) of A.P. Excise (Amendment) Act, 2020 against the accused 1 and 2.

4.On appearance of accused before the Court, copies of documents were furnished to them under section 207 Cr.P.C. The accused 1 and 2 were examined under section 239 Cr.P.C the substance of accusation made in the charge sheet was explained to them and they denied it as false. A Charge was framed under section 34 (a) of A.P. Excise Act, 2020, it was read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.

5.In the course of trial, prosecution examined PWs.1 to 3 and got marked Exs.P1 to P7 and MOs.1 and 2 on its behalf.

6.After closure of the prosecution evidence, the accused 1 and 2 were examined under section 313(1)(b) of Cr.P.C. by granting an opportunity to offer their explanation on the incriminating material available against them in the evidence of prosecution witnesses, they denied the same as false and reported no defence evidence on their behalf.

7.Heard the learned Assistant Public Prosecutor (herein after referred as APP) and the learned counsel for accused. Perused the record.

8.The learned APP submitted that the prosecution has proved the guilt of the accused beyond reasonable doubt the evidence of PWs.1 to 3, the exhibits and material objects marked under Exs.P1 to P7 and MO.1 and 2 have substantially established the accusation, though the eye witnesses failed to support the prosecution version the evidence of investigating officer is sufficient to prove the prosecution case, hence he prays to punish the accused in the interest of justice.

9. On the other hand the learned defence counsel has submitted his arguments stating that there is no truth in the prosecution version, the case was foisted against the accused for their statistical purpose. The eye witnesses who were examined as PW1 and PW2 have turned hostile and did not state anything about the alleged seizure from the accused, by cross-examining them also the prosecution failed to elicit anything favourable to its contention. The identity slip affixed to the sample bottle is not showing the signature of the accused to show that it was seized from his possession by the police. The investigating officer/PW3 failed to conduct investigation in a proper way, he just filed charge sheet without enquiring the true facts. There are several lacunas in his investigation and inconsistencies in the evidence of prosecution witnesses. Hence, by considering the same the accused may be acquitted in the interest of justice as the prosecution failed to prove the guilt of the accused beyond all reasonable doubt.

9.Heard both the learned counsel and perused the record.

10. Now the point for determinations is: Whether the prosecution is able to prove the charge under section 34 (a) of A.P. Excise Act, 2020, that the accused was in possession of liquor bottles for selling the same without valid license or permit?

12. POINT: To prove the offence punishableunder Section 34-a of A.P. Excise Act, 2020 the prosecution has to prove that the accused 1 and 2 were found in possession of seized 1) 84 bottles of Party Special Deluxe Whisky-180 ml from the possession of A1 and 2) 90 bottles of Kings Well Deluxe Whisky-180ml from the possession of Accused.No.2, total worth of Rs. 26,100/-. The prosecution has examined the independent mediators as PW.3 and eye witnesses as PWs 1 and 2 in whose presence the alleged contraband was seized. The investigating officer was examined as PW4.

13. The prosecution has examined PWs.1 and 2 who have said to be witnesses to the seizure of liquor bottles from the accused 1 and2 . PWs.1 and 2 have deposed that they do not know anything about the case and police did not examine them. Their 161 Cr.P.C. statements were marked as Exs.P1 and P2.

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14. They were cross examined by the learned Additional Public Prosecutor after obtaining permission of the court and posed questions that can be asked in the cross examination by the adverse party under section 154 of Indian Evidence Act, 1872. By cross examination also she could not elicit anything about the recovery of the property from the accused. They completely denied the prosecution version.

15. Now, only evidence available on record is the oral evidence of PW3-V. Venkateswara Rao, Sub-Inspector of Police, Ganapavaram P.S who has detected the case and filed charge sheet against the accused 1 and 2 after completion of investigation. Where in PW3, the Sub-Inspector of Police, deposed that on 12.01.2023 at 07.30 am, on credible information about sale of liquor, he along with his staff PC 1205 and PC 2055 rushed to Ardhavaram Arch of Ganapavaram, and they observed the two male persons who are unable to move and another person trying to skulk away on seeing them in uniform, on suspicion he caught hold the accused, enquired about the contents of bag and their identity and they confessed that they possessed and transporting liquor bottles, on enquiry about source of said liquor bottles, accused 1 and 2 confessed that they purchased those liquor bottles from the wine shops of Ganapavaram Circle to sell the same at higher price in their area, then he got opened the bag and found 1) 84 bottles of Party Special Deluxe Whisky-180 ml from the possession of A1 and 2) 90 bottles of Kings Well Deluxe Whisky-180ml from the possession of Accused.No.2, total worth of Rs. 26,100/-, as accused 1 and 2 failed to produce any permit or license, they seized those liquor bottles from the possession of accused under the cover of police proceedings report/Ex.P3 and took the custody of accused. He returned to their police station along with accused and seized property and registered a case under Ex.P4/FIR, later he visited the scene of offence, drawn Ex.P5/rough sketch of the scene, examined PWs.1 and 2 and recorded their statements drawn one bottle as sample for each brand under MOs.1 and 2 and produced the accused before the court for judicial custody. Later on 23.01.2023 he sent the samples to the Chemical examiner, Kakinada with (Ex.P6) letter of advice and the analyst issued report under Ex.P7 stating that samples are Indian Made Liquor and after completion of investigation, PW.3 filed charge sheet against the accused.

16. In the cross-examination, PW4 admitted that the scene of offence is a busy and residential locality, he further admitted that VRO and VRA are available in Ardhavaram Village and he did not receive any written complaint against the accused and accused never purchased or sell liquor in his presence. He denied the suggest that accused 1 and 2 are trying to escape from them. He admitted that Mos1 and 2 are not having batch and serial numbers and he did not obtain the signatures of LW.s 1 and 2 and identity slips affixed to Mos1 and 2 and at the time incident A1 and A2 are present in their shops. He denied the suggest that he has not seized any liquor bottles from the accused and has not committed any offence and the case was foisted against them for their statistical purpose.

17. It is the case of the prosecution that police have seized alleged liquor bottles from the accused and the same was seen by the independent witnesses who were examined by the investigating officer at the time of scene observation and it has shown them as witnesses in the charge-sheet and examined them before the court, but they didn’t depose anything and denied their examination by the police. The entire case of the prosecution relied on the testimony of P.W.3 who is police official.

18. Non-mentioning of the reasons for not securing independent witnesses from the area at which seizure made is fatal to the case of the prosecution. The Hon'ble High Court

of Andhra Pradesh in the case reported on 27-11-2001 Yeduru Srinivasulu Reddy

Vs. State of Andhra Pradesh observed that the prosecution has to bring on record while charging the accused that they have followed the procedure contemplated u/s. 100(4) of the code. If it fails to prove that they had followed such procedure the search and seizure becomes vitiate. Before making a search under this chapter the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any other locality if no such inhabitants of the said locality is available or is willing to be a witness to the search to attend and witness the search and may issue an order in writing to them or any of them so to do.

--4--

19. The observation made by the Hon'ble Supreme Court in case of State of UP Vs. Arun Kumar Gupta, reported in AIR 2003 SC 801. The Hon'ble Supreme Court in the above cited judgmentobserved that 'the prosecution must offer reasonable explanation as to why they did not secure the residents of the houses in the immediate proximity of the alleged incident particularly when there was large number of people were present at the time of recovery. In this case, it is not the case of the prosecution that the alleged place where the seizure was made is not located in a busy locality, and that there were no persons available at the time of alleged recovery.

20. Therefore, in view of the ratio laid down by the Hon'ble Supreme Court in the above said citation, this Court is of the opinion that non-securing of the residents of the locality to act as mediators makes this Court to disbelieve the very recovery of the contraband from the possession of the accused.

21. With regard to the seizure the Hon'ble High Court of A.P. Observed that if any seizure is made in contravention of Section 100 (4) of Cr. P.C. entire seizure proceedings are deemed to have been vitiated. The observations of the Hon'ble High Court of A.P. in the case of S. Babu Saheb @ Babu Vs. State of A.P., reported in 2010(1) ALT (Crl.) 32 AP, are very much relevant which are extracted hereunder: “Admittedly PW-3 accompanied the police officials from Srikalahasti. The excise officials were proceeding on information. When they were proceeding on information they were right in taking mediators along with them where there is no possibility of securing any local mediators then probably they will be justified in conducting seizure proceedings in the presence of mediators brought by them from a different place. But when they are conducting the search in a colony or at a place wherein there is possibility of securing the presence of independent mediators, the excise officials or Prohibition officers are bound to take the local respectable independent inhabitants. They must make sincere efforts to secure the local respectable mediators, that is the mandate of Section 100(4) of Cr.P.C., but excise officials are also authorized to issue an order in writing asking them to act as mediators under Section 100(4) of Cr.P.C. The object of section 100(4) of Cr.P.C., is to ensure confidence in the neighbours and in the public in general. That is genuine search has been made and incriminating material has been really found and not planted. The presence of independent respectable mediators at a search is always desirable and the persons of mediators of any other locality would not only weaken but sometimes destroy the prosecution case.”

21. In the present case also the scene of offence is existing in busy locality and the police have not secured anyone as mediator from the scene of offence and they have not made any efforts for securing the mediators from the said place. The PW.3 failed to give any explanation that when PW1 and 2 are available nearby the scene of offence at the time of seizure of MOs.1 and 2 why he failed to ask them to act as mediators and also why he has not issued any notice on them or any other persons available in that area. Here it may be noticed that the independent witnesses PW1 and PW.2 have turned hostile and denied the fact of their examination by the police, thus the failure of PW.3 in giving explanation and the evidence of PWs.1 and 2 are creating doubt on the very recovery of the alleged liquor bottles from the accused. [

22. The entire case of the prosecution relied on the testimony of PW4 who is an interested witness. PW.3 is an investigating officer, who conducted raid, seized the alleged liquor bottles, and conducted investigation and filed charge-sheet against the accused. Hence, the above said evidence should be scrutinized carefully. He has not brought any proof before the court that at the alleged place the accused was found in possession of alleged liquor bottles and was selling the same by examining the inhabitants of that locality and there is no investigation on the point that who supplied the bottles to the accused. The signature of the accused is not there on the identity slip to show that the said bottles were seized from the accused. Further PW.3 has also not mentioned the serial numbers of the bottles in his report to give specific identity for the seized bottles. Except the testimony of interested witnesses and the confession of the accused which is not at all an evidence there is no material on the record to prove the commission of offence by the accused.

23. There are several lacuna's and infirmities in the evidence of PW3. His evidence cannot be believed unless there is corroboration from independent witness. Further, without there being any corroboration from independent witnesses, basing on the --5-- evidence of police official, it is not safe to conclude that prosecution proved the guilt of the accused, Hence it is held that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt. Therefore, the benefit of doubt goes in favour of the accused, Hence, this point is answered accordingly.

24. In the result, sole accused 1 and 2 are found not guilty for the offence under section 34 (a) of A.P. Excise Act and they are acquitted under section 248 (1) Cr.P.C. The bail bonds of accused 1 and 2 shall be in force for a period of six months as per section 437(A) Cr.P.C. MOs.1 and 2 shall be destroyed after appeal time is over.

Typed to my dictation by the Stenographer, corrected and pronounced by me in open court this the 04th day of April, 2023.

Sd/-D. Arundhathi

I ADDL. JUNIOR CIVIL JUDGE-CUM-

I ADDL. JUDICIAL MAGISTRATE OF I CLASS,

TADEPALLIGUDEM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE: PW1 : MD. Rizwan -- NONE -- PW.2 : K. Durga Prasad PW.3 : V. Venakateswara Rao, SI of Police

EXHIBITS MARKED

FOR PROSECUTION: Ex.P1 : 161 Cr.P.C Statement of PW.1 Ex.P1 Ex.P2 : 161 Cr.P.C Statement of PW.2 Ex.P3 : Occurrence report Ex.P4 : FIR, dot 12.01.2023 Ex.P5 : Rough Sketch Ex.P6 : Letter of advice Ex.P7 : Chemical Analysis Report

FOR DEFENCE: -- NIL –

MATERIAL OBJECTS MARKED

MO1: Sample bottle of Party Special Deluxe -180 ml, MO2: Sample bottle of Kings Well Deluxe Whisky-180ml

I AJFCM, TPG

--6--

CALENDAR & EXTRACT

IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE-CUM- I ADDITIONAL JUDICIAL

MAGISTRATE OF FIRST CLASS : TADEPALLIGUDEM.

CALENDER CASE No.90/2023

1. Date of offence : 12.01.2023

2. Date of complaint or report : 12.01.2023

3. Date of apprehension of Accused : 12.01.2023

4. Date of release on bail of Accused : 12.01.2023

5. Date of commencement of trial : 13.03.2023

6. Date of close of trial : 29.03.2023

7. Date of sentence or Order : 04.04.2023

8. Explanation of delay if any : No delay COMPLAINANT: The State represented by the Sub Inspector of Police, Ganapavaram Police Station.

ACCUSED: A1: Gollipalli Suresh, S/o Dhanayya,A:35 years, C: SC Mala,Jallikakinada Village, Ganapavaram Mandal.

A2: Ogirala Srinu, S/o Anjaneyulu,A: 38 years, C :SC Mala, Jallikakinada Village,Ganapavaram Mandal.

Cr.No. : Cr.No.10/2023 Section of Law : Under Section 34 (a) of AP Excise Act Plea of the accused : Pleaded not guilty Finding of Court : Found not guilty Sentence/Order:

IN THE RESULT, accused 1 and 2 found not guilty for the offence under section 34 (a) of A.P. Excise Act, hence they are acquitted under section 248 (1) Cr.P.C. The bail bonds of accused shall be in force for a period of six months as per section 437-A Cr.P.C. MOs.1 and 2 shall be destroyed after appeal time is over.

I ADDL. JUNIOR CIVIL JUDGE-CUM-

Seal I ADDL. JUDICIAL MAGISTRATE OF I CLASS,

TADEPALLIGUDEM.

Copy submitted To the Hon'ble I Addl. District & Sessions Judge, West Godavari District through CD.

--1--

IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE-CUM-

I ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS : TADEPALLIGUDEM.

PRESENT: Ms. D.Arundhati,

I ADDIONAL JUNIOR CIVIL JUDGE-CUM-

I ADDL JUDL MAGISTRATE OF FIRST CLASS

TADEPALLIGUDEM.

Tuesday, this the 04th day of April, 2023

CALENDAR CASE No. 248/2020

Between The State represented By the Sub-Inspector, Ganapavaram Police Station. ---Complainant

And

Birudugadda Ramesh, S/o Subba Rao, A: 35 years, SC Mala, Kaligotla Village, Undi Mandal.

---Accused This case is coming up for final hearing since 29.03.2023 in the presence of Sri A. Ravi Prasad, Assistant Public Prosecutor for the Prosecution and of Sri K.V.V.Satyanarayana, Advocates for Accused; upon perusing the material papers on record and having stood over for consideration, this Court delivered the following.

J U D G M E N T

1.The Sub-Inspector of Police, Ganapavaram Police Station, filed charge sheet against accused for the offence under section 34 (a) of A.P. Excise Act,1968 in Cr.No. 138/2020 of Ganapavaram Police Station.

2. The case of the prosecution in brief is that:

On 30.05.2020 at about 01.30 p.m. on receiving credible information about illegal sale and possession of liquor, LW-2/ Sub-Inspector of Police, Ganapavaram Police Station with his staff rushed at colony road at Saripalli Village of Ganpavaram Mandal and found that the accused was possessing with one mica bag on his motor cycle and its containing liquor bottles and the accused was tried to escape but the police apprehended him and ascertained name and address particulars of the accused. On interrogation the accused admitted that he was possessing the liqour bottles for sale to gain easy money and he further confessed that he was selling the liquor at profit on each bottle. LW.2 searched the bag possessed by the accused and found liquor bottles of various brands i.e. 1) 8 bottles of 100 pipers Whisky-180 ml, 2) 4 bottles of Blenders Pride whisky-180ml, 3) 1 bottle of Old times Deluxe Whisky- 180ml, from his possession and seized them under the cover of occurrence report, LW-2 brought accused to the police station along with seized property and registered a case in Cr.No.138/2020 U/Section 34(a) of A.P. Excise Act 1968 and he served 41-A Cr.P.C notice to the accused.

Later, LW.2/ Sub-Inspector of Police, Ganapavaram Police Station, visited the scene of offence, drawn rough sketch of the scene and examined witnesses and recorded their statements, after that he produced the accused before the court seeking judicial custody. He sent the samples to the Chemical Examiner, Kakinada for analysis and the analyst issued report stating that the sample is containing Indian Made Liquor and after completion of investigation he filed charge sheet against the accused.

3.This court has taken cognizance for the offence punishable under section 34 (a) of A.P. Excise (Amendment) Act, 2020 against the accused.

4.On appearance of accused before the Court, copies of documents were furnished to them under section 207 Cr.P.C. The accused was examined under section 239 Cr.P.C the substance of accusation made in the charge sheet was explained to him and he --2-- denied it as false. A Charge was framed under section 34 (a) of A.P. Excise Act, 2020, it was read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

5.In the course of trial, prosecution examined PW.1 and got marked Exs.P1 to P5 and MOs.1 to 3 on its behalf.

6.After closure of the prosecution evidence, the accused was examined under section 313(1)(b) of Cr.P.C. by granting an opportunity to offer his explanation on the incriminating material available against him in the evidence of prosecution witnesses, he denied the same as false and reported no defence evidence on his behalf.

7.Heard the learned Assistant Public Prosecutor (herein after referred as APP) and the learned counsel for accused. Perused the record.

8.The learned APP submitted that the prosecution has proved the guilt of the accused beyond reasonable doubt the evidence of PW.1, the exhibits and material objects marked under Exs.P1 to P5 and MOs.1 to 3 have substantially established the accusation, though the eye witnesses failed to support the prosecution version the evidence of investigating officer is sufficient to prove the prosecution case, hence he prays to punish the accused in the interest of justice.

9. On the other hand the learned defence counsel has submitted his arguments stating that there is no truth in the prosecution version, the case was foisted against the accused for their statistical purpose. The investigating officer/PW.1 failed to conduct investigation in a proper way, he just filed charge sheet without enquiring the true facts. There are several lacunas in his investigation and inconsistencies in the evidence of prosecution witness. There is no corroboration to the prosecution version, absence of independent witness at the time of alleged seizure is fatal to the prosecution case, hence, by considering the same the accused may be acquitted in the interest of justice as the prosecution failed to prove his guilt beyond all reasonable doubt.

10.Heard both the learned counsel and perused the record.

11. Now the point for determinations is: Whether the prosecution is able to prove the charge under section 34 (a) of A.P. Excise Act, 2020, that the accused was in possession of liquor bottles for selling the same without valid license or permit?

12. POINT No.1:

To prove the offence punishableunder Section 34 (a) of A.P. Excise Act, 1968 the prosecution has to prove that the accused was found in possession of 1) 8 bottles of 100 pipers Whisky-180 ml, 2) 4 bottles of Blenders Pride whisky-180ml, 3) 1 bottle of Old times Deluxe Whisky-180ml.

13. Now, only evidence available on record is the oral evidence of PW1-Sri M Veera Babu, Sub Inspector, Ganapavaram PS, who detected the case and he deposed that on 30.05.2020 at 12.15 pm, on credible information about sale of liquor, he along with his staff rushed to the scene of offence and they observed one male person trying to skulk away with a mica bag on seeing them in uniform, on suspicion he caught hold the accused and enquired about the contents of bag and his identity on that he confessed that he possessed liquor bottles, on enquiry about the source of said liquor bottles, accused confessed that he purchased those liquor bottles from the Government wine shops of in his area and to sell the same at higher price in his area, then he got opened the plastic cover and found 1) 8 bottles of 100 pipers Whisky-180 ml, 2) 4 bottles of Blenders Pride whisky-180ml, 3) 1 bottle of Old times Deluxe Whisky-180ml as accused failed to produce any permit or license, he seized those liquor bottles from the possession of accused under the cover of police proceedings report/Ex.P1 and took the custody of accused. He returned to their police station along with accused and seized property and registered a case under Ex.P2/FIR and visited the scene of --3-- offence and prepared rough sketch/Ex.P3 and drawn one bottle as sample from each brand under MOs.1 to 3 and produced the accused before the court for judicial custody. Later on 31.05.2020 he sent the samples to the Chemical examiner, Kakinada with (Ex.P.4) letter of advice through their DSP, Kovvur and the analyst issued report under Ex.P5/dt; 08.06.2020. After completion of investigation he filed charge sheet in this case against the accused and he has addressed a letter through their Supt. Police, to the DY. Commissioner P&E, Eluru for the confiscation of remaining property and he produced the sample bottles are marked as MOs.1 to 3. 14. In the cross-examination, PW.1 denied that the scene of offence is a busy locality. He admitted that in Ganapavaram area there is MRO Office and VRO and VRAs are always available in that office and he tried to secure the mediator but they are not available at that time and he has not issued any summons. He admitted that he has not mentioned the batch numbers and serial numbers of the bottles. He denied the suggest that he has not seize any liquor bottles from the accused and the accused has not committed any offence and the case was foisted against him for their statistical purpose. [[ 15. It is the case of the prosecution that he has seized 1) 8 bottles of 100 pipers Whisky-180 ml, 2) 4 bottles of Blenders Pride whisky-180ml, 3) 1 bottle of Old times Deluxe Whisky-180ml, from the possession of accused. Admittedly there was no independent mediator present at the time of alleged seizure of liquor bottles from the possession of the accused and the record also not disclosing that the police have made efforts to secure any one as independent mediator to witness the seizure.

16. Non-mentioning of the reasons for not securing independent witnesses from the area at which seizure made is fatal to the case of the prosecution. The Hon'ble High

Court of Andhra Pradesh in the case reported on 27-11-2001 Yeduru

Srinivasulu Reddy Vs. State of Andhra Pradesh observed that the prosecution has to bring on record while charging the accused that they have followed the procedure contemplated u/s. 100(4) of the code. If it fails to prove that they had followed such procedure the search and seizure becomes vitiate. Before making a search under this chapter the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any other locality if no such inhabitants of the said locality is available or is willing to be a witness to the search to attend and witness the search and may issue an order in writing to them or any of them so to do.

17. The observation made by the Hon'ble Supreme Court in case of State of UP Vs. Arun Kumar Gupta, reported in AIR 2003 SC 801. The Hon'ble Supreme Court in the above cited judgmentobserved that 'the prosecution must offer reasonable explanation as to why they did not secure the residents of the houses in the immediate proximity of the alleged incident particularly when there was large number of people were present at the time of recovery. In this case, it is not the case of the prosecution that the alleged place where the seizure was made is not located in a busy locality, and that there were no persons available at the time of alleged recovery.

18. Therefore, in view of the ratio laid down by the Hon'ble Supreme Court in the above said citation, this Court is of the opinion that non-securing of the residents of the locality to act as mediators makes this Court to disbelieve the very recovery of the contraband from the possession of the accused.

19. With regard to the seizure the Hon'ble High Court of A.P. Observed that if any seizure is made in contravention of Section 100 (4) of Cr. P.C. entire seizure proceedings are deemed to have been vitiated. The observations of the Hon'ble High Court of A.P. in the case of S. Babu Saheb @ Babu Vs. State of A.P., reported in 2010(1) ALT (Crl.) 32 AP, are very much relevant which are extracted hereunder:

--4-- “Admittedly PW-1 accompanied the police officials from Srikalahasti. The excise officials were proceeding on information. When they were proceeding on information they were right in taking mediators along with them where there is no possibility of securing any local mediators then probably they will be justified in conducting seizure proceedings in the presence of mediators brought by them from a different place. But when they are conducting the search in a colony or at a place wherein there is possibility of securing the presence of independent mediators, the excise officials or Prohibition officers are bound to take the local respectable independent inhabitants. They must make sincere efforts to secure the local respectable mediators, that is the mandate of Section 100(4) of Cr.P.C., but excise officials are also authorized to issue an order in writing asking them to act as mediators under Section 100(4) of Cr.P.C. The object of section 100(4) of Cr.P.C., is to ensure confidence in the neighbours and in the public in general. That is genuine search has been made and incriminating material has been really found and not planted. The presence of independent respectable mediators at a search is always desirable and the persons of mediators of any other locality would not only weaken but sometimes destroy the prosecution case.”

20. In the present case also the scene of offence is a residential area and the police have not secured anyone as mediator from the scene of offence and he has not issued summons to anyone in that area to act as mediators. Though, PW1 has every opportunity to secure presence of local inhabitants to act as mediators as it is a day time and usually people are passing through the main centre. Hence, a strong doubt arose in the mind of this court about seizure of liquor bottles from the possession of accused.

21. The entire case of the prosecution relied on the testimony of PW1 who is investigating officer and who conducted the raid also. Hence, the above said evidence should be scrutinized carefully. He has not brought any proof before the court that at the alleged place the accused was selling the illegal liquor by examining the inhabitant of that locality and there is no investigation on the point that who supplied the bottles to the accused. Except oral testimony of interested witness and the confession of the accused which is not at all an evidence there is no material on record to prove the commission of offence by the accused.

22. The evidence of PW1 cannot be believed unless there is corroboration from independent witness. Further, without there being any corroboration from independent witnesses, basing on the evidence of police official, it is not safe to conclude that prosecution proved the guilt of the accused. Hence, this court finds that prosecution miserably failed to prove the offence under Section 34(a) of A.P. Excise Act, 2020 against the accused beyond all reasonable doubt. Accordingly, point is answered.

23. IN THE RESULT, accused was found not guilty for the offence under section 34 (a) of A.P. Excise Act, 1968 and he is acquitted under section 248 (1) Cr.P.C. The bail bonds of accused shall be in force for a period of six months as per section 437-A Cr.P.C. MOs.1 to 3 shall be destroyed after appeal time is over.

Typed to my dictation by the Stenographer, corrected and pronounced by me in open court this the 04th day of April, 2023. Sd/-D. Arundhathi

I ADDL. JUNIOR CIVIL JUDGE-CUM-

I ADDL. JUDICIAL MAGISTRATE OF I CLASS,

TADEPALLIGUDEM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE: PW1 : Sri. M Veera Babu, SI of Police -- NONE --

EXHIBITS MARKED

FOR PROSECUTION: Ex.P1 : Occurrence report, dt 30.05.2020 Ex.P1 Ex.P2 : FIR, dt 30.05.2020 Ex.P3 : Rough Sketch Ex.P4 : Letter of advice, dt 31.05.2020 Ex.P5 : Chemical Analysis report, dt 08.06.2020 FOR DEFENCE: -- NIL –

MATERIAL OBJECTS MARKED

MO1: Sample bottle of 100 pipes of Whisky-180 ml, MO2: Sample bottle of Blender Spride Whsiky-180ml, MO3: Sample bottle of Old Times Deluxe Whisky-180ml IAJFCM, TPG --5--

CALENDAR & EXTRACT

IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE-CUM- I ADDITIONAL JUDICIAL

MAGISTRATE OF FIRST CLASS : TADEPALLIGUDEM.

CALENDER CASE No.248/2020

1. Date of offence : 30.05.2020

2. Date of complaint or report : 30.05.2020

3. Date of apprehension of Accused : 30.05.2020

4. Date of release on bail of Accused : 41-A Cr.P.C.

5. Date of commencement of trial : 24.03.2023

6. Date of close of trial : 24.03.2023

7. Date of sentence or Order : 04.04.2023

8. Explanation of delay if any : No delay COMPLAINANT: The State represented by the Sub Inspector of Police, Ganapavaram Police Station.

ACCUSED: Birudugadda Ramesh, S/o Subba Rao, A: 35 years, SC Mala, Kaligotla Village, Undi Mandal

Cr.No. : Cr.No.138/2020 Section of Law : Under Section 34 (a) of AP Excise Act Plea of the accused : Pleaded not guilty Finding of Court : Found not guilty Sentence/Order:

IN THE RESULT, accused found not guilty for the offence under section 34 (a) of A.P.

Excise Act, hence he is acquitted under section 248 (1) Cr.P.C. The bail bonds of accused shall be in force for a period of six months as per section 437-A Cr.P.C. MOs.1 to 3 shall be destroyed after appeal time is over.

I ADDL. JUNIOR CIVIL JUDGE-CUM-

Seal I ADDL. JUDICIAL MAGISTRATE OF I CLASS,

TADEPALLIGUDEM.

Copy submitted To the Hon'ble I Addl. District & Sessions Judge, West Godavari District through CD.

1

IN THE COURT OF I ADDITIONAL JUNIOR CIVIL JUDGE – CUM -I

ADDITIONAL JUDICIAL FIRST CLASS MAGISTRATE, AT TADEPALLIGUDEM.

Present : Ms. D. Arundhati,

I Addl. Civil Judge (Junior Division) - CUM- I Addl. Judicial First Class Magistrate, C.C.No.512/2018

Friday, the 09 th day of August, 2024.

Between:

Mella Narasimha, S/o Kesavarao, A: 60 years Hindu, Male, D.No.7-36-1, Karri Satyavathi Nagar, Tadepalligudem.

….. Complainant

And

Nallimilli Sridevi, W/o Appireddy, A: 35 years Chandini Traders, Hindu, Female, Business, D.No.4-1, H/o Tetali Satyanarayana Reddy, Near DRG College, Pentapadu.

.... Accused

This case coming on 01.08.2024 for final hearing before me in the presence of Sri.T. Satyanarayana, Advocate for the complainant and

Sri S.Vijaya Krishna, Advocate for the accused and having stood over till this day for consideration, the court delivered the following:

J U D G M E N T

1. This is a private complaint filed by the complainant against the accused for the offence U/sec.138 of Negotiable Instruments Act alleging as follows:

2. The accused borrowed an amount of Rs. 11,50,000/- from complainant on 10.05.2016 for the purpose of her business expenses agreeing to repay the same with an interest of Rs.24% per annum either to the plaintiff or to his order on demand. Subsequently, inspite of repeated demands made by him personally, accused issued a cheque bearing.No.462324 drawn on Karur Vysya

Bank, Tadepalligudem branch for an amount of Rs.9,11,805/- as part payment presented the said cheque for collection through banker in Karur Vysya Bank, 2 Tadepalligudem, W.G.District and same was returned as unpaid with a cheque return memo dt; 25.06.2018 by mentioning that refer to drawer. Immediately, after receiving the same. The accused also dishonestly induced the complainant to pay the debt by promising that the accused will repay the same. But, he has not come forward to discharge the above and moreover issued a spurious and worthless cheque. Then, the complainant got issued a registered legal notice through his counsel to accused on 10.07.2018 by demanding him to pay the cheque amount and accused received the notice and given false reply and did not choose to average cheque amount and kept quite. Hence, the complainant is constrained to file the present complaint against the accused.

3.Basing on the allegations of the complainant and on perusal of other material available on record. This court took cognizance of the offence under

Sec 138 and 142 of Negotiable Instrument Act against the the accused.

4. After appearance of the accused before the court, copies of documents were furnished to the accused under Sec 207 Cr.P.C and she was examined under section 251 Cr.P.C, on the substance of accusation. she pleaded not guilty and claimed to be tried.

5. In order to prove the case of the complainant P.W.1 and to corroborated his evidence examined as PW.2 and 3 and got marked Ex’s.P-1 to P-6.toward s documentary evidence. Accused herself examined as DW.1 and marked Ex.D1, towards documentary evidence.

6. After closure of the complainant's evidence, the accused was examined

U/sec.313 Cr.P.C. and the incriminating material made against her were read over and explained for which she denied and her reported no defence evidence.

Hence her evidence is close.

3

7. Now the points for determination are :

Whether the complainant has established the guilt of the accused of the offence under Sec 138 and 142 of NI Act, beyond all reasonable doubt?

8.Heard the arguments of the learned counsel for the complainant and accused.

Point:

9.Heard and perused the record. This court have carefully scrutinized the oral and documentary evidence apart from giving anxious consideration to the rival contentions.

10.It is case of the PW.1/complainant that the accused borrowed an amount of

Rs. 11,50,000/- from the PW.1 on 10.05.2016. Later, on demand of the

PW.1/Complainant the accused issued Ex.A1 cheque bearing.No. 462324 Karur

Vysya Bank on 25.06.2016 for amount of Rs.9,11,805/- in favour of PW.1, towards part satisfaction of debt. Subsequently, the PW.1/complainant presented the said cheque for collection through his banker Karur Vysya Bank,

Tadepalligudem and same return unpaid with cheque return memo dt 25.06.2018 by mentioning that the refer drawer and later he got issued Ex.P3 to the accused by demanding to repay the Ex.P1 cheque amount to him and she received the said notice and the accused reply to counsel of the complainant.

11. Here, the accused denying the issuance of the Ex.P1 cheque and the alleged cheque in a typed one and the alleged amount on the cheque there is no properly explained by the complainant and the Pws.1 to 3 false evidence. The very case of the accused is that the PW.1 on instigation of Subba Raja present case was filed against her and she does not know the complainant and witness

PW.2 and PW.3. Accused submitted that from the beginning of issuing of reply notice. She disputing the alleged transaction with complainant and also started 4 in her reply previously she face a criminal case C.C.No. 539/2016 which was filed by Sikakollu Subba Rao on the Special Mobile Magistrate Court, Eluru where in she got acquittal in the said case and in the present case she examined as defence witness and Judgment of C.C.No.539/2016 marked on behalf of accused as Ex.D1.

12.But, the very case of the complainant/PW.1 is that the accused borrowed an amount of Rs.11,50,000/- from her on 10.05.2016 and issue Ex.P1 cheque in his favour. In order the debt to PW.1 on 25.06.2016, when the complainant was presented the said cheque for collection it was returned unpaid by the banker of the accused on the grounds that refer drawer.

13.As can be seen the cross examination of PW.1, stated that he was not an income tax assessesand he has not paid tax for the financial year 2016-2017.

PW.1 also admitted that it is true there is no documentary proof for the alleged debt prior to the alleged cheque dt 25.06.2018. PW1 further stated in his cross examination that he has mentioned in his complaint how due amount

Rs.9,11,805/- was arranged as on the date of cheque after debuting the part payment of the paid toward interest in the said amount it was alleged as due, but in the notice no where stated. PW.1 in his cross examination he admitted that there is correction in the date of cheque in the statutory notice.

14.PW.1 admitted that he has not mentioned either in his statutory notice or in complaint, there were business transaction between himself and accused. He also admitted the alleged cheque on which the case was filed was belong a firm

Chandini Traders, but not belong to private person. PW.1 admitted that he did not arranged the Chandini Traders as an accused in his complaint and also stated not issued any statutory notice to the firm. PW.1 admitted he did not 5 reveal the relationship between himself ad two persons by name Illa Prasad and

Illa Venkata Rao about whom mention in the complaint.

15.PW.1 further admitted that it is true in his complaint he has not mentioned who issued the alleged cheque from the firm Chadani Traders and also admitted that it is true he has not mentioned in his complaint and statutory notice that where he got typed the columns of the cheque.

16.PW.2 stated in his cross examination, admitted that he did not mention in his chief affidavit that he has admitted how the accused and complainant know to him and it is also true he did not mention in the chief affidavit when and where the accused borrowed an amount of Rs.11,50,000/- from the complainant.

17.PW.2 stated that PW.3 is his cousin brother. PW.2 also stated the he do not know the source of income of complainant and over he stated that PW.1 in his brother in law. PW.3 admitted same what admitted by PW.2 he also deposed same.

18.So, the admissions of PW.1 clearly falsifying the case of the

PW.1/Complainant that he text an amount of Rs.11,50,000/- to the accused on 10.05.2016 and it is also falsifying the case of the PW.1/Complainant that the accused issued Ex.P2 cheque on 25.06.2024 fro an amount of Rs.9,11,805/- towards part payment of the debt. As per the evidence of PW.1 the accused issued a Ex.P1 cheque on 25.06.2016. So it shows that the accused did not receive any amount from the PW.1, PW.1 only admitted there is no documentary proof for the alleged debt prior to the alleged cheque. So, there is no existing enforceable debt on the date of issuance Ex.P1/cheque by the accused to the

PW.1.

6 Further accused relied upon a citations

a) 2022 live law SC 830

b) Supreme Court of India Criminal Appeal 636 of 2019

c) Law suit 2016 Hyd 714

d) Law suit 2013 (SC 1108)

e) Law finder 2023 (3) Punjab Law reporter.

f) Law finder 2023 ( 4) Criminal Appeal 508/2023 Punjab and Haryana High Court.

g) 2018 (1) ALD Crl 256. As per Citation 2018 (1) ALD Crl 256 Negotiable Instrument Act 1881- Sections 139 and 118 – Legally enforceable debt or liability – Presumption as to issuance of cheques in discharge of – Rebuttable- Accused may not lead any direct evidence to rebut said presumption- he can rely on circumstances in case of complainant to disprove his case – Case of complainant that as accused offered to sell his house property- he paid Rs. 45,00,000/- as advance and entered into agreement of sale- But on coming to know that subject property was under litigation, accused was informed of same but he did not respond properly- On demand fo refund of advance amount paid, accused paid Rs.10,00,000/- immediately – And issued two cheque for balance amount which when presented returned unpiad with endorsement “Account Closed” – Complainant mainly rlied on Ex.P1/Agreement of sale – And except self serving statement, adduced no evidence either oral or documentary – To prove that he advanced Rs. 45,00,000/-, complainant failed to establish his source, as no bank statements filed – Non production of any bank statements coupled with non mention of said amount in income tax returns made claim of complainant doubtful– circumstances of non proving Ex.P1 and source of making payment of Rs.45,00,000- And non producing of any receipt for refunds of Rs.10,00,000/- probabilities defence of accused that cheques were issued for another transaction – And complainant misused the same and filed case – Acquittal by trial court, upheld – Appeal dismissed.

19.As per citation complaint failed to establish his source as no bank statement filed non production of any bank statement coupled with non mention of said amount in income tax return made claim of complainant doubtful circumstance of non providing Ex.P1 issuance and source of making payment of rs.11,50,000/-, PW.2 and PW.3 admit they do no source of income of the complainant. It leads to doubtful probabilistic defence of accused that cheque were issued for another transaction and complainant misused the same and file case.

20.Regarding the alleged transaction under Ex.P1 is concerned. He admitted in his cross examination that he had no record to show that the amount was given in the year 2016 & 2017 and he did not mention the same in the income tax records. In such case, it could be treated as un accounted money. Moreover 7 Ex.P1/Cheque was given not in the personal capacity of the accused but in the capacity of proprietor of her business concern in case it is obligation on the part of PW.1 to show the loan in question, in his income tax return and file proof to that effect before the court showing the lend the money to the accused which is not said to be accountable. Therefore in the case on hand since PW.1 failed to terms legal and acceptable evidence showing that he had given loan amount which is accountable in course of business transaction. It is something difficult to believed that there is legally enforceable debt PW.1 and accused. That part according to PW.1 both PW.2 and PW.3 are known to him as they admitted in their cross examination of Pw2 and PW.3 and under these circumstance passing of consideration as claimed by PW.1 appears to be improbable and accused could be able to rebut the presumptions with probable defence. Therefore, the decision reported Krishna Janardhan Vs Dhattatreya Hedge. This court has no hesitation to say that accused could be able to rebut the presumption available in favour of the PW.1 with preponderance of probabilistic that no consideration was passed under Ex.P1. The accused has successed in rebutting the evidence of PW.1 with preponderance of probabilistic showing that the existence of consideration under Ex.P1 was improbable and doubtful.

21.Moreover, accused clearly deposed that previously she faced a criminal case C.C.No.539/2016 which was filed Sika Kollu Subbarao on the Special Mobile

Magistrate Court, Eluru and where is she got acquittal in the said case and only

due to the instigation of the said Subba Rao present case was filed against her and she do not known the complainant and the alleged. Accused deposed in her evidence she borrow man from Subba Rao.

8

22.So, it is clear the evidence of PW.1 under which circumstance the complainant obtained the Ex.P1 cheque from the accused so, the complained has obtained Ex.P1 with a view use of it as a threat to the accused for the realization of the amount. So, it can’t be constructed the accused has issued a cheque for business transaction in between her and above Subba Rao as for material purchasing or other liability as enquired under Sec 138 of NI Act.

23. In view of the facts and circumstance stated above of this court of the opinion that no offence under Sec 138 of NI Act could be made out against the accused by the complainant so it can be presumed that the complainant failed to established it case beyond reasonable doubt against the accused for the offence punishable under Sec 138 and 142 of NI Act. Accordingly, this point is answered in favour of the accused against the complainant.

24. IN THE RESULT, the accused is found not guilty for the offence under section 138 and 142 of Negotiable Instrument Act , 1881 and according she is acquitted under Sec 255(1) of Cr.P.C.

Typed to my dictation, corrected and pronounced by me in open court, this the 09th day of August, 2024.

I Addl. Civil Judge (Junior division – cum - I Addl. Judicial First Class Magistrate, Tadepalligudem.

9

APPENDIX OF EVIDENCE No.

OF WITNESS EXAMINED FOR:

Complainant:- Accused:

PW.1: Mella Narasimham D.W.1: Nallamalla. Sridevi

PW.2: Illa Prasad

PW.3: Illa Venkata Rao

Documents Marked For:

Complainant:

Ex.P1: Cheque bearing.No. 462324, dt 25.06.2018 drawn on Karur Vysya Bank,

Tadepalligudem Branch.

Ex.P2: Original memorandum of K+987arur Vysya bank, Tadepalligudem, dt 25.06.2018

Ex.P3: Office copy of registered notice dt, 10.07.2018 issued to the accused.

Ex.P4: Original postal receipt dt 12.07.2018

Ex.P5: Served Copy of reply from the accused,dt 23.07.2018

Ex.P6: Original Counter foil, dt 25.06.2018.

Accused: -Nil-

IAJCJ-cum-IAJFCM,TPG 10

CALENDAR AND JUDGMENT

IN THE COURT OF THE I ADDL. JUDL. MAGISTRATE OF I CLASS,

TADEPALLIGUDEM.

CALENDAR CASE No.512/2018

1. Date of offence:25.06.2018

2. Date of complaint or report:25.062.2018

3. Date of apprehension of Accused :-

4. Date of release on bail of Accused :-

5. Date of commencement of trial:-

6. Date of close of trial:-

7. Date of sentence or Order:09.08.2024

8. Explanation of delay if any:Due to non-production of witnesses by the prosecution COMPLAINANT:

Mella Narasimha, S/o Kesavarao, A: 60 years Hindu, Male, D.No.7-36-1, Karri Satyavathi Nagar, Tadepalligudem.

Accused: Nallimilli Sridevi, W/o Appireddy, A: 35 years Chandini Traders, Hindu, Female, Business, D.No.4-1, H/o Tetali Satyanarayana Reddy, Near DRG College, Pentapadu.

Section of Law:Under Section 138 r/w 142 of Negotiable Instruments Act

Finding of Court:Found not guilty Sentence/Order:

IN THE RESULT, the accused is found not guilty for the offence under section 138 and 142 of Negotiable Instrument Act , 1881 and according she is acquitted under Sec 255(1) of Cr.P.C.

I Addl. Civil Judge (Junior Division)– cum - Seal I Addl. Judicial First Class Magistrate, Tadepalligudem. Copy submitted to: The Hon'ble I Addl. District & Sessions Judge, W.G.District. Eluru.

1

IN THE COURT OF II ADDL.JUDICIAL MAGISTRATE OF FIRST CLASS

MAGISTRATE - CUM - II ADDL.CIVIL JUDGE(JUNIOR DIVISION) ::

TADEPALLIGUDEM

Present: Ms. D. Arundhati,

I Additional Civil Judge(Junior Division) cum I Additional Judicial Magistrate of I Class, FAC: I Additional Civil Judge(Junior Division) cum I Additional Judicial Magistrate of I Class, Tadepalligudem.

Monday, this the 2nd day of December, 2024

C.C.No.423/2022

BETWEEN: State: Sub-Inspector of Police, Tadepalligudem Rural P.S Tadepalligudem. … Complainant

And

Vennakota Venkata Ramana, S/o Surya Prakash Rao, A: 48 years, Abdul Khadhar Veedi Gollapalem Gattu I Town, Near Fish Market, Vijayawada.

... Accused

This case is coming before me on 28.11.2024 hearing in the presence of

Sri Learned Assistant Public Prosecutor for the Complainant and Sri

K.V.V. Satyanarayana, Advocate for the Accused and having stood over for consideration till this day and the Court delivered the following:

J U D G M E N T

1.The State Represented by Sub-Inspector of Police, Tadepalligudem Rural

Police has filed Charge Sheet against Accused in Crime No.112/2022 of

Tadepalligudem Rural Police Station for the offence punishable under sections 304(A), 337 and 338 of Indian Penal Code.

2. Case of the prosecution in concise:

The P.W.1 is defacto complainant/injured person and resident of

Vijayawada. PW.4 to 6 are also injured persons. On 08.03.2022 PW.1, PW.4 to 2 6 and LW.5, 6 are went to Vijayanagaram by a truck auto bearing.No. AP 39 U 1109 for singing songs at Jathara for their livelihood and they are physically challenged persons. Accused is the driver of the crime vehicle. After completion of Jatara, they returned from Vijayanagaram on the same auto and reached to near Kamma Kalyanamandapam, Pedatadepalli Village,

Tadepalligudem, at that time accused drove the vehicle in a rash and negligent manner in drunken stage and hit the said auto to the stationary lorry bearing.No. AP 16 TM 141. As a result, they got severe blood injuries over their bodies. Immediately, they admitted to the Area Hospital, Tadepalligudem through Ambulance. Later, deceased was shifted to Government Hospital,

Vijayawada for better treatment. On receipt of the MLC report, PW.1’s statement recorded by the Tadepalligudem Rural PS, then PW.10/SI of Poilce,

Tadepalligudem Rural PS registered a case in Cr.No. 112/2022 under Sec 337 and 338 of IPC of Tadepalligudem Rural PS and took up investigation into the case.

During the course of investigation, PW.10 visited the Area Hospital and examined the injured persons and recorded their statements and on the same day he visited the scene of offence and drafted scene observation report.

While undergoing the treatment to the injured person, PW.10 received death intimation from Area Hospital, Vijayawada about one Viboodi Durga. Basing on the death intimation, PW.10 added the section of law 304-A of IPC. On the instructions of PW.10, Lw.21/ASI of Tadepalligudem Rural PS conducted inquest report over the deceased dead body in the presence of LW.8 to 12, who are blood relatives of the deceased and recorded their statements under 3

Sec 161 (3) Cr.P.C and got Postmortem report from LW.17/Medical Officer, who conducted the Postmortem to the deceased and obtained wound certificates of PW.1, PW.4 to PW.6, LW.5 and LW.6 from LW.18/CAS, who is rendered the treatment to them and the injuries are simple in nature and also obtained Motor Vehicle Report from Lw.19/MVI. During his investigation he collected all documentary evidences and witnesses statements and issued 41(1) Cr.P.C notice to accused. After completion of investigation P.W.10 filed charge sheet against accused.

3.This court has taken cognizance for the offence punishable Under sections 304-A, 337 and 338 of IPC, against sole accused.

4.After appearance of accused, copies of documents were furnished to him under section 207 Criminal Procedure Code (herein after referred as

Cr.P.C.). The accused was examined under section 251 Cr.P.C, the substance of accusation for the offence punishable under Sections 304-A, 337 and 338 of

IPC and explained to the accused in Telugu, which the accused denied as false and pleaded not guilty and claimed to be tried. Hence, for trial.

5.In the course of trial, prosecution examined P.Ws.1 to 10 and got marked Exs.P.1 to P.19 on its behalf.

6.After closure of the prosecution evidence, the sole accused was examined under section 313(1)(b) of Cr.P.C. by granting an opportunity to offer his explanation on the incriminating material available against him, he denied the same as false and reported no defence evidence on his behalf.

7.Heard the learned Assistant Public Prosecutor (herein after referred as APP) and learned counsel for accused. Perused the record.

8.On the other hand the learned defence counsel has submitted his arguments stating that there is no truth in the prosecution version, the case 4 was foisted against the accused for statistical purpose. All the witnesses examined on behalf of the prosecution have turned hostile including the complainant, there is no incriminating material on record to consider against the accused in proof of prosecution case hence prays to acquit the accused in the interest of justice.

10.Now the point for determination is:

Whether the prosecution is able to bring home the guilt of accused for the offences punishable under Sections 304-A,

337 and 338 of IPC beyond all reasonable doubt?

POINT:

11.To prove the offence U/s. 337 and 338 IPC, prosecution has to establish that accused drove the auto bearing No. AP 39 U 1109 in a rash (or) negligent manner and caused grievous injuries to PW.1,P.W.2, PW.5, PW.6 and LW.5 and 6

12.To prove the offence U/s. 304-A IPC, prosecution has to establish that accused is the driver of auto bearing auto No. AP 39 U 1109, he drove the auto in a rash or negligent manner and caused the death of Vibhudi Durga, not amounting to culpable homicide.

13. To prove the prosecution case against accused the prosecution has shown

LWs.1 to 22 in their memo of evidence, but it could examine only ten witnesses PWs.1 to 10, the learned APP has given up the evidence of LW.10,

LWs.14 to 17 , LWs.19 to 21 4, as all the witnesses turned hostile and there will not be any improvement if the witnesses are examined.

14.P.W.1/ K Mallikarjuna Rao, is defacto-complainant deposed that about 2 years back himself, deceased along with Lws.2 to 5 return from Annavaram in truck auto , when they reached to Tadepalligudem the auto hit to the stationary lorry by the driver. On that he sustained injury on his leg and 5 deceased sustained head injury and remaining persons also sustained injuries, immediately they were shifted to Area Hospital, Tadepalligudem for treatment.

15.PW.2/Vibhudi Baji, PW.2/V. Kanaka Rao, deposed that deceased is their mother and they came to know that their mother was met with an accident at

Tadepalligudem and they came to Area Hospital, Tadepalligudem. From there by the advice of doctors the deceased was shifted to Government Hospital,

Vijayawada for better treatment, while undergoing the treatment deceased was died.

16. Pws.4 to 6 and PW.8 are examined and they do not know anything about the case and they turned hostile in this case.

17. Pw.7/M Prasanna Babu, VRO deposed that on 04.04.2022 at 8.30 A.M., on the request of Tadepalligudem Rural PS, he along with LW.16/P

Satyanarayana proceeded to Pedatadepalli Village, Kamma Kalyanamandapam.

At that time they observed that one auto bearing No. AP 39 U 1109 in damaged condition at scene of offence. Ex.P5 is scene observation report and they signed on Ex.P5. On the same day they conducted inquest report over the deceased in the presence of Panchayathidars at Government Hospital,

Vijayawada. They are of the opinion that the cause of death was due to head injury sustained in road accident. Ex.P6 is inquest report and took bunch of photographs along with CD of the deceased, which was marked as Ex.P7.

18.In his cross-examination scene of offence is a busy locality. He admitted that he writing to Ex.P5/scene observation report and his signature. He further admitted that he did not scribe the inquest report.

19.PW.9/Dr. S. Rufus/CAS deposed that, on 03.04.2022 at 4.01 P.M., she had examined P.W.1, PW.2, PW.6, LW.5 and 6 and found injuries. PW.1 contained pain in his left below knee joint knee and fracture noted at proximal 6

Shaft of Tibia and Fibula with surrounding soft tissue swelling grade-3 Osteo arthritis changes in X-ray, P.W.2 contained at distal endow right clavicle with associated soft tissue swelling and at distal end of right clavicle in X-ray. De- generative changes are noted in the form of anterior and lateral marginal osteophyps. PW.6 contained 3 lacerations of size 5X0.5 cm over left upper back spatula region and fractures noted at multiple rips with associated soft tissue swelling in X-ray, P.W.5 contained laceration over right cheek below the eye 3X3 cm and in X-Ray skull AP and lateral view(normal study),

L.W.5/Vibhudhi Durga Prasad contained laceration over fore head region above both eyes and in CT scan-normal and in X-Ray to no bone injuries,

L.W.6/Sk.Munni contained no external injuries, but patient complains of backache, she had also examined Accused/Vinnakoti Venkata Ramana and found C-shaped laceration over forehead Laceration over fore head, 2) C- swelling 4X0.5cm Abrasion over left side forehead 2X2cm, 3) Abrasion over right side forehead 2X2cm, 4) Small multiple abrasion over both hands. Patient referred to X-rays skull CT brain found normal skull radiograph. She opined that PW.1, PW.2 and PW.6 are grievous in nature and she issued wound certificated to them and marked as Ex.P9 to P11 and she opined that PW.5,

LW.5 and accused are simple in nature and issued wound certificates to them and marked as Ex.P12, Ex.P13 & Ex.P15. Pw.9 can’t given the nature of injury of LW.6 in her examination but she issued wound certificate to him and marked as Ex.P14.

20.PW.10/N. Srinivasa Rao/SI of Police, deposed that on 03.04.2022

LW.20/HC of Tadepalligudem Rural PS, received hospital intimations from Area hospital, Tadepalligudem and he recorded the Ex.P1 statement of PW.1 and handed over the same to him. Basing on Ex.P1 he registered a case in

Cr.No.112/2022 for the offence U/Sec 337, 338 of IPC. FIR marked as Ex.P16. On 7 the same day he visited Area Hospital, Tadepalligudem and recorded statements of

PWs.1 to 5 and LW.5 and 6 under 161 Cr.P.C. On the next day he visited the scene of offence along with PW.7 and LW.16 and prepared rough sketch marked as

Ex.P17 and also prepared scene observation report . On the next day LW.21/ASI of

Tadepalligudem Rural PS held inquest over the dead body of deceased at GGH

Vijayawada and prepared inquest report. On 08.04.2022 he received Post-Mortem report of the deceased from LW.17 and marked as Ex.P18. On 25.04.2022 he received wound certificates from PW.9. On 30.04.2022 he received MVI report from LW.19 and marked as Ex.P19. On 20.05.2022 he served Sec 41-A Cr.P.C notice to the accused and released him on self bond. After completion of investigation he filed charge sheet against the accused.

21.In his cross-examination, there is no CC footage surrounding area of the scene of offence. He admitted that he has not examined the lorry driver and not examined the accused in this case. He further admitted test identification conducted in this case. He admitted that he has not examined the owner of the crime vehicle.

22. The death of deceased Vibudhi Durga was not disputed by defense and according to the evidence of P.W.1 to P.W.6 and PW.7 also the death of the deceased was due to road accident, hence it can be safely held that prosecution has established that said Vibudhi Durga died due to road accident on the date of incident.

18.Though, prosecution has cited as many as 22 witnesses, it has examined

PWs.1 to 3 who are the injured and relatives of the deceased. They failed to state the manner of the accident, and also failed to identify the accused as the driver of the auto and also failed to depose that the auto was driven in a rash or negligent manner by the accused, this court finds that prosecution failed to 8 establish the identify of accused as the driver of the crime vehicle i.e., Auto bearing No. AP 39 U 1109 on the date of accident and he drove the vehicle in a rash or negligent manner due to his negligence the accident was occurred.

19.In view of aforementioned discussion, this court finds that prosecution miserably failed to prove the offence under sections 304-A, 337 and 338 IPC against sole accused beyond all reasonable doubt. Accordingly, point is answered.

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

Sections 304-A, 337 and 338 of IPC, hence he is acquitted under section 255 (1) Cr.P.C. The bail bonds of accused shall be in force for a period of Six months under section 437-A Cr.P.C.

Typed on my dictation by the Stenographer Grade-III, corrected and pronounced by me in open court on this the 2 nd day of December, 2024.

//Sd/- D. ARUNDHATI//

I ADDL. JUDICIAL FIRST CLASS MAGISTRATE,

FAC: II ADDL. JUDICIAL FIRST CLASS MAGISTRATE,

TADEPALLIGUDEM.

APPENDIX OF EVIDENCE:

WITNESSES EXAMINED:

For Prosecution: -For Accused: - P.W.1: K. Mallikarjuna Rao -None-

P.W.2: Vibhudi Baji

P.W.3: Vibhudi Kanakarao

P.W.4: Taneti Rama Chandra Rao

P.W.5: Vibudi Anjaneyulu

P.W.6: Gokula Raju

P.W.7: Medida Prasanna Babu

P.W.8: Cherukuri Prakash Rao

P.W.9: Dr.S.Rufus

P.W.10: N. Srinivasa Rao 9

Documents Marked:

For Prosecution:

Ex.P.1: Report of P.W.1

Ex.P.2: 161 Cr.P.C statement of P.W.4

Ex.P.3: 161 Cr.P.C statement of P.W.5

Ex.P.4: 161 Cr.P.C statement of P.W.6

Ex.P.5: Scene observation report

Ex.P.6: Inquest report

Ex.P.7: Photographers (10 in number)

Ex.P.8: 161 Cr.P.C statement of P.W.8

Ex.P.9: Wound certificate of P.W.1

Ex.P.10: Wound certificate of P.W.2

Ex.P.11: Wound certificate of P.W.6

Ex.P.12: Wound certificate of P.W.5

Ex.P.13: Wound certificate of L.W.5

Ex.P.14: Wound certificate of L.W.6

Ex.P.15: Wound certificate of accused

Ex.P.16: FIR

Ex.P.17: Rough Sketch

Ex.P.18: Post-Mortem report

Ex.P.19: MVI report

For Accused: -NIL-

M.O.s Marked: - NIL- //Id/- D. A//

I AJFCM-CUM- I ACJ(JD),

FAC: II AJFCM-CUM- II ACJ(JD), TPG.

TPG.

10

CALENDAR AND JUDGMENT

IN THE COURT OF II ADDL.JUDL.MAGISTRATE OF I CLASS,

TADEPALLIGUDEM.

CALENDAR CASE No.423/2022

1. Date of offence:03-04-2022

2. Date of complaint or report:03-04-2022

3. Date of apprehension of Accused :Served 41(A) Cr.P.C notice to Accused

4. Date of release on bail of Accused :--

5. Date of commencement of trial: 09.11.2023

6. Date of close of trial: 20.09.2024

7. Date of sentence or Order: 02-12-2024

8. Explanation of delay if any: There is no delay

COMPLAINANT:

State: Represented by the Sub-Inspector of Police, Tadepalligudem Rural P.S

ACCUSED:

Vennakota Venkata Ramana, S/o Surya Prakash Rao, Age 48 years, Abdul Khadhar Veedi Gollapalem Gattu I Town, near Fish market. Vijayawada.

Cr.No: 112/2022 Section of Law: Under Sections 304A, 337 and 338 of IPC Finding of Court: Found not guilty Sentence/Order:

In the result, Accused is found not guilty for the offence punishable under sections 304A, 337 and 338 of IPC. Accordingly, he is acquitted under section 255 (1) of Cr.P.C., Bail bonds of Accused if any shall stand cancelled after appeal time is over.Unmarked case property if any shall be destroyed after appeal time is over. //Sd/- D. ARUNDHATI// Seal I ADDL.JUDL.MAGISTRATE OF I CLASS, FAC:II ADDL.JUDL.MAGISTRATE OF I CLASS

TADEPALLIGUDEM.

Copy submitted to: The Hon'ble I Addl. Dist. & Sessions Judge, W.G.,Eluru. // True copy//

I AJFCM-CUM- I ACJ(JD),

FAC: II AJFCM-CUM- II ACJ(JD), TPG.