Smt E. Prasuna

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

CLASS: NELLORE

Present:Smt. E.Prasuna,

II Addl. Judicial Magistrate of First Class, Nellore

Tuesday, this the Fifteenth (15th) day of November, 2022

CALENDAR CASE No.2434 of 2019

The State of A.P., represented by Sub-Inspector of Police, Nawabpeta Police Station,

Nellore ..Complainant.

Vs.

1. Shaik Hafeez @ Afeez, S/o Haneef, aged 28 years, Caste by Muslim, Gurralamadugu Sangam, Adithyanagar, Muthukuru Gate Centre, Nellore.

2. Arava Kishan @ Devid Kisan, S/o Kishore, aged 27 years, SC-Mala by caste, Tamil Street,

Kapadipalem, Nellore. .. Accused.

This case is coming on 11-11-2022 for final hearing before this

Court in the presence of the learned Assistant Public Prosecutor

N.Kalpana on behalf of the State and learned Advocate R.Sudheer

Babu for the Accused/A1 and A2, upon hearing on both sides and having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

1. The State represented by the Sub-Inspector of Police,

Nawabpeta Police Station, Nellore filed the charge sheet in Crime

No.142/2019 against the accused/A1 and A2 for the offences punishable under Section 452 and 324 r/w 34 of Indian Penal Code (herein after referred to as IPC), alleging as follows:

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2. The defacto-complainant/Myla Aruna/LW1 is a transgender, living in Bodigadithota, Nellore and eking out her livelihood by begging. Her father is old-man and living with her. Previously LW1 and the accused/A1 together have relationship and subsequently, some disputes arose in between them as LW1 did not give money to the accused/A1 for his vices. Due to which, she told to accused/A1 not to come to her house, even though the accused/A1 used to come her house and harassing her for money. In the same way, on 31-05-2019 at about 04-30 P.M., the accused/A1 and A2 criminally trespassed into the house of LW1 armed with stones and quarreled with her for money.

As she did not give money to the accused/A1 and A2, they both beat her with stones. Then LW2/Myla Narasimha Rao who is the father of

LW1, intervened to rescue LW1. Due to which, the accused/A1 and A2 beat LW2 with stones and caused bleeding injuries below his left knee and left leg fingers and the accused/A1 and A2 also caused injuries to

LW1 and they threatened them with dire consequences. Basing on the report of LW1, LW7/P.Naresh/Sub-Inspector of Police, Nawbpeta Police

Station, Nellore registered a case in crime No.142/2019 for the offences under Section 452 and 324 r/w 34 IPC and investigated into.

During the course of investigation, LW7 recorded the statements of

LW1 and LW2 and sent them to DSR Government Hospital, Nellore for treatment. Later LW7 inspected the scene of offence and prepared rough-sketch of scene of offence and he also secured the witnesses and recorded their statements at scene of offence. On 03-06-2019 LW7 arrested the accused/A1 and sent for judicial custody and later he served notice to the accused/A2 under Section 41-A Cr.P.C.

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LW6/Dr.Sirisha rendered treatment to LW1 and LW2 and issued wound certificates, opining that the injuries sustained by LW1 and LW2 are simple in nature. LW8/K.Maridi Naidu/Sub-Inspector of Police,

Nawabpeta Police Station, Nellore took up further investigation and filed charge sheet against the accused/A1 and A2 for the offences punishable under Section 452 and 324 r/w 34 IPC.

3. This Court took cognizance against accused/A1 and A2 for the offences punishable under Sections 452 and 324 r/w 34 IPC.

4. On appearance of accused/A1 and A2 before the Court, copies of relevant case records were furnished to them as required under Section 207 of Cr.P.C.

5. The accused/A1 and A2 were examined under Section 239

Cr.P.C for the offences punishable under Section 452 and 324 r/w 34 IPC.

The contents of the charges were read over and explained to them in

Telugu, for which, they denied the offences by pleading not guilty and claimed to be tried.

6. During the course of trial, the prosecution examined PW1 to

PW5 and marked Ex.P1 to Ex.P7.

7. After closure of prosecution evidence, the accused/A1 and A2 were examined under Section 313 Cr.P.C in respect of incriminating material available in the evidence of prosecution, for which they pleaded not guilty and reported no defence evidence.

8. Heard both sides. Perused the record.

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9. Now the point for determination is:

Whether the prosecution has proved the guilt of the accused/A1 & A2 for the offences punishable under Section 452 and 324 r/w 34 IPC beyond all reasonable doubt ?

Point:-

10. The crux of the prosecution case is that on 31-05-2019 at about 04-30 P.M., the accused/A1 and A2 criminally trespassed into the house of LW1 armed with stones and quarreled with her for money. As she did not give money to the accused/A1 and A2, they both beat her with stones. Then LW2/Myla Narasimha Rao who is the father of LW1, intervened to rescue LW1. Due to which, the accused/A1 and A2 beat

LW2 with stones and caused bleeding injuries below his left knee and left leg fingers and also caused injuries to LW1.

11. To prove the case of prosecution, the prosecution examined

PW1 to PW5 and marked Ex.P1 to Ex.P7. PW1 is the defacto- complainant-cum-injured. PW2 and PW3 are independent witnesses.

PW4 is the Medical Officer who rendered treatment to PW1 and PW2 and issued wound certificates and PW5 is the Investigating Officer.

The evidence of LW2/Myla Narasimha Rao (Died), LW5/Pulagiri Venkata

Jyothi and LW8/K.Maridi Naidu was was given up by learned A.P.P. The description of the Ex.P1 to Ex.P7 is mentioned in appendix of the evidence.

12. It is the evidence of PW1 who is the defacto-complainant-cum- injured that previously she has friendly relationship with the accused/A1. A1 is demanding money from her, for that she gave reply 5 that she is unable to give money as her father is suffering with ill- health. From that onwards A1 is harassing her for money. on 31-05-2019 at about 4-30 p.m., while she and her father were in the house, at that time A1 and A2 came to her house and felted stones on her, then her father intervened and rescued her. Upon which A1 and

A2 beat her father with stones and also threatened them with dire consequences. Her father sustained injuries to his left knee and she also received swelling injuries to her right hand. Then herself and her father went to Nawabpeta Police Station, Nellore and presented a report.

13. PW2 and PW3 who are the independent witnesses did not depose anything against the accused. They turned hostile to the prosecution case and denied the suggestions put by the prosecution in their cross-examination.

14. It is the evidence of PW4/Medical Officer who treated PW1 and

LW2 and issued wound certificates/Ex.P4 and Ex.P5, deposed in her evidence that on 31-05-2019 at about 10-20 P.M., she examined PW1 and found one 2 x 1 cms contusion over right fore-arm and she issued wound certificate, opining that the injury on PW1 is simple in nature.

She further deposed that on the same day at about 10-10 P.M., she also examined LW2/M.Narasimha Rao and found one 2 x 1 cms laceration over left leg, 4 x 2 cms contusion over left thigh and a small abrasion over great toe of left side foot and she issued wound certificate, opining that the injuries of LW2 are simple in nature.

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15. Finally coming to the evidence of PW5 who is the investigating officer, deposed in his evidence that previously he worked as Sub-

Inspector of Police, Nawabpeta Police Station. On 31-05-2019 at about 06-00 P.M., while he was in the police station, PW1 came and presented a written report. Basing on that, he registered the same as a case in crime No.142/2019 under Section 452 and 324 r/w 34 IPC and investigated into. During the course of his investigation, he examined

PW1 and LW2 and recorded their statements and referred them to DSR

Hospital, Nellore for treatment. Later he visited the scene of offence situated at Bodigadithota, Nellore to the house of PW1, there he observed the scene and prepared rough-sketch and then he secured

PW2 and PW3, examined them and recorded their statements. He further deposed that on 03-06-2019 at about 07-15 A.M., while he was present in the police station, he received credible information and proceeded to Kissan Nagar centre, Nellore, there he arrested A1 and later on 04-06-2019, he secured the presence of A2 and issued 41-A

Cr.P.C notice to him and further investigation done by LW8 on his transfer. As per record, LW8 collected the wound certificates of PW1,

LW2 and filed charge sheet.

16. The learned A.P.P. submitted that the evidence of PW1 to

PW5 coupled with Ex.P1 to Ex.P7 proved the guilt of the accused/A1 and A2 for the alleged offences. Hence, she prayed to convict the accused/A1 and A2 under Section 452 and 324 r/w34 IPC basing on the evidence available on record.

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17. On the other hand, the learned counsel for accused/A1 and

A2 submitted that PW2 and PW3 who are the independent witnesses not deposed against the overt acts of accused as they turned hostile to the case of prosecution. The remaining witness PW5 is the official witnesses, his evidence is no way helpful to the prosecution case to punish the accused. Further he argued that there are disputes between the accused/A1 and PW1, so the accused/A1 and A2 were implicated in this case by PW1. For all these reasons, he requested to acquit the accused/A1 and A2.

18. The evidence available on record, it is apt to mention the charge against the accused/A1 and A2. This is the case of assault against PW1 and her father/LW2, the accused voluntary caused contusion over right fore-arm to PW1, which is said to be occurred on 31-05-2019 at about 04-30 P.M., in the house of PW1.

The first charge leveled against the accused/A1 and A2 is under

Section 352 IPC. In order to establish a case under Section 352 IPC, the following ingredients has to be proved by the Prosecution.

The accused/A1 and A2 committed house-trespass having made preparation for causing hurt, assault or wrongful restraint.

19. As seen from the evidence of PW1, she stated that previously she has friendly relation with the accused/A1 and thereafter disputes arose between them due to accused/A1 was demanding money from her. She further deposed that on 31-05-2019 at about 04-30 P.M., while herself and her father are in the house, at that time the 8 accused/A1 and A2 trespassed into her house and felted stones on her and on her father and caused injuries to them. It seems that the accused/A1 and A2 made preparation to commit an offence, they came to the house of PW1. Therefore, the prosecution has proved the offence punishable under Section 452 IPC against the accused/A1 and

A2.

20.The second charge leveled against the accused/A1 and A2 is that both the accused voluntarily caused hurt to PW1 and her father/LW2 thereby they committed an offence punishable under

Section 324 r/w 34 IPC.

21. To prove the same, the prosecution so far examined PW1 to

PW5. Among which PW2 and PW3 are not supported the prosecution case. Admittedly the accused/A1 and A2 went to the house of PW1 with common intention to commit an offence. The accused further argued that there is delay in lodging the FIR. Here as per the evidence of PW1, she categorically testified that the incident was took place at about 04-30 P.M., while herself and her father were present in her house. This

Court carefully gone through the evidence of PW1 and Ex.P6/ FIR. It is apparent from the evidence of PW5 that the FIR was registered around 06-00 P.M. When the offence taken place around 04-30 to 05-00 PM,

PW1 chosen to file a complaint Ex.P1 within one hour after the incident it cannot be said that there is delay in lodging FIR. By cumulative reading of evidence PW1 conjunction with Ex.P6, there is not delay in lodging FIR. In that context the shout of the defence counsel beyond 9 the practical approach. In this context, the stand of the defence shows that the same is extremely vague and bereft of substance.

22. The accused argued that the neighbours of PW1 mentioned in

Ex.P7/rough-sketch, were not examined by the prosecution . For which this Court relied on a decision reported in 2013(1) ALD(Crl)582 (SC) between Hema Vs State, wherein para 10, it was held that “There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc., which resulted in defective investigation, there is a legal obligation on the part of the Court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.” In para 13 it was held that “It is clear that merely because of some defect in the investigation, lapse on the part of the I.O., it cannot be a ground for acquittal. Further, even if 10 there had been negligence on the part of the investigating agency or omissions etc., it is the obligation on the part of the Court to scrutinize the prosecution evidence de hors such lapses to find out whether the said evidence is reliable or not and whether such lapses affect the object of finding out the truth. In the light of the above principles, as noticed, we reject the main contention of the learned counsel for the appellant, however, as observed in the above decisions, let us examine the material relied on by the prosecution and find out whether a case has been made out against the appellant.”In the case on hand also there are so many lapses on the part of Investigating

Officer/prosecution like non securing of material object, non examination of neighbours cited in rough-sketch etc. But the Court is under obligation to scrutinize the prosecution evidence de hors, such lapses to find out whether the such evidence is reliable or not. In the case on hand, the evidence of PW4 is corroborating with the evidence of PW1. But for the negligence of the investigation agency and the prosecution, when there is direct and corroborating evidence, such lapses does not effect the object of finding out the truth.

23.Admittedly none witnessed the alleged incident happened between PW1 and accused except LW2 who is no more at present.

Even there may be no scope to witness the incident by any one, because the incident happened in the house of PW1. In this scenario, let us peruse the circumstantial evidence. Men may lie, but circumstances won’t. PW4 & PW5 evidence is corroborated with the evidence of PW1 and Ex.P4 and Ex.P5 .

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24. Pertaining to the injuries caused to PW1 and LW2, the defence counsel attacked PW4/Medical Officer who rendered treatment and issued Ex.P4 and Ex.P5/wound certificates that the injury caused to

PW1 may possible by falling on the floor and the injuries No.1 to 3 sustained by LW2 may possible by falling on the surface. It is a settled proposition of law that the opinion of the Doctor is not a conclusive proof. When there is a clinching evidence available before the Court about the overt act of accused/A1 and A2 against PW1 and her father, the mere opinion of Doctor is not sufficient to decline the evidence of the remaining witnesses. The injury sustained by PW1 may not self caused, only for the case purpose. In fact the persons who sustained injury or loss in the hands of assailant would never like to let to go the real assailant and involve a person who is no way responsible as the defence counsel said the accused was implicated in this case.

25. From thumb to nail of the case, at one stage the defence counsel suggested to the Investigation Officer/PW5 that as he made table investigation and a false case foisted by him against the accused/A1 and A2. This court did not found any force in the argument of defence counsel. When there is clinching evidence available before the Court pertaining to injuries caused to PW1 and LW2, they turned up to the Police station to lodge complaint, the question of foisting the case at the whims and fancies of PW5 does not arise. Therefore, the stand taken by the defence counsel is not quite believable.

26. There is clinching evidence of PW1, sufficiently corroborated by PW5/Investigating Officer and PW4/Medical Officer with the 12 evidence of PW1 in all aspects. In the present case on hand, though

PW2 and PW3 not supported the case of prosecution, the available evidence is much enough to bring home the guilt of the accused/A1 and A2. PW1 is a transgender and may be vulnerable in the society and her father/LW2 was no more at present, is the reason for non examination of him, though injured. When her father is alive she resides with him, now she is alone at home, needs protection and it is the responsibility of society to let her to live her life but in contra the accused committed the offence against her. Looking at the totality of the evidence, as noticed above, this Court is of the view that the overwhelming evidence with regard to factum of causing injury to PW1 and LW2 by the accused/A1 and A2 in furtherance of their common intention.

27. From the foregoing discussion and the sum and substance of the evidence available on record, this Court came to conclusion that the prosecution proved the offences punishable under Section 452 and 324 r/w 34 IPC against the accused/A1 and A2 beyond all reasonable doubt.

28. In the result, the accused/A1 and A2 are found guilty for the offences punishable under Sections 452 and 324 r/w 34 IPC and accordingly they are convicted under Section 248 (2) Criminal

Procedure Code for the said offences.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the Open Court, this the 15th day of November, 2022.

Sd/- E.Prasuna

Additional Judicial Magistrate of First Class

Nellore.

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Heard, the accused/A1 and A2 on the quantum of sentence proposed to be imposed on them, the accused/A1 submitted that he is having small kids, he has to take care of them when his wife is going for job. The accused/A2 submitted that he is having aged parents, they are depending on his earnings and requested this Court to take lenient view. The accused are not entitled the provisions of Section 3 & 4 of Probation of Offenders Act, 1958. However, the offences proved against the accused are not punishable with either death or imprisonment for life. Hence, a lenient view may be considered about the sentence. In the facts and circumstances of the case, this Court feels that the following sentence would meet the ends of justice.

The accused/A1 and A2 are sentenced to undergo simple imprisonment for a period of one (1) year each and also to pay a fine of

Rs. 100/- (Rupees one hundred only) each. In default of payment of fine amount, they shall undergo simple imprisonment for a period of one week each for the offence punishable under Section 452 IPC.

The accused/A1 and A2 are further sentenced to undergo simple imprisonment for a period of one (1) year each for the offence punishable under Section 324 r/w 34 IPC. Both the sentences imposed against the accused/A1 and A2 shall run concurrently.

The remand period if any already undergone by the accused/A1 and A2 shall be set off under Section 428 Cr.P.C.

The office is directed to serve free copies of judgment to the accused/A1 and A2.

The accused/A1 and A2 are explained the right of appeal and free legal aid.

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Unmarked case property if any shall be destroyed after lapse of appeal time.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in the open court this the 15th day of November,

2022.

Sd/- E.Prasuna

II Additional Judicial Magistrate of First Class,

Nellore.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence: -- NONE --

PW1 : M.Aruna. PW2 : Ch.Sarada. PW3 : D.Audilakshmamma. PW4 : Dr.G.Sireesha. PW5 : P.Naresh, Sub-Inspector of Police.

EXHIBITS MARKED

For Prosecution:

Ex.P1: Report of PW1. Ex.P2: Section 161 Cr.P.C Statement of PW2. Ex.P3: Section 161 Cr.P.C Statement of PW3. Ex.P4: Wound Certificate of PW1. Ex.P5: Wound Certificate of LW2. Ex.P6: Original FIR. Ex.P7: Rough-sketch.

For Defence: – NIL -

MATERIEL OBJECTS MARKED

.. NIL ..

Sd/- E.Prasuna

II Additional Judicial Magistrate of First Class,

Nellore.

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IN THE COURT OF II ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS:: NELLORE

Present: Smt E.Prasuna, II Additional Judicial Magistrate of First Class, Nellore.

Wednesday, this the Nineteenth (19th) day of October, 2022.

CALENDAR CASE No.1166 of 2020

The State of A.P., represented by Sub-Inspector of Police, North Traffic Police Station,

Nellore .. Complainant.

Versus:

Sanduru Someswara Rao, S/o Venkata Rao, aged 36 years, Pattusali by caste, 16-22/6, Kundanapu Peta, near Zilla Parishad,

Srikakulam District .. Accused.

This case is coming on 17-10-2022 for final hearing before this

Court in the presence of learned Assistant Public Prosecutor N.Kalpana on behalf of the State and the learned Advocate L.V.R. Prasad for the

Accused, upon hearing both sides and having stood over for consideration till this day, this Court delivered the following:-

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

The State represented by Sub-Inspector of police, North Traffic

Police Station, Nellore filed charge sheet in crime No.53/2020 against the accused for the offence under Section 304-A of Indian Penal Code (herein after called as IPC), alleging as follows:

2. On 28-06-2020 at about 07-35 A.M., the deceased/Shaik Ismail

Jabiulla left his house on his cycle and proceeding towards Apollo

Hospital, Nellore side for cleaning the bushes of Krishnapatnam port, at about 08-00 A.M., the deceased reached NH-16 road in front of Giri Hot

Chips. At that time the accused being the driver of Car bearing No.AP- 30-AP-0456, drove his Car in a rash and negligent manner while 2 proceeding from Kavali to Chennai side and dashed the deceased. As result of which, the deceased fell down on the Car front glass and also fell down on the road and sustained fatal cut injury on his back side head and one injury on his right leg snow ring and went on unconscious state. Then the accused shifted the deceased to

Simhapuri Hospital, Nellore for treatment. On 29-06-2020 the family members of the deceased shifted the deceased to Ruya Hospital,

Tirupathi for better treatment, but on the way the deceased was succumbed with fatal injuries. On 28-06-2020 LW14/V.Venkata

Ramanaiah/Sub-Inspector of Police, North Traffic Police Station, Nellore recorded the statement the defacto-complainant/Syed Parvin/LW1 who is the wife of deceased and basing on the statement of LW1, LW14 registered a case in crime No.53/2020 under Section 337 IPC and investigated into. During the course of his investigation, on 29-06-2020 at 06-00 P.M., LW14 received death intimation of the deceased from

Government General Hospital, Nellore and altered the Section of law from 337 IPC to 304-A IPC. Then he examined the witnesses and recorded their statements and held inquest over the dead body of deceased in the presence of mediators and sent the same to postmortem examination. On 01-07-2020 at 10-00 hours LW8/Nallabai

Srinivas produced the accused before LW14, then LW14 after confirming the involvement of accused in this crime, he served 41-A

Cr.P.C. notice to the accused and recorded the statement of LW8.

LW12/Dr.M.Venkateswarlu conducted postmortem examination over the dead body of deceased and issued postmortem certificate, opining that the deceased died due to Head injury. LW13/M.Madhusudhana

Rao/Motor Vehicle Inspector inspected the crime Car and issued MVI report, opining that the accident was occurred not due to any 3 mechanical defects of the crime vehicle. After completion of investigation, LW14 filed charge sheet against the accused for the offence punishable under Section 304-A IPC.

3. This Court took cognizance against the accused for the offence under Section 304-A IPC.

4. On appearance of accused before this Court, copies of relevant case records were furnished to him as required under Section 207 of

Cr.P.C.

5. The accused was examined Under Section 251 Cr.P.C for the offence under Section 304-A IPC. The substance of the offence was read over and explained to the accused in Telugu, for which, he denied the offence by pleading not guilty and claimed to be tried.

6. During the course of trial, the prosecution examined PW1 to PW9 and marked Ex.P1 to Ex.P18. The evidence of LW5/Tirumala Suresh,

LW11/ShaikGhouseBasha,LW12/Dr.M.Venkateswarluand

LW13/M.Madhusudhana Rao was given up by the prosecution. The description of Ex.P1 to Ex.P18 was mentioned in the appendix of evidence.

7. After completion of the prosecution evidence, the accused was examined under Section 313 of Cr.P.C in respect of incriminating material available in the evidence of prosecution, for which, the accused pleaded not guilty and reported no defence evidence.

8. Heard both sides. Perused the record and also perused the written arguments submitted on behalf of the accused.

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9. The learned APP argued that prosecution proved the guilt of the accused for the alleged offence, by examining PW1 to PW9 coupled with Ex.P1 to Ex.P18. The accused being driver of crime vehicle, drove the crime vehicle in rash and negligent manner and caused accident, resulting which the deceased was died on the way while shifting from

Simhapuri Hospital, Nellore to Ruya Hospital, Tirupathi for better treatment. Hence, she prayed to convict the accused.

10. On the other hand, the learned counsel for defence argued that there was no incriminating material against the accused available on record and no iota of evidence placed by the prosecution to show that the accused drove the crime vehicle at the time of accident. Only to get insurance benefits to the family of deceased implicated the accused in this case. No witness identified the accused as driver of crime vehicle at the time of accident. For all these reasons, benefit of doubt may be given to the accused and prayed to acquit the accused.

11. Now the Point that arises for determination is:

Whether the prosecution has proved the

guilt of accused for the offence under

Section 304-A IPC beyond all reasonable

doubt?

POINT:

12. The crux of the prosecution case is that on 28-06-2020 at about 08-00 A.M., the deceased was proceeding towards Apollo

Hospital, Nellore on his cycle and he reached NH-16 road in front of Giri

Hot Chips. At that time the accused being the driver of Car bearing

No.AP-30-AP-0456, drove his Car in a rash and negligent manner while proceeding from Kavali to Chennai side and dashed the deceased. As result of which, the deceased fell down on the road and sustained fatal 5 cut injuries on his back side head and right leg and went on unconscious state. Then the accused shifted the deceased to

Simhapuri Hospital, Nellore for treatment. On 29-06-2020 the family members of the deceased shifted the deceased to Ruya Hospital,

Tirupathi for better treatment, but on the way the deceased was succumbed with fatal injuries.

13. To substantiate the case of prosecution, examined PW1 to

PW9 and marked Ex.P1 to Ex.P18. PW1 is the wife of the deceased.

PW2 and PW3 are the independent witnesses. PW4 is the relative of deceased. PW5 is the independent witness. PW6 and PW8 are the mahazar witnesses for scene observation and inquest held by the police and PW9 is the Investigating Officer.

14. It is the evidence of PW1, who is wife of the deceased that, on 20-08-2020 at 05-00 P.M., while she was in her house, LW6 came to her house and informed that her husband met with an accident infront of the Giri Chips situated on bye-pass road and he was shifted to

Simhapuri Hospital, Nellore. Then she rushed to the hospital and found her husband in an unconscious state with severe injuries. On her enquiry, she came to know that the driver of Car bearing No.AP-30-AP- 0456 is responsible for the occurrence of accident and her husband was shifted to hospital in the same car by the driver of the vehicle.

While she was in the hospital, police came and recorded her statement. Later her husband was died while shifting SVIMS hospital,

Tirupathi for better treatment.

15. It is the evidence of PW2 that himself and LW5 started on his bike at about 07-45 A.M., to go to Vaddipalem, when they reached

Green City, they noticed one person going on cycle to the side of 6

Chennai, by that time one Car bearing No.AP-30-AP-0456 was proceeding towards Chennai side and dashed the cycle of rider. Due to which he fell on the road and sustained injuries to his head. Then the car driver stopped the vehicle and shifted injured with their help to

Simhapuri Hospital, Nellore.

16. Coming to the evidence of PW3 to PW5 and PW7 who are the independent witnesses deposed in one voice that about 03 years ago the deceased was died in a road accident caused by one Car at

Highway near to Simhapuri Hospital, Nellore. Except that they did not depose anything about the prosecution case and who is responsible for the alleged accident. They stood hostile to the prosecution case and denied the suggestions put by the prosecution in their cross- examination.

17. PW6 and PW8 who are the mahazar witnesses for scene observation and inquest deposed that after knowing the accident, they came to Government Hospital, Nellore, at that time police obtained their signatures on some papers. But they does not know the contents therein. Except identifying their signatures on scene observation and inquest reports, nothing was deposed by them about the prosecution case. They also stood hostile and did not support its case and they denied the suggestions put by the prosecution in their cross- examination.

18. Finally, coming to the evidence of Investigating Officer, he deposed that previously he worked as Sub-Inspector of Police, North

Traffic Police Station, Nellore. On 28-06-2020 while he was in the police station, he received hospital intimation along with statement of PW1.

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Then basing on the statement of PW1, he registered a case in crime

No.53/2020 under Section 337 IPC and investigated into. During the course of his investigation, he visited the Simhapuri Hospital, Nellore, there he secured presence of PW1 to PW3, LW2, LW5 and LW7, examined them and recorded their statements. On the same day he visited the scene of offence situated on NH-16 near to Giri Hot Chips, there he secured presence of PW6 and PW7, observed the scene in their presence and prepared observation report and rough-sketch. On 29-06-2020 at about 07-00 P.M., he received death intimation from

Government Hospital, Nellore, there he secured the presence of PW6,

PW7 and LW9, conducted inquest over the dead body of deceased/Sk.Ismail Jabiulla and prepared inquest report and also he examined the witnesses and recorded their statements. He further deposed that after completion of postmortem examination over the dead body of deceased, he handed over the same to PW1. On 01-07-2020 at about 10-00 A.M., while he was in the police station,

PW5 came there along with the accused and surrendered him along with crime vehicle Car bearing No.AP30-AP-0456 in this case. After confirming the involvement of accused, he served 41-A Cr.P.C. notice to the accused and he also sent memo to Motor Vehicle Inspector for conducting road test. Accordingly, the Motor Vehicle Inspector conducted road test and submitted his report. He also collected postmortem report and after completion of entire investigation, he filed charge sheet.

19. For the offence Under Section 304-A I.P.C, the following ingredients has to be satisfied:

a) The accused should be the driver of crime vehicle at the time of accident; 8

b) The accused drove the crime vehicle in rash and negligent manner and

c) The deceased died due to the rash and negligent driving of the accused;

20. a) The accused should be the driver of crime vehicle at the time of accident;

The case of the prosecution is that on on 28-06-2020 at about 08-00 A.M., the deceased was proceeding towards Apollo Hospital,

Nellore on his cycle and he reached NH-16 road in front of Giri Hot

Chips. At that time the accused being the driver of Car bearing No.AP- 30-AP-0456, drove his Car in a rash and negligent manner while proceeding from Kavali to Chennai side and dashed the deceased. As result of which, the deceased fell down on the road and sustained fatal cut injuries on his back side head and right leg and went on unconscious state. Then the accused shifted the deceased to

Simhapuri Hospital, Nellore for treatment. On 29-06-2020 the family members of the deceased shifted the deceased to Ruya Hospital,

Tirupathi for better treatment, but on the way the deceased was succumbed with fatal injuries.

21.Further, it is undisputed that the accused was driver of crime vehicle. In fact the person who received damages at the hands of assailant would never like to let to go the real assailant and involve a person who is no way responsible. Even the Counsel for accused not suggested to any witness that the accused is not the driver of crime vehicle.

Therefore, basing on the discussion above, the accused was driver of crime vehicle as on the date of accident.

9

22. b) The accused drove the crime vehicle in rash and negligent manner; and

c) The deceased died due to the rash and negligent driving of the accused;

The case of the prosecution is when the deceased is going on his cycle towards Apollo Hospital, Nellore side, the accused being the driver of the crime vehicle Car, bearing registration No.AP-30-AP-0456, drove the same in a rash and negligent manner came from Kavali to

Chennai side and dashed against the deceased. As a result of which, the deceased fell down on the road and sustained fatal injuries on his head and leg, then he was shift to Simhapuri Hospital, Nellore by the accused in his car. On 29-06-2020 the family members of deceased shifted him to Ruya Hospital for better treatment, on the way he succumbed with fatal injuries.

23. Further on perusal of the evidence of PW2 who is only eye witness in this case examined by the prosecution, is no way helpful to the prosecution case. Though he seen the accident, in his cross- examination, he admitted that there are speed breakers just before 10 meters to scene of offence. The bicycle rider without taking precautions suddenly turned it to his right. Since the said bicycle rider turned to his right suddenly, the accident was occurred. He further categorically admitted that there is no rash and negligent driving on the part of crime vehicle and its driver, cyclist suddenly turned to his right. Therefore, it is clear from the evidence of PW2 that the deceased being cycle rider without taking proper precautions, suddenly turned to his right. The crime vehicle driver without anticipating the deceased act of turning right may fail to avoid the accident. Moreover, an 10 ordinary prudent man, may not expect or anticipate in the driving that the other person intention to take turnings. It is to the person to take proper care while taking turnings in the main road. Further, on perusing Ex.P13/rough-sketch, it is not clear which vehicle coming from which side at the time of accident. Ex.P13 is drawn simply without any information to elicit the fact.

24. Another fatal to the case of prosecution is, the investigation is very routine manner and not even produced sufficient material to say the speed of crime vehicle while accident occurred, to say who is rash and negligent. Admittedly not produced the deceased bicycle to establish the damage. To know whether the accused drove the crime vehicle in rash and negligent manner, damages of deceased cycle has to elicit.

25. Though the accused being driver of crime vehicle caused accident, but there is no material on record to say the accident occurred due to rash and negligent driving of the accused alone.

26. In view of the discussion stated supra. Though the deceased died due to road accident by the accused, but there no incriminating material against the accused as he drove the crime vehicle in rash and negligently. Therefore, the prosecution failed to prove the guilt of the accused for the offence under Section 304-A IPC beyond all reasonable doubt. Hence, the benefit of doubt is given to the accused for the offence under Section 304-A IPC.

27. In the result, the accused is found not guilty for the offence under Section 304-A IPC and accordingly he is acquitted for the said offence under Section 255(1) Cr.P.C. The bail bonds of the accused 11 shall stand cancelled after lapse of appeal time. The unmarked case property if any shall be destroyed after lapse of appeal time.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in the Open Court, this the 19th day of October,

2022.

Sd/- E.Prasuna

II Additional Judicial Magistrate of First Class

Nellore.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence:

P.W.1: Sd.Parvin. -None- P.W.2: A.Muralikrishna. P.W.3: Sk.Dadapeer. P.W.4: Sk.Rabbani. P.W.5: N.Srinivas. P.W.6: Ch.Ramaiah. P.W.7: Sk.Sabjada. P.W.8: Sk.Allabakshu. P.W.9: V.V.Ramanaiah, Sub-Inspector of Police.

EXHIBITS MARKED

For Prosecution: Ex.P1: Statement of PW1. Ex.P2: Section 161 Cr.P.C statement of PW3. Ex.P3: Section 161 Cr.P.C statement of PW4. Ex.P4: Section 161 Cr.P.C statement of PW5. Ex.P5: Signature of PW6 on Scene observation report. Ex.P6: Signature of PW6 on Inquest report. Ex.P7: Section 161 Cr.P.C statement of PW7. Ex.P8: Signature of PW8 on Scene observation report. Ex.P9: Signature of PW8 on Inquest report. Ex.P10: Hospital Intimation. Ex.P11: Original FIR. Ex.P12: Scene observation report. Ex.P13: Rough-sketch. Ex.P14: Death Intimation. Ex.P15: Altered FIR. Ex.P16: Inquest report. Ex.P17: MVI Report. Ex.P18: PM Report.

For Defence: .. NIL ..

MATERIEL OBJECTS MARKED

.. NIL ..

Sd/- E.Prasuna

II Additional Judicial Magistrate of First Class,

Nellore.

1

IN THE COURT OF II ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS:: NELLORE

Present: Smt E.Prasuna, II Additional Judicial Magistrate of First Class, Nellore.

Tuesday, this the Eighteenth (18th) day of October, 2022.

CALENDAR CASE No.1849 of 2020

The State of A.P., represented by Sub-Inspector of Police, Chinna Bazaar Police Station,

Nellore .. Complainant.

Versus:

Gerikapati Ramaiah, S/o Venkaiah, aged 52 years, SC-Madiga by Caste, R/o Santhi Nagar, Fathekhanpet,

Nellore City .. Accused.

This case is coming on 14-10-2022 for final hearing before this

Court in the presence of learned Assistant Public Prosecutor N.Kalpana on behalf of the State and the learned Counsel A.Janardhan for the

Accused, upon hearing both sides and having stood over for consideration till this day, this Court delivered the following:-

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

The State represented by Sub-Inspector of police, Chinna Bazaar

Police Station, Nellore filed the charge sheet in crime No.773/2020 against the accused for the offences punishable under Section 420 and 379 of Indian Penal Code (herein after referred to as IPC) and Section 21 (2) (4) of Mines and Minerals (Development and Regulation) Act (herein after referred to as MMDR Act), alleging as follows:

2. On 08-09-2020 morning, on receipt of tangible information regarding illegal transportation of sand, LW7/K.Nageswara Rao/

Assistant Sub-Inspector of Police, Chinna Bazaar Police Station, Nellore, secured the mediators/LW3/Tanniru Madhavi and LW4/Kunapareddy 2

Jyothi, rushed to the scene of offence situated at Phalguna Dhaba located nearby Iragalamma temple, Nellore along with his staff. There they noticed the accused being the driver of Tractor-cum-Trailer bearing No.AP-26-TF-0102 and AP-26-TF-0101 was found coming from

Buchi side by loading sand. Then LW7 stopped the tractor and asked the accused about his identity particulars and also about his illegal transportation of sand and GPS particulars being provided to the said

Tractor and came to conclusion that the accused being the driver of

Tractor, transporting the sand illegally on same transit sand pass repeatedly intended to get wrongful gains and thereby cheated the

Government and also caused Revenue loss. Then LW7 arrested the accused and seized the tractor along with load of sand and later he registered a case in crime No.773/2020 under Section 420 and 379 IPC and Section 21 (2) (4) of MMDR Act and investigated into. During the course of his investigation, he secured LW1/Birajala Thirumala Kumar and LW2/Garikapati Ramakrishna and also LW5/Shaik Shamshuddinand

LW6/Ch.Ashok Kumar who are the constables of his police station, examined them and recorded their statements and drew rough-sketch of scene of offence. After due confirmation, LW7 served 41-A notice to the accused. LW8/K.Venkateswarlu/Sub-Inspector of Police, Chinna

Bazaar Police Station, Nellore took up further investigation and verified the investigation done by LW7 found it on correct lines and after completion of investigation, LW8 filed charge sheet against accused for the offences punishable under Sec.420 and 379 IPC and

Section 21 (2) (4) of MMDR Act.

3.This Court taken cognizance against accused for the offences under Section 420 and 379 IPC and Section 21 (2) (4) of MMDR Act.

3

4. On appearance of accused before this Court, copies of relevant case records were furnished to him as required under Section 207 of Cr.P.C.

5.The accused was examined under Section 239 Cr.P.C for the offences under Section 420 and 379 IPC and Section 21 (2) (4) of MMDR

Act. The contents of the charges were read over and explained to the accused in Telugu, for which, he denied the offences by pleading not guilty and claimed to be tried.

6. During the course of trial, the prosecution examined PW1 to

PW3 and marked Ex.P1 to Ex.P5 and MO1. The evidence of

LW2/Garikapati Ramakrishna, LW3/Tanniru Madhavi, LW5/Shaik

Shamshuddin, LW6/Ch.Ashok Kumar and LW8/K.Venkateswarlu was given up by the learned A.P.P. The description of Ex.P1 to Ex.P5 and

MO1 was mentioned in the appendix of evidence.

7. After completion of the prosecution evidence, accused/A1 and A2 were examined under Section 313 of Cr.P.C in respect of incriminating material available in the evidence of prosecution, for which, the accused pleaded not guilty and reported no defence evidence on their behalf.

8. Heard both sides. Perused the record.

9. Now t he Point that arises for determination is :

Whether the prosecution has proved the

guilt of accused for the offences punishable

under Section 420 and 379 IPC and Section

21 (2) (4) of MMDR Act beyond all

reasonable doubt?

POINT:

10.The crux of the prosecution case is that on 08-09-2020 morning hours, on receipt of tangible information regarding illegal 4 transportation of sand, LW7/K.Nageswara RaoSubba Rao/Assistant Sub-

Inspector of Police, Chinna Bazaar Police Station, Nellore, secured the mediators and his staff, rushed to the scene of offence situated at

Phalguna Dhaba hotel located nearby Iragalamma temple, Nellore along with his staff. There they noticed the accused being the driver of

Tractor-cum-Trailer bearing No.AP-26-TF-0102 and AP-26-TF-0101 was found coming from Buchi side by loading sand. Then LW7 stopped the tractor and asked the accused about his identity particulars and also about his illegal transportation of sand and GPS particulars being provided to the said Tractor and came to conclusion that the accused being the driver of Tractor, transporting the sand illegally on same transit pass repeatedly intended to get wrongful gains and thereby cheated the Government and also caused Revenue loss. Then LW7 arrested the accused and seized the tractor along with load of sand.

11. To prove the above case of prosecution, the prosecution examined PW1 to PW3 and marked Ex.P1 to Ex.P5 and MO1. PW1 and

PW2 are the independent witnesses, who accompanied PW3 during the course of raid and PW3 is the Investigating Officer who conducted raid, arresting of accused and seizing of tractor-cum-trailer with a load of sand.

12.PW1 who is the independent witness, deposed in her evidence that she is working as Woman PS, Mulapeta Sachivalayam,

Ward No.41/1, Nellore. On 08-09-2020 at about 10-00 A.M., while she was at Iragalamma temple Check post point on her lock down duty, police called her to act as mediator while arresting the accused. Then herself and LW3 proceeded along with police to Palguna Daba situated on Jonnawada road. At about 10-30 A.M. they noticed one Tractor cum 5

Trailer with a load of sand was coming from Buchireddypalem side.

Then LW7/Assistant Sub-Inspector of Police stopped the vehicle and on enquiry, the driver of the Tractor disclosed his identity as Garikapati

Ramaiah and he told that he is the driver cum owner of the said tractor and he was transporting the sand from Sri Ranga Rajeswarapuram sand reach to the house of one Nunna Prakash Babu, which is under construction at Iragalamma temple area. She further deposed that then LW7 verified the bill of transportation of sand and verified the GPS location and found that he was transporting the sand for the 3rd time on one bill. On verification, they found 4.5 tons of sand loaded in the trailer. Then LW7 arrested the accused and seized the tractor cum trailer along with sand under cover of mediatornama, the same was prepared by one Constable/LW6 duly attested by herself, LW3 and police staff and the same was served to the accused.

13. PW2 who is another independent witness turned hostile to the prosecution case. Nothing was deposed by him about the prosecution case in his evidence and denied the suggestions put by the prosecution in his cross-examination, except identifying his signature in his 161 Cr.P.C statement.

14.Now coming to the evidence of PW3 who is the Investigating

Officer, he deposed that previously he worked as Assistant Sub-

Inspector of Police, Chinna Bazaar Police Station, Nellore. On 08-09-2020 while he was present in the police station, he received credible information about the illegal transportation of sand, then he along with his staff and PW2 and LW2 were proceeded to Palguna Daba near Iragalamma temple centre at about 10-00 AM, there they noticed one Tractor with load of sand was coming by the side of 6

Buchireddypalem side. On suspicion, he stopped the vehicle and on enquiry about the name and particulars of the tractor driver, he disclosed his identity as Garikapati Ramaiah and that he also disclosed that he is the driver cum owner of the said Tractor bearing No.AP-26-

TF-0102 and Truck bearing No.0101, he purchased the sand from Sri

Ranga Rajeswarapuram sand reach on the name of one Nunna Prakash

Babu dropping point as construction house of Nunna Prakash Babu at

Iragalamme temple. Then he verified the GPS relating to the sand bills produced by him and found that he was transporting the sand for 3rd time on that bill. Then he arrested him and seized tractor cum trailer along with load of sand weighing about 4.5 tons, sand bill under cover of mediatornama. After reaching the police station, he registered a case in crime No.773/2020 under Section 420, 379 IPC and Section 21 (2) (4) of MMDAR Act and investigated into. He further deposed that during the course of his investigation, he examined the witnesses and recorded their statements and visited the scene of offence, secured the witnesses, examined them and recorded their statements and he also prepared rough-sketch of scene of offence. On the same day, he issued 41-A Cr.P.C. notice to the accused and he forwarded a letter to the Assistant Director, Mines and Geology and informed about the illegal transportation of sand by violating of Norms and conditions of

New Sand policy for taking further action. Later further investigation done by their Sub-Inspector of Police/LW8. As per record he verified his investigation as he found on correct lines as the entire investigation is completed by him, the Sub-Inspector of Police filed charge sheet along with bill of sand produced by the accused.

15. The learned A.P.P submitted that the evidence of PW1 to PW3 coupled with Ex.P1 to Ex.P5 and MO1 proved the guilt of the accused 7 for the alleged offences. Hence, she prayed to convict the accused basing on the evidence of PW1 to PW3. On the other hand, the learned counsel for the accused submitted that there is no independent witnesses in this case for arrest of accused and seizure of Tractor and

Trailer loaded with sand. The evidence of PW2 is no way helpful to the prosecution case as he turned hostile to the prosecution case. PW1 who is another independent witness is stock witness to the police official, so her evidence is also not helpful to the prosecution case.

PW3 is the official witness who is interested over his case. Therefore, prayed to acquit the accused.

16. On perusal of the record, the evidence of PW1 to PW3 is not at all sufficient to prove the charges as PW2 who is the independent witnesses did not depose anything about prosecution case. On perusal of evidence PW1 who is an independent witness admitted in her cross- examination that the Inspector of Police, I Town Police Station is her superior and she used to accompany the Inspector of Police whenever required. She further admitted that whenever Inspector of Police asked her to sign, she will sign. No written summons issued to her to act as mediator. She categorically admitted that 24 hours, Iragalamma temple is busy locality and 15 to 20 houses holds near the scene of offence. In the absence of any independent corroboration with regard to the search and seizure and when it was conducted in the public place which is a busy locality, no sanctity is attached to the said mediator's report and recovery of case property. Therefore, lack of corroboration with the evidence of PW1, it seems that PW1 is appeared to be a stock witness to the police officials. Hence, it is not inspire the confidence of the Court to believe the version of PW1.

8

17. The close scrutiny of evidence of PW1 and PW3 shows that

PW3 failed to comply the mandatory procedure prescribed under

Section 100 (4) Cr.P.C. PW4, who registered the case and conducted investigation in this case admitted in his cross examination that whenever there is no independent complainant, they used to prepare police proceedings. The admissions made by PW3 clearly establishes that there is every possibility to PW3 to secure independent mediators at the time of seizure of property under Ex.P1. In spite of having good opportunity, PW3 utterly failed to secure independent mediators which is nothing but failure to comply the mandatory procedure prescribed under Section 100 (4) Cr.P.C. The Hon’ble High Court of A.P in a case of

S.Babu Saheb @ Babu Vs The State of A.P, reported in 2010 (1)

ALT (Crl) 32 A.P. Wherein it was held that “when they are conducting the search in a colony or at a place wherein there is a possibility of securing the presence of independent mediators, the excise officials or prohibition officers are bound to take local respectable independent inhabitants. They must make sincere efforts to secure local respectable mediators that is the mandate of section 100(4) Cr.P.C. As referred to in the above provisions, the excise officials are also authorized to issue an order in writing asking them act as mediators

U/sec. (4) of Section 100 Cr.P.C. The object of section 100 Cr.P.C is to ensure confidence in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted”. In our case on hand also the investigation officer not made any efforts to secure the mediators at the scene of offence. Which is fatal to the case of prosecution.

18. All these circumstances creates a doubt about the trustworthiness of evidence of PW1 and PW3 and it is clear from the 9 above discussion that investigating agency failed to follow the procedure and examine independent witnesses. Hence, the alleged search, detention and seizure of property is doubtful. In view of the above facts and circumstances and material on record, this Court is of opinion that the prosecution miserably failed to prove the guilt of the accused beyond all reasonable doubt for the alleged offences. Hence benefit of doubt shall be given to the accused.

19.In the result, the accused is found not guilty for the offences punishable under Section 420 and 379 IPC and Section 21 (2) (4) of

MMDR Act and accordingly, he is acquitted for the same under Section 248(1) Cr.P.C. The bail bonds of the accused if any shall stand cancelled after laps of appeal time.

MO1 which was given for interim custody to its owner/accused shall made absolute after lapse of appeal time. The unmarked property if any shall be destroyed after lapse of appeal time.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the Open Court, this the 18th day of October, 2022.

Sd/- E.Prasuna

II Additional Judicial Magistrate of First Class,

Nellore.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence:

PW1: K.Jyothi. -None- PW2: B.Tirumala Kumar. PW3: K.Nageswara Rao.

EXHIBITS MARKED

For Prosecution:

Ex.P-1: Mediatornama. Ex.P-2: Sec.161 Cr.P.C Statement of PW2. Ex.P-3: Original FIR. Ex.P-4: Rough-sketch. Ex.P-5: Bill of sand.

For Defence: Nil 10

MATERIEL OBJECTS MARKED

MO1: Tractor bearing No.AP-26-TF-0102 and Trailer bearing No.AP-26-TF-0101.

Sd/- E.Prasuna

II Additional Judicial Magistrate of First Class,

Nellore.

1

IN THE COURT OF II ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS:: NELLORE

Present: Smt E.Prasuna, II Additional Judicial Magistrate of First Class, Nellore.

Tuesday, this the First (01st) day of November, 2022.

CALENDAR CASE No.1151 of 2022

The State of A.P., represented by Sub-Inspector of Police, Nawabpeta Police Station,

Nellore .. Complainant.

Versus:

1. Ankisetty Venu Gopal, S/o Srinivasulu, aged 43 years, Balija by caste, Mee Seva Centre, Kisan Nagar, Nellore

2. Mamidala Madhu, S/o Malyadri, aged 46 years, Periki Balija by caste, Srinivasa Nagar,

Mypadu road, Nellore .. Accused.

This case is coming on 17-10-2022 for final hearing before this

Court in the presence of learned Assistant Public Prosecutor N.Kalpana on behalf of the State and the learned Counsel D.Chandrasekhar for the Accused/A1 and A2, upon hearing both sides and having stood over for consideration till this day (as P.O. is on leave on 21-10-2022, reposted to this date), this Court delivered the following:-

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

The State represented by Sub-Inspector of police, Nawabpeta

Police Station, Nellore filed the charge sheet in crime No.443/2021 against the accused/A1 and A2 for the offences punishable under

Section 171 (E), 171 (H) & 188 Indian Penal Code (herein after referred to IPC) and Section (2) (A) (I) of Representation of the People Act (herein after referred to as RP Act), alleging as follows:

2

2. On 14-11-2021 at 03-00 P.M., on receipt of information about distributing of cash to the voters in view of Nelloe Municipal

Corporation Elections, LW3/B.Ramesh Babu/Sub-Inspector of Police,

Nawabpeta Police Station, secured the his staff and rushed to Petrol

Bunk Area, Kisan Nagar, Nellore. On seeing the police vehicle, accused/A1 who was present there tried to escape from that place, but

LW3 caught hold A1 and on enquiry, A1 voluntarily confessed his name as Ankisetty Venu Gopal/A1 and admitted that A2/Mamidala Madhu/Ex-

Corporator of 4th Ward gave money to him to distribute cash to the voters to cast their votes to the wife of A2 who is contesting candidate as Corporator for 4th Ward on behalf of the Telugu Desam Party. On searching, LW3 found Rs.21,000/- cash and 05 voter slips from the possession of A1. As A1 distributing money to the voters against the rules promulgated by Election Commission with the instructions of A2.

After confirming the involvement of accused, LW3 caught hold A1 and seized cash and voter slips from his possession under cover of police proceedings. Basing on the police proceedings, LW3 registered a case in crime No.443/2021 for the offences under Section 171 (E), 171 (H) & 188 IPC and Section (2) (A) (I) of RP Act against the accused and investigated into. During the course of investigation, LW3 served notices to A1 and A2 and after completion of investigation, LW3 filed charge sheet against A1 and A2 for the offences under Section 171 (E), 171 (H) & 188 IPC and Section (2) (A) (I) of RP Act.

3.This Court taken cognizance against accused/A1 and A2 for the offences under Section 171 (E), 171 (H) & 188 IPC and Section (2) (A) (I) of RP Act.

3

4. On appearance of accused/A1 and A2 before this Court, copies of relevant case records were furnished to them as required under Section 207 of Cr.P.C.

5.The accused/A1 and A2 were examined under Section 239

Cr.P.C for the offences under Section 171 (E), 171 (H) & 188 IPC and

Section (2) (A) (I) of RP Act. The contents of the charges were read over and explained to the accused/A1 and A2 in Telugu, for which, they denied the offences by pleading not guilty and claimed to be tried.

6. During the course of trial, the prosecution examined PW1 and

PW2 and marked Ex.P1 to Ex.P3 and MO1 and MO2. The evidence of

LW2/T.Srinivasulu was given up by the prosecution.

7. After completion of the prosecution evidence, accused/A1 and A2 were examined under Section 313 of Cr.P.C in respect of incriminating material available in the evidence of prosecution, for which, the accused/A1 and A2 pleaded not guilty and reported no defence evidence on their behalf.

8.Heard both sides. Perused the record.

9. Now t he Point that arises for determination is :

Whether the prosecution has proved the

guilt of accused/A1 and A2 for the offences

under Section 171 (E), 171 (H) & 188 IPC

and Section (2) (A) (I) of RP Act beyond all

reasonable doubt?

POINT:

10.The crux of the prosecution case is that on 14-11-2021 at 03-00 P.M., on receipt of information about distributing of cash to the voters in view of Nellore Municipal Corporation Elections, the Sub-

Inspector of Police, Nawabpeta Police Station along with his staff rushed to Petrol Bunk Area, Kisan Nagar, Nellore. On seeing the police 4 vehicle, accused/A1 who was present there tried to escape from that place, but the police caught hold A1 and on enquiry, A1 voluntarily confessed his identity particulars and admitted that he is distributing cash to the voters to cast their votes to the wife of A2 who is contesting candidate as Corporator for 4th Ward on behalf of the Telugu

Desam Party with the instructions of A2. Then the police caught hold

A1 and seized cash and voter slips from his possession under cover of police proceedings and later he served 41-A Notices to A1 and A2.

11. To prove the above case of prosecution, the prosecution examined PW1 and PW2 and marked Ex.P1 to Ex.P3 and MO1 and

MO2. In this case PW1 and PW2 are the police officials. The description of Ex.P1 to Ex.P3 and MO1 and MO2 was mentioned in the appendix of evidence.

12.It is the evidence of PW1, who is one of the investigating officers that previously he worked as Police Constable, Nawabpeta

Police Station, Nellore. On 14-11-2021 at about 03-00 P.M., he followed his Sub-Inspector of Police to conduct patrolling duties in view of

Corporation Elections. When they reached Kissan Nagar Petrol bunk, they noticed one person while distributing money in view of elections.

Then they detained him and on enquiry, he disclosed his identity as

A.Venu Gopal and on further enquiry by their Sub-Inspector, he confessed that he is distributing money and voter slips in favour of

Mamidala Madu/TDP party candidate. Then his Sub-Inspector of Police seized cash of Rs.21,000/- from his possession and voter slips-5 in number under cover of police proceedings.

5

13. PW2 who another Investigating Officer deposed that he is working as Sub-Inspector of Police, Nawabpeta Police Station, Nellore.

On 14-11-2021 at about 03-00 P.M., he along with PW1, LW2 conducting patrolling duties in view of Municipal Corporation elections and when they reached Kissan Nagar Petrol Bunk, there they noticed one person while distributing money in view of elections. Then they detained him and on enquiry, the said person disclosed his identity as

A.Venugopal. On his further enquiry, he also confessed that he is distributing money and voter slips in favour of Mamidala Madhu/TDP

Party candidate. Then their Sub-Inspector of Police seized cash of

Rs.21,000/- and voter slips-05 in number from his possession under cover of police proceedings.

14. The learned A.P.P submitted that the evidence of PW1 and

PW2 coupled with Ex.P1 to Ex.P3 and MO1 and MO2 proved the guilt of the accused/A1 and A2 for the alleged offences. Hence, she prayed to convict the accused basing on the evidence of PW1 and PW2. On the other hand, the learned counsel for the accused/A1 and A2 submitted that there is no independent witnesses in this case for arrest of accused and seizure of case property. PW1 and PW2 are the official witnesses who are interested over their case. Therefore, prayed to acquit the accused.

15. On perusal of the record, the Evidence of PW1 and PW2 are not at all sufficient to prove the charges as they are interested witnesses. The close scrutiny of evidence of PW1 and PW2 shows that they failed to comply the mandatory procedure prescribed under

Section 100 (4) Cr.P.C. PW1 who accompanied PW2 admitted in his cross-examination that the scene of offence is a busy locality.

6

But they have not tried to secure mediators from inhabitants of that locality. On perusal of the evidence of PW2, who conducting patrolling duty with PW1, arresting of accused and registering case and seizing of case property from the possession of accused admitted in his cross examination that the scene of offence is a busy locality. They tried for mediators, but in vain. He further categorically admitted that he did not flow Section 100 (4) Cr.P.C while seizing MO1 and no summons was issued by him. He further admitted that in CC No.1151, CC No.1171 and CC No.1274/2022, police proceedings drafted very same day. The admission made by PW1 and PW2 clearly establishes that there is every possibility to PW1 and PW2 to secure independent mediators at the time of seizure of property under Ex.P1. In spite of having good opportunity, PW1 and PW2 utterly failed to secure independent mediators which is nothing but failure to comply the mandatory procedure prescribed under Section 100 (4) Cr.P.C. The Hon’ble High

Court of A.P in a case of S.Babu Saheb @ Babu Vs The State of

A.P, reported in 2010 (1) ALT (Crl) 32 A.P. Wherein it was held that “when they are conducting the search in a colony or at a place wherein there is a possibility of securing the presence of independent mediators, the excise officials or prohibition officers are bound to take local respectable independent inhabitants. They must make sincere efforts to secure local respectable mediators that is the mandate of section 100(4) Cr.P.C. As referred to in the above provisions, the excise officials are also authorized to issue an order in writing asking them act as mediators U/sec. (4) of Section 100 Cr.P.C. The object of section 100 Cr.P.C is to ensure confidence in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted”. In our 7 case on hand also the investigation officers not made any efforts to secure the mediators at the scene of offence. Which is fatal to the case of prosecution.

16. All these circumstances creates a doubt about the trustworthiness of evidence of PW1 and PW2 and it is clear from the above discussion that investigating agency failed to follow the procedure and examine independent witnesses. Hence, the alleged search, detention and seizure of property is doubtful. In view of the above facts, circumstances and material on record, this Court is of opinion that the prosecution miserably failed to prove the guilt of the accused/A1 and A2 beyond all reasonable doubt for the alleged offences. Hence, the benefit of doubt shall be given to the accused/A1 and A2.

17.In the result, the accused/A1 and A2 are found not guilty for the offences punishable under Section 171 (E), 171 (H) & 188 IPC and

Section (2) (A) (I) of RP Act and accordingly, they are acquitted for the same under Section 248(1) Cr.P.C. The bail bonds of the accused/A1 and A2 if any shall stands cancelled after laps of appeal time.

MO1/cash of Rs.21,000/- is ordered to be confiscated to State after laps of appeal time. MO/2 Voter slips-05 in number shall be destroyed after lapse of appeal time. The unmarked case property if any shall be destroyed after lapse of appeal time.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in the Open Court, this the 01st day of November,

2022.

Sd/- E.Prasuna

II Additional Judicial Magistrate of First Class

Nellore.

8

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence:

P.W.1: B.Mohan Babu, Police Constable. P.W.2: B.Ramesh Babu, Sub-Inspector of Police.

EXHIBITS MARKED

For Prosecution:

Ex.P-1: Police Proceedings. Ex.P-2: Original FIR. Ex.P-3: Rough-sketch.

For Defence: Nil

MATERIEL OBJECTS MARKED

MO.1: Cash of Rs.21,000/-.

MO.2: Voter Slips – 05 in number.

Sd/- E.Prasuna

II Additional Judicial Magistrate of First Class,

Nellore.

1

In the Court of the Principal Junior Civil Judge, Kavali

Monday, this the 1st day of June, 2015

Present: Smt.E.Prasuna,

Principal Junior Civil Judge, Kavali.

Original Suit No. 107/2014

Nelapati Chinna Ankaiah S/o.Late Polaiah, Hindu, Aged about 59 years, Working as Employee in Andhra Bank, Resident of Harnadhapuram, Nellore, SPSR Nellore District….Plaintiff

Vs.

1.Yekkala Varalakshmi W/o.Late Yekkala PUllaiah 2.Yekkala Prathyusha D/o.Late Yekkala PUllaiah 3.Yekkala Pravallika D/o.Late Yekkala PUllaiah

All are Hindus, Aged about 54,28,25 years All are residing at Kirana shop, Opp: Indian Bank, Near TTD Kalyana Mandapam, Kavali, Kavali, SPSR Nellore District. ….Defendant

This suit coming on 10.04.2015 for final hearing before me in the presence of learned advocate K.Niranjan Ravi Kumar for the plaintiff and learned advocate P.Sreenivasa Murthy for defendants 1 and 2, D3 remained exparte and upon hearing, having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

This suit is filed for recovery of suit amount of Rs.17,400/- being the

principal and interest due under suit promissory note dated 26.06.2011

executed by the deceased Yekkala Pullaiah in favour of plaintiff for a sum of

Rs.10,000/- payable with interest at the rate of 24% per annum and for costs.

2.The crux of the plaint in brief is as follows: The deceased Yekkala

Pullaiah had borrowed an amount of Rs.10,000/- from the plaintiff on 26.06.2011 and executed a promissory note in favour of the plaintiff on the same day agreeing to repay the same with interest at the rate of 24% per annum either to plaintiff or his order on demand. Thereafter, the said Yekkala 2

Pullaiah died intestate leaving behind the defendants as his legal heirs to his estate and hence the plaintiff approached the defendants and demanded to repay the suit amount but they did not choose to repay the same. Hence, the plaintiff got issued legal notice on 19.04.2014 calling upon the defendants to repay the amount due and the same was served but the defendant neither comply nor reply the same. The defendants are not an agriculturists and hence they are not entitled to the benefits of Act 4/1938. Accordingly, the plaintiff is constrained to file the suit and praying the court to pass a decree in his favour for the suit amount with future interest at 24 % per annum.

3.On the other hand, the defendants 1 and 2 contested the matter and filed common written statement denying all the plaint averments except the relationship with the deceased Yekkala Pullaiah. They further submitted that the deceased Yekkala Pullaiah never borrowed any amount from the defendant and never executed suit promissory note in his favour. They further submitted that plaintiff and defendant are the childhood friends. The defendant fell ill health and died and taking advantage of the same, the plaintiff with malafide intention to get wrongful gain from the deceased Yekkala Pullaiah family, he fabricated promissory note by forging the signatures of the deceased Yekkala

Pullaiah and 1st attestor. The defendants never enjoying the estate of the deceased Yekkala Pullaiah as the legal heirs of the said Pullaiah. For all these reasons, the suit is not maintainable and prays the court to dismiss the suit with costs.

4. Basing on the above pleadings, the following issues were settled for trial:

1. Whether the suit promissory note is true, valid and supported by consideration?

2. Whether the suit promissory note is fabricated one as alleged by the defendant?

3. Whether the plaintiff is entitled the suit promissory note amount?

4. To what relief?

5.During the course of trial, PWs.1 and 2 were examined and Ex.A1 to

Ex.A3 got marked on behalf of the plaintiff. DW.1 was examined and Ex.B1 to

Ex.B3 were marked on behalf of the defendant.

3

6.Heard both sides and perused the record on hand.

7. Issue No.1: The plaintiff himself examined as PW.1 and filed his chief affidavit is that: The husband of the 1st defendant and father of defendants 2 and 3 namely Yakkala Pullaiah had borrowed an amount of Rs.10,000/- from him on 26.06.2011 and executed a suit promissory note in his favour and later he died leaving the defendants 1 to 3 are his legal heirs. Hence, he filed this suit for recovery of amount due under the suit promissory note against the estate of the deceased said Yakkala Pullaiah. PW.1 was examined in cross.

During the cross-examination of PW.1, he stated that “he know the original borrower deceased Yakkala Pullaiah since his childhood and they studied upto 9th class”. Further he admitted that “it is true in the 7th column of Ex.A1 it was mentioned by referring said Pullaiah and strike off the same. Further he admitted that ‘it is true no person would written as ‘late’ when he is alive’.

Further ‘voluntaries by mistakenly the ‘late’ was referred to said Pullaiah instead of his father Venkata Ramaiah”. The remaining entire cross- examination of the PW.1 by the counsel for the defendant only to putting suggestions and the same were denied by the PW.1 and he did not elicit any cogent evidence in favour of the defendant. The plaintiff also examined the 2nd attestor as PW.2 and during his cross-examination he stated that ‘he attested on very same day of execution of Ex.A1”. The counsel for the defendant did not elicit any truth against the plaintiff and in favour of the defendant. The mere suggestions to the witness are not evidence and there is no valid. It is well settled law that “suggestive questions cannot be held evidence of fact if denied”.

8. Once, execution of the promissory note is admitted, the presumption under Section 118(g) would arise that it is supported by consideration. Such presumption is rebuttable. Once execution of the instrument is admitted or proved that it was made for consideration the presumption comes into play.

Then the burden shifts to the defendants and they have to establish that the promissory note or hand note or suit chit is not supported by consideration and this burden can be discharged by adducing direct evidence, circumstances 4 evidence or relying upon presumptions of fact under Section 114 of the

Evidence Act or other similar provisions of law raising presumption of fact in his favour but in this case already stated that the defendants failed to establish their case against the plaintiff. Accordingly, this issue is answered in favour of the plaintiff and against the defendants.

9. Issue No.2: The defendants taken pleas that Ex.A1 was fabricated i.e., it was written in Telugu as 'late' and the same was strike off. It is no doubt true in Ex.A1, it was written in Telugu 'Yekkala Venkataramaiah kumarudu Yekkala

Pullaiah (letu)' , but the word letu/late was strike off. So, the defendants taking plea that subsequent to the death of said Yekkala Pullaiah, Ex.A1 was fabricated, hence the plaintiff got written as late in Ex.A1. But surprisingly,

Ex.A1 was scribed by none other than principal borrower himself and it is was explained by the plaintiff that the word late is referred to the father of deceased principal borrower Yekkala Venkataramaiah. No prudent person will refer late when the person is alive. Further the defendants taken plea that the plaintiff issued Ex.B1 notice on 04.04.2014 to the 1st defendant by saying she borrowed suit amount from plaintiff, on issuance of Ex.B2 again the plaintiff got issued Ex.A2 by stating that the husband of D1 borrowed suit amount. Hence, the promissory note is not valid and not binding on the defendants. This court gone through the Exs.B1, B2 and A2, no doubt the plaintiff issued Ex.B1 first to the 1st defendant, later issued Ex.A2. Generally, issuance of prior notice to filing of the suit is not mandatory. The parties would not suffer the loss due to the mistake of the advocate. When the deceased principal borrower himself scribed Ex.A1 the question of un execution of Ex.A1 by the principal borrower does not arise unless it was proved by the defendants herein as Ex.A1 is fabricated and forged.

10.DW.1 being D2 deposed that her deceased father never borrowed any suit amount and he used to sign in English and not in Telugu as alleged by the plaintiff that the deceased Principal borrower signed in Telugu in Ex.A1. Further

DW.1 argued that Ex.A1 was fabricated and the signature of her deceased father was forged in Ex.A1 and as well her signature too as one of the attestor 5 to Ex.A1. To substantiate her contention she did not take any steps to prove the signature of her deceased father and her signature in Ex.A1 were forged by the plaintiff. Though DW.1 did not take any steps to prove the forgery this court perused the Vakalathnama of defendants and chief affidavit of DW.1, in her chief affidavit she signed in short length whereas in Vakalathnama, being defendant No.2 she signed in full length. Even as per cross-examination of

DW.1, she admitted that 'she used to sign in full length in her educational records'. Even the signature of DW.1 in her own vakalathnama and chief affidavit is differing with each other. It is not the case of the DW.1 that it is not her signature either in her vakalathanam or in chief affidavit. Moreover, the

DW.1 did not proved the motive behind fabrication and forgery of Ex.A1, surprisingly DW.1 in her cross-examination revealed that there is no disputes with the plaintiff herein. When there is no motive and no disputes with the plaintiff to fabricate and forge Ex.A1, the plea taken by defendants that Ex.A1 fabricated and forged is not considerable. Accordingly, the issue is answered against the defendants.

11.Issue No.3: In the result, the suit is decreed with costs for a sum of

Rs.17,400/- with future interest at the rate of 12% per annum on the principal amount of Rs.10,000/- from the date of the suit till the date of decree and thereafter at the rate of 6%p.a. till the date of realization against the estate of the deceased Yakkla Pullaiah, which is lying in the hands of defendants 1 to 3.

Typed to my dictation by the Personal Assistant on computer, corrected and pronounced by me in Open Court, this the 01st day of June 2015.

Principal Junior Civil Judge,

Kavali.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANTS:

PW.1: Nelapati China Ankaiah DW.1: Yekkala Pravallika PW.2: Nelapati Naveen Kumar 6

DOCUMENTS MARKED

FOR PLAINTIFF:

Ex.A1: Suit promissory note dt.26.06.2011 Ex.A2: Office copy of legal notice dt.19.04.2014 Ex.A3: Reply notice dt.06.05.2014

FOR DEFENDANTS:

Ex.B1: legal notice dt.04.04.2014 Ex.B2: Reply notice dt. 17.4.2014 Ex.B3: date 16.04.2014 in a legal notice (Marked through PW.1)

Principal Junior Civil Judge,

Kavali.