Smt.E.Prathiba

IN THE COURT OF THE I ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS: PRODDATUR

Present:- Smt E. Prathiba,

I Additional Judicial Magistrate of I Class, Proddatur

Thursday, this the 7th day of April, 2022

CC No.1086/2020

State: Represented by the Sub-Inspector of Police, Proddatur II town Police Station ….Complainant

Vs.

1Shaik Hussain Basha @ Gugud, Aged 36 years, S/o. Gugud, r/o. D.No.6/711-3, Arts College road, now at D.No.6/237, Vinayaka Nagar, Proddatur town. 2Gudemcherla Basha, Aged 42 years, S/o. Khaja Miyya, r/o. D.No.16/693, Modampalli Street, Proddatur town. 3Maheswara Gangadhar, Aged 29 years, son of Venkateswarlu, r/o. D.No.6/568, Arts college road, Proddatur town. ….Accused

This case is coming on 04.4.2022 for final hearing before me in the presence of the learned Assistant Public Prosecutor for the Complainant and of

Sri A. Sudarshana, Advocate for the accused Nos.1 and 2 and of Sri

G.Srinivasulu, Advocate for accused No.3 and having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

The Sub-Inspector of Police, Proddatur II town Police Station has filed charge sheet against the accused Nos.1 to 3 herein in Cr.No.170/2020 for the offence punishable u/Sec.353 r/w.34 of the Indian Penal Code 1860 (for short ‘the IPC’) and Sec.9 (1) of A.P. Gaming Act.

2.The case of the prosecution in nutshell is that on 02.10.2020, on receiving information to LW.6/Sri T. Narayana Yadav, S.I. of II town PS with regard to indulging of matka gambling, he along with his staff and mediators proceeded to

Gramachavidi, Modampalli street, Proddatur and found A.1 to A.3 stood on the road and writing some chits and chatting each other and on suspicion, LW.6 and his staff rushed to A.1 to A.3 and on seeing police, A.1 to A.3 concealed the chits available on their hands and later, LW.6 informed about the information and requested to cooperate them in search of their persons and instructed Lws.2 and 3/police personnel to search A.1 to A.3 and when Lws.2 and 3 tried to search the accused, A.1 to A.3 rebelled against police, challenged and questioned the 2

CC No.1086 of 2020

authority of police to search them, forcibly pushed the police party aside and tried to skulk away, but the police caught hold the accused and during enquiry, A.1 to

A.3 confessed that they are indulging Matka and on verification, A.1 is in possession of one ball pen, one cell phone, one matka slip and cash of

Rs.1,25,500/-, A.2 is in possession of one ball pen, one cell phone, one matka slip and cash of Rs.27,340/- and A.3 is in possession of one ball pen, one cell phone, one matka slip and cash of Rs.25,300/-. As such, LW.6 arrested the accused Nos.1 to 3 by informing the grounds and seized above property under the cover of panchanama and later, they returned to the station along with the accused and case property, basing on the panchanama, he registered a case in

Cr.No.170/2020 for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act, sent the accused to judicial custody, again visited the scene of offence, drafted rough sketch and on completion of investigation, he filed charge sheet in this case.

3.The case is taken into cognizance against the accused Nos.1 to 3 for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act.

4.On appearance of accused before this Court, copies of the documents were furnished to them as contemplated u/Sec.207 Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C’).

5.The accused Nos.1 to 3 are examined u/Sec.251 of Cr.P.C. by reading over and explaining in Telugu, the substance of accusation appearing against them for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P.

Gaming Act, for which they pleaded not guilty and claimed the case to be tried.

6.In pursuance of the case of prosecution, the prosecution has examined

PWs.1 to 4, and got marked Exs.P1 to P.6 and M.Os.1 to 5. The learned

Assistant Public Prosecutor has given up the evidence of Lws.1 & 3/Sri

G.Srinivasulu and Sri K.Lakshmikantha Reddy, as other witnesses supported the case of prosecution.

7.After the closure of prosecution side evidence, the accused Nos.1 to 3 examined u/Sec.313 Cr.P.C explaining the incriminating material appearing against them, for which they denied the same and reported no defence evidence on their behalf.

8.Heard the learned Asst. Public Prosecutor and the learned counsel for the accused.

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The learned Senior Asst. Public Prosecutor argued that that the evidence of PW.1 & PW.4, Exs.P.1, P.4 to P.6, MO.1 to M.O.5 well establish the offence against accused, as such the prosecution is able to prove the guilt of the accused and they are not even entitled for benefit of doubt and pray to convict the accused.

Per contra, the learned counsel for the accused contended that

Pws.2 and 3 who are the mediator had not supported the case of the prosecution, hence their evidence is not useful to the prosecution case with regard to the arrest of accused and seizure of M.Os.1 to 5 from the possession of the accused and the remaining witness are official witness and their evidence is hit by sec 25 of Indian Evidence Act, 1872. And further contended that MO.1 i.e., cash of Rs.1,78,140/- is the secured amount, not the seized amount and accused are entitle for the cash.

9.Now the point that arise for determination is:

1Whether accused Nos.1 to 3 have used criminal force or assaulted public servants from discharging their duties? 2Whether the accused Nos.1 to 3 were found or reasonably suspected to be gaming in any public street or in any place to which the public have or are permitted to have access? 3Whether the prosecution could be able to bring home the guilt of the accused Nos.1 to 3 for the offences charged u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act? 4To what relief?

10.To prove the case out of 06 list of witnesses the prosecution examined

PW.1 to PW.4. Pws.2 and 3 who are mediators deposed that they do not know anything about the facts of this case and police never arrested A.1 to A.3 in their presence and not seized any matka betting amount, matka slips and pens in their presence under the cover of panchanama, but on one day, police obtained their respective signatures when they went to police station on their personal work.

The learned Senior Asst. Public Prosecution, cross examined the Pws.2 and 3 after obtaining permission from the Court, but nothing was elicited except denying the suggestion made by the prosecution that they have accompanied with the police while arresting the accused and seizure of the properties i.e.,

MO.1 to M.O.5 from the accused.

11.PW.1 deposed in his chief examination that on 02.10.2020, at about 8.00 am, LW.6 received credible information and on the instructions of LW.6, he secured the presence of mediators to the police station. From there, himself,

LW.6 along with mediators and other police staff proceeded in police jeep to 4

CC No.1086 of 2020

Modampalli chavidi at Proddatur town and reached at 8.30 am. There, they found A.1 to A.3 standing at that place in suspicious manner and as per the instructions of LW.6, he along wtih LW.3/K.Lakshmikanth Reddy, tried to search them, A.1 to A.3 pushed them and tried to skulk away, but LW.1 and LW.6 caught hold them and during enquiry by LW.6 in the presence of mediators, A.1 to A.3 voluntarily stated their identity particulars and further A.1 to A.3 stated that they are writing matka slips and during search, they found that A.1 is in possession of cash of Rs.1,25,500/-, one matka slip and one pen and A.2 is in possession of cash of Rs.25,340/-, one matka slip, and one pen and A.3 is in possession of cash of Rs.25,300/-, one matka slip, one phone and one pen.

Then, LW.6 arrested A.1 to A.3 and seized above property in the presence of mediators under the cover of panchanama/Ex.P.1. Thereafter, they returned to the police station along with accused and case property.

In his cross examination, he admitted that on 02.10.2020 the lock-down is in force. In between Nadimpalli and grama chavidi, there are govt. offices are situated at a distance of 300 yards and during lock-down all public government offices are working. They did not tried to secure mediators from the government offices. Vivekananda colony is at a distance of 2 Km from grama chavidi. They do not identify the seized matka slips to which company belongs to. They did not mentioned in Ex.P.1 specifically which constable tried to caught hold which accused and which accused pushed which constable and also not mentioned which constable caught hold the accused specifically.

12.PW.4 deposed in his chief examination that on 02.10.2020, at about 8.15 am, on receiving credible information with regard to Matka, he along with his staff by securing mediators proceeded to grama chavidi, Modampalli, at 8.30 am and there, they found 03 persons, who tried to skulk away by putting matka slips in their shirt packets in suspicious manner and on his instructions, PW.1 and LW.3 tried to search the above 03 persons, on that three persons tried to escape by pushing PW.1 and L.W.3, but they caught hold the said persons and during his enquiry in the presence of mediators, A.1 to A.3 revealed their identity particulars and further, voluntarily stated that they organizing Matka and on due search, A.1 is in possession of one cell phone, one matka slip, cash of Rs.1,25,500/-, A.2 is in possession of cash of Rs.27,340/-, one matka slip and one Jio company cell phone, A.3 is in possession of cash of Rs.25,300/-, one Matka slip, white colour lava company keypad cell phone. In total he seized 03 Matka slips/Ex.P.5, cash of Rs.1,78,140/-/M.O.1, 03 ball pens/M.O.2, 03 cell phones/M.Os.3 to 5. Then, he arrested the accused Nos.1 to 3 and seized the above property under the 5

CC No.1086 of 2020

cover of panchanama. Later, they returned to the station along with the accused and case property and basing on the Ex.P.1, he registered a case in

Cr.No.170/2020 for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act under F.I.R./ Ex.P.4, produced the accused before the Court for judicial custody and also forwarded the seized property to the Court through

B.Form. He also prepared rough sketch/Ex.P.6 in this case. After completion of investigation, he filed charge sheet in this case.

In his cross examination, he admitted that the scene of arrest is a residential area and he did not examine neighbouring people at the scene of arrest and there is grama chavidi, Sachivalayam and other govt. offices are situated at Modampalli and he did not tried to secure govt. officials to act as mediators. Gramachavidi is a place where usually VROs are sitting and doing their works and he did not examine the VROs who are present there, as no

VROs were available. As per Ex.P.1, it is not mentioned that the accused have transactions with the public and also did not mentioned the denomination of the seized cash in Ex.P.1 and the contents of Ex.P.5 are not mentioned in Ex.P.1.

No separate report was made for the obstruction of their duties. He is the complainant, investigating officer and filed charge sheet in this case. Pws.2 and 3 are not the local inhabitants of scene of arrest.

13.Point No.1 ;- In order to prove the offence u/Sec.353 r/w.34 of IPC, the prosecution is required to prove that using of either force or assault against the public servant while they were discharging official duty and obstructed them from discharging their official duty.

From the above evidence it has to be seen whether required ingredients for commission of either 'Criminal Force as provided U/sec.349, 350 IPC or the 'Assault' as defined U/sec.351 of Indian Penal Code is proved by prosecution or not. As per 349 of Indian Penal Code the intended result of 'Using Force' is

Causes of motion. Change of motion. Cessation of motion. And the said motion must be by any one of the following three ways. Firstly - by his own bodily power. Secondly - by discharging any such substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part or on the part of any other person.

Thirdly - by inducing any animal to move, to change its motion, or to cease to move.

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CC No.1086 of 2020

The above elements are required for proof of “Force”. If such force as defined U/sec. 349 IPC is used without the consent of that person, to commit any offence or with intent to cause any injury, fear or annoyance to that person, then it is called 'Criminal Force U/sec. 350 of IPC'.

In order to prove the offence U/sec. 353 r/w.34 of IPC, using of 'Criminal

Force' by accused as provided U/sec. 349 and 350 IPC is one of the conditions required to be proved by the prosecution.

14.As could be seen from the evidence of PW.1, on receiving credible information to PW.4, he secured mediators and thereafter, he along with mediators and other staff accompanied PW.4 and proceeded to the scene of offence and as per the instructions of PW.4, when he along with other constables tried to caught hold the accused, the accused Nos.1 to 3 revolted against them and tried to skulk away. But their evidence is silent with regard to the used of criminal force or assault by the accused while discharging their duties. They simply deposed that the accused revolted against them and as mentioned in

Ex.P1, no witness deposed before the court the words used by accused against

PW.1 & PW.4 and further Ex.P1 also do not disclose the used of criminal force or assault by the accused. And moreover Pws.2 and 3 who are the mediators not even deposed about the criminal force used by the accused towards police personnel and further, no document is filed to show that on 02.10.2020, at the time of incident PW1, other staff along with PW.4 were discharging their official duty. In the absence of oral and documentary evidence the prosecution failed to prove the ingredients of offence alleged against accused under Sec.353 r/w.34 of

IPC.

From the above discussion this court is of opinion that the evidence of prosecution i.e., Pws.1 to 4 is not sufficient to prove the case of the prosecution for the alleged offence, which shows the lack of evidence to prove the offence against accused u/sec.353 r/w.34 of IPC beyond all reasonable doubt. Hence this point is answered in favor of accused against prosecution.

15.POINT No.2:-

To prove the offence u/Sec.9 (1) of A.P. Gaming Act, the prosecution examined PW.1 to PW.4. As could be seen from the record Pws.2 and 3 who acted as mediators as contented by the prosecution not supported the case of the prosecution and as such, their evidence is no way useful to the case of the prosecution. Therefore, the arrest, confession made by the accused and seizure of MO.1 to M.O.5 from the possession of accused in the presence of Pws.2 and 7

CC No.1086 of 2020

3 is not proved by the prosecution. Therefore, the evidence of Pws.2 and 3 is not considerable with regard to the arrest, confession and seizure of case property in the presence of mediators under cover of panchanama i.e., Ex.P.1.

15.The remaining evidence left on record is PW.1 and PW.4 who are interested and official witnesses. PW.1 in his evidence supported the prosecution case, but in his cross examination, he admitted that 02.10.2020 the lock-down is in force, though the same was admitted by PW.4 also, but he stated that as on the said date, only night times the lock-down is in force and further, PW.1 admitted that there are government offices and grama chavidi and Vivekananda

Nagar colony is situated nearer to the scene of arrest, but admittedly no mediators secured from the locality, for which PW.4 stated that as they already brought mediators, he had not secured any mediators from that locality. Further, it is also brought on record that in Ex.P.1 they did not specifically mentioned that which constable tried to caught hold which accused and which accused pushed which constable and which accused pushed them. As stated supra, though the accused caused obstructions to the duties of the police officials, they did not preferred any separate report against accused, which creates suspicion with regard to conducting of raid in the manner as stated by the investigating agency.

Further, PW.4 being the investigating officer had not issued any search warrant to accused and no search list was prepared by him and the denomination of seized cash was not mentioned in Ex.P.1. In this case, he is the complainant and investigating officer. More over, he admitted that as per Ex.P.1, it is not mentioned that the accused have transactions with the public and also did not mentioned the denomination of the seized cash in Ex.P.1 and the contents of

Ex.P.5 are not mentioned in Ex.P.1. The above admissions and contradictions in the evidence of PW.4 shows perfunctory investigation done by the investigating agency. As such, this court is not inclined to rely on the evidence of PW.4.

Therefore, the evidence of PW.4 is not useful for the accusation of accused.

18.And further more, admittedly, the scene of arrest is a busy locality, but no local inhabitants were secured to act as mediators. Admittedly, PW.2 and PW.3 are not the local respectable persons of the place of seizure and they were secured by PW.1 from the police station. The alleged seizure was made in

Proddatur town and that too in a busy place where the public are moving frequently. It is not the contention of PW.4 that when he tried to secure the local respectable persons nearby the scene of offence, none were available or came forward to act as mediators and hence, he secured the mediators from distant place. It is the specific evidence of PW.4 that he had not tried to secure the local 8

CC No.1086 of 2020

respectable persons as he already brought the mediators. The act on the part of

PW.4 in non-making efforts to secure local respectable to observe the seizure is certainly violated the procedure contemplated u/Sec.100 (4) Cr.P.C. However, the mediators secured and brought to the scene of offence, but they turned hostile and as such, their evidence is no way useful to the prosecution. So also, no neighbour is examined to prove the same. Without support from independent mediators, without examining the neighbours, and without following the due procedure of seizure contemplated under the Code of Criminal Procedure, the prosecution failed to prove the alleged offences against the accused. Therefore, from the above discussion this court has doubt with regard to the presence of

Pws.1 to 4 at the scene of offence, arrest of the accused and seizure of property from the possession of accused under Ex.P1.

From the above discussion it is clear that the prosecution did not establish the involvement of accused Nos.1 to 3 with the alleged offence. Hence this point is answered in favor of accused and against prosecution.

19.POINT No.3:-

In view of point Nos.1 and 2 and by considering all the circumstances this court came to a conclusion that it is a fit case to give benefit of doubt in favour of the accused, as there is no reliable evidence to prove the case for the offence u/sec.353 r/w.34 of IPC and also for the offence u/sec.9 (1) of A.P. Gaming Act.

20.And coming to the case of defence is that the accused MO.1, i.e., cash of

Rs.1,78,140/- which is secured from the accused and shown it has seized cash in this case. And the accused was falsely implicated in this case. But the learned defence counsel did not adduce any evidence to prove his version. Except the suggested made during the cross examination to the prosecution witness i.e.,

PW.4 that the police taken the custody of the accused and secured the seized cash from the accused which is the accused personal amount and prepared

Ex.P1 falsely. But the same was denied by the prosecution witnesses. And moreover the learned defense counsel did not adduce any evidence with regarding to the source of income and how they are paid the said amount.

21.The burden of proof lies on the prosecution to the extent of guilty of the accused. Here, for the first time accused introduced a particular fact as such the burden of proof lies on the accused to show that seized amount i.e.,

Rs.1,78,140/- is secured, but they failed to substantiate their suggestion and also failed to produce evidence before this court. Hence this court is not inclined to belief the version of learned defence counsel. And moreover at the time of 9

CC No.1086 of 2020

Sec.313 Cr.P.C examination also the accused did not stated anything with regard to the seized cash even though this court posed question that whether they want to say anything with regard to this case. But the accused stated nothing with regard to the seized amount as contended by the learned defence counsel.

22.Point No.4 :- In view of the findings recorded to the points Nos.1 to 3, the court safely reached to a conclusion that it is a fit case to extend benefit of doubt to the accused.

In the result, the accused Nos.1 to 3 are found not guilty for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act and accordingly, they are acquitted of the same u/Sec.255 (1) of Cr.P.C. The bail bonds of the accused shall be remained in force for a period of six months as required u/Sec.437-A Cr.P.C. M.Os.1, 3 to 5 shall be confiscated to the State after the expiry of appeal time. M.O.2 shall be destroyed after the expiry of appeal time.

Typed to my dictation by the Stenographer Gr.III, corrected and

pronounced by me in the open court, on this the 7th day of April, 2022.

EDDULADigitally signed by

EDDULA PRATHIBA

PRATHIBADate: 2022.04.07 21:03:01 +0530 I Addl. Judicial Magistrate of I Class, Proddatur

APPENDIX OF EVIDENCE

Witnesses examined for prosecution: for Defence: Nil PW.1: Sri P.C. Hussanaiah PW.2: Sri K. Rajesh Babu PW.3: Sri A. Dasthagiri PW.4: Sri T. Narayana Yadav

Exhibits marked for prosecution: for Defence:Nil Ex.P.1: Panchanama dt.02.10.2020 at 8.30 am Ex.P.2: Signature of PW.2 in panchanama dt.2.10.2020 Ex.P.3: Signature of PW.3 in panchanama dt.2.10.2020 Ex.P.4: F.I.R. in Cr.No.170/2020 Ex.P.5: Matka slips Ex.P.6: Rough sketch of scene of offence

Material Objects Marked: M.O.1: FDR No.39836921875 Dt.1.12.2020 for Rs.1,78,140/-, M.O.2: ball pens (03 in number) M.O.3: cellkon company cell phone M.O.4: Jio company cell phone M.O.5: Lava company cell phone Digitally signed EDDULAby EDDULA

PRATHIBA

PRATHIBADate: 2022.04.07 21:03:15 +0530

I A.J.M.F.C.

Proddatur.

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CC No.1086 of 2020

CALENDER AND JUDGMENT

Calendar and Judgment tried by the I Addl. Judicial Magistrate of I Class , Proddatur.

DATE OF

Offence ReportApprehensionRelease onCommenceClose ofJudgment of accusedbailment of trial trial 02.10.202002.10.202002.10.202007.10.202013.12.202104.4.202207.4.2022

Calender and Judgment in C.C.No.1086/2020 on the file of I Addl. Judicial

Magistrate of I Class, Proddatur.

COMPLAINANT: The SHO of Proddatur II town P.S.

Name of the accused with Age Religion Residence

father's Name. 1234 D.No.6/711-3, Arts College road, Shaik Hussain Basha @ 36 Muslimnow at D.No.6/237, Vinayaka Gugud, S/o. Gugud Nagar, Proddatur town. Gudemcherla Basha, D.No.16/693, Modampalli Street, 42 Muslim S/o. Khaja Miyya, Proddatur town. Maheswara Gangadhar, D.No.6/568, Arts college road, 29 Hindu son of Venkateswarlu Proddatur town.

Offence :u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act

Finding : Accused are found not guilty for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act

Sentence: In the result, the accused Nos.1 to 3 are found not guilty for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act and accordingly, they are acquitted of the same u/Sec.255 (1) of Cr.P.C. The bail bonds of the accused shall be remained in force for a period of six months as required u/Sec.437-A Cr.P.C. M.Os.1, 3 to 5 shall be confiscated to the State after the expiry of appeal time. M.O.2 shall be destroyed after the expiry of appeal time. EDDULADigitally signed by EDDULA

PRATHIBA

PRATHIBADate: 2022.04.07 21:03:30 +0530 I Addl. Judicial Magistrate of I Class, Proddatur

Copy submitted to the Hon'ble I Addl. District and Sessions Judge, Kadapa. Dis. No. Dt.

IN THE COURT OF THE I ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS: PRODDATUR

Present:- Smt E. Prathiba,

I Additional Judicial Magistrate of I Class, Proddatur

Thursday, this the 7th day of April, 2022

CC No.1086/2020

State: Represented by the Sub-Inspector of Police, Proddatur II town Police Station ….Complainant

Vs.

1Shaik Hussain Basha @ Gugud, Aged 36 years, S/o. Gugud, r/o. D.No.6/711-3, Arts College road, now at D.No.6/237, Vinayaka Nagar, Proddatur town. 2Gudemcherla Basha, Aged 42 years, S/o. Khaja Miyya, r/o. D.No.16/693, Modampalli Street, Proddatur town. 3Maheswara Gangadhar, Aged 29 years, son of Venkateswarlu, r/o. D.No.6/568, Arts college road, Proddatur town. ….Accused

This case is coming on 04.4.2022 for final hearing before me in the presence of the learned Assistant Public Prosecutor for the Complainant and of

Sri A. Sudarshana, Advocate for the accused Nos.1 and 2 and of Sri

G.Srinivasulu, Advocate for accused No.3 and having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

The Sub-Inspector of Police, Proddatur II town Police Station has filed charge sheet against the accused Nos.1 to 3 herein in Cr.No.170/2020 for the offence punishable u/Sec.353 r/w.34 of the Indian Penal Code 1860 (for short ‘the IPC’) and Sec.9 (1) of A.P. Gaming Act.

2.The case of the prosecution in nutshell is that on 02.10.2020, on receiving information to LW.6/Sri T. Narayana Yadav, S.I. of II town PS with regard to indulging of matka gambling, he along with his staff and mediators proceeded to

Gramachavidi, Modampalli street, Proddatur and found A.1 to A.3 stood on the road and writing some chits and chatting each other and on suspicion, LW.6 and his staff rushed to A.1 to A.3 and on seeing police, A.1 to A.3 concealed the chits available on their hands and later, LW.6 informed about the information and requested to cooperate them in search of their persons and instructed Lws.2 and 3/police personnel to search A.1 to A.3 and when Lws.2 and 3 tried to search the accused, A.1 to A.3 rebelled against police, challenged and questioned the 2

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authority of police to search them, forcibly pushed the police party aside and tried to skulk away, but the police caught hold the accused and during enquiry, A.1 to

A.3 confessed that they are indulging Matka and on verification, A.1 is in possession of one ball pen, one cell phone, one matka slip and cash of

Rs.1,25,500/-, A.2 is in possession of one ball pen, one cell phone, one matka slip and cash of Rs.27,340/- and A.3 is in possession of one ball pen, one cell phone, one matka slip and cash of Rs.25,300/-. As such, LW.6 arrested the accused Nos.1 to 3 by informing the grounds and seized above property under the cover of panchanama and later, they returned to the station along with the accused and case property, basing on the panchanama, he registered a case in

Cr.No.170/2020 for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act, sent the accused to judicial custody, again visited the scene of offence, drafted rough sketch and on completion of investigation, he filed charge sheet in this case.

3.The case is taken into cognizance against the accused Nos.1 to 3 for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act.

4.On appearance of accused before this Court, copies of the documents were furnished to them as contemplated u/Sec.207 Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C’).

5.The accused Nos.1 to 3 are examined u/Sec.251 of Cr.P.C. by reading over and explaining in Telugu, the substance of accusation appearing against them for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P.

Gaming Act, for which they pleaded not guilty and claimed the case to be tried.

6.In pursuance of the case of prosecution, the prosecution has examined

PWs.1 to 4, and got marked Exs.P1 to P.6 and M.Os.1 to 5. The learned

Assistant Public Prosecutor has given up the evidence of Lws.1 & 3/Sri

G.Srinivasulu and Sri K.Lakshmikantha Reddy, as other witnesses supported the case of prosecution.

7.After the closure of prosecution side evidence, the accused Nos.1 to 3 examined u/Sec.313 Cr.P.C explaining the incriminating material appearing against them, for which they denied the same and reported no defence evidence on their behalf.

8.Heard the learned Asst. Public Prosecutor and the learned counsel for the accused.

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The learned Senior Asst. Public Prosecutor argued that that the evidence of PW.1 & PW.4, Exs.P.1, P.4 to P.6, MO.1 to M.O.5 well establish the offence against accused, as such the prosecution is able to prove the guilt of the accused and they are not even entitled for benefit of doubt and pray to convict the accused.

Per contra, the learned counsel for the accused contended that

Pws.2 and 3 who are the mediator had not supported the case of the prosecution, hence their evidence is not useful to the prosecution case with regard to the arrest of accused and seizure of M.Os.1 to 5 from the possession of the accused and the remaining witness are official witness and their evidence is hit by sec 25 of Indian Evidence Act, 1872. And further contended that MO.1 i.e., cash of Rs.1,78,140/- is the secured amount, not the seized amount and accused are entitle for the cash.

9.Now the point that arise for determination is:

1Whether accused Nos.1 to 3 have used criminal force or assaulted public servants from discharging their duties? 2Whether the accused Nos.1 to 3 were found or reasonably suspected to be gaming in any public street or in any place to which the public have or are permitted to have access? 3Whether the prosecution could be able to bring home the guilt of the accused Nos.1 to 3 for the offences charged u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act? 4To what relief?

10.To prove the case out of 06 list of witnesses the prosecution examined

PW.1 to PW.4. Pws.2 and 3 who are mediators deposed that they do not know anything about the facts of this case and police never arrested A.1 to A.3 in their presence and not seized any matka betting amount, matka slips and pens in their presence under the cover of panchanama, but on one day, police obtained their respective signatures when they went to police station on their personal work.

The learned Senior Asst. Public Prosecution, cross examined the Pws.2 and 3 after obtaining permission from the Court, but nothing was elicited except denying the suggestion made by the prosecution that they have accompanied with the police while arresting the accused and seizure of the properties i.e.,

MO.1 to M.O.5 from the accused.

11.PW.1 deposed in his chief examination that on 02.10.2020, at about 8.00 am, LW.6 received credible information and on the instructions of LW.6, he secured the presence of mediators to the police station. From there, himself,

LW.6 along with mediators and other police staff proceeded in police jeep to 4

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Modampalli chavidi at Proddatur town and reached at 8.30 am. There, they found A.1 to A.3 standing at that place in suspicious manner and as per the instructions of LW.6, he along wtih LW.3/K.Lakshmikanth Reddy, tried to search them, A.1 to A.3 pushed them and tried to skulk away, but LW.1 and LW.6 caught hold them and during enquiry by LW.6 in the presence of mediators, A.1 to A.3 voluntarily stated their identity particulars and further A.1 to A.3 stated that they are writing matka slips and during search, they found that A.1 is in possession of cash of Rs.1,25,500/-, one matka slip and one pen and A.2 is in possession of cash of Rs.25,340/-, one matka slip, and one pen and A.3 is in possession of cash of Rs.25,300/-, one matka slip, one phone and one pen.

Then, LW.6 arrested A.1 to A.3 and seized above property in the presence of mediators under the cover of panchanama/Ex.P.1. Thereafter, they returned to the police station along with accused and case property.

In his cross examination, he admitted that on 02.10.2020 the lock-down is in force. In between Nadimpalli and grama chavidi, there are govt. offices are situated at a distance of 300 yards and during lock-down all public government offices are working. They did not tried to secure mediators from the government offices. Vivekananda colony is at a distance of 2 Km from grama chavidi. They do not identify the seized matka slips to which company belongs to. They did not mentioned in Ex.P.1 specifically which constable tried to caught hold which accused and which accused pushed which constable and also not mentioned which constable caught hold the accused specifically.

12.PW.4 deposed in his chief examination that on 02.10.2020, at about 8.15 am, on receiving credible information with regard to Matka, he along with his staff by securing mediators proceeded to grama chavidi, Modampalli, at 8.30 am and there, they found 03 persons, who tried to skulk away by putting matka slips in their shirt packets in suspicious manner and on his instructions, PW.1 and LW.3 tried to search the above 03 persons, on that three persons tried to escape by pushing PW.1 and L.W.3, but they caught hold the said persons and during his enquiry in the presence of mediators, A.1 to A.3 revealed their identity particulars and further, voluntarily stated that they organizing Matka and on due search, A.1 is in possession of one cell phone, one matka slip, cash of Rs.1,25,500/-, A.2 is in possession of cash of Rs.27,340/-, one matka slip and one Jio company cell phone, A.3 is in possession of cash of Rs.25,300/-, one Matka slip, white colour lava company keypad cell phone. In total he seized 03 Matka slips/Ex.P.5, cash of Rs.1,78,140/-/M.O.1, 03 ball pens/M.O.2, 03 cell phones/M.Os.3 to 5. Then, he arrested the accused Nos.1 to 3 and seized the above property under the 5

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cover of panchanama. Later, they returned to the station along with the accused and case property and basing on the Ex.P.1, he registered a case in

Cr.No.170/2020 for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act under F.I.R./ Ex.P.4, produced the accused before the Court for judicial custody and also forwarded the seized property to the Court through

B.Form. He also prepared rough sketch/Ex.P.6 in this case. After completion of investigation, he filed charge sheet in this case.

In his cross examination, he admitted that the scene of arrest is a residential area and he did not examine neighbouring people at the scene of arrest and there is grama chavidi, Sachivalayam and other govt. offices are situated at Modampalli and he did not tried to secure govt. officials to act as mediators. Gramachavidi is a place where usually VROs are sitting and doing their works and he did not examine the VROs who are present there, as no

VROs were available. As per Ex.P.1, it is not mentioned that the accused have transactions with the public and also did not mentioned the denomination of the seized cash in Ex.P.1 and the contents of Ex.P.5 are not mentioned in Ex.P.1.

No separate report was made for the obstruction of their duties. He is the complainant, investigating officer and filed charge sheet in this case. Pws.2 and 3 are not the local inhabitants of scene of arrest.

13.Point No.1 ;- In order to prove the offence u/Sec.353 r/w.34 of IPC, the prosecution is required to prove that using of either force or assault against the public servant while they were discharging official duty and obstructed them from discharging their official duty.

From the above evidence it has to be seen whether required ingredients for commission of either 'Criminal Force as provided U/sec.349, 350 IPC or the 'Assault' as defined U/sec.351 of Indian Penal Code is proved by prosecution or not. As per 349 of Indian Penal Code the intended result of 'Using Force' is

Causes of motion. Change of motion. Cessation of motion. And the said motion must be by any one of the following three ways. Firstly - by his own bodily power. Secondly - by discharging any such substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part or on the part of any other person.

Thirdly - by inducing any animal to move, to change its motion, or to cease to move.

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The above elements are required for proof of “Force”. If such force as defined U/sec. 349 IPC is used without the consent of that person, to commit any offence or with intent to cause any injury, fear or annoyance to that person, then it is called 'Criminal Force U/sec. 350 of IPC'.

In order to prove the offence U/sec. 353 r/w.34 of IPC, using of 'Criminal

Force' by accused as provided U/sec. 349 and 350 IPC is one of the conditions required to be proved by the prosecution.

14.As could be seen from the evidence of PW.1, on receiving credible information to PW.4, he secured mediators and thereafter, he along with mediators and other staff accompanied PW.4 and proceeded to the scene of offence and as per the instructions of PW.4, when he along with other constables tried to caught hold the accused, the accused Nos.1 to 3 revolted against them and tried to skulk away. But their evidence is silent with regard to the used of criminal force or assault by the accused while discharging their duties. They simply deposed that the accused revolted against them and as mentioned in

Ex.P1, no witness deposed before the court the words used by accused against

PW.1 & PW.4 and further Ex.P1 also do not disclose the used of criminal force or assault by the accused. And moreover Pws.2 and 3 who are the mediators not even deposed about the criminal force used by the accused towards police personnel and further, no document is filed to show that on 02.10.2020, at the time of incident PW1, other staff along with PW.4 were discharging their official duty. In the absence of oral and documentary evidence the prosecution failed to prove the ingredients of offence alleged against accused under Sec.353 r/w.34 of

IPC.

From the above discussion this court is of opinion that the evidence of prosecution i.e., Pws.1 to 4 is not sufficient to prove the case of the prosecution for the alleged offence, which shows the lack of evidence to prove the offence against accused u/sec.353 r/w.34 of IPC beyond all reasonable doubt. Hence this point is answered in favor of accused against prosecution.

15.POINT No.2:-

To prove the offence u/Sec.9 (1) of A.P. Gaming Act, the prosecution examined PW.1 to PW.4. As could be seen from the record Pws.2 and 3 who acted as mediators as contented by the prosecution not supported the case of the prosecution and as such, their evidence is no way useful to the case of the prosecution. Therefore, the arrest, confession made by the accused and seizure of MO.1 to M.O.5 from the possession of accused in the presence of Pws.2 and 7

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3 is not proved by the prosecution. Therefore, the evidence of Pws.2 and 3 is not considerable with regard to the arrest, confession and seizure of case property in the presence of mediators under cover of panchanama i.e., Ex.P.1.

15.The remaining evidence left on record is PW.1 and PW.4 who are interested and official witnesses. PW.1 in his evidence supported the prosecution case, but in his cross examination, he admitted that 02.10.2020 the lock-down is in force, though the same was admitted by PW.4 also, but he stated that as on the said date, only night times the lock-down is in force and further, PW.1 admitted that there are government offices and grama chavidi and Vivekananda

Nagar colony is situated nearer to the scene of arrest, but admittedly no mediators secured from the locality, for which PW.4 stated that as they already brought mediators, he had not secured any mediators from that locality. Further, it is also brought on record that in Ex.P.1 they did not specifically mentioned that which constable tried to caught hold which accused and which accused pushed which constable and which accused pushed them. As stated supra, though the accused caused obstructions to the duties of the police officials, they did not preferred any separate report against accused, which creates suspicion with regard to conducting of raid in the manner as stated by the investigating agency.

Further, PW.4 being the investigating officer had not issued any search warrant to accused and no search list was prepared by him and the denomination of seized cash was not mentioned in Ex.P.1. In this case, he is the complainant and investigating officer. More over, he admitted that as per Ex.P.1, it is not mentioned that the accused have transactions with the public and also did not mentioned the denomination of the seized cash in Ex.P.1 and the contents of

Ex.P.5 are not mentioned in Ex.P.1. The above admissions and contradictions in the evidence of PW.4 shows perfunctory investigation done by the investigating agency. As such, this court is not inclined to rely on the evidence of PW.4.

Therefore, the evidence of PW.4 is not useful for the accusation of accused.

18.And further more, admittedly, the scene of arrest is a busy locality, but no local inhabitants were secured to act as mediators. Admittedly, PW.2 and PW.3 are not the local respectable persons of the place of seizure and they were secured by PW.1 from the police station. The alleged seizure was made in

Proddatur town and that too in a busy place where the public are moving frequently. It is not the contention of PW.4 that when he tried to secure the local respectable persons nearby the scene of offence, none were available or came forward to act as mediators and hence, he secured the mediators from distant place. It is the specific evidence of PW.4 that he had not tried to secure the local 8

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respectable persons as he already brought the mediators. The act on the part of

PW.4 in non-making efforts to secure local respectable to observe the seizure is certainly violated the procedure contemplated u/Sec.100 (4) Cr.P.C. However, the mediators secured and brought to the scene of offence, but they turned hostile and as such, their evidence is no way useful to the prosecution. So also, no neighbour is examined to prove the same. Without support from independent mediators, without examining the neighbours, and without following the due procedure of seizure contemplated under the Code of Criminal Procedure, the prosecution failed to prove the alleged offences against the accused. Therefore, from the above discussion this court has doubt with regard to the presence of

Pws.1 to 4 at the scene of offence, arrest of the accused and seizure of property from the possession of accused under Ex.P1.

From the above discussion it is clear that the prosecution did not establish the involvement of accused Nos.1 to 3 with the alleged offence. Hence this point is answered in favor of accused and against prosecution.

19.POINT No.3:-

In view of point Nos.1 and 2 and by considering all the circumstances this court came to a conclusion that it is a fit case to give benefit of doubt in favour of the accused, as there is no reliable evidence to prove the case for the offence u/sec.353 r/w.34 of IPC and also for the offence u/sec.9 (1) of A.P. Gaming Act.

20.And coming to the case of defence is that the accused MO.1, i.e., cash of

Rs.1,78,140/- which is secured from the accused and shown it has seized cash in this case. And the accused was falsely implicated in this case. But the learned defence counsel did not adduce any evidence to prove his version. Except the suggested made during the cross examination to the prosecution witness i.e.,

PW.4 that the police taken the custody of the accused and secured the seized cash from the accused which is the accused personal amount and prepared

Ex.P1 falsely. But the same was denied by the prosecution witnesses. And moreover the learned defense counsel did not adduce any evidence with regarding to the source of income and how they are paid the said amount.

21.The burden of proof lies on the prosecution to the extent of guilty of the accused. Here, for the first time accused introduced a particular fact as such the burden of proof lies on the accused to show that seized amount i.e.,

Rs.1,78,140/- is secured, but they failed to substantiate their suggestion and also failed to produce evidence before this court. Hence this court is not inclined to belief the version of learned defence counsel. And moreover at the time of 9

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Sec.313 Cr.P.C examination also the accused did not stated anything with regard to the seized cash even though this court posed question that whether they want to say anything with regard to this case. But the accused stated nothing with regard to the seized amount as contended by the learned defence counsel.

22.Point No.4 :- In view of the findings recorded to the points Nos.1 to 3, the court safely reached to a conclusion that it is a fit case to extend benefit of doubt to the accused.

In the result, the accused Nos.1 to 3 are found not guilty for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act and accordingly, they are acquitted of the same u/Sec.255 (1) of Cr.P.C. The bail bonds of the accused shall be remained in force for a period of six months as required u/Sec.437-A Cr.P.C. M.Os.1, 3 to 5 shall be confiscated to the State after the expiry of appeal time. M.O.2 shall be destroyed after the expiry of appeal time.

Typed to my dictation by the Stenographer Gr.III, corrected and

pronounced by me in the open court, on this the 7th day of April, 2022.

EDDULADigitally signed by

EDDULA PRATHIBA

PRATHIBADate: 2022.04.07 21:03:01 +0530 I Addl. Judicial Magistrate of I Class, Proddatur

APPENDIX OF EVIDENCE

Witnesses examined for prosecution: for Defence: Nil PW.1: Sri P.C. Hussanaiah PW.2: Sri K. Rajesh Babu PW.3: Sri A. Dasthagiri PW.4: Sri T. Narayana Yadav

Exhibits marked for prosecution: for Defence:Nil Ex.P.1: Panchanama dt.02.10.2020 at 8.30 am Ex.P.2: Signature of PW.2 in panchanama dt.2.10.2020 Ex.P.3: Signature of PW.3 in panchanama dt.2.10.2020 Ex.P.4: F.I.R. in Cr.No.170/2020 Ex.P.5: Matka slips Ex.P.6: Rough sketch of scene of offence

Material Objects Marked: M.O.1: FDR No.39836921875 Dt.1.12.2020 for Rs.1,78,140/-, M.O.2: ball pens (03 in number) M.O.3: cellkon company cell phone M.O.4: Jio company cell phone M.O.5: Lava company cell phone Digitally signed EDDULAby EDDULA

PRATHIBA

PRATHIBADate: 2022.04.07 21:03:15 +0530

I A.J.M.F.C.

Proddatur.

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CALENDER AND JUDGMENT

Calendar and Judgment tried by the I Addl. Judicial Magistrate of I Class , Proddatur.

DATE OF

Offence ReportApprehensionRelease onCommenceClose ofJudgment of accusedbailment of trial trial 02.10.202002.10.202002.10.202007.10.202013.12.202104.4.202207.4.2022

Calender and Judgment in C.C.No.1086/2020 on the file of I Addl. Judicial

Magistrate of I Class, Proddatur.

COMPLAINANT: The SHO of Proddatur II town P.S.

Name of the accused with Age Religion Residence

father's Name. 1234 D.No.6/711-3, Arts College road, Shaik Hussain Basha @ 36 Muslimnow at D.No.6/237, Vinayaka Gugud, S/o. Gugud Nagar, Proddatur town. Gudemcherla Basha, D.No.16/693, Modampalli Street, 42 Muslim S/o. Khaja Miyya, Proddatur town. Maheswara Gangadhar, D.No.6/568, Arts college road, 29 Hindu son of Venkateswarlu Proddatur town.

Offence :u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act

Finding : Accused are found not guilty for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act

Sentence: In the result, the accused Nos.1 to 3 are found not guilty for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act and accordingly, they are acquitted of the same u/Sec.255 (1) of Cr.P.C. The bail bonds of the accused shall be remained in force for a period of six months as required u/Sec.437-A Cr.P.C. M.Os.1, 3 to 5 shall be confiscated to the State after the expiry of appeal time. M.O.2 shall be destroyed after the expiry of appeal time. EDDULADigitally signed by EDDULA

PRATHIBA

PRATHIBADate: 2022.04.07 21:03:30 +0530 I Addl. Judicial Magistrate of I Class, Proddatur

Copy submitted to the Hon'ble I Addl. District and Sessions Judge, Kadapa. Dis. No. Dt.

IN THE COURT OF THE I ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS: PRODDATUR

Present:- Smt E. Prathiba,

I Additional Judicial Magistrate of I Class, Proddatur

Thursday, this the 7th day of April, 2022

CC No.1086/2020

State: Represented by the Sub-Inspector of Police, Proddatur II town Police Station ….Complainant

Vs.

1Shaik Hussain Basha @ Gugud, Aged 36 years, S/o. Gugud, r/o. D.No.6/711-3, Arts College road, now at D.No.6/237, Vinayaka Nagar, Proddatur town. 2Gudemcherla Basha, Aged 42 years, S/o. Khaja Miyya, r/o. D.No.16/693, Modampalli Street, Proddatur town. 3Maheswara Gangadhar, Aged 29 years, son of Venkateswarlu, r/o. D.No.6/568, Arts college road, Proddatur town. ….Accused

This case is coming on 04.4.2022 for final hearing before me in the presence of the learned Assistant Public Prosecutor for the Complainant and of

Sri A. Sudarshana, Advocate for the accused Nos.1 and 2 and of Sri

G.Srinivasulu, Advocate for accused No.3 and having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

The Sub-Inspector of Police, Proddatur II town Police Station has filed charge sheet against the accused Nos.1 to 3 herein in Cr.No.170/2020 for the offence punishable u/Sec.353 r/w.34 of the Indian Penal Code 1860 (for short ‘the IPC’) and Sec.9 (1) of A.P. Gaming Act.

2.The case of the prosecution in nutshell is that on 02.10.2020, on receiving information to LW.6/Sri T. Narayana Yadav, S.I. of II town PS with regard to indulging of matka gambling, he along with his staff and mediators proceeded to

Gramachavidi, Modampalli street, Proddatur and found A.1 to A.3 stood on the road and writing some chits and chatting each other and on suspicion, LW.6 and his staff rushed to A.1 to A.3 and on seeing police, A.1 to A.3 concealed the chits available on their hands and later, LW.6 informed about the information and requested to cooperate them in search of their persons and instructed Lws.2 and 3/police personnel to search A.1 to A.3 and when Lws.2 and 3 tried to search the accused, A.1 to A.3 rebelled against police, challenged and questioned the 2

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authority of police to search them, forcibly pushed the police party aside and tried to skulk away, but the police caught hold the accused and during enquiry, A.1 to

A.3 confessed that they are indulging Matka and on verification, A.1 is in possession of one ball pen, one cell phone, one matka slip and cash of

Rs.1,25,500/-, A.2 is in possession of one ball pen, one cell phone, one matka slip and cash of Rs.27,340/- and A.3 is in possession of one ball pen, one cell phone, one matka slip and cash of Rs.25,300/-. As such, LW.6 arrested the accused Nos.1 to 3 by informing the grounds and seized above property under the cover of panchanama and later, they returned to the station along with the accused and case property, basing on the panchanama, he registered a case in

Cr.No.170/2020 for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act, sent the accused to judicial custody, again visited the scene of offence, drafted rough sketch and on completion of investigation, he filed charge sheet in this case.

3.The case is taken into cognizance against the accused Nos.1 to 3 for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act.

4.On appearance of accused before this Court, copies of the documents were furnished to them as contemplated u/Sec.207 Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C’).

5.The accused Nos.1 to 3 are examined u/Sec.251 of Cr.P.C. by reading over and explaining in Telugu, the substance of accusation appearing against them for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P.

Gaming Act, for which they pleaded not guilty and claimed the case to be tried.

6.In pursuance of the case of prosecution, the prosecution has examined

PWs.1 to 4, and got marked Exs.P1 to P.6 and M.Os.1 to 5. The learned

Assistant Public Prosecutor has given up the evidence of Lws.1 & 3/Sri

G.Srinivasulu and Sri K.Lakshmikantha Reddy, as other witnesses supported the case of prosecution.

7.After the closure of prosecution side evidence, the accused Nos.1 to 3 examined u/Sec.313 Cr.P.C explaining the incriminating material appearing against them, for which they denied the same and reported no defence evidence on their behalf.

8.Heard the learned Asst. Public Prosecutor and the learned counsel for the accused.

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The learned Senior Asst. Public Prosecutor argued that that the evidence of PW.1 & PW.4, Exs.P.1, P.4 to P.6, MO.1 to M.O.5 well establish the offence against accused, as such the prosecution is able to prove the guilt of the accused and they are not even entitled for benefit of doubt and pray to convict the accused.

Per contra, the learned counsel for the accused contended that

Pws.2 and 3 who are the mediator had not supported the case of the prosecution, hence their evidence is not useful to the prosecution case with regard to the arrest of accused and seizure of M.Os.1 to 5 from the possession of the accused and the remaining witness are official witness and their evidence is hit by sec 25 of Indian Evidence Act, 1872. And further contended that MO.1 i.e., cash of Rs.1,78,140/- is the secured amount, not the seized amount and accused are entitle for the cash.

9.Now the point that arise for determination is:

1Whether accused Nos.1 to 3 have used criminal force or assaulted public servants from discharging their duties? 2Whether the accused Nos.1 to 3 were found or reasonably suspected to be gaming in any public street or in any place to which the public have or are permitted to have access? 3Whether the prosecution could be able to bring home the guilt of the accused Nos.1 to 3 for the offences charged u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act? 4To what relief?

10.To prove the case out of 06 list of witnesses the prosecution examined

PW.1 to PW.4. Pws.2 and 3 who are mediators deposed that they do not know anything about the facts of this case and police never arrested A.1 to A.3 in their presence and not seized any matka betting amount, matka slips and pens in their presence under the cover of panchanama, but on one day, police obtained their respective signatures when they went to police station on their personal work.

The learned Senior Asst. Public Prosecution, cross examined the Pws.2 and 3 after obtaining permission from the Court, but nothing was elicited except denying the suggestion made by the prosecution that they have accompanied with the police while arresting the accused and seizure of the properties i.e.,

MO.1 to M.O.5 from the accused.

11.PW.1 deposed in his chief examination that on 02.10.2020, at about 8.00 am, LW.6 received credible information and on the instructions of LW.6, he secured the presence of mediators to the police station. From there, himself,

LW.6 along with mediators and other police staff proceeded in police jeep to 4

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Modampalli chavidi at Proddatur town and reached at 8.30 am. There, they found A.1 to A.3 standing at that place in suspicious manner and as per the instructions of LW.6, he along wtih LW.3/K.Lakshmikanth Reddy, tried to search them, A.1 to A.3 pushed them and tried to skulk away, but LW.1 and LW.6 caught hold them and during enquiry by LW.6 in the presence of mediators, A.1 to A.3 voluntarily stated their identity particulars and further A.1 to A.3 stated that they are writing matka slips and during search, they found that A.1 is in possession of cash of Rs.1,25,500/-, one matka slip and one pen and A.2 is in possession of cash of Rs.25,340/-, one matka slip, and one pen and A.3 is in possession of cash of Rs.25,300/-, one matka slip, one phone and one pen.

Then, LW.6 arrested A.1 to A.3 and seized above property in the presence of mediators under the cover of panchanama/Ex.P.1. Thereafter, they returned to the police station along with accused and case property.

In his cross examination, he admitted that on 02.10.2020 the lock-down is in force. In between Nadimpalli and grama chavidi, there are govt. offices are situated at a distance of 300 yards and during lock-down all public government offices are working. They did not tried to secure mediators from the government offices. Vivekananda colony is at a distance of 2 Km from grama chavidi. They do not identify the seized matka slips to which company belongs to. They did not mentioned in Ex.P.1 specifically which constable tried to caught hold which accused and which accused pushed which constable and also not mentioned which constable caught hold the accused specifically.

12.PW.4 deposed in his chief examination that on 02.10.2020, at about 8.15 am, on receiving credible information with regard to Matka, he along with his staff by securing mediators proceeded to grama chavidi, Modampalli, at 8.30 am and there, they found 03 persons, who tried to skulk away by putting matka slips in their shirt packets in suspicious manner and on his instructions, PW.1 and LW.3 tried to search the above 03 persons, on that three persons tried to escape by pushing PW.1 and L.W.3, but they caught hold the said persons and during his enquiry in the presence of mediators, A.1 to A.3 revealed their identity particulars and further, voluntarily stated that they organizing Matka and on due search, A.1 is in possession of one cell phone, one matka slip, cash of Rs.1,25,500/-, A.2 is in possession of cash of Rs.27,340/-, one matka slip and one Jio company cell phone, A.3 is in possession of cash of Rs.25,300/-, one Matka slip, white colour lava company keypad cell phone. In total he seized 03 Matka slips/Ex.P.5, cash of Rs.1,78,140/-/M.O.1, 03 ball pens/M.O.2, 03 cell phones/M.Os.3 to 5. Then, he arrested the accused Nos.1 to 3 and seized the above property under the 5

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cover of panchanama. Later, they returned to the station along with the accused and case property and basing on the Ex.P.1, he registered a case in

Cr.No.170/2020 for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act under F.I.R./ Ex.P.4, produced the accused before the Court for judicial custody and also forwarded the seized property to the Court through

B.Form. He also prepared rough sketch/Ex.P.6 in this case. After completion of investigation, he filed charge sheet in this case.

In his cross examination, he admitted that the scene of arrest is a residential area and he did not examine neighbouring people at the scene of arrest and there is grama chavidi, Sachivalayam and other govt. offices are situated at Modampalli and he did not tried to secure govt. officials to act as mediators. Gramachavidi is a place where usually VROs are sitting and doing their works and he did not examine the VROs who are present there, as no

VROs were available. As per Ex.P.1, it is not mentioned that the accused have transactions with the public and also did not mentioned the denomination of the seized cash in Ex.P.1 and the contents of Ex.P.5 are not mentioned in Ex.P.1.

No separate report was made for the obstruction of their duties. He is the complainant, investigating officer and filed charge sheet in this case. Pws.2 and 3 are not the local inhabitants of scene of arrest.

13.Point No.1 ;- In order to prove the offence u/Sec.353 r/w.34 of IPC, the prosecution is required to prove that using of either force or assault against the public servant while they were discharging official duty and obstructed them from discharging their official duty.

From the above evidence it has to be seen whether required ingredients for commission of either 'Criminal Force as provided U/sec.349, 350 IPC or the 'Assault' as defined U/sec.351 of Indian Penal Code is proved by prosecution or not. As per 349 of Indian Penal Code the intended result of 'Using Force' is

Causes of motion. Change of motion. Cessation of motion. And the said motion must be by any one of the following three ways. Firstly - by his own bodily power. Secondly - by discharging any such substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part or on the part of any other person.

Thirdly - by inducing any animal to move, to change its motion, or to cease to move.

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The above elements are required for proof of “Force”. If such force as defined U/sec. 349 IPC is used without the consent of that person, to commit any offence or with intent to cause any injury, fear or annoyance to that person, then it is called 'Criminal Force U/sec. 350 of IPC'.

In order to prove the offence U/sec. 353 r/w.34 of IPC, using of 'Criminal

Force' by accused as provided U/sec. 349 and 350 IPC is one of the conditions required to be proved by the prosecution.

14.As could be seen from the evidence of PW.1, on receiving credible information to PW.4, he secured mediators and thereafter, he along with mediators and other staff accompanied PW.4 and proceeded to the scene of offence and as per the instructions of PW.4, when he along with other constables tried to caught hold the accused, the accused Nos.1 to 3 revolted against them and tried to skulk away. But their evidence is silent with regard to the used of criminal force or assault by the accused while discharging their duties. They simply deposed that the accused revolted against them and as mentioned in

Ex.P1, no witness deposed before the court the words used by accused against

PW.1 & PW.4 and further Ex.P1 also do not disclose the used of criminal force or assault by the accused. And moreover Pws.2 and 3 who are the mediators not even deposed about the criminal force used by the accused towards police personnel and further, no document is filed to show that on 02.10.2020, at the time of incident PW1, other staff along with PW.4 were discharging their official duty. In the absence of oral and documentary evidence the prosecution failed to prove the ingredients of offence alleged against accused under Sec.353 r/w.34 of

IPC.

From the above discussion this court is of opinion that the evidence of prosecution i.e., Pws.1 to 4 is not sufficient to prove the case of the prosecution for the alleged offence, which shows the lack of evidence to prove the offence against accused u/sec.353 r/w.34 of IPC beyond all reasonable doubt. Hence this point is answered in favor of accused against prosecution.

15.POINT No.2:-

To prove the offence u/Sec.9 (1) of A.P. Gaming Act, the prosecution examined PW.1 to PW.4. As could be seen from the record Pws.2 and 3 who acted as mediators as contented by the prosecution not supported the case of the prosecution and as such, their evidence is no way useful to the case of the prosecution. Therefore, the arrest, confession made by the accused and seizure of MO.1 to M.O.5 from the possession of accused in the presence of Pws.2 and 7

CC No.1086 of 2020

3 is not proved by the prosecution. Therefore, the evidence of Pws.2 and 3 is not considerable with regard to the arrest, confession and seizure of case property in the presence of mediators under cover of panchanama i.e., Ex.P.1.

15.The remaining evidence left on record is PW.1 and PW.4 who are interested and official witnesses. PW.1 in his evidence supported the prosecution case, but in his cross examination, he admitted that 02.10.2020 the lock-down is in force, though the same was admitted by PW.4 also, but he stated that as on the said date, only night times the lock-down is in force and further, PW.1 admitted that there are government offices and grama chavidi and Vivekananda

Nagar colony is situated nearer to the scene of arrest, but admittedly no mediators secured from the locality, for which PW.4 stated that as they already brought mediators, he had not secured any mediators from that locality. Further, it is also brought on record that in Ex.P.1 they did not specifically mentioned that which constable tried to caught hold which accused and which accused pushed which constable and which accused pushed them. As stated supra, though the accused caused obstructions to the duties of the police officials, they did not preferred any separate report against accused, which creates suspicion with regard to conducting of raid in the manner as stated by the investigating agency.

Further, PW.4 being the investigating officer had not issued any search warrant to accused and no search list was prepared by him and the denomination of seized cash was not mentioned in Ex.P.1. In this case, he is the complainant and investigating officer. More over, he admitted that as per Ex.P.1, it is not mentioned that the accused have transactions with the public and also did not mentioned the denomination of the seized cash in Ex.P.1 and the contents of

Ex.P.5 are not mentioned in Ex.P.1. The above admissions and contradictions in the evidence of PW.4 shows perfunctory investigation done by the investigating agency. As such, this court is not inclined to rely on the evidence of PW.4.

Therefore, the evidence of PW.4 is not useful for the accusation of accused.

18.And further more, admittedly, the scene of arrest is a busy locality, but no local inhabitants were secured to act as mediators. Admittedly, PW.2 and PW.3 are not the local respectable persons of the place of seizure and they were secured by PW.1 from the police station. The alleged seizure was made in

Proddatur town and that too in a busy place where the public are moving frequently. It is not the contention of PW.4 that when he tried to secure the local respectable persons nearby the scene of offence, none were available or came forward to act as mediators and hence, he secured the mediators from distant place. It is the specific evidence of PW.4 that he had not tried to secure the local 8

CC No.1086 of 2020

respectable persons as he already brought the mediators. The act on the part of

PW.4 in non-making efforts to secure local respectable to observe the seizure is certainly violated the procedure contemplated u/Sec.100 (4) Cr.P.C. However, the mediators secured and brought to the scene of offence, but they turned hostile and as such, their evidence is no way useful to the prosecution. So also, no neighbour is examined to prove the same. Without support from independent mediators, without examining the neighbours, and without following the due procedure of seizure contemplated under the Code of Criminal Procedure, the prosecution failed to prove the alleged offences against the accused. Therefore, from the above discussion this court has doubt with regard to the presence of

Pws.1 to 4 at the scene of offence, arrest of the accused and seizure of property from the possession of accused under Ex.P1.

From the above discussion it is clear that the prosecution did not establish the involvement of accused Nos.1 to 3 with the alleged offence. Hence this point is answered in favor of accused and against prosecution.

19.POINT No.3:-

In view of point Nos.1 and 2 and by considering all the circumstances this court came to a conclusion that it is a fit case to give benefit of doubt in favour of the accused, as there is no reliable evidence to prove the case for the offence u/sec.353 r/w.34 of IPC and also for the offence u/sec.9 (1) of A.P. Gaming Act.

20.And coming to the case of defence is that the accused MO.1, i.e., cash of

Rs.1,78,140/- which is secured from the accused and shown it has seized cash in this case. And the accused was falsely implicated in this case. But the learned defence counsel did not adduce any evidence to prove his version. Except the suggested made during the cross examination to the prosecution witness i.e.,

PW.4 that the police taken the custody of the accused and secured the seized cash from the accused which is the accused personal amount and prepared

Ex.P1 falsely. But the same was denied by the prosecution witnesses. And moreover the learned defense counsel did not adduce any evidence with regarding to the source of income and how they are paid the said amount.

21.The burden of proof lies on the prosecution to the extent of guilty of the accused. Here, for the first time accused introduced a particular fact as such the burden of proof lies on the accused to show that seized amount i.e.,

Rs.1,78,140/- is secured, but they failed to substantiate their suggestion and also failed to produce evidence before this court. Hence this court is not inclined to belief the version of learned defence counsel. And moreover at the time of 9

CC No.1086 of 2020

Sec.313 Cr.P.C examination also the accused did not stated anything with regard to the seized cash even though this court posed question that whether they want to say anything with regard to this case. But the accused stated nothing with regard to the seized amount as contended by the learned defence counsel.

22.Point No.4 :- In view of the findings recorded to the points Nos.1 to 3, the court safely reached to a conclusion that it is a fit case to extend benefit of doubt to the accused.

In the result, the accused Nos.1 to 3 are found not guilty for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act and accordingly, they are acquitted of the same u/Sec.255 (1) of Cr.P.C. The bail bonds of the accused shall be remained in force for a period of six months as required u/Sec.437-A Cr.P.C. M.Os.1, 3 to 5 shall be confiscated to the State after the expiry of appeal time. M.O.2 shall be destroyed after the expiry of appeal time.

Typed to my dictation by the Stenographer Gr.III, corrected and

pronounced by me in the open court, on this the 7th day of April, 2022.

EDDULADigitally signed by

EDDULA PRATHIBA

PRATHIBADate: 2022.04.07 21:03:01 +0530 I Addl. Judicial Magistrate of I Class, Proddatur

APPENDIX OF EVIDENCE

Witnesses examined for prosecution: for Defence: Nil PW.1: Sri P.C. Hussanaiah PW.2: Sri K. Rajesh Babu PW.3: Sri A. Dasthagiri PW.4: Sri T. Narayana Yadav

Exhibits marked for prosecution: for Defence:Nil Ex.P.1: Panchanama dt.02.10.2020 at 8.30 am Ex.P.2: Signature of PW.2 in panchanama dt.2.10.2020 Ex.P.3: Signature of PW.3 in panchanama dt.2.10.2020 Ex.P.4: F.I.R. in Cr.No.170/2020 Ex.P.5: Matka slips Ex.P.6: Rough sketch of scene of offence

Material Objects Marked: M.O.1: FDR No.39836921875 Dt.1.12.2020 for Rs.1,78,140/-, M.O.2: ball pens (03 in number) M.O.3: cellkon company cell phone M.O.4: Jio company cell phone M.O.5: Lava company cell phone Digitally signed EDDULAby EDDULA

PRATHIBA

PRATHIBADate: 2022.04.07 21:03:15 +0530

I A.J.M.F.C.

Proddatur.

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CC No.1086 of 2020

CALENDER AND JUDGMENT

Calendar and Judgment tried by the I Addl. Judicial Magistrate of I Class , Proddatur.

DATE OF

Offence ReportApprehensionRelease onCommenceClose ofJudgment of accusedbailment of trial trial 02.10.202002.10.202002.10.202007.10.202013.12.202104.4.202207.4.2022

Calender and Judgment in C.C.No.1086/2020 on the file of I Addl. Judicial

Magistrate of I Class, Proddatur.

COMPLAINANT: The SHO of Proddatur II town P.S.

Name of the accused with Age Religion Residence

father's Name. 1234 D.No.6/711-3, Arts College road, Shaik Hussain Basha @ 36 Muslimnow at D.No.6/237, Vinayaka Gugud, S/o. Gugud Nagar, Proddatur town. Gudemcherla Basha, D.No.16/693, Modampalli Street, 42 Muslim S/o. Khaja Miyya, Proddatur town. Maheswara Gangadhar, D.No.6/568, Arts college road, 29 Hindu son of Venkateswarlu Proddatur town.

Offence :u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act

Finding : Accused are found not guilty for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act

Sentence: In the result, the accused Nos.1 to 3 are found not guilty for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act and accordingly, they are acquitted of the same u/Sec.255 (1) of Cr.P.C. The bail bonds of the accused shall be remained in force for a period of six months as required u/Sec.437-A Cr.P.C. M.Os.1, 3 to 5 shall be confiscated to the State after the expiry of appeal time. M.O.2 shall be destroyed after the expiry of appeal time. EDDULADigitally signed by EDDULA

PRATHIBA

PRATHIBADate: 2022.04.07 21:03:30 +0530 I Addl. Judicial Magistrate of I Class, Proddatur

Copy submitted to the Hon'ble I Addl. District and Sessions Judge, Kadapa. Dis. No. Dt.

IN THE COURT OF THE I ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS: PRODDATUR

Present:- Smt E. Prathiba,

I Additional Judicial Magistrate of I Class, Proddatur

Wednesday, this the 6th day of April, 2022

CC No.1064/2020

State: Represented by the Inspector of Police, Proddatur III town Police Station ….Complainant

Vs.

1Pamidi Srinivasa Rao, Aged 41 years, son of Baludu, Medical Business, r/o. D.No.6/227, Vijayanagaram Street, Proddatur town. 2Chinthalapalli Rama Krishna, Aged 38 years, son of Ramudu, Weaver, r/o.D.No.4/1397-5, Hanuman Nagar, Proddatur town. 3Poyilimeni Raju, Aged 26 years, son of Chinnaiah, Busines,r/o.D.No.4/1428-6, Hanuman Nagar, Proddatur town. 4Sainadham Subbaiah, Aged 29 years, son of Venkata Ramana, r/o. D.No.8/57, Eswara Reddy Nagar, Proddatur town. ….Accused

This case is coming on 04.4.2022 for final hearing before me in the presence of the learned Assistant Public Prosecutor for the Complainant and of

Sri G.Srinivasulu, Advocate for accused Nos.1 to 4 having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

The Inspector of Police, Proddatur III town Police Station has filed charge sheet against the accused Nos.1 to 4 herein in Cr.No.205/2020 for the offence punishable u/Sec.353 r/w.34 of the Indian Penal Code 1860 (for short ‘the IPC’) and Sec.9 (1) of A.P. Gaming Act.

2.The case of the prosecution in nutshell is that on 11.10.2020, at about 4.00 pm, on receiving credible information to LW.6/Sri G.Subba Rao, Inspector of

Police, III town PS, Proddatur, he secured Lws.1 and 2/Sri M.Madhu & Sri

Y.Naresh, as mediators and later, he along with his staff and mediators proceeded to Hanuman Nagar, Proddatur town and at about 4.30 pm, they noticed the accused were shouting about cricket by watching in cell phone and on seeing them, the said accused with common intention, pushed Lws.3 and 4/police personnel and thereby, obstructed their legitimate duties, but they caught hold the accused Nos.1 to 3, whereas one person among them escaped and on his enquiry, the accused revealed their identity particulars and on due 2

CC No.1064 of 2020

search, A.1 is in possession of cash of Rs.41,500/- and one cell phone, A.2 is in possession of cash of Rs.20,050/- and A.3 is in possession of cash of

Rs.12,000/-, then LW.6 arrested the A.1 to A.3 and seized total amount of

Rs.73.550/- and one cell phone from the possession of the accused in the presence of mediators under the cover of panchanama and later, they returned to the station along with the accused and case property, basing on the panchanama, he registered a case in Cr.No.205/2020 for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act, sent the accused to judicial custody and on 20.10.2020, A.4 surrednered before the Court and was remanded to judicial custody and on completion of investigation, he filed charge sheet in this case.

3.The case is taken into cognizance against the accused Nos.1 to 4 for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act.

4.On appearance of accused before this Court, copies of the documents were furnished to them as contemplated u/Sec.207 Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C’).

5.The accused Nos.1 to 4 are examined u/Sec.251 of Cr.P.C. by reading over and explaining in Telugu, the substance of accusation appearing against them for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P.

Gaming Act, for which they pleaded not guilty and claimed the case to be tried.

6.In pursuance of the case of prosecution, the prosecution has examined

PWs.1 to 5, and got marked Exs.P1 to P.4 and M.Os.1 and 2. The learned

Assistant Public Prosecutor has given up the evidence of LW.5/Police personnel, as other witnesses supported the case of prosecution.

7.After the closure of prosecution side evidence, the accused Nos.1 to 4 examined u/Sec.313 Cr.P.C explaining the incriminating material appearing against them, for which they denied the same and reported no defence evidence on their behalf.

8.Heard the learned Asst. Public Prosecutor and the learned counsel for the accused.

The learned Senior Asst. Public Prosecutor argued that that the evidence of Pws.3 to 5, Exs.P.3 & P.4, MO.1 and 2 well establish the offence against accused, as such the prosecution is able to prove the guilt of the accused and they are not even entitled for benefit of doubt and pray to convict the accused.

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Per contra, the learned counsel for the accused contended that

Pws.1 and 2 who are the mediator had not supported the case of the prosecution, hence their evidence is not useful to the prosecution case with regard to the arrest of accused and seizure of M.Os.1 and 2 from the possession of the accused and the remaining witness are official witness and their evidence is hit by sec 25 of Indian Evidence Act, 1872. And further contended that MO.1 i.e., cash of Rs.73,550/- is the secured amount, not the seized amount and accused are entitle for the cash.

9.Now the point that arise for determination is:

1Whether accused Nos.1 to 4 have used criminal force or assaulted public servants from discharging their duties? 2Whether the accused Nos.1 to 4 were found or reasonably suspected to be gaming in any public street or in any place to which the public have or are permitted to have access? 3Whether the prosecution could be able to bring home the guilt of the accused Nos.1 to 4 for the offences charged u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act? 4To what relief?

10.To prove the case out of 06 list of witnesses the prosecution examined

PW.1 to PW.5. Pws.1 and 2 who are mediators deposed that they do not know anything about the facts of this case and police never arrested A.1 to A.4 in their presence and not seized any matka betting amount, matka slips and pens in their presence under the cover of panchanama, but in the year 2020, police obtained their respective signatures when they went to police station on their personal work. The learned Senior Asst. Public Prosecution, cross examined the Pws.1 and 2 after obtaining permission from the Court, but nothing was elicited except denying the suggestion made by the prosecution that they have accompanied with the police while arresting the accused and seizure of the properties i.e.,

MO.1 and M.O.2 from the accused.

11.PW.3 deposed in his chief examination that on 11.10.2020, at about 4.00 pm, on receiving credible information to LW.6/Inspector of Police, about cricket betting, he along other staff and mediators with LW.6 proceeded to Hanuman

Nagar, Proddatur and there, they found some persons playing cricket betting, who tried to escape on seeing them and one person among them escaped and they caught hold three persons and during enquiry by LW.6, said persons revealed their identity particulars and further, A.1 to A.3 voluntarily stated that they are organizing cricket betting and on due search, A.1 is in possession of

Rs.41,500/- and one Samsung cell phone, A.2 is in possession of Rs.20,050/- 4

CC No.1064 of 2020

and A.3 is in possession of Rs.12,000/- and thereafter, on informing the grounds,

Lw.6 arrested the accused Nos.1 to 3 and seized above property under the cover of panchanama. He further stated that he had not attested in the said panchanama and thereafter, they returned to the station along with the accused and case property.

In his cross examination, he admitted that on 11.10.2020, there is a lock- down is in force and the accused are not residents of surrounds of Swathi

Medical shop, Hanuman Nagar, Proddatur.

12.PW.4 deposed in his chief examination that deposed in his chief examination that on 11.10.2020, at about 4.00 pm, on receiving credible information to LW.6/Inspector of Police, about cricket betting, he along other staff and mediators with LW.6 proceeded to Hanuman Nagar, Proddatur and there, they found 04 persons playing cricket betting, who tried to escape on seeing them and one person among them escaped and they caught hold three persons and during enquiry by LW.6, said persons revealed their identity particulars and further, A.1 to A.3 voluntarily stated that they are organizing cricket betting and on due search, A.1 is in possession of Rs.41,500/- and one Samsung cell phone,

A.2 is in possession of Rs.20,050/- and A.3 is in possession of Rs.12,000/- and thereafter, on informing the grounds, Lw.6 arrested the accused Nos.1 to 3 and seized above property under the cover of panchanama. Thereafter, they returned to the station along with the accused and case property.

In his cross examination, he admitted that in Ex.P.3 it is not mentioned specifically in which direction accused tried to escape and who caught hold the accused. Their S.I. Yogendra enquired the A.1 to A.3 and he do not know the details of said enquiry. Ex.P.3 was dictated by S.I. Yogendra to PC No.2658.

13.PW.5 deposed in his chief examination that deposed in his chief examination that on 11.10.2020, at about 4.00 pm, on receiving credible information about cricket betting, he along his staff and mediators proceeded to

Hanuman Nagar, Proddatur and there, they found 04 persons, who tried to escape on seeing them and one person among them escaped and they caught hold three persons and during his enquiry, said persons revealed their identity particulars and further, A.1 to A.3 voluntarily stated that they are organizing cricket betting and on due search, A.1 is in possession of Rs.41,500/- and one

Samsung cell phone, A.2 is in possession of Rs.20,050/- and A.3 is in possession of Rs.12,000/- and further, A.1 to A.3 revealed the identity particulars of A.4 and admitted that A.4 also involved in the present offence and thereafter, 5

CC No.1064 of 2020

on informing the grounds, he arrested the accused Nos.1 to 3 and seized above property i.e., cash of Rs.73,550/-/M.O.1 and Samsung cell phone/M.O.2 under the cover of panchanama. He further stated that he had not attested in the said panchanama and thereafter, they returned to the station along with the accused and case property and basing on the said panchanama, he registered a case in

Cr.No.205/2020 for the offence u/Sec.353 r/w.34 of IPC and sec.9 (1) of A.P.

Gaming Act under F.I.R./Ex.P.4, produced the accused before the Court for judicial custody and during the course of investigation, he came to know that A.4 surrendered before the court, who was remanded to judicial custody and on completion of investigation, he filed charge sheet in this case.

In his cross examination, he admitted that on 11.10.2020, there is a first wave Corona lock-down in force and every street is closed with barricades except in relaxation time and any one has to come out with the permission of the local constable who is present at respective streets. He had not investigated the owner of Swathi medical store and owner of the shop room of swathi medical store and PC No.2658 was not cited as witness though his name was mentioned in Ex.P.3. Pws.1 and 2 are not belongs to Swathi Medical Shop area. He further admitted that IPL starts from 7.30 pm.

14.Point No.1 ;- In order to prove the offence u/Sec.353 r/w.34 of IPC, the prosecution is required to prove that using of either force or assault against the public servant while they were discharging official duty and obstructed them from discharging their official duty.

From the above evidence it has to be seen whether required ingredients for commission of either 'Criminal Force as provided U/sec.349, 350 IPC or the 'Assault' as defined U/sec.351 of Indian Penal Code is proved by prosecution or not. As per 349 of Indian Penal Code the intended result of 'Using Force' is

Causes of motion.

Change of motion.

Cessation of motion.

And the said motion must be by any one of the following three ways. Firstly - by his own bodily power. Secondly - by discharging any such substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part or on the part of any other person.

Thirdly - by inducing any animal to move, to change its motion, or to cease to move.

6

CC No.1064 of 2020

The above elements are required for proof of “Force”. If such force as defined U/sec. 349 IPC is used without the consent of that person, to commit any offence or with intent to cause any injury, fear or annoyance to that person, then it is called 'Criminal Force U/sec. 350 of IPC'.

In order to prove the offence U/sec. 353 r/w.34 of IPC, using of 'Criminal

Force' by accused as provided U/sec.349 and 350 IPC is one of the conditions required to be proved by the prosecution.

15.As could be seen from the evidence of Pws.3 to 5, on receiving credible information to PW.5, they went to the scene of offence along with mediators and there, they found 03 persons i.e., A.1 to A.3 and caught hold the accused, whereas A.4 escaped from there. But their evidence is silent with regard to the used of criminal force or assault by the accused while discharging their duties.

No witness deposed before the court the words used by accused against Pws.3 to 5 and further Ex.P.3 also do not disclose the used of criminal force or assault by the accused. And moreover Pws.1 and 2 who are the mediators not even deposed about the criminal force used by the accused towards police personnel and further, no document is filed to show that on 11.10.2020, at the time of incident PW.5, other staff along with PWs.3 and 4 were discharging their official duty. In the absence of oral and documentary evidence the prosecution failed to prove the ingredients of offence alleged against accused Nos.1 to 4 under

Sec.353 r/w.34 of IPC.

From the above discussion this court is of opinion that the evidence of prosecution i.e., Pws.1 to 5 is not sufficient to prove the case of the prosecution for the alleged offence, which shows the lack of evidence to prove the offence against accused u/sec.353 r/w.34 of IPC beyond all reasonable doubt. Hence this point is answered in favor of accused against prosecution.

16.POINT No.2:-

To prove the offence u/Sec.9 (1) of A.P. Gaming Act, the prosecution examined PW.1 to PW.5. As could be seen from the record Pws.1 and 2 who acted as mediators as contented by the prosecution not supported the case of the prosecution and as such, their evidence is no way useful to the case of the prosecution. Therefore, the arrest, confession made by the accused and seizure of MO.1 and M.O.2 from the possession of accused in the presence of Pws.1 and 2 is not proved by the prosecution. Therefore, the evidence of Pws.1 and 2 is not considerable with regard to the arrest, confession and seizure of case property in the presence of mediators under cover of panchanama i.e., Ex.P.3.

7

CC No.1064 of 2020

17.The remaining evidence left on record is PW.3 to PW.5 who are interested and official witnesses. PW.3 in his evidence stated that he had not attested in the

Ex.P.3. When PW.3 participated in the raid said to be conducted by PW.5, when he also caught hold the accused, what prevented him to made his signature in

Ex.P.3 is not explained by the prosecution and further, PW.4 who is another police constable participated in the raid surprisingly, in his cross examination admitted that S.I. Yogendra enquired A.1 to A.3 and he do not know the details of said enquiry and Ex.P.3 was dictated by S.I. Yogendra to PC No.2658. It is pertinent to mention here that as per the above admission of PW.4, S.I.

Yogendra also participated in the said raid along with PC No.2658. But the investigating agency failed to examine said Yogendra or PC No.2658 and not even cited their names in the list of memo of evidence for the reasons best known to them. PW.5 also admitted that the PC No.2658 is not cited in the memo of evidence.

Further, it is admittedly brought on record through the cross examination of PW.5 that on 11.10.2020, there is a first wave Corona lock-down in force and every street is closed with barricades except in relaxation time and any one has to come out with the permission of the local constable who is present at respective streets. As per record, Ex.P.3 was dt.11.10.2020 and the same commenced from 4.00 pm. Admittedly, the relaxation time also during covid time is in the morning times. He also admitted that he had not investigated the owner of Swathi medical store and owner of the shop room of swathi medical store.

Hence, these admission of Pws.3 to 5 raises suspicion whether they really conducted the raid said as stated by them. Further, no property seized from the possession of A.4, who was surrendered before this Court and remanded to judicial custody. It is also admittedly brought on record that police did not tried to secure mediators from locality. Further, PW.5 being the investigating officer had not issued any search warrant to accused and no search list was prepared by him and the denomination of seized cash was not mentioned in Ex.P.3. As such, this court is not inclined to rely on the evidence of Pws.3 to 5. Therefore, the evidence of Pws.3 to 5 is not useful for the accusation of accused.

18.And further more, admittedly, the scene of arrest is a busy locality, but admittedly no local inhabitants were secured to act as mediators. Admittedly,

PW.1 and PW.2, are not the local respectable persons of the place of seizure and they were secured by PW.3 from the police station. The alleged seizure was made in Proddatur town and that too in a busy place where the public are moving frequently. It is not the contention of PW.5 that when he tried to secure the local 8

CC No.1064 of 2020

respectable persons nearby the scene of offence, none were available or came forward to act as mediators and hence, he secured the mediators from distant place. It is the specific evidence of PW.5 that he had not tried to secure the local respectable persons as he already brought the mediators. The act on the part of

PW.5 in non-making efforts to secure local respectable to observe the seizure is certainly violated the procedure contemplated u/Sec.100 (4) Cr.P.C. However, the mediators secured and brought to the scene of offence, but they turned hostile. So also, no neighbour is examined to prove the same. Without support from independent mediators, without examining the neighbours, and without following the due procedure of seizure contemplated under the Code of Criminal

Procedure, the prosecution failed to prove the alleged offences against the accused. Therefore, from the above discussion this court has doubt with regard to the presence of Pws.1 to 5 at the scene of offence, arrest of the accused and seizure of property from the possession of accused under Ex.P3.

From the above discussion it is clear that the prosecution did not establish the involvement of accused Nos.1 to 4 with the alleged offence. Hence this point is answered in favor of accused and against prosecution.

19.POINT No.3:-

In view of point Nos.1 and 2 and by considering all the circumstances this court came to a conclusion that it is a fit case to give benefit of doubt in favour of the accused, as there is no reliable evidence to prove the case for the offence u/sec.353 r/w.34 of IPC and also for the offence u/sec.9 (1) of A.P. Gaming Act.

20.And coming to the case of defence is that the accused MO.1, i.e., cash of

Rs.73,550/- which is secured from the accused and shown it has seized cash in this case. And the accused was falsely implicated in this case. But the learned defence counsel did not adduce any evidence to prove his version. Except the suggested made during the cross examination to the prosecution witness i.e.,

PW.5 that the police taken the custody of the accused and secured the seized cash from the respective houses of accused and prepared Ex.P.3 falsely. But the same was denied by the prosecution witnesses. And moreover the learned defense counsel did not adduce any evidence with regarding to the source of income and how they are paid the said amount.

21.The burden of proof lies on the prosecution to the extent of guilty of the accused. Here, for the first time accused introduced a particular fact as such the burden of proof lies on the accused to show that seized amount i.e., Rs.73,550/- is secured, but they failed to substantiate their suggestion and also failed to 9

CC No.1064 of 2020

produce evidence before this court. Hence this court is not inclined to belief the version of learned defence counsel. And moreover at the time of Sec.313 Cr.P.C examination also the accused did not stated anything with regard to the seized cash even though this court posed question that whether they want to say anything with regard to this case. But the accused stated nothing with regard to the seized amount as contended by the learned defence counsel.

22.Point No.4 :- In view of the findings recorded to the points Nos.1 to 3, the court safely reached to a conclusion that it is a fit case to extend benefit of doubt to the accused.

In the result, the accused Nos.1 to 4 are found not guilty for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act and accordingly, they are acquitted of the same u/Sec.255 (1) of Cr.P.C. The bail bonds of the accused shall be remained in force for a period of six months as required u/Sec.437-A Cr.P.C. M.Os.1 and 2 shall be confiscated to the State after the expiry of appeal time.

Typed to my dictation by the Stenographer Gr.III, corrected and

pronounced by me in the open court, on this the 6th day of April, 2022.

EDDULA Digitally signed by EDDULA

PRATHIBA

PRATHIBA

Date: 2022.04.06 21:56:04 +0530

I Addl. Judicial Magistrate of I Class, Proddatur

APPENDIX OF EVIDENCE

Witnesses examined for prosecution: for Defence: Nil PW.1: Sri M. Madhu PW.2: Sri Y. Naresh PW.3: Sri M. Anjaneyulu PW.4: Sri G. Praveen Raju PW.5: Sri G. Subba Rao

Exhibits marked for prosecution: for Defence:Nil Ex.P.1: Signature of PW.1 in panchanama dt.11.10.2020 Ex.P.2: Signature of PW.2 in panchanama dt.11.10.2020 Ex.P.3: Panchanama dt.11.10.2020 at 4.30 pm Ex.P.5: F.I.R. in Cr.No.205/2020

Material Objects Marked: M.O.1: FDR No.39779786678 Dt.5.11.2020 for Rs.73,550/-, M.O.2: Samsung duos black colour cell phone Digitally signed by EDDULA

EDDULAPRATHIBA

PRATHIBADate: 2022.04.06 21:56:18 +0530

I A.J.M.F.C.

Proddatur.

CALENDER AND JUDGMENT

Calendar and Judgment tried by the I Addl. Judicial Magistrate of I Class , Proddatur.

DATE OF

Offence ReportApprehensionRelease onCommencemClose ofJudgment of accusedbailent of trial trial 12.10.202016.10.2020 20.10.2020-21.10.2020- 11.10.202011.10.2020A.4A.407.12.202104.4.202206.4.2022

Calender and Judgment in C.C.No.1064/2020 on the file of I Addl. Judicial

Magistrate of I Class, Proddatur.

COMPLAINANT: The SHO of Proddatur III town P.S.

Name of the accused with Age Religion Residence

father's Name. 1234 Pamidi Srinivasa RaoD.No.6/227,Vijayanagaram 41 Hindu son of Baludu Street, Proddatur town. Chinthalapalli Rama Krishna,D.No.4/1397-5, Hanuman Nagar, 38 Hindu son of Ramudu Proddatur town. Poyilimeni Raju, D.No.4/1428-6, Hanuman Nagar, 26 Hindu son of Chinnaiah Proddatur town. Sainadham Subbaiah, D.No.8/57, Eswara Reddy 29 Hindu son of Venkata Ramana Nagar, Proddatur town.

Offence :u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act

Finding : Accused are found not guilty for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act

Sentence: In the result, the accused Nos.1 to 4 are found not guilty for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act and accordingly, they are acquitted of the same u/Sec.255 (1) of Cr.P.C. The bail bonds of the accused shall be remained in force for a period of six months as required u/Sec.437-A Cr.P.C. M.Os.1 and 2 shall be confiscated to the State after the expiry of appeal time. EDDULADigitally signed by

EDDULA PRATHIBA

PRATHIBADate: 2022.04.06 21:56:34 +0530 I Addl. Judicial Magistrate of I Class, Proddatur

Copy submitted to the Hon'ble I Addl. District and Sessions Judge, Kadapa. Dis. No. Dt.

IN THE COURT OF THE I ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS: PRODDATUR

Present:- Smt E. Prathiba,

I Additional Judicial Magistrate of I Class, Proddatur

Wednesday, this the 6th day of April, 2022

CC No.1064/2020

State: Represented by the Inspector of Police, Proddatur III town Police Station ….Complainant

Vs.

1Pamidi Srinivasa Rao, Aged 41 years, son of Baludu, Medical Business, r/o. D.No.6/227, Vijayanagaram Street, Proddatur town. 2Chinthalapalli Rama Krishna, Aged 38 years, son of Ramudu, Weaver, r/o.D.No.4/1397-5, Hanuman Nagar, Proddatur town. 3Poyilimeni Raju, Aged 26 years, son of Chinnaiah, Busines,r/o.D.No.4/1428-6, Hanuman Nagar, Proddatur town. 4Sainadham Subbaiah, Aged 29 years, son of Venkata Ramana, r/o. D.No.8/57, Eswara Reddy Nagar, Proddatur town. ….Accused

This case is coming on 04.4.2022 for final hearing before me in the presence of the learned Assistant Public Prosecutor for the Complainant and of

Sri G.Srinivasulu, Advocate for accused Nos.1 to 4 having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

The Inspector of Police, Proddatur III town Police Station has filed charge sheet against the accused Nos.1 to 4 herein in Cr.No.205/2020 for the offence punishable u/Sec.353 r/w.34 of the Indian Penal Code 1860 (for short ‘the IPC’) and Sec.9 (1) of A.P. Gaming Act.

2.The case of the prosecution in nutshell is that on 11.10.2020, at about 4.00 pm, on receiving credible information to LW.6/Sri G.Subba Rao, Inspector of

Police, III town PS, Proddatur, he secured Lws.1 and 2/Sri M.Madhu & Sri

Y.Naresh, as mediators and later, he along with his staff and mediators proceeded to Hanuman Nagar, Proddatur town and at about 4.30 pm, they noticed the accused were shouting about cricket by watching in cell phone and on seeing them, the said accused with common intention, pushed Lws.3 and 4/police personnel and thereby, obstructed their legitimate duties, but they caught hold the accused Nos.1 to 3, whereas one person among them escaped and on his enquiry, the accused revealed their identity particulars and on due 2

CC No.1064 of 2020

search, A.1 is in possession of cash of Rs.41,500/- and one cell phone, A.2 is in possession of cash of Rs.20,050/- and A.3 is in possession of cash of

Rs.12,000/-, then LW.6 arrested the A.1 to A.3 and seized total amount of

Rs.73.550/- and one cell phone from the possession of the accused in the presence of mediators under the cover of panchanama and later, they returned to the station along with the accused and case property, basing on the panchanama, he registered a case in Cr.No.205/2020 for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act, sent the accused to judicial custody and on 20.10.2020, A.4 surrednered before the Court and was remanded to judicial custody and on completion of investigation, he filed charge sheet in this case.

3.The case is taken into cognizance against the accused Nos.1 to 4 for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act.

4.On appearance of accused before this Court, copies of the documents were furnished to them as contemplated u/Sec.207 Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C’).

5.The accused Nos.1 to 4 are examined u/Sec.251 of Cr.P.C. by reading over and explaining in Telugu, the substance of accusation appearing against them for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P.

Gaming Act, for which they pleaded not guilty and claimed the case to be tried.

6.In pursuance of the case of prosecution, the prosecution has examined

PWs.1 to 5, and got marked Exs.P1 to P.4 and M.Os.1 and 2. The learned

Assistant Public Prosecutor has given up the evidence of LW.5/Police personnel, as other witnesses supported the case of prosecution.

7.After the closure of prosecution side evidence, the accused Nos.1 to 4 examined u/Sec.313 Cr.P.C explaining the incriminating material appearing against them, for which they denied the same and reported no defence evidence on their behalf.

8.Heard the learned Asst. Public Prosecutor and the learned counsel for the accused.

The learned Senior Asst. Public Prosecutor argued that that the evidence of Pws.3 to 5, Exs.P.3 & P.4, MO.1 and 2 well establish the offence against accused, as such the prosecution is able to prove the guilt of the accused and they are not even entitled for benefit of doubt and pray to convict the accused.

3

CC No.1064 of 2020

Per contra, the learned counsel for the accused contended that

Pws.1 and 2 who are the mediator had not supported the case of the prosecution, hence their evidence is not useful to the prosecution case with regard to the arrest of accused and seizure of M.Os.1 and 2 from the possession of the accused and the remaining witness are official witness and their evidence is hit by sec 25 of Indian Evidence Act, 1872. And further contended that MO.1 i.e., cash of Rs.73,550/- is the secured amount, not the seized amount and accused are entitle for the cash.

9.Now the point that arise for determination is:

1Whether accused Nos.1 to 4 have used criminal force or assaulted public servants from discharging their duties? 2Whether the accused Nos.1 to 4 were found or reasonably suspected to be gaming in any public street or in any place to which the public have or are permitted to have access? 3Whether the prosecution could be able to bring home the guilt of the accused Nos.1 to 4 for the offences charged u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act? 4To what relief?

10.To prove the case out of 06 list of witnesses the prosecution examined

PW.1 to PW.5. Pws.1 and 2 who are mediators deposed that they do not know anything about the facts of this case and police never arrested A.1 to A.4 in their presence and not seized any matka betting amount, matka slips and pens in their presence under the cover of panchanama, but in the year 2020, police obtained their respective signatures when they went to police station on their personal work. The learned Senior Asst. Public Prosecution, cross examined the Pws.1 and 2 after obtaining permission from the Court, but nothing was elicited except denying the suggestion made by the prosecution that they have accompanied with the police while arresting the accused and seizure of the properties i.e.,

MO.1 and M.O.2 from the accused.

11.PW.3 deposed in his chief examination that on 11.10.2020, at about 4.00 pm, on receiving credible information to LW.6/Inspector of Police, about cricket betting, he along other staff and mediators with LW.6 proceeded to Hanuman

Nagar, Proddatur and there, they found some persons playing cricket betting, who tried to escape on seeing them and one person among them escaped and they caught hold three persons and during enquiry by LW.6, said persons revealed their identity particulars and further, A.1 to A.3 voluntarily stated that they are organizing cricket betting and on due search, A.1 is in possession of

Rs.41,500/- and one Samsung cell phone, A.2 is in possession of Rs.20,050/- 4

CC No.1064 of 2020

and A.3 is in possession of Rs.12,000/- and thereafter, on informing the grounds,

Lw.6 arrested the accused Nos.1 to 3 and seized above property under the cover of panchanama. He further stated that he had not attested in the said panchanama and thereafter, they returned to the station along with the accused and case property.

In his cross examination, he admitted that on 11.10.2020, there is a lock- down is in force and the accused are not residents of surrounds of Swathi

Medical shop, Hanuman Nagar, Proddatur.

12.PW.4 deposed in his chief examination that deposed in his chief examination that on 11.10.2020, at about 4.00 pm, on receiving credible information to LW.6/Inspector of Police, about cricket betting, he along other staff and mediators with LW.6 proceeded to Hanuman Nagar, Proddatur and there, they found 04 persons playing cricket betting, who tried to escape on seeing them and one person among them escaped and they caught hold three persons and during enquiry by LW.6, said persons revealed their identity particulars and further, A.1 to A.3 voluntarily stated that they are organizing cricket betting and on due search, A.1 is in possession of Rs.41,500/- and one Samsung cell phone,

A.2 is in possession of Rs.20,050/- and A.3 is in possession of Rs.12,000/- and thereafter, on informing the grounds, Lw.6 arrested the accused Nos.1 to 3 and seized above property under the cover of panchanama. Thereafter, they returned to the station along with the accused and case property.

In his cross examination, he admitted that in Ex.P.3 it is not mentioned specifically in which direction accused tried to escape and who caught hold the accused. Their S.I. Yogendra enquired the A.1 to A.3 and he do not know the details of said enquiry. Ex.P.3 was dictated by S.I. Yogendra to PC No.2658.

13.PW.5 deposed in his chief examination that deposed in his chief examination that on 11.10.2020, at about 4.00 pm, on receiving credible information about cricket betting, he along his staff and mediators proceeded to

Hanuman Nagar, Proddatur and there, they found 04 persons, who tried to escape on seeing them and one person among them escaped and they caught hold three persons and during his enquiry, said persons revealed their identity particulars and further, A.1 to A.3 voluntarily stated that they are organizing cricket betting and on due search, A.1 is in possession of Rs.41,500/- and one

Samsung cell phone, A.2 is in possession of Rs.20,050/- and A.3 is in possession of Rs.12,000/- and further, A.1 to A.3 revealed the identity particulars of A.4 and admitted that A.4 also involved in the present offence and thereafter, 5

CC No.1064 of 2020

on informing the grounds, he arrested the accused Nos.1 to 3 and seized above property i.e., cash of Rs.73,550/-/M.O.1 and Samsung cell phone/M.O.2 under the cover of panchanama. He further stated that he had not attested in the said panchanama and thereafter, they returned to the station along with the accused and case property and basing on the said panchanama, he registered a case in

Cr.No.205/2020 for the offence u/Sec.353 r/w.34 of IPC and sec.9 (1) of A.P.

Gaming Act under F.I.R./Ex.P.4, produced the accused before the Court for judicial custody and during the course of investigation, he came to know that A.4 surrendered before the court, who was remanded to judicial custody and on completion of investigation, he filed charge sheet in this case.

In his cross examination, he admitted that on 11.10.2020, there is a first wave Corona lock-down in force and every street is closed with barricades except in relaxation time and any one has to come out with the permission of the local constable who is present at respective streets. He had not investigated the owner of Swathi medical store and owner of the shop room of swathi medical store and PC No.2658 was not cited as witness though his name was mentioned in Ex.P.3. Pws.1 and 2 are not belongs to Swathi Medical Shop area. He further admitted that IPL starts from 7.30 pm.

14.Point No.1 ;- In order to prove the offence u/Sec.353 r/w.34 of IPC, the prosecution is required to prove that using of either force or assault against the public servant while they were discharging official duty and obstructed them from discharging their official duty.

From the above evidence it has to be seen whether required ingredients for commission of either 'Criminal Force as provided U/sec.349, 350 IPC or the 'Assault' as defined U/sec.351 of Indian Penal Code is proved by prosecution or not. As per 349 of Indian Penal Code the intended result of 'Using Force' is

Causes of motion.

Change of motion.

Cessation of motion.

And the said motion must be by any one of the following three ways. Firstly - by his own bodily power. Secondly - by discharging any such substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part or on the part of any other person.

Thirdly - by inducing any animal to move, to change its motion, or to cease to move.

6

CC No.1064 of 2020

The above elements are required for proof of “Force”. If such force as defined U/sec. 349 IPC is used without the consent of that person, to commit any offence or with intent to cause any injury, fear or annoyance to that person, then it is called 'Criminal Force U/sec. 350 of IPC'.

In order to prove the offence U/sec. 353 r/w.34 of IPC, using of 'Criminal

Force' by accused as provided U/sec.349 and 350 IPC is one of the conditions required to be proved by the prosecution.

15.As could be seen from the evidence of Pws.3 to 5, on receiving credible information to PW.5, they went to the scene of offence along with mediators and there, they found 03 persons i.e., A.1 to A.3 and caught hold the accused, whereas A.4 escaped from there. But their evidence is silent with regard to the used of criminal force or assault by the accused while discharging their duties.

No witness deposed before the court the words used by accused against Pws.3 to 5 and further Ex.P.3 also do not disclose the used of criminal force or assault by the accused. And moreover Pws.1 and 2 who are the mediators not even deposed about the criminal force used by the accused towards police personnel and further, no document is filed to show that on 11.10.2020, at the time of incident PW.5, other staff along with PWs.3 and 4 were discharging their official duty. In the absence of oral and documentary evidence the prosecution failed to prove the ingredients of offence alleged against accused Nos.1 to 4 under

Sec.353 r/w.34 of IPC.

From the above discussion this court is of opinion that the evidence of prosecution i.e., Pws.1 to 5 is not sufficient to prove the case of the prosecution for the alleged offence, which shows the lack of evidence to prove the offence against accused u/sec.353 r/w.34 of IPC beyond all reasonable doubt. Hence this point is answered in favor of accused against prosecution.

16.POINT No.2:-

To prove the offence u/Sec.9 (1) of A.P. Gaming Act, the prosecution examined PW.1 to PW.5. As could be seen from the record Pws.1 and 2 who acted as mediators as contented by the prosecution not supported the case of the prosecution and as such, their evidence is no way useful to the case of the prosecution. Therefore, the arrest, confession made by the accused and seizure of MO.1 and M.O.2 from the possession of accused in the presence of Pws.1 and 2 is not proved by the prosecution. Therefore, the evidence of Pws.1 and 2 is not considerable with regard to the arrest, confession and seizure of case property in the presence of mediators under cover of panchanama i.e., Ex.P.3.

7

CC No.1064 of 2020

17.The remaining evidence left on record is PW.3 to PW.5 who are interested and official witnesses. PW.3 in his evidence stated that he had not attested in the

Ex.P.3. When PW.3 participated in the raid said to be conducted by PW.5, when he also caught hold the accused, what prevented him to made his signature in

Ex.P.3 is not explained by the prosecution and further, PW.4 who is another police constable participated in the raid surprisingly, in his cross examination admitted that S.I. Yogendra enquired A.1 to A.3 and he do not know the details of said enquiry and Ex.P.3 was dictated by S.I. Yogendra to PC No.2658. It is pertinent to mention here that as per the above admission of PW.4, S.I.

Yogendra also participated in the said raid along with PC No.2658. But the investigating agency failed to examine said Yogendra or PC No.2658 and not even cited their names in the list of memo of evidence for the reasons best known to them. PW.5 also admitted that the PC No.2658 is not cited in the memo of evidence.

Further, it is admittedly brought on record through the cross examination of PW.5 that on 11.10.2020, there is a first wave Corona lock-down in force and every street is closed with barricades except in relaxation time and any one has to come out with the permission of the local constable who is present at respective streets. As per record, Ex.P.3 was dt.11.10.2020 and the same commenced from 4.00 pm. Admittedly, the relaxation time also during covid time is in the morning times. He also admitted that he had not investigated the owner of Swathi medical store and owner of the shop room of swathi medical store.

Hence, these admission of Pws.3 to 5 raises suspicion whether they really conducted the raid said as stated by them. Further, no property seized from the possession of A.4, who was surrendered before this Court and remanded to judicial custody. It is also admittedly brought on record that police did not tried to secure mediators from locality. Further, PW.5 being the investigating officer had not issued any search warrant to accused and no search list was prepared by him and the denomination of seized cash was not mentioned in Ex.P.3. As such, this court is not inclined to rely on the evidence of Pws.3 to 5. Therefore, the evidence of Pws.3 to 5 is not useful for the accusation of accused.

18.And further more, admittedly, the scene of arrest is a busy locality, but admittedly no local inhabitants were secured to act as mediators. Admittedly,

PW.1 and PW.2, are not the local respectable persons of the place of seizure and they were secured by PW.3 from the police station. The alleged seizure was made in Proddatur town and that too in a busy place where the public are moving frequently. It is not the contention of PW.5 that when he tried to secure the local 8

CC No.1064 of 2020

respectable persons nearby the scene of offence, none were available or came forward to act as mediators and hence, he secured the mediators from distant place. It is the specific evidence of PW.5 that he had not tried to secure the local respectable persons as he already brought the mediators. The act on the part of

PW.5 in non-making efforts to secure local respectable to observe the seizure is certainly violated the procedure contemplated u/Sec.100 (4) Cr.P.C. However, the mediators secured and brought to the scene of offence, but they turned hostile. So also, no neighbour is examined to prove the same. Without support from independent mediators, without examining the neighbours, and without following the due procedure of seizure contemplated under the Code of Criminal

Procedure, the prosecution failed to prove the alleged offences against the accused. Therefore, from the above discussion this court has doubt with regard to the presence of Pws.1 to 5 at the scene of offence, arrest of the accused and seizure of property from the possession of accused under Ex.P3.

From the above discussion it is clear that the prosecution did not establish the involvement of accused Nos.1 to 4 with the alleged offence. Hence this point is answered in favor of accused and against prosecution.

19.POINT No.3:-

In view of point Nos.1 and 2 and by considering all the circumstances this court came to a conclusion that it is a fit case to give benefit of doubt in favour of the accused, as there is no reliable evidence to prove the case for the offence u/sec.353 r/w.34 of IPC and also for the offence u/sec.9 (1) of A.P. Gaming Act.

20.And coming to the case of defence is that the accused MO.1, i.e., cash of

Rs.73,550/- which is secured from the accused and shown it has seized cash in this case. And the accused was falsely implicated in this case. But the learned defence counsel did not adduce any evidence to prove his version. Except the suggested made during the cross examination to the prosecution witness i.e.,

PW.5 that the police taken the custody of the accused and secured the seized cash from the respective houses of accused and prepared Ex.P.3 falsely. But the same was denied by the prosecution witnesses. And moreover the learned defense counsel did not adduce any evidence with regarding to the source of income and how they are paid the said amount.

21.The burden of proof lies on the prosecution to the extent of guilty of the accused. Here, for the first time accused introduced a particular fact as such the burden of proof lies on the accused to show that seized amount i.e., Rs.73,550/- is secured, but they failed to substantiate their suggestion and also failed to 9

CC No.1064 of 2020

produce evidence before this court. Hence this court is not inclined to belief the version of learned defence counsel. And moreover at the time of Sec.313 Cr.P.C examination also the accused did not stated anything with regard to the seized cash even though this court posed question that whether they want to say anything with regard to this case. But the accused stated nothing with regard to the seized amount as contended by the learned defence counsel.

22.Point No.4 :- In view of the findings recorded to the points Nos.1 to 3, the court safely reached to a conclusion that it is a fit case to extend benefit of doubt to the accused.

In the result, the accused Nos.1 to 4 are found not guilty for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act and accordingly, they are acquitted of the same u/Sec.255 (1) of Cr.P.C. The bail bonds of the accused shall be remained in force for a period of six months as required u/Sec.437-A Cr.P.C. M.Os.1 and 2 shall be confiscated to the State after the expiry of appeal time.

Typed to my dictation by the Stenographer Gr.III, corrected and

pronounced by me in the open court, on this the 6th day of April, 2022.

EDDULA Digitally signed by EDDULA

PRATHIBA

PRATHIBA

Date: 2022.04.06 21:56:04 +0530

I Addl. Judicial Magistrate of I Class, Proddatur

APPENDIX OF EVIDENCE

Witnesses examined for prosecution: for Defence: Nil PW.1: Sri M. Madhu PW.2: Sri Y. Naresh PW.3: Sri M. Anjaneyulu PW.4: Sri G. Praveen Raju PW.5: Sri G. Subba Rao

Exhibits marked for prosecution: for Defence:Nil Ex.P.1: Signature of PW.1 in panchanama dt.11.10.2020 Ex.P.2: Signature of PW.2 in panchanama dt.11.10.2020 Ex.P.3: Panchanama dt.11.10.2020 at 4.30 pm Ex.P.5: F.I.R. in Cr.No.205/2020

Material Objects Marked: M.O.1: FDR No.39779786678 Dt.5.11.2020 for Rs.73,550/-, M.O.2: Samsung duos black colour cell phone Digitally signed by EDDULA

EDDULAPRATHIBA

PRATHIBADate: 2022.04.06 21:56:18 +0530

I A.J.M.F.C.

Proddatur.

CALENDER AND JUDGMENT

Calendar and Judgment tried by the I Addl. Judicial Magistrate of I Class , Proddatur.

DATE OF

Offence ReportApprehensionRelease onCommencemClose ofJudgment of accusedbailent of trial trial 12.10.202016.10.2020 20.10.2020-21.10.2020- 11.10.202011.10.2020A.4A.407.12.202104.4.202206.4.2022

Calender and Judgment in C.C.No.1064/2020 on the file of I Addl. Judicial

Magistrate of I Class, Proddatur.

COMPLAINANT: The SHO of Proddatur III town P.S.

Name of the accused with Age Religion Residence

father's Name. 1234 Pamidi Srinivasa RaoD.No.6/227,Vijayanagaram 41 Hindu son of Baludu Street, Proddatur town. Chinthalapalli Rama Krishna,D.No.4/1397-5, Hanuman Nagar, 38 Hindu son of Ramudu Proddatur town. Poyilimeni Raju, D.No.4/1428-6, Hanuman Nagar, 26 Hindu son of Chinnaiah Proddatur town. Sainadham Subbaiah, D.No.8/57, Eswara Reddy 29 Hindu son of Venkata Ramana Nagar, Proddatur town.

Offence :u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act

Finding : Accused are found not guilty for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act

Sentence: In the result, the accused Nos.1 to 4 are found not guilty for the offence punishable u/Sec.353 r/w.34 of IPC and Sec.9 (1) of A.P. Gaming Act and accordingly, they are acquitted of the same u/Sec.255 (1) of Cr.P.C. The bail bonds of the accused shall be remained in force for a period of six months as required u/Sec.437-A Cr.P.C. M.Os.1 and 2 shall be confiscated to the State after the expiry of appeal time. EDDULADigitally signed by

EDDULA PRATHIBA

PRATHIBADate: 2022.04.06 21:56:34 +0530 I Addl. Judicial Magistrate of I Class, Proddatur

Copy submitted to the Hon'ble I Addl. District and Sessions Judge, Kadapa. Dis. No. Dt.