Sri G.Lenin Babu

1 C.C.No.55 of 2019 JMFC, SMC, SKLM 24-06-2021

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS,

SPECIAL MOBILE COURT, SRIKAKULAM.

Present : Sri G. Lenin Babu,

Judicial Magistrate of First Class,

Special Mobile Court, Srikakulam.

Thursday, this is the 24th day of June, Two Thousand and Twenty One.

CALENDAR CASE No. 55/2019

Between : The State, represented by the Sub-Inspector of Police,

Etcherla Police Station, Srikakulam District...... Complainant.

and

Komara Somayya S/. Appayya (late), aged about 39 years, Vadabalija by caste, Resident of Ginnivanipeta Village, Etcherla Mandal, Srikakulam

District. .....Accused.

This Case is coming on 19-04-2021 before me for final hearing and disposal in the presence of the Assistant Public Prosecutor for the Complainant/ State and of Sri Ch.Suryanarayana, Advocate for the Accused and having stood over for determination till this day, this Court delivered the following :-

J U D G M E N T

01.The Sub-Inspector of Police, Etcherla Police Station, Srikakulam District has filed the Charge Sheet against the Accused in Crime No.27/2019 for the offences punishable under Sections 451, 354-A and 323 of Indian Penal Code.

02.The Case of the Prosecution in Brief is that, the accused who is practicing as RMP used to visit Bhagiradhapuram and surrounding villages for giving treatment to the villagers. In this connection, about 3 years ago, the accused misbehaved with L.W.1/Jeeru Mani by insisting her to fulfill his lust. On 03.02.2019 at about 23.00 hours, L.W.1/Jeeru Mani went to attend nature calls, the accused entered into her house with an intention to commit sexual offence, caught her from the rear and tried to forcible sexual intercourse, but L.W.1/Jeeru

Mani resisted him and raised cries. L.W.2/Jeeru Chinnammadu who is the mother-in-law of L.W.1/Jeeru Mani woke-up and tried to caught hold the accused, but the accused beat her with hands and also pushed on the wall and escaped from that place. Hence, L.W.1/Jeeru Mani lodged a report to the Police and on it’s basis L.W.8/Y.Krishna, SI of Police registered a case in Crime

No.27/2019 for the offences punishable under Sections 451, 354-A and 323 of

Indian Penal Code.

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03.During the course of investigation, L.W.8/Y.Krishna, SI of Police visited the Scene of offence in the presence of mediators i.e., L.W.4/Nakka Krishna

Murthy and L.W.7/Potnuru Dharmapuri drafted Scene Observation Report, drew

Rough Sketch and also examined L.W.1/Jeeru Mani, L.W.2/Jeeru Chinnammadu,

L.W.3/Sadhu Malleswara Rao, L.W.4/Nakka Krishna Murthy, L.W.5/Seera

Tirupathi and L.W.6/Allu Ramana and recorded their statements. After completion of investigation, L.W.8/Y.Krishna, SI of Police has filed the Charge

Sheet against the Accused for the offences referred above.

04.The Court took cognizance of the offences punishable under Sections 451, 354-A and 323 of Indian Penal Code against the Accused. On appearance of

Accused before the Court, Copies of documents were furnished to him, as required under Section 207 of Cr.P.C. The Accused was examined under Section 239 of Cr.P.C. and after hearing both sides, Charges were framed against the

Accused for the offences punishable under Sections 451, 354-A and 323 of Indian

Penal Code, read over and explained to him in Telugu. He pleaded not guilty and claimed to be tried.

05.To prove the guilt of the Accused, the Prosecution has examined P.W.’s 1 to 8 and Exs. P1 to P7 were marked through them and also got marked Ex.D1 through P.W.5. After closure of the Prosecution evidence, the Accused was examined under Section 313 of Cr.P.C., by explaining the incriminating evidence appearing against him. He denied totally and reported no Defence evidence.

06. Heard Arguments on both sides.

07. Now the point for determination is :

Whether the Accused has committed the offences punishable under Sections 451, 354-A and 323 of Indian Penal Code & Whether the Prosecution has proved the guilt of the Accused beyond all reasonable doubt?

08.The learned Assistant Public Prosecutor has argued that the Prosecution

Witnesses has consistently supported the case and it is clinching from their evidence that the Accused trespassed into the house of P.W.1 and made sexual harassment to P.W.1 and also beat P.W.2 with hands. Hence, he prayed to convict the Accused and sentence him accordingly.

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09.The learned Defence Counsel has vehemently argued that there are several contradictions in the evidence of P.W.’s 1 to 5, Ex.P1 with respect to their statements recorded under Section 161(3) of Cr.P.C. He further argued that

P.W.’s 3 to 5 came to know about the incident and they are not eye witnesses to the alleged incident. He further argued that P.W.2 who is said to be eye witness to the alleged incident turned hostile and did not support the case of the Prosecution.

He further argued that the incident was occurred on 03.02.2019 and Ex.P1 was lodged by P.W.1 on 06.02.2019 and the delay of three days was not explained by the Prosecution. He further argued that except P.W.1 there is no categorical evidence to prove that alleged offence was committed by the Accused and P.W.1 filed this false case against the accused due to political rivalry between P.W.3 and accused. Hence, he prayed to acquit the Accused.

P O I N T :-

10.To prove its case, the prosecution examined P.W.’s 1 to 8 and got marked

Exs.P1 to P7 and Ex.D1.

11.P.W.1 is the Defacto-Complainant. P.W.2 is the Mother-in-law of P.W.1.

P.W.’s 3 to 5 are the independent witnesses. P.W.’s 6 and 7 are the mediators to

Scene of offence. P.W.8 is the Investigating Officer.

12.Ex.P1 is the Written Report of P.W.1. Exs. P2 and P3 are Part of

Statement of P.W.2 recorded under Section 161(3) Code of Criminal Procedure.

Ex.P4 isScene Observation Report. Ex.P5 is the Signature of P.W.7 on the Scene

Observation Report. Ex.P6 is the Original FIR. Ex.P7 is the Rough Sketch of

Scene of offence. Ex.D1 is the Part of Statement of P.W.5 recorded under

Section 161(3) Code of Criminal Procedure

13. It is the case of prosecution that on 03.02.2019 at 23.00 hours, the accused trespassed into the house of P.W.1 and fell on her and tried to use force on her to fulfill his sexual desire and that she raised cries, P.W.2 woke up and tried to caught hold the accused, then the accused beat her with hands and pushed her to the wall and the accused ran away and P.W.1 gave report to the police.

14.It is the case of defence that accused never committed any offence and a false case was filed against him due to political rivalry in the village.

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15.Now, to prove the offences under Sections 451, 354-A and 323 of Indian

Penal Code, the prosecution must prove that the accused committed sexual harassment and made demand for sexual favour from P.W.1 and trespassed into the house of P.W.1 and also beat P.W.2 with hands.

16.Now to prove the offence under Section 451 of Indian Penal Code, the Prosecution must prove that : The Accused trespassed into the house of P.W.1 with an intent to commit an offence or to intimidate, insult or annoy her.

17.As per Ex.P1, P.W.1 mentioned that on 03.02.2019 at about 11.00 p.m., when she went to attend nature calls, the accused trespassed into her house and caught hold from back and demanded her to fulfil his lust. P.W.1 deposed that on 03.02.2019 her husband went to camp at about 11.00 p.m., she came out of her house to attend nature calls, at that time the accused entered into her house, while she entered into her house after attending nature calls, the accused is present in her house and threatened her to fulfill his lust. P.W.2 deposed that about 5 months ago, at about 11.00 p.m., she heard cries of P.W.1 and accused in their house. She further deposed that she wokeup and found P.W.1 and accused in her house and then she caught hold the accused and he pushed her and ran away from that place.

P.W.3 deposed that he came to know about the incident through P.W.’s 1 and 2 that about 5 months ago, on one day at about 11.00 pm., the accused entered into their house. P.W.’s 4 and 5 also deposed that they came to know about the incident. As per the evidence of P.W.’s 3 to 5, they are not eye witnesses to the incident and they came to know about the incident through P.W.1 or P.W.2.

Hence, their evidence cannot be useful to the prosecution to prove the offence punishable under Section 451 of I.P.C. As can be seen from the evidence of

P.W.1, when she came out of her house to attend nature calls, the accused entered into her house and threatened her to fulfill his lust. P.W.2 deposed that when she wokeup from sleep, found P.W.1 and accused in house. P.W.’s 1 and 2 did not depose before the court that the accused was criminally trespassed into their house. Mere entering into the house of P.W.1 by the accused does not amount to criminal trespass as defined in Section 441 of I.P.C. Hence, there is no evidence on record to show that the accused trespassed into the house of P.W.1 and that it cannot be said that the ingredients of Section 451 of I.P.C. said to have been 5 C.C.No.55 of 2019 JMFC, SMC, SKLM 24-06-2021 satisfied. In view of the evidence of prosecution witnesses, the Prosecution has failed to prove and establish that Accused criminally trespassed into the house of

P.W.1 and committed the offence punishable under Section 451 of I.P.C.

18. The another Charge was framed against the Accused for the offence under

Section 354-A of I.P.C. and at this stage, it is worthwhile to reproduce Section 354-A of IPC as follows :

“Sexual harassment of the nature of unwelcome physical contact and advances or a demand or request for sexual favours or showing pornography shall be punished”.

19.In the case on hand, it is alleged by the Prosecution that the Accused had demand for sexual favour from P.W.1 and with regard to this aspect the evidence of the Prosecution Witnesses is as follows :

As per Ex.P1, it shows that on 03.02.2019 at about 11.00 p.m., P.W.1 went outside for attending nature calls and later she came inside the house, on that time the accused caught hold her from back and demanded her to fulfill his lust. P.W.1 deposed in her evidence that on 03.02.2019 at about 11.00 pm., she came out of her house to attend nature calls, at that time, the accused entered into her house, while she entered into her house after attending nature calls, the accused is present in her house and threatened her to fulfill his lust. Normally, the doors of house would be locked in the night hours when we go to sleep. If the doors of house are locked, how the accused came inside of the house of P.W.1 without the consent of inmates or without broke open the locks or windows. It is not the case of the prosecution that the accused broken the windows or locks of the house of

P.W.1. Even presume that the accused was present inside the house of P.W.1, definitely it must happen with the consent of the inmates of house. P.W.1 deposed in her cross examination that there are no door locks to her house, which cannot be believable one. P.W.1 further deposed that P.W.2 was present in her house on that day and on hearing her cries, P.W.2 came out from her room and the accused ran away from her house by pushing aside P.W.2. She further deposed that the accused used to harass her to fulfill his lust even prior to this incident. She further deposed that on the same day, she approached P.W.3 and placed the matter before him, P.W.3 called the accused for explanation but he did not turn up.

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20.She further deposed that at about 2 to 3 years ago, the accused sexually harassed her. She further deposed that she has given the report to the police against the accused about 3 years ago with respect to his harassment, but she cannot say the date of giving report. She further deposed that she has not submitting a copy of the report given by her about 3 years ago along with Ex.P1.

The Investigating officer also failed to collect the said report to prove previous harassment of accused.

21.P.W.2 who is said to be eye witness to the alleged incident deposed that the accused is a RMP doctor in their village. She deposed that at about 5 months, she heard cries of P.W.1 and found the accused in her house. But she do not know why the accused came to her house on that day. She finally deposed that apart from that she do not know anything about this case. She turned hostile.

22.P.W.3 who is the junior paternal uncle of P.W.1 deposed that he came to know about the incident through P.W.’s 1 and 2. P.W.4 also deposed that he acted as elder as the husband of P.W.1 approached him on 04.06.2019 stating that the accused misbehaved with P.W.1 on 03.06.2019 as she went out to attend nature calls. He further deposed that previously, he has counseled both the parties, while the accused misbehaved with P.W.1 and advised the accused to change his attitude but the accused did not heed his words, as such he advised P.W.1 to lodge a report to the Police. During his cross examination, he deposed that he was not acted as mediator with respect to the incident and he has not an eye-witness to the incident. He cannot say the exact date of previous mishebaviour of the accused towards P.W.1. He has not given counseling to the accused. He further deposed that he was examined by the Police in the Police station and thereafter he was not examined by the Police. P.W.5 also came to know about the incident through

P.W’s 1 and 2. During his cross examination, he deposed that he was present at

Yelamanchili, Visakhapatnam District at the time of incident. He admitted that he stated before the police that he received a phone call about the incident. He further deposed that he visited the police station on 06.02.2019 and he stated

before the police that he received phone call on 03.02.2019 but not on

04.02.2019. He further deposed that he did not state before the Police as in Ex.D1 that “on 04.02.2019 he received phone call about the incident”. He further deposed that he has not eye witness to the incident.

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23.As can be seen from the evidence of P.W.2, she is said to be eye witness to the alleged incident, did not state anything about the harassment made by the accused to P.W.1 to fulfill his sexual desire. P.W.’s 3 to 5 came to know about the incident. Hence, their evidence is not helpful to the prosecution case. They clearly admitted that they are not eye witnesses to the alleged incident. P.W.4 deposed that he was not acted as mediator with respect to the incident and he is not eye witness to the incident. Hence, the evidence of P.W.’s 2 to 5 is not helpful to prove the charge under Section 354-A of IPC that the accused demanded P.W.1 to fulfill his sexual desire.

24.As per the version of P.W.1, a bath room was constructed in her house about one year ago. As per Ex.P1 and the evidence of P.W.1, it shows that on 03.02.2019 at about 11.00 pm., P.W.1 went outside of her house for attending nature calls and later entered the house, the accused caught hold her from back and demanded her to fulfill his lust. On perusal of Ex.P4, the mediators were observed one hall, Bed room, Kitchen and wash room inside the house. On persual of Ex.P7, it show that the house of P.W.1 consists main hall, Bed Room with attached bath room and Kitchen inside house. P.W.1 also admitted that a bath room was constructed in her house about one year ago. As per the material on record and the evidence of P.W.1 establishes that the house of P.W.1 consists a bed room with attached bath room. P.W.1 failed to explain why she came out of her house in the night hours to attend nature calls eventhough a attached wash room was available to her bed room. It creates doubt over the version of P.W.1 that she came out of her house to attend nature calls and thereafter the accused caught hold her from back.

25.She further deposed that initially she deposed that the accused is a RMP doctor and later, she deposed that she do not know whether the accused is a RMP doctor or not. She further deposed that the accused is not a resident of their village. She further deposed that previously the accused harassed her for sexual desire. Later, she given report to the Police against the accused. If P.W.1 really, sustained harassment by the accused previously, she will enquire about the accused and his residence. But, as per the version of P.W.1 she do not know the residence and profession of the Accused. It creates doubt over the version of

P.W.1.

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26.Further, it is the case of defence that there is a delay of 3 days in giving the complaint to police by P.W.1 and it is fatal to the case of prosecution. As per

Ex.P6, it was mentioned that P.W.1 approached elders but the accused did not turn up. As per Ex.P1, the incident was occurred on 03.02.2019, P.W.1 lodged

Ex.P1 on 06.02.2019. There is a delay of three days in presenting F.I.R. P.W.1 admitted that herself, P.W.’s 2, 3, 5, 7 and her husband went to the police station on 06.02.2019 and one constable drafted Ex.P1 for ½ hour. After the incident,

P.W.1 and others approached P.W.’s 3 to 5. P.W.’s 3 and 5 deposed that they called the accused for mediation and the accused did not turn up, hence, they suggested P.W.1 to approach the police. P.W.4 deposed that he also advised the accused to change his attitude, but he did not heed his words, as such he advised

P.W.1 to lodge a report to the police. It is the case of the prosecution that P.W.’s 3 to 5 were acted as mediators and the accused did not turn up. It is the admitted fact that P.W.1 lodged Ex.P1 after deliberation and consultation with P.W.’s 3 to

5. It shows that Ex.P1 is not a piece of spontaneous one and it was prepared after due deliberations and consultations with P.W.’s 3 to 5 who are having political animity with the accused and hence, it is not safe to rely upon Ex.P1. So, when there is a delay of 3 days in giving complaint to police by P.W.1, there is every possibility for P.W.1 to make due deliberations and file a false case against accused.

27.At this juncture, it is pertinent to rely upon a decision reported in 1972 (3)

Supreme Court Cases page 393, between Thulia Kali Vs. The State of Tamil

Nadu, wherein it was held at para 12 of the judgment that “Delay in giving the complaint, Police station situated about two miles from place of occurrence and the Delay of 20 hours in lodging of FIR should be satisfactorily explained by the prosecution and absence of explanation would render unsafe to base conviction on such FIR. First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused.

The object of insisting upon prompt lodging of the report to 9 C.C.No.55 of 2019 JMFC, SMC, SKLM 24-06-2021 the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.

The said circumstance in our opinion would raise considerable doubt regarding the veracity of the evidence of those two witnesses and point to an infirmity in that evidence as would render it unsafe to base the conviction of the accused appellant upon it.”

The above Judgement is squarely applies to the present case on hand as

P.W.1 failed to give any complaint to police even though she sustained harassment by the accused previously and later P.W.1 gave complaint to police with a delay of 3 days. Hence, in view of the above legal position, it is held that the delay of 3 days in giving complaint to police by P.W.1 is fatal to the case of prosecution.

28.P.W.1 admitted that P.W.2 given a report in Etcherla Police Station on 04.02.2019 and the police received the said report and police did not give receipt.

If really P.W.2 given report to the police about the incident, it will be the first information to the police. But, the police did not file the same before the court. It shows that the police did not file the report before the court which is said to have been given by P.W.2 and thereby, suppressed the same for the reasons best known to them and the same is fatal to the case of the prosecution.

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29.Immediately on seeing the accused, P.W.’s 1 and 2 raised cries in night hours. P.W.8 the investigating officer admitted that he did not examine the persons whose names are shown in Ex.P7. They are the best persons to give evidence about the presence of accused. But, no neighbour was examined by

P.W.8 for the reasons best known to him and examined P.W.’s 3 to 6 whose houses are not located near to the house of P.W.1 as per Ex.P7 and the same is fatal to the case of prosecution. P.W.1 admitted that her in-laws are residing in the first floor of her house which is constructed with asbestos sheets. P.W.8 admitted that he did not shown in Ex.P7 about the presence of first floor constructed with asbestos sheets. P.W.8 did not examine the brother-in-laws of

P.W.1 whose houses are located adjacent to her house and did not examine the husband of P.W.1. P.W.8 did not enquire about the village of the accused. So, it amounts to non-examination of material witnesses by the prosecution and the same is fatal to the case of the Prosecution.

30.P.W.6 who is acted as mediator to the observation of Scene of offence deposed that he signed on Ex.P4 at the request of the SI of Police, Etcherla Police

Station but he do not know the contents of Ex.P4. P.W.7 who is the another mediator turned hostile and did not support the case of the Prosecution. Hence, the prosecuiton failed to prove the inspection of Scene of offence by P.W.8 in the presence of mediators.

31.Admittedly, P.W.2 turned hostile. P.W’s 3 to 5 came to know about the incident. Except the evidence of P.W.1, there is no capable evidence over the harassment of P.W.1 by the accused to fulfill his lust. The evidence of P.W.1 does not inspire confidence of the court and hence her evidence is held to be not trustworthy and believable. Hence, it is held that the prosecution has failed to prove that the accused committed any offence under Section 354-A of Indian

Penal Code.

Section 323 of I.P.C. :

32.Now, the Prosecution must prove that Accused beat P.W.’s 1 and 2 with hands caused injuries to them and thereby committed an offence punishable under

Section 323 of IPC.

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33.As can be seen from Ex.P1 and entire evidence of P.W.1 shows that the accused entered into her house and demanded her to fulfill his lust but she did not depose that he beat her with hands and caused injuries. As per Ex.P1, P.W.1 mentioned that on hearing her cries, P.W.2 woke up and tried to caught hold the accused, then the accused beat her with hands and pushed her on the wall and ran away. P.W.1 deposed in her evidence that on hearing her cries, P.W.2 came out from her room and the accused ran away from her house by pushing aside to

P.W.2. P.W.2 also deposed that when she caught hold the accused, he pushed her and ran away from that place. Except that, there is no single piece of evidence to shows that the accused caused simple injuries to P.W.’s 1 and 2 with hands.

P.W.8/Investigating officer admitted that he did not refer P.W.’s 1 and 2 to the

Hospital for treatment. Admittedly P.W.’s 1 and 2 were not admitted in the hospital and got examined by the doctor. Hence, it is held that prosecution has failed to prove that accused committed any offence punishable under Section 323 of I.P.C.

34.P.W.1 deposed that the accused contested as MPTC with the support of

YSRCP and in that election, P.W.7 was elected as MPTC with 49 votes of majority. P.W.3 is the Surpanch of the Village and elected with support of TDP.

P.W.3 deposed that he elected as Surpanch with support of TDP. P.W.4 deposed that the accused contested as MPTC and got defeated with 56 votes. As per the above evidence, the accused is the supporter of YSRCP and defeated in MPTC elections by P.W.7. P.W.3 is elected as surpanch with the support of TDP.

Hence, the accused has a political rivalry with P.W.’s 3 and 7 and therefore, their evidence cannot be believable one and rely upon.

35. Now, on considering the entire oral and documentary evidence on record and in view of the discussion already made supra, it is held that P.W.2 did not support the case of prosecution, P.W.’s 3 to 5 came to know about the incident and the evidence of P.W.1 is held to be not consistent and corroborating on material aspects and their evidence does not inspire confidence of the court and also having political rivalry. The evidence of P.W.8 the Investigating Officer also does not establish the case of prosecution, it is held that there is no ring of truth in the evidence of P.W.’s 1 to 5 and held to be not trustworthy and when there is unexplained delay of 3 days in giving the Report to police by P.W.1, which is 12 C.C.No.55 of 2019 JMFC, SMC, SKLM 24-06-2021 fatal to the case of prosecution and when there is no categorical evidence on record to show that accused threatened and criminally intimidated P.W.1 and when there is no evidence on record to show that the accused trespassed into the house of P.W.1, demanded P.W.1 to fulfill his lust and also beat P.W.’s 1 and 2 with his hands, and also admittedly having political rivalry, it is held that prosecution failed to establish the necessary ingredients for the offences punishable under Sections 451, 354-A and 323 of Indian Penal Code against the accused, beyond all reasonable doubt. Hence, the accused is entitled for benefit of doubt and liable to be acquitted. Accordingly, the point is answered.

36. In the result, I find that the Accused is not guilty for the offences punishable under Sections 451, 354-A and 323 of Indian Penal Code. Hence, he is acquitted under Section 248 (1) of Cr.P.C. The Bail bonds of Accused shall stand cancelled after expiry of six months, as per Section 437(A) of Cr.P.C.

Typed to my Dictation by Typist, corrected and pronounced by me in the open Court, on this the 24th day of June, 2021.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence: P.W.1 : Jeeru Mani. ---- None ---- P.W.2 : Jeeru Chinnammadu. P.W.3 : Sadhu Malleswara Rao. P.W.4 : Seera Tirupathi. P.W.5 : Allu Ramana. P.W.6 : Potnuru Dharmapuri. P.W.7 : Nakka Krishna Murthy, VRO. P.W.8 : Y.Krishna, SI of Police, SI of Police.

DOCUMENTS MARKED

For Prosecution: Ex.P1/Dt.06.02.2019: Written Report given by P.W.1. Ex.P2/Dt.06.02.2019: Part of Statement of P.W.2 recorded under Section 161(3) of Cr.P.C. Ex.P3/Dt. 06.02.2019: Part of Statement of P.W.2 recorded under Section 161(3) of Cr.P.C. Ex.P4/Dt. 06.02.2019: Scene Observation Report. Ex.P5/Dt. 06.02.2019: Signature of P.W.7 on Scene Observation Report. Ex.P6/Dt. 06.02.2019: Original FIR. Ex.P7/Dt. 06.02.2019: Rough Sketch of Scene of offence. For Defence: Ex.D1/Dt. 06.02.2019: Part of Statement of P.W.5 recorded under Section 161(3) of Cr.P.C.

MATERIAL OBJECTS

------ NIL ----

Judicial Magistrate of First Class,

Special Mobile Court, Srikakulam.

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CALENDAR AND JUDGMENT IN C.C. No. 55/2019

Calendar cases tried by the Judicial Magistrate of First Class, Special Mobile Court, Srikakulam. Date of offence : 03.02.2019 Date of filing : 06.02.2019 Date of Apprehension : 07.02.2019 Date of release on bail : 07.02.2019 Date of commencement of trail : 06.06.2019 Date of closing of trial : 05.02.2020 Date of sentence : 24.06.2021 Explanation for delay: Delay due to this case was registered on 06.02.2019, the Police filed charged sheet on 21.02.2019 and the same was numbered on 23.02.2019. The Accused was appeared on 20.03.2019 and the first examination was conducted on the same day. The trial was conducted from 06.06.2019 to 05.02.2020. The Judgment was pronounced on 24.06.2021. There is a delay due to non production of witnesses and also due to Lock-down. Hence, the delay.

The Name of the Complainant : The State, Represented by its, The Sub-Inspector of Police, Etcherla Police Station, Srikakulam District. (Crime No. 27/2019)

The Name of the Accused : Komara Somayya S/. Appayya (late), aged about 39 years, Vadabalija by caste, Resident of Ginnivanipeta Village, Etcherla Mandal, Srikakulam District. Occupation: RMP Doctor.

The offence complained of: Offence Punishable under Sections 451, 354-A and 323 of IPC.

Offence u/Sec. 451 of IPC: House-trespass in order to commit offence.

Offence u/Sec. 354-A of IPC:Whoever assaults or uses criminal force to any women or abets or conspires to assault or uses such criminal force to any women intending to outrage or knowing it to be likely that by such assault, he will thereby outrage or causes to be outraged the modesty of the women by disrobing or compel her to be naked or any public place, shall be punished with imprisonment

Offence u/Sec. 323 of Indian Penal Code : Punishment for voluntarily causing Hurt.

Finding: Found not guilty.

14 C.C.No.55 of 2019 JMFC, SMC, SKLM 24-06-2021

Sentence or Order:In the result, I find that the Accused is not guilty for the offences punishable under Sections 451, 354-A and 323 of

Indian Penal Code. Hence, he is acquitted under Section 248 (1) of Cr.P.C. The

Bail bonds of Accused shall stand cancelled after expiry of six months, as per

Section 437(A) of Cr.P.C.

Sd/- Sri. G. Lenin Babu.

Judicial Magistrate of First Class,

Special Mobile Court, Srikakulam.

Copy submitted to The Hon'ble I Additional District & Sessions Judge, Srikakulam for perusal. The Superintendent of Police, Srikakulam.

//True Copy//

Judicial Magistrate of I Class,

Special Mobile Court, Srikakulam.

11

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS,

SPECIAL MOBILE COURT, SRIKAKULAM.

Present : Sri. G. Lenin Babu,

Judicial Magistrate of First Class,

Special Mobile Court, Srikakulam.

Dated this the Tuesday, 25th day of June, Two Thousand and Nineteen.

CALENDAR CASE No. 07/2017

Between : The State, represented by the Sub-Inspector of Police, Traffic Police Station, Srikakulam, Srikakulam District.

..... Complainant.

and

1. Palli Sankara Rao S/o. Paydi Raju, aged about 35 years, Kapu by caste, Main Street, D.No.2-1, Thotapalem Village, Etcherla Mandal, Srikakulam District. (Driver of Tata ACE Luggage Van bearing Registration No. AP 30 W 7195).

2. Korada Trinadha Rao S/o. Bhaskara Rao, aged about 51 years, T.Kapu by caste, Resident of MIG-412, Old APHB colony, Srikakulam Town and District. (Owner of Tata ACE Luggage Van bearing Registration No. AP 30 W 7195).

.....Accused.

This Case has come before me on this day of 12.06.2019 for final hearing and disposal in the presence of Assistant Public Prosecutor for the Complainant/State and Sri. K.Srinivasa Rao, Advocate for A1 and Sri. V.Krishna Chand for A2 and the matter having stood over for determination till this day, this Court delivers the following :-

JUDGMENT

01.The Sub-Inspector of Police, Traffic Police Station, Srikakulam, Srikakulam

District has filed Charge Sheet against the Accused/A1 and A2 in Crime No.11/2016 for the offences punishable under Section 338 of Indian Penal Code and Sections 3 r/w. 181 and 180 of Motor Vehicle Act.

02. The Case of the Prosecution in Brief is that, on 20.04.2016 after noon,

L.W.1/Defacto-Complainant/Bommali Divya Sri left from School and proceeding towards her house and when reached near TPMH School Junction, opposite to

Women Police Station, in the mean while, the driver of Tata ACE Luggage Van bearing Registration No. AP30W7195 came from Santoshimatha Temple side, drove it in a rash, negligent and dangerously, dashed and dragged her on the road. As a result, L.W.1/Bommali Divya received severe bleeding injuries on the right hand from fingers to shoulder, right leg foot to thigh, bleeding injuries on the right cheek, ear and fore head. Later, the Accused and some others shifted her to the RIMS 22

Hospital, Srikakulam in an Auto. The Outpost Police i.e., L.W.9/P.Satyanarayana recorded the Statement of L.W.1/Bommali Divya Sri and the same was send to

Traffic Police Station, Srikakulam on the point of jurisdiction. On it’s basis,

L.W.12/S.Durgayya, ASI of Police registered a case in Crime No.11/2016 for the offences punishable under Section 338 of Indian Penal Code and Section 184 of

Motor Vehicle Act.

During the course of investigation, L.W.12/S.Durgayya, ASI of Police visited the Scene of offence in the presence of mediators i.e., L.W.7/Tatta Joga Rao and

L.W.8/Kallepalli Venkata Ramana drafted Scene Observation Report, drew Rough

Sketch and also examined L.W.1/Bommali Divya Sri, L.W.2/Bommali Adinarayana,

L.W.3/Bommali Surya Kumari, L.W.4/Kalahasti Uma Shankara Rao, L.W.5/Potnuru

Govinda Rao and L.W.6/Budumuru Govinda Rao and recorded their statements.

L.W.10/K.Parvathi, AMVI inspected the Crime Vehicle and opined that the Accident was occurred not due to any mechanical defects of the Crime Vehicle and issued

MVI Report. L.W.11/Dr. Ch. Rajani, CMO treated L.W.1/Bommali Divya Sri and opined as per the X-ray Opinion of L.W.1/Bommali Divya Sri issued by L.W.14/Dr.

L.V.V. Prasad, Radiologist that the injuries sustained by her are grievous in nature and issued Wound Certificate. After completion of investigation, L.W.13/D.Satya

Rao, SI of Police has filed the Charge Sheet against the Accused/A1 for the offences punishable under Section 338 of IPC. and Sections 184 r/w. 188 and 3 r/w. 181 of

M.V. Act and also against A2 for the offence punishable under Section 180 of Motor

Vehicle Act.

03.The Court took cognizance against the Accused/A1 for the offences punishable under Section 338 of IPC and Section 3 r/w. 181 of Motor Vehicle Act and also against Accused/A2 for the offence punishable under Section 180 of Motor

Vehicle Act. On appearance of Accused before the Court, Copies of documents were furnished to them, as required under Section 207 of Cr.P.C. The Accused/A1 and A2 were examined under Section 251 of Cr.P.C., by explaining the particulars of the offences punishable under Section 338 of IPC and Section 3 r/w. 181 of MV Act to

A1 and also explaining the particulars of offence under Section 180 of MV Act to

A2, in Telugu. They pleaded not guilty and claimed to be tried.

04.During the course of trial, the Learned Assistant Public Prosecutor filed

Petition to summon the Dr.L.V.V.Prasad, Radiologist who took X-ray report of

P.W.1 and the same was allowed by this Court vide Crl.MP.683/2019 Dt.21.02.2019 and he was examined as P.W.10. To prove the guilt of the Accused, the Prosecution 33 has examined P.W.'s 1 to 11 and Exs. P1 to P7 were got marked through them. The evidence of L.W.3/Bommali Surya Kumari was gave up by the Ld. A.P.P. as her evidence was deposed by P.W.2. The evidence of L.W.8/Kallepalli Venkata Ramana was gave up by the Ld. A.P.P. as his evidence was deposed by P.W.5. The evidence of L.W.6/Budumuru Govinda Rao was closed by this Court as the Police filed VR

Report stating that he is not residing in his village. After closure of the Prosecution evidence, the Accused/A1 and A2 were examined under Section 313 of Cr.P.C. by explaining the incriminating evidence appearing against them. They denied it totally and reported no Defence evidence.

05. Heard Arguments on both sides.

06. Now the point for determination is:

Whether the Accused/A1 has committed the offences punishable under Section 338 of IPC and Section 3 r/w. 181 of M.V. Act and the Accused/A2 has committed the offence punishable under Section 180 of M.V. Act and Whether the Prosecution has proved the guilt of the Accused beyond all reasonable doubt?

07.The learned Assistant Public Prosecutor has argued that the Accused drove the Van in a rash and negligent manner and caused grievous injuries to P.W.1. He also argued that P.W.’s 1, 3 and 4 has identified the Accused/A1 in the Open Court to be the driver of the van at the time of accident. He further argued that the evidence of the Prosecution Witnesses has consistently established the guilt of the Accused and hence, he prayed to convict the Accused and sentence them accordingly.

08.The learned Defence Counsel contended that the Investigating Officer failed to collect the Original documents relating to the Crime Vehicle to connect the

Accused with the Crime Vehicle i.e., Van. He also argued that P.W.1 has no facial introduction with the Accused/A1 prior to the accident and she has seen the

Accused/A1 on the date of accident and thereafter in the Court hall only, hence, the non-conduct of Test Identification Parade by the Investigating Officer is fatal to the case of the Prosecution. He further argued that P.W.1 deposed in her evidence that

P.W.2 shown the Accused to her in the Traffic Police Station. Hence, he prayed to acquit the Accused.

09.In a case for the offence under Section 338 of I.P.C., the essential ingredients are :

(i). There must be grievous injuries to a person.

(ii). Such injuries must be due to the rash or negligent act of the Accused. The Case on hand has to be analyzed in the light of the above ingredients.

44

POINT :-

10.To bring home the guilt of the Accused, it is for the Prosecution to prove that the Accused/A1 drove the Van in a rash or negligent manner and caused grievous injuries to P.W.1 and also not having license and thereby, he has committed the offences punishable under Section 338 of Indian Penal Code and Section 3 r/w. 181 of MV Act. It is also for the Prosecution to prove that the Accused/A2 has given the

Crime Vehicle to an unlicensed person and thereby, he committed the offence punishable under Section 180 of MV Act.

11.In order to establish the guilt of the Accused, the Prosecution got examined

P.W.1 who is the injured, P.W’s 2 to 4 who are the independent witnesses. P.W.5 is the mediator. P.W.6 is the Assistant Motor Vehicle Inspector. P.W.7 is the Doctor who treated P.W.1, P.W.8 is the Outpost Police, P.W’s 9 and 11 are the Investigating

Officers, P.W.10 is the Radiologist.

12. P.W.1/Bommali Divya Sri who is the Defacto Complainant and injured deposed that on 20.04.2016 at about 12.40 pm., while she was returning from her

Oxford School and crossing the road at Mahila Police Station, one Luggage van coming from Santhoshimata Temple and proceeding towards OBS coming in a rash and negligent manner without blowing horn hit her due to which, her bag got struck to hook of the luggage van and dragged her to a certain distance. She deposed that she sustained bleeding injuries from her fingers to hip of right leg. She also sustained injuries from palm to shoulder of her right hand and also sustained bleeding injuries on the said hand. She also sustained injuries on her right cheek and bleeding injury on her head. P.W.2 deposed that he went to the RIMS Hospital,

Srikakulam and found P.W.1 with bleeding injuries on her right Cheek, right side of her head, right hand upto shoulder and right leg from fingers to hip. P.W.3 deposed that he found P.W.1 with bleeding injuries on her right hand and on her right cheek and also found injuries on her right hip. P.W.4 deposed that he found P.W.1 with bleeding injuries on her right hip.

13.As per the evidence of P.W.10/Dr.L.V.V.Prasad, Radiologist, he has conducted radiological test on P.W.1 on 24.04.2016 and issued Ex.P7/X-rays (6 in number) vide No.1619 and found the following injuries.

1. X-ray Chest PA view found no bony injury,

2. X-ray abdomen erect AP view no evidence of pneumoperitorneum,

3. X-ray left shoulder with clavicle no bony injury,

4. X-ray right shoulder with clavicle fracture right humerus,

5. X-ray right elbow no bony injury,

6. X-ray right fore arm shows no bony injury.

55

As per the evidence of P.W.7/Dr.Ch.Rajani, CMO, on 20.04.2016 at about 1.20 pm., she has treated P.W.1 and found the injuries i.e., evolution of skin over right leg, evolution of skin over left upper limb, an abrasion of 3x3 cm., over left cheek, red in colour, an evolution of flap over right fore arm and dorsum of hand and opined that the injuries sustained by P.W.1 are grievous in nature and issued

Ex.P4/Wound Certificate of P.W.1.

14.P.W.5/Tatta Joga Rao deposed that as per the requisition of ASI of Police,

Taffic PS, Srikakulam, he has acted as mediator with respect to an accident to which the driver of the auto driven in a rash and negligent manner and hit P.W.1 and dragged her to certain extent for the observation of Scene of offence, the police observed Scene of offence in his presence and noticed blood stains in the Scene of offence. The Police photographed the Scene of offence and drafted Ex.P2/Scene

Observation Report in his presence and he has signed on it.

15.P.W.6/K.Parvathi, AMVI inspected the Crime Vehicle i.e., TATA ACE luggage van bearing Registration No. AP 30 W 7195 and opined that the Accident was not occured due to any mechanical defects of the Crime Vehicle and issued

Ex.P3/MVI Report.

16.P.W.8/P.Satyanarayana, ASI of Police as per the medical intimation recorded the statement of P.W.1 and the same was send to the Traffic Police Station,

Srikakulam on the point of jurisdiction.

17.P.W.9/S.Durgayya, ASI of Police stated that upon receiving medical intimation along with Ex.P1/Statement, he has registered Ex.P5/F.I.R, visited RIMS

Hospital, Sikakulam and examined P.W.1, P.W.2 and L.W.3/Bommali Surya Kumari, visited the Scene of offence, drafted Ex.P2/Scene Observation Report in the presence of Mediators and got photographed the Scene of offence, prepared

Ex.P6/Rough Sketch and also examined P.W.3, P.W.4 and L.W.6/Budumuru

Govinda Rao. He also given requisition to the MVI Inspector to inspect the Crime

Vehicle and also issued Notice under Section 41-A of CrPC to the Accused/A1.

18.P.W.11/D.Satya Rao, SI of Police deposed that he has issued Notice Under

Section 41-A CrPC to A2 and obtained Wound Certificate of P.W.1 and MVI Report and after completion of investigation, he has filed the Charge Sheet against the

Accused.

19.By examining P.W’s 1 to 4 and P.W’s 7 and 10 the Prosecution has successfully established the receipt of grievous injuries to P.W.1 in a road accident.

66

20. From the above discussion, the Prosecution could establish the first ingredient of the offence punishable under Section 338 of IPC with regard to the receipt of grievous injuries to P.W.1 in a road accident.

21. Identity of Accused:

As per Ex.P1, P.W.1 mentioned that the Driver of the Van and some others shifted her to the Hospital for treatment in an auto. P.W.3 who own TV Mechanic

Shop at TPMH High school deposed that in the year 2016, when he was present in his shop between 12.30 to 1.00 p.m., he heard a loud sound and saw a girl was found on the back tire of TATA ACE Van proceeding from Santhosimatha Temple towards

OBS and in the meanwhile, he found P.W.4 was removing P.W.1 and found injuries to P.W.1 and send her to Government Hospital, Srikakulam in an auto. He has identified A1 in the Open Court as the driver of TATA ACE van at the time of

Accident. P.W.4 who own a Tailoring shop adjacent E-Seva Centre on the Collector

Bunglow Road deposed that on one day around 12.30 to 1.00 p.m., while he was present in his tailoring shop, he heard a loud sound and saw a girl was found at the back tire a TATA Ace Van and immediately, he removed her from the van and found bleeding injuries to P.W.1 and sent to the Government Hospial, Srikakulam in an auto with the assistance of P.W.3. He has identified A1 in the Open Court as the driver of Auto TATA ACE van at the time of Accident.

22.Admittedly, the Investigating Officer did not conduct the Test Identification

Parade of A1. P.W.1 deposed that she has seen A1 in the Traffic Police Station as

P.W.4 shown him to her. P.W’s 3 and 4 identified A1 in the Open Court. As per the evidences of P.W.1, 3 and 4, they have seen A1 at the time of incident and identified him in the Open Court.

23.In the cross examination of P.W’s 1, 3 and 4, the learned Counsel for A1 failed to elicit contra in relating to the identification of A1. The learned Counsel for

A1 also failed to put forth the previous disputes or enmity in between P.W.1, P.W.3,

P.W.4 and A1.

24.Considering the submissions and contentions of both sides and upon reading the entire material on record, this Court observed that the evidence adduced by the

Prosecution has clinchingly proved the identity of A1 as to the driver of the Van at the time of accident. Hence, it is not necessary to conduct separate test identification parade of A1. Hence, I hold that the Prosecution has proved the identity of A1 beyond reasonable doubt.

77

25.Rash or Negligent Act :-

As can be seen from the evidence of P.W.1 who is a minor girl, clearly deposed that the luggage van coming from Santoshimatha Temple and proceeding towards OBS coming in a rash and negligent manner without blowing horn hit her.

Hence, this Court is of the opinion that the Accused drove the van in a rash and negligent manner at the time of Accident.

26.Motor Vehicle Act:

To prove the offence under Section 3 r/w. 181 of Motor Vehicle Act , the

Prosecution has failed to examine the concerned Authorities to prove that A1 has no driving license at the time of Accident. Admittedly, the Investigating Officer failed to seize the original documents relating to the Crime Vehicle. The Prosecution failed to brought the evidence through their witnesses in relation to the offences punishable under Sections 3 r/w. 181 and 180 of Motor Vehicle Act. The Prosecution witnesses has maintained absolute silence about the commission of alleged offences by the Accused under Motor Vehicle Act. Hence, this Court is of the opinion that the Prosecution has failed to prove the offence under Section 3 r/w. 181 of Motor

Vehicle Act against A1 and also failed to prove the offence under Section 180 of

Motor Vehicle Act against the A2.

27.Upon considering the above discussed evidence, facts and circumstances of the case, this Court observed that the identity of A1 is clearly proved as the driver of the Crime Vehicle i.e., Tata ACE van at the time of the Accident and further the grievous injuries to P.W.1 were proved. The evidence on record is cogent, corroborative and consistent and shows that A1 acted rashly and negligently while driving the Crime Vehicle and thereby caused grievous injuries to P.W.1. Although, the evidence of P.W’s 1, 3 and P.W.4 is consistent, corroborative and trustworthy and further their evidence was corroborated by the official witnesses. Hence, A1 is totally responsible for causing the Accident. Hence, I hold that the Prosecution has successfully proved the guilt of A1 for the offence punishable under Section 338 of

Indian Penal Code.

28. In the result, I find that Accused/A1 is guilty for the offence punishable under Section 338 of I.P.C. Hence, he is convicted as per the provisions under

Section 255(2) Cr.P.C., for the offence punishable under Section 338 of Indian

Penal Code. The Accused/A1 found not guilty for the offence punishable under

Section 3 r/w. 181 of MV Act and also A2 found not guilty for the offence punishable under Section 180 of MV Act, Hence, the Accused/A1 and A2 are 88 acquitted under Section 255(1) of Cr.P.C, for the offences punishable under Motor

Vehicle Act.

Typed to my dictation by Typist, corrected and pronounced by me in the open Court, this the 25th day of June, 2019.

Judicial. Magistrate of First Class, Special Mobile Court, Srikakulam.

29.When A1 is questioned about the quantum of sentence to be imposed against him, he stated that he has parents, sister and wife and they are depending upon him and requested the Court to impose fine only.

30.The A1 has driven the TATA ACE Van in a rash and negligent manner and thereby grievous injuries to P.W.1 and hence, such attitude of A1 cannot be viewed leniently. Considered the submissions made by A1, I am not inclined to release A1 by applying the benevolent provisions of the Probation of Offenders Act, 1958 or the provisions under Section 360 of Cr.P.C.

31.Hence, the A1 is sentenced to undergo Simple imprisonment for a period of 6 (Six) months and also pay fine of Rs.1,000/-(Rupees one Thousand only) for the offence punishable under Section 338 of Indian Penal Code. In default of payment of fine, A1 shall undergo simple imprisonment for further period of one month.

32. In the result, I find that Accused/A1 is guilty for the offence punishable under Section 338 of I.P.C. Hence, he is convicted as per the provisions under

Section 255(2) Cr.P.C., for the offence punishable under Section 338 of Indian

Penal Code. The Accused/A1 found not guilty for the offence punishable under

Section 3 r/w. 181 of MV Act and also A2 found not guilty for the offence punishable under Section 180 of MV Act. Hence, the Accused/A1 and A2 are acquitted under Section 255(1) of Cr.P.C, for the offences punishable under Motor

Vehicle Act.

The Accused/A1 is sentenced to undergo Simple imprisonment for a period of 6 (Six) months and also pay fine of Rs.1,000/-(Rupees one Thousand only) for the offence punishable under Section 338 of Indian Penal Code. In default of payment of fine, A1 shall undergo simple imprisonment for further period of one month.

The remand period undergone by A1 to be set off under Section 428 of Cr.P.C. The

A1 is appraised about his right of appeal. A copy of judgment is furnished to A1 at free of cost.

Typed to my dictation by Typist, corrected and pronounced by me in the open Court, this the 25th day of June, 2019.

99

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION : FOR DEFENSE: P.W.1: Bommali Divya Sri.NONE

P.W.2: Bommali Adinarayana.

P.W.3: Kalahasti Uma Shankara Rao.

P.W.4: Potnuru Govinda Rao.

P.W.5: Tatta Joga Rao.

P.W.6: K.Parvathi, AMVI.

P.W.7: Dr.Ch.Rajani, CMO.

P.W.8: P.Satyanarayana, ASI of Police

P.W.9: S.Durgayya, ASI of Police.

P.W.10: Dr.L.V.V.Prasad, Radiologist.

P.W.11: D.Satya Rao, SI of Police.

Exhibits Marked

For Prosecution:

Ex.P1/dt. 20.04.2016: Statement of P.W.1.

Ex.P2/dt. 20.04.2016: Scene Observation Report.

Ex.P3/dt. 21.04.2016: Motor Vehicle Inspector Report.

Ex.P4/dt. 06.07.2016: Wound Certificate of P.W.1.

Ex.P5/dt. 20.04.2016: Original FIR.

Ex.P6/dt. 20.04.2016: Rough Sketch of Scene of offence.

Ex.P7/dt. 20.04.2016: X-Ray Reports of P.W.1 (6 in number).

For Defence: NIL.

MATERIAL OBJECTS MARKED

NIL.

Sd/- Sri. G. Lenin Babu.

Judicial Magistrate of First Class,

Special Mobile Court, Srikakulam.

11

CALENDAR AND JUDGMENT IN C.C. No. 07/2017

Calendar cases tried by the Judicial Magistrate of First Class,

Special Mobile Court, Srikakulam.

Date of offence : 20.04.2016

Date of filing : 20.04.2016

Date of Apprehension : 03.08.2016 & Appearance : 10.08.2018

Date of release on bail : 03.08.2016 (Sec. 41-A CrPC notice)

Date of commencement : 10.10.2018 of trail Date of closing of trial : 23.05.2019

Date of sentence : 25.06.2019

Explanation for delay: Delay due to this case was received from the I Additional Junior Civil Judge’s Court, Srikakulam as per the proceedings of the Hon’ble Prl. District Jude’s Court, Srikakulam communicated vide Dis No. 4568 dt. 12.09.2016. Later, the Accused were Appeared on 10.08.2018 and on the same day the first examination was conducted. Later, the Trial was conducted from 10.10.2018 to 23.05.2019. There is a delay of non production of witnesses. Hence, the delay.

The Name of the Complainant : The State, represented by the Sub-Inspector of Police, Traffic Police Station, Srikakulam. Srikakulam District (Cr. No. 11/2016).

The Names of the Accused

1. Palli Sankara Rao S/o. Paydi Raju, aged about 35 years, Kapu by caste, Main Street, D.No.2-1, Thotapalem Village, Etcherla Mandal, Srikakulam District. (Driver of Tata ACE Luggage Van bearing Registration No. AP 30 W 7195). Occupation: Driver.

2. Korada Trinadha Rao S/o. Bhaskara Rao, aged about 51 years, T.Kapu by caste, Resident of MIG-412, Old APHB colony, Srikakulam Town and District. (Owner of Tata ACE Luggage Van bearing Registration No. AP 30 W 7195). Occupation: Business.

The offences complained of: under Section 338 of Indian Penal Code and Sections 3 r/w. 181 and 180 of Motor Vehicle Act.

Offence u/Sec.338 of I.P.C : Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished. Offence u/Sec. 3 r/w. 181 of MV Act: Driving without holding an effective driving license. Offence u/Sec. 180 of MV Act: Allowing unauthorized persons to drive vehicles.

111

Finding of Court : Found guilty (under Section 338 of Indian Penal Code).

: Found not guilty (under Sections 3 r/w. 181 and 180 of Motor Vehicle Act).

Sentence or Order In the result, I find that Accused/A1 is guilty for the offence punishable under Section 338 of I.P.C. Hence, he is convicted as per the provisions under Section 255(2) Cr.P.C., for the offence punishable under Section 338 of Indian Penal Code. The Accused/A1 found not guilty for the offence punishable under Section 3 r/w. 181 of MV Act and also A2 found not guilty for the offence punishable under Section 180 of MV

Act. Hence, the Accused/A1 and A2 are acquitted under Section 255(1) of

Cr.P.C, for the offences punishable under Motor Vehicle Act.

The Accused/A1 is sentenced to undergo Simple imprisonment for a period of 6 (Six) months and also pay fine of Rs.1,000/-(Rupees one Thousand only) for the offence punishable under Section 338 of Indian Penal Code. In default of payment of fine, A1 shall undergo simple imprisonment for further period of one month. The remand period undergone by A1 to be set off under

Section 428 of Cr.P.C. The A1 is appraised about his right of appeal. A copy of judgment is furnished to A1 at free of cost.

Sd/- Sri. G. Lenin Babu.

Judicial Magistrate of First Class,

Special Mobile Court, Srikakulam.

Note:-

1) Accused paid an amount of Rs.1,000/- (Rupees One thousand only) towards fine and it is remitted to the District Treasury, Srikakulam Vide CFMS Transaction ID 30037552092019 Dt. 25.06.2019.

2) The period of sentence imposed against A1 is suspended until 24.07.2019 vide order in Crl.MP. 2139 /2019 dated. 25.06.2019.

Copy submitted to The Hon'ble I Additional District & Sessions Judge, Srikakulam for perusal. Copy submitted to the Hon’ble District Legal Services Authority, Srikakulam for perusal. The Superintendent of Police, Srikakulam.

//True Copy//

Judicial Magistrate of First Class,

Special Mobile Court, Srikakulam.

11

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

SPECIAL MOBILE COURT, SRIKAKULAM

Present : Sri. G. Lenin Babu,

Judicial Magistrate of First Class,

Special Mobile Court, Srikakulam.

Dated this the Tuesday, 25th day of June, Two Thousand and Nineteen.

CALENDAR CASE No. 151/2017

Between :

The State, represented by the Sub-Inspector of Police, JR Puram Police Station, Srikakulam District.

..... Complainant.

and

Periannan Chinaswamy S/o. Periannan, aged about 49 years, Nadar by caste, D.No.57, Mettupatty Colony, Mettupatty Post, Valapadi Taluq, Salem District. Tamilnadu State. (Driver of Trailer lorry bearing Registration No. TN 52 D 7104).

.....Accused.

This Case has come before me on this day of 24.06.2019 for final hearing and disposal in the presence of Assistant Public Prosecutor for the Complainant/State and M/s. K.Nanajee and K.Pratap Chandra, Advocates for Accused and the matter having stood over for determination till this day, this Court delivers the following :-

JUDGMENT

01.The Sub-Inspector of Police, JR Puram Police Station, Srikakulam

District has filed Charge Sheet against the Accused in Crime No.90/2016 for the offence punishable under Section 304-A of Indian Penal Code.

02. The Case of the Prosecution in Brief is that, the deceased/Jada

Koteswara Rao working in Security Department in Aurobindo Pharma

Limited, Pydibheemavaram Village and staying in Pydibheemavaram village.

On 27.07.2016 at about 12.15 hours, while the deceased was crossing the NH- 16 Road, Opposite to Andhra Bank, Pydibheemavaram, by that time the

Accused being the driver of Lorry bearing Registration No. TN 52 D 7104 drove the vehicle towards Srikakulam to Visakhapatnam in a rash and negligent manner without blowing horn and dashed the deceased and that the deceased succumbed to the injuries on the spot. Later, L.W.1/Jada Guruvulu 2 who is the father of the deceased gave a Written Report to the Police and on it’s basis, L.W.17/V.Satyanarayana, SI of Police registered a case in Crime

No.90/2016 for the offence punishable under Section 304-A of Indian Penal

Code.

During the course of investigation, L.W.17/V.Satyanarayana, SI of

Police examined L.W.1/Jada Guruvulu, L.W.2/Madeti Ramesh, L.W.3/Arjya

Rama Rao, L.W.4/Bali Krishna, L.W.5/Mohd. Sahid, L.W.6/Periyaswamy

Ravichandran, L.W.7/Idadasu Satyam, L.W.8/Idadasu Krishna and

L.W.9/Thonangi Golla and also visited the Scene of offence in the presence of mediators i.e., L.W.10/Puligurthy Subramanyam and L.W.11/Puligurthy Naga

Ramesh drafted Scene Observation Report, drew Rough Sketch and also took photographs of the Scene. He also conducted inquest over the body of the deceased in the presence of inquestdars i.e., L.W.10/Puligurthy Subramanyam,

L.W.11/PuligurthyNagaramesh,L.W.12/PisiniKurmaRao,

L.W.13/Mendavela Venkata Satyanarayana and L.W.14/Pidugu Narayana Rao.

L.W.15/R.Venkata Rao, Motor Vehicle Inspector inspected the crime vehicle and opined that the Accident was occurred not due to any mechanical defects of the crime vehicle. L.W.16/Dr.G.Ramesh, Forensic Medicine, conducted autopsy over the dead body of the deceased and issued P.M. Certificate and opined that the deceased was died due to “shock as a result of polytrauma”.

After completion of investigation, L.W.17/V.Satyanarayana, SI of Police has filed Charge Sheet against the Accused for the offence punishable under

Section 304-A of Indian Penal Code.

03.The Court took cognizance of the offence punishable under Section 304-A of Indian Penal Code against the Accused. On appearance of the

Accused before the Court, Copies of documents were furnished to him, as required under Section 207 of Cr.P.C. The Accused was examined under

Section 251 of Cr.P.C., by explaining the particulars of offence punishable under Section 304-A of Indian Penal Code, in Telugu. He pleaded not guilty and claimed to be tried.

04.To prove the guilt of the Accused, the Prosecution has examined

P.W.'s 1 to 11 and Exs. P1 to P8 were got marked through them. The evidence of L.W.6/Periyaswamy Ravichandran was closed by this Court as the Police 3 failed to serve summons even after given so many adjournments. The evidence of L.W.8/Idadasu Krishna and L.W.9/Thonangi Golla was gave up by the Learned Assistant Public Prosecutor as their evidence deposed by

P.W.6. The evidence of L.W.12/Pisini Kurma Rao, L.W.13/Mendavela Venkata

Satyanarayana and L.W.14/Pidugu Narayana Rao was gave up by the Learned

Assistant Public Prosecutor as their evidence deposed by P.W.7 After closure of the Prosecution evidence, the Accused was examined under Section 313 of

Cr.P.C. by explaining the incriminating evidence appearing against him. He denied it totally and reported no Defence evidence.

05. Heard Arguments on both sides.

06. Now the point for determination is:

Whether the Accused has committed the offence punishable under Section 304-A of Indian Penal Code & Whether the Prosecution has proved the guilt of the Accused beyond all reasonable doubt ?

07.The learned Assistant Public Prosecutor has argued that the Accused drove the Car in a rash, negligent and speedy manner and as a result, a person was died. He also argued that the Prosecution witnesses has identified the

Accused to be the driver of the car on the day of incident. He further argued that the evidence of the Prosecution witnesses has consistently established the guilt of the Accused and hence, he prayed to convict the Accused and sentence him accordingly.

08.The learned Defense Counsel contended that P.W.1 came to know about the incident. He further argued that no witnesses has stated that the Accused drove the vehicle in a rash and negligent manner. Hence, he prayed that the

Accused is entitled for acquittal.

09.In a case for the offence under Section 304-A IPC the essential ingredients are : (I). There must be death of a person.

(ii). Such death must be due to the rash or negligent act of the Accused.

The Case on hand has to be analyzed in the light of the above ingredients.

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10.Point:-

To bring home the guilt of the Accused, it is for the Prosecution to prove that the Accused drove the Lorry in a rash or negligent manner and caused the death of the deceased/Jada Koteswara Rao and thereby, he has committed the offence punishable under Section 304-A of Indian Penal Code. In order to prove the guilt of the Accused, the Prosecution relied upon the evidence of

P.W’s 1 to 11 coupled with Exs.P1 to P8.

11.According to the evidence of P.W.1/Jada Guruvulu, who is the father of the deceased deposed that he came to know over phone through P.W.2 that his son had met with an accident infront of the company and immediately, he went to the Scene of offence and found that his son was died in accident with injuries on all over his body. P.W.2/Madeti Ramesh deposed that he has witnessed a lorry which is proceeding from Srikakulam to Visakhapatnam hit the deceased and dragged him for 100 feet. He deposed that the deceased was crushed on his stomach part. P.W.3/Bali Krishna deposed that on 27.07.2016 at about 11.15 am., while the deceased was crossing the road to reach the bank i.e., located on the National High way proceeding from Visakhapatnam to

Srikakulam and lorry hit the deceased and dragged him away for 20 feet, due to which the deceased was crushed in a severe manner and after seeing the

Identity card of the deceased, they identified him as Jada Koteswara Rao.

P.W.4/Mohd.Sahid deposed that at about 2 years ago, while he was proceeding from his shop, he has seen the crime Vehicle hit the deceased while he was trying to cross the National Highway proceeding from Visakhapatnam to

Srikakulam. P.W.5/Arja Rama Rao, deposed that at about 3 years ago, while he was present in his pan shop, one lorry proceeding from Srikakulam to

Visakhapatnam and reached Pydibheemavaram Junction hit one person who is trying to cross the National Highway proceeding from Visakhapatnam to

Srikakulam. P.W.6/Idadasu Satyam, deposed that he has seen the dead body of the deceased which was crushed at Pydibheemavaram Junction.

12.As per the evidence of P.W.7/Puligurthy Subramanyam, as per the requisition of the SI of Police, JR Puram PS, he has visited the Scene of 5 offence, the Police observed the Scene in his presence and drafted

Ex.P2/Scene Observation Report and he also acted as inquestdar in respect to inquest of the deceased. Ex.P3/Inquest Report also marked through him.

P.W.8/Puligurthy Naga Ramesh also stated similar to the evidence of P.W.7.

PW10/Dr.U.Ramesh, Forensic Medicine, who conducted autopsy over the dead body of the deceased and found the injuries mentioned in Ex.P5/PM report of the Deceased and opined that he death due to shock as a result of polytrauma.

13.By examining P.W’s 1 to 8 and P.W.10 and by marking Exs. P1 to P5, the Prosecution has successfully established the death of the deceased/Jada

Koteswara Rao in a road accident.

14. From the above discussion, the Prosecution could establish the first ingredient of the offence punishable under Section 304-A of IPC with regard to the death of deceased/Jada Koteswara Rao in a road accident.

15.Identity of Accused:

As per the evidence of P.W.1, he came to know about the incident through P.W.2 and immediately went to the Scene of offence and found his son with injuries. But, he was not stated in his evidence that the driver of the lorry was present at Scene of offence. He identified the Accused in the Open

Court being the driver of the lorry. He also admitted that he has not witnessed the Accident and he has seen the driver of the lorry in Ranasthalam Police

Station at 4.00 p.m., on the day of accident, but, he do not know who caused the Accident. P.W.2 deposed that he cannot identify the driver, as he ran away from the Scene of offence. P.W.3, P.W.4 and P.W.6 also identified the Accused being the driver of the lorry at the time of accident in the Open Court. As per the version of P.W.2 immediate to the Accident, the driver of the lorry ran away. P.W.1 also did not stated that the Accused was present at the Scene of offence. P.W.1 also seen the driver of the lorry at Ranasthalam Police Station.

If the version of P.W’s 1 and 2 is believed, there is no possibility to see the

Accused by P.W’s 3, 4 and P.W.6 at the Scene of offence immediate to the

Accident. Hence, the identification of the Accused by P.W’s 3, 4 and P.W.6 in the Open Court is not believable. P.W.6 also came to know about the incident.

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16.It is not the case the Prosecution is that the Accused is a known person to PW’s 3, 4 and 6. In such a situation it is not possible for any person to iden- tify a person, who drove the crime vehicle, in the Court hall nearly after 2 ½ years without there being conducted any test identification parade.

17.Even presume that P.W.3, 4 and 6 has seen the Accused at the time of

Accident, Police must conduct Test Identification Parade of the Accused as the

Accused is unknown to P.W.4 prior to the accident. In the absence of Test

Identification Parade, the evidence of P.W’s 3, 4 and P.W.6 is a very week piece of evidence and Conviction cannot be given only on the testimonies of

P.W’s 3, 4 and P.W.6 without any supporting evidence.

18.In this regard, it is helpful to rely upon a decision of our Hon'ble High

Court in Syed Zameer Vs. State of A.P., reported in 2002(2) ALT (Crl.) 272 (A.P.), wherein at Para No.7, it was held as hereunder :

“the non-conducting of the Identification Parade, is one of the important circumstances to doubt about the identity of the person who drove the vehicle, applying the principle laid down by the Supreme Court in the above decisions, they cannot but hold that the evidence regarding the identity of the person is not reliable”.

19.Rash or Negligent Act :-

P.W.3 who is the eye witness to the alleged incident deposed that he has seen one lorry which is proceeding from Srikakulam to Visakhapatnam in a high speed manner. P.W.4 deposed that the lorry driver was drove the lorry in a speedy manner at the time of accident. But, they did not state that the driver of the lorry drove the lorry in a rash and negligent manner at the time of accident. In this case, no witness had stated that the driver of the lorry drove the lorry in a rash and negligent manner at the time of accident.

At this juncture, it is helpful to rely upon a Judgment given by the

Hon’ble Apex Court in State of Kerala Vs. Puttumana Illath Jathavedan

Nambudiri, reported in JT 1999(1) SC 456 wherein at Para No.7, it was held as hereunder:

“the prosecution must properly prove the rash and negligent act of the petitioner/accused. Simple lack of 7 care which constitutes civil liability is not enough to prove a charge of homicide by negligence. For the purpose of criminal law, there are degrees of negligence and a very high degree of negligence is required to prove before a charge u/s 304-A I.P.C. is established.

The another Judgment given by our Hon’ble High Court of A.P. in

K. Rajaiah Vs. State of A.P., reported in 2010(2) L.S. 521 = 2010(3) A.L.T.

(Cri.) 169 (A.P.), it was observed at Para No.41 that “Though the prosecution witness of the case deposed that the accused drove the bus at a high speed, none of the witnesses had deposed that the driver of the bus had driven the bus in a rash and negligent manner. Mere driving of a vehicle at a high speed cannot be considered as rash and negligent driving.”

It is also pertinent to mention here the decision of our Hon’ble High

Court of A.P. in K. Naga Raju Vs. State of A.P., reported in 2009 (2) ALT (Crl.) 29 8 (A.P.), it was observed in Para No.12 about the quantum of negligence as follows :

“Before conviction can be sustained u/s 304-A I.P.C.

a very high degree of negligence must be proved.

Negligence which amount to recklessness and utter indifference to the consequences and to the rules of the road must be established. Mere driving at high speed or some sort of negligence, which is not criminal rashness or negligence may not prove the ingredients of section 304-A I.P.C.”

20.Considering the above discussed evidence, facts and circumstances of the instant case, it is observed that the analogy laid down by the Hon'ble

Courts is squarely applicable to the facts and circumstances that are discussed in the case on hand. Nothing is proved from the evidence of P.W.’s 1 to 6 that 8 the Accused drove the vehicle in a rash or negligent manner at the time of accident. The Prosecution should establish the gross negligence or gross rashness on the part of the Accused, while driving the crime vehicle at the time of the accident. But the testimony adduced on record, appears to be non-confirmation of such rashness or negligence on the part of the Accused.

21.As per the evidence of P.W.’s 3 to 5 the deceased has tried to cross the

National Highway. P.W’s 2 and 11 also admitted that the Pydibheemavaram

Junction is a busy locality. As per Ex.P7/Rough Sketch, there are no Zebra cross lines at the Scene of offence. P.W.11 also admitted that the width of NH- 16 from Srikakulam to Visakhapatnam is 30 feets approximately. So, according to the evidence of P.W.3 to 5, the accident was took place when the deceased was crossing NH-16 at an unauthorized point. So, there was negligence on the part of the deceased also while crossing NH-16 at an unauthorized point . In such a case, the negligence cannot be attributed to the driver of the car alone. In this regard, it is helpful to rely upon a decision given by the Hon'ble Supreme Court in Mahadeo Hari Lokre Vs. The State of Maharashtra, reported in 1972 Crl.L.J. 49,wherein at Para No.4, it was held as hereunder :

“If a person suddenly crosses the road, the bus driver, however, slowly he may be driving, may not be in position to save the accident. Therefore, it will not be possible to hold that the bus driver was negligent”.

In the present case also, the accident was took place as the deceased suddenly crossed NH-16 which is meant for high speed. Hence, this Court cannot hold that the driver of the lorry was negligent.

22. PW.9/R.Venkata Rao, Motor Vehicle Inspector, inspected the crime vehicle and issued Ex.P4/M.V.I. Report and opined that the accident was occurred not due to any mechanical defect of the crime vehicle. It is the duty of the M.V.I./P.W.9 to inspect the Crime Vehicle at the Scene of offence immediate to the Accident. But, he inspected the Crime Vehicle on 29.07.2016 at about 10.00 hours.

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23. Coming to the evidence of P.W.11/V.Satyanarayana, SI of Police stated basing on Ex.P1, he has registered Ex.P6/F.I.R and sent the same to the Court.

He also deposed that he has drafted Scene Observation Report in the presence of Mediators, prepared Ex.P7/Rough Sketch and took Ex.P8/Photgraphs, after visiting the scene of offence. He also conducted inquest over the body of the deceased in the presence of inquestdars and also examined P.W’s 2 to 6,

L.W.6/Periyaswamy Ravichandran, L.W.8/Idadasu Krishna and

L.W.9/Thonangi Golla. After receiving the PM Report and MVI Report he has filed the charge sheet against the Accused.

24.Upon careful perusal and scrutiny of the evidence on record, I am of the considered view that the evidence placed on record by the Prosecution is not sufficient to prove the guilt of the Accused and that the Prosecution has failed to establish the mandatory requirements of the offence punishable under

Section 304-A of I.P.C. and the benefit of doubt shall be given to the Accused.

Hence, I am of the opinion that the Prosecution has failed to establish the guilt of the Accused beyond all reasonable doubt. The point is answered accordingly.

25. In the result, I find that the Accused is not guilty for the offence punishable under Section 304-A of Indian Penal Code. Hence, he is acquitted under Section 255(1) of Cr.P.C. The Bail Bonds of the Accused shall stand cancelled after expiry of Six months, as per the Section 437-A of Cr.P.C.

Typed to my dictation by Typist, corrected and pronounced by me in the open Court, this the 25th day of June, 2019.

Sd/- Sri. G. Lenin Babu.

Judl. Magistrate of I Class, Special Mobile Court, Srikakulam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION : FOR DEFENSE: P.W.1: Jada Guruvulu.NONE P.W.2: Madeti Ramesh.

P.W.3: Bali Krishna.

P.W.4: Mohd. Sahid.

P.W.5: Arjya Rama Rao.

P.W.6: Idadasu Satyam.

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P.W.7: Puligurthy Subramanyam.

P.W.8: Puligurthy Nagaramesh

P.W.9: R.Venkata Rao, Motor Vehicle Inspector.

P.W.10:Dr.U.Ramesh, Forensic Medicine.

P.W.11:V.Satyanarayana, SI of Police

Exhibits Marked

For Prosecution: Ex.P1/dt.27.07.2016: Written Report given by P.W.1.

Ex.P2/dt. 27.07.2016: Scene Observation Report.

Ex.P3/dt. 27.07.2016: Inquest Report of the deceased/Jada Koteswara Rao.

Ex.P4/dt. 29.07.2016: M.V.I. Report.

Ex.P5/dt. 27.07.2016: Postmortem Report of Deceased/Jada Koteswara Rao.

Ex.P6/dt. 27.07.2016: Original F.I.R.

Ex.P7/dt. 27.07.2016: Rough Sketch of scene of offence.

Ex.P8/dt. 27.07.2016: Photographs (4 in number) along with CD.

For Defence: NIL.

MATERIAL OBJECTS MARKED

NIL.

Sd/- Sri. G. Lenin Babu.

Judicial Magistrate of I Class,

Special Mobile Court, Srikakulam.

//True Copy//

Judicial Magistrate of I Class,

Special Mobile Court, Srikakulam.

11

CALENDAR AND JUDGMENT IN C.C. No. 151/2017

Calendar cases tried by the Judicial Magistrate of First Class,

Special Mobile Court, Srikakulam.

Date of offence : 27.07.2016

Date of filing : 27.07.2016

Date of Apprehension : 28.07.2016 & Appearance : 31.12.2018

Date of release on bail : 28.07.2016 (Section 41-A CrPC Notice).

Date of commencement : 17.04.2019 of trail Date of closing of trial : 24.06.2019

Date of sentence : 25.06.2019

Explanation for delay: Delay due to this case was received from the I Additional Junior Civil Judge’s Court, Srikakulam as per the proceedings of the Hon’ble Prl. District Jude’s Court, Srikakulam communicated vide Dis No. 4568 dt. 12.09.2016. Later, the Accused was Appeared on 31.12.2018. The First Examination was conducted against the Accused on 21.01.2019. The Trial was conducted from 17.04.2019 to 24.06.2019. There is a delay of non service of summons against the Accused and also non production of witnesses. Hence, the delay.

The Name of the Complainant : State- represented by the Sub-Inspector of Police, JR Puram Police Station, Srikakulam District (Cr. No. 90/2016).

The Name of the AccusedPeriannan Chinaswamy S/o. Periannan, aged about 49 years, Nadar by caste, D.No.57, Mettupatty Colony, Mettupatty Post, Valapadi Taluq, Salem District. Tamilnadu State. (Driver of Trailer lorry bearing Registration No. TN 52 D 7104). Occupation: Driver.

The offence complained of: under Section 304-A of Indian Penal Code.

Offence u/Sec. 304-A of I.P.C : Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be 1 punished.

Finding: Found not guilty .

Sentence or Order:In the result, I find that the

Accused is not guilty for the offence punishable under Section 304-A of Indian Penal Code.

Hence, he is acquitted under

Section 255(1) of Cr.P.C. The Bail

Bonds of the Accused shall stand cancelled after expiry of Six months, as per the Section 437-A of Cr.P.C.

Sd/- Sri. G. Lenin Babu.

Judicial Magistrate of I Class,

Special Mobile Court, Srikakulam.

Copy submitted to The Hon'ble I Additional District & Sessions Judge, Srikakulam for perusal. The Superintendent of Police, Srikakulam.

//True Copy//

Judicial Magistrate of Class,

Special Mobile Court, Srikakulam.

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

SRIKAKULAM

Present : Sri. G. Lenin Babu,

Judicial Magistrate of First Class,

Special Mobile Court, Srikakulam. (FAC) Judicial Magistrate of I Class, Srikakulam.

Dated this the Tuesday, 19th day of March, Two Thousand and Nineteen.

CALENDAR CASE No. 1146/2018

Between :

The State represented by the Food Safety Officer,

Division- I, Srikakulam. ..... Complainant.

and

1.Potnuru Shanmukha Rao S/o. Bhaskara Rao,aged about 35 years, Managing Partner, M/s. S.V.A Hotel Grand, Ramalakshmana Junction, Srikakulam Town and District.

2.M/s S.V.A. Hotel Grand Ramalakshmana Junction, Srikakulam Town

and District. .....Accused.

This Case is coming on 27-02-2019 before me for final hearing and disposal in the presence of the Assistant Public Prosecutor for the Complainant/State and of M/s. A.Venkateswarulu, D.Ramana Rao and K.Annam Naidu, Advocates for Accused and having stood over for determination till this day, this Court delivered the following :-

J U D G M E N T

01. The Food Safety Officer, Division-I, Srikakulam has filed the

Complaint against the Accused for contravention of sale of unsafe Fish Fry (Prepared Food) under Section 3(1)(zz)(iii), 26(2)(i), 27(1) of Food Safety and Standard Act, 2006 and for the offence punishable under Section 59(i) of

Food Safety and Standard Act, 2006.

02. The Case of the Prosecution in brief is that the Complainant/Food

Safety Officer, Division-I, Srikakulam/L.W.1/S.Eswari was notified as Food

Safety Officer for the local area of entire State of A.P. vide G.O.M.S.No. 243 of Health Medical and Family Welfare Department (L1) Dt.25.08.2011. On 14.02.2018 at about 01:00 p.m., L.W.1/S.Eswari, Food Safety Officer along with her Office Subordinate/S.Dhanunjai Rao inspected M/s. S.V.A Hotel

Grand, Ramalakshman Junction, Srikakulam Town and District. At the time of 2 visit, the Managing Partner of M/s. S.V.A Hotel Grand i.e., A1 was present.

Then, she disclosed her identity as Food Safety Officer and also the purpose of her visit. She called one Suvvari Venkata Satish (LW2) to act as mediator. In his presence, LW1/S.Eswari inspected the shop and found stock of 10 kgs of

Fish Fry (Prepared food) and kept for sale to the public for human consumption. The Food Safety Officer suspected the quality of the Fish fry (Prepared food) was adulterated one, therefore, she purchased 2 kgs., of Fish fry (Prepared Food) for Rs.400/- from the Accused and obtained Cash Receipt duly attested by LW2/Suvvari Venkata Satish. Then, a Notice in Form No.VA was served on the Accused in the presence of witnessintimating her intention that she so purchased sample of Fish fry (Prepared Food) will be sent to the

State Food Laboratory, Nacharam, Hyderabad for the purpose of analysis and obtained acknowledgement on the copy of the notice and the same is also attested by the said mediator. Then, the purchased 2 kgs of Fish fry (prepared food) was divided into four equal parts, so that, each part approximately weighing about 500 grams and placed in four clean, dry, empty plastic jars and added 2.00 ml. of formalin and closed their caps and tied their caps with twin and affixed seals with sealing wax on each sample tin. Then, labels duly filled in, with particulars of the sample and code and Serial No. 001/SKL/DI- 15184/2018 were fixed on each sample part by means of gum. Further, each part was separately wrapped in a fairly thick brown paper and their ends were folded neatly inside and affixed by means of gum. Then, the paper slip issued with seal and signature of Assistant Food Controller and Designated Officer,

Srikakulam District were affixed on each sample part separately running around from bottom to top by means of gum. The signatures of Accused and

Mediator were taken on each sample part in such a manner that wrapper and paper slip both carry part of their signatures. Further, each sample part was tied with a strong twine both above and across and four distinct seals were affixed on each sample part, one on the top, one at the bottom and two on either side of the sample part covering the knot of thread using specimen seal of L.W.1/S.Eswari, Food Safety Officer with sealing wax. Then, shedrafted entire process into a Mediators Report and read over the same to the Accused and Mediator and obtained their signatures.

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One part of the sample along with copy of Memorandum in Form-VI containing specimen impression seal of L.W.1/S.Eswari, Food Safety Officer was sent to the Public Analyst, State Food Laboratory, Hyderabad, by registered parcel. Another copy of the Memorandum in Form-VI having the specimen impression of seal of L.W.1/S.Eswari, Food Safety Officer which was used in sealing the sample, was handed over to the Assistant Food

Controller and Designated Officer, Srikakulam District on 15.02.2018 and obtained acknowledgment.

The Public Analyst, Hyderabad, after causing analysis of the sample, delivered the Report dated 02.03.2018 in Form –B No.1001/2017-18 and the same was received by the Assistant Food Controller and Designated Officer,

Srikakulam District, wherein, the Public Analyst opined that the sample is contains synthetic food colour sunset yellow which is prohibited in ripening of fruits as per 3.1.2(6) of Food Safety & Standards food Products & Food additives) Regulations, 2011. Therefore, the Assistant Food Controller and

Designated Officer, Srikakulam District send the copy of Analysis Report of

Fish fry (Prepared food) with covered letter to Food Business

Operator/Accused and thereby, given an opportunity to make an appeal within 30 days from the date of receipt of sample to the referral Laboratory under

Section 46(4) of FSS Act, 2006. The Assistant Food Controller, Srikakulam

District sent the Detailed Report to the Commissioner of Food Safety having satisfied that there is a prima facie case against the Accused, for sale of unsafe

Fish fry (Prepared food) and in exercise of powers conferred under Section 30(2)(e) of Food Safety and Standard Act, 2006 in the Public interest accorded

Food Safety Designated Officer received Prosecution Rc.No. 691/FI/2018 dt.10.09.2018 and directed FSO to file case against the Accused/A1 and A2.

Hence, this Complaint.

03. This Court took cognizance of the offences under Sections 3(1)(zz)(vii)(viii), 26(2)(i) and 27(i) of Food Safety and Standard Act, 2006 and for the offence punishable under Section 59(i) of Food Safety and

Standard Act, 2006, against the Accused. On appearance of Accused before the Court, copies of documents were furnished to them, as required under

Section 207 Cr.P.C. The Accused/A1 and A2 were examined under Section 251 Cr.P.C., by explaining the particulars of the offences under Sections 4 3(1)(zz)(vii)(viii), 26(2)(i) and 27(i) of Food Safety and Standard Act, 2006 and for the offence punishable under Section 59(i) of Food Safety and

Standard Act, 2006, in Telugu. They pleaded not guilty and claimed to be tried.

04. To prove the guilt of the Accused, the Prosecution has examined

P.W.'s 1 and 2 and Exs. P1 to P17 were marked through them. After closure of the Prosecution evidence, the Accused were examined under Section 313 of

Cr.P.C., by explaining the incriminating evidence appearing against them.

They denied it totally and reported no defence evidence.

05. Heard Arguments on both sides.

06. Now the point for determination is:

Whether the Accused has committed the offences under Sections 3(1)(zz)(vii)(viii), 26(2)(i) and 27(i) of Food Safety and Standard Act, 2006 and for the offence punishable under Section 59(i) of Food Safety and Standard Act, 2006 & Whether the Prosecution has proved the guilt of the Accused beyond all reasonable doubt?

07. The learned Assistant Public Prosecutor had argued that the evidence of

P.W.1 is sufficient to come to the conclusion that he followed the entire procedure and the sample lifted by P.W.1 was analysed by the Public Analyst and opined that it was adulterated and using the synthetic food colour sunset yellow which is prohibited for sale for human consumption is an offence.

Therefore, the Accused is liable to be convicted.

08. On the other hand, the learned Defense Counsel had argued that the eye witness to the alleged incident did not support the case of the Prosecution. He also argued that the Complainant did not secure any independent witness to prove the real facts of the case. Hence, he prayed that the Accused is entitled for benefit of doubt.

Point:

09. To bring home the guilt of the Accused beyond reasonable doubt, the

Prosecution has examined the Food Safety Officer as P.W.1 and the independent witness who did not support the Prosecution Case as P.W.2 and relied upon Ex.P1 to P17. Hence, it is for the Prosecution to prove that the

Accused adulterated Fish fry (Prepared food) and committed offence under

Sections 3(1)(zz)(vii)(viii), 26(2)(i) and 27(i) of Food Safety and Standard

Act, 2006 and for the offence punishable under Section 59(i) of Food Safety and Standard Act, 2006.

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10. According to the evidence of PW1/S.Eswari, Food Safety Officer coupled with Ex.P7/Mediators Report, after she had purchased the Fish Fry (Prepared Food) under Ex.P4/Cash Receipt, she lifted four samples of Fish fry (Prepared Food). As can be seen from the record, PW2/Suvvari Venkata

Satish who was said to be mediator for lifting the samples did not support the

Prosecution Case and the Food Inspector did not cite his office subordinate/

S.Dhanunjaya Rao as a witness to the case. According to the evidence of

PW2/Suvvari Venkata Satish, he did not act as mediator and he put his signature on Ex.P7 at the request of the Food Safety Officer, but he does not know the contents of it. Since PW2/Suvvari Venkata Satish did not support the Prosecution Case and he turned hostile, the leaned A.P.P was permitted to question the witness in the form of cross examination according to Section 154 of the Indian Evidence Act, 1872. The witness categorically denied a suggestion that he acted as a mediator at the time of lifting the samples.

Hence, there is no evidence on record except the evidence of PW1/S.Eswari,

Food Safety Officer. The sole testimony of a witness need not be thrown away for want of consistency by other witness and it can be relied upon, provided it shall totally be found reliable.

11. According to the evidence of PW1/S.Eswari, Food Safety Officer coupled with Exs.P1 to P3, those are in respect of her appointment and there is no dispute about the same. According to the evidence of PW1/S.Eswari

Rao, Food Safety Officer coupled with Ex.P4, she purchased 2 kgs. of Fish fry curry (Prepared Food) for a sum of Rs.400/-. If the Food Safety Officer purchased the Fish fry curry (Prepared Food) from the Accused, she could have obtained reimbursement of the amount from the Department, but, she did not file any document to prove the same. Obviously, PW1/S.Eswari, Food

Safety Officer is the Government Servant and if she paid any amount to the

Accused, it shall not be from her pocket and she could have obtain reimbursement, but she has not filed any proof to show that she has obtained reimbursement of amount from Government with reference to amount paid by him under Ex.P4. So, the sole testimony of PW1/S.Eswari, Food Safety

Officer creates a doubt as to the purchase of Fish fry (Prepared Food) under

Ex.P4. It is admitted fact is that P.W.1 did not examine any independent 6 witnesses to prove the real facts of Complaint as well as Ex.P7/Mediators

Report. When the stock is not kept for sale, mere possession or custody does not amount to an offence. In this regard, it is helpful to rely upon a decision of

Hon’ble High Court of Madhya Pradesh in State of M.P. Vs. Ganesh Prasad

Bhagwantdas and Anr., reported in 2000 FAJ 308, wherein, at Para No.16 it was held as hereunder:

“Storage simpliciter would not be an offence. If an article of food is not intended for sale and is in the possession of a person who does not fulfill the character of a seller, conveyer, deliverer, consignee, manufacturer or storer for sale such as is referred to in Sub-sections (1)

(a) and (2) of Section 10 of the Act, the Food Inspector will not be competent, under the law, to take a sample and on such sample being found adulterated to validly launch the Prosecution thereon”.

Apart from it, PW1/S.Eswari, Food Safety Officer also failed to mention the thickness of the brown paper in which, the tins were wrapped. In this regard, it is helpful to rely upon a decision of Hon’ble High Court of

Madhya Pradesh in Jagdish v. State of M.P., reported in 2004(1)FAJ 112, wherein, at Para No.9, it was held as hereunder:

“I have perused the panchnama (P-4) prepared by Shri K.P.Shrivastava (PW1) and after going through it, I find there is complete omission as to mention about the thickness of the paper in which the bottles were wrapped, so as to comply with the said rule in its true spirit, it was incumbent upon the Food Inspector to completely wrap the container of the sample in fairly strong thick paper, the ends of which should be neatly folded and this fact should find place in the panchnama. In view of this, the non-compliance of Rule 16(b) is apparent”.

Apart from it, as argued by the learned Counsel for the Accused, though

PW1/S.Eswari, Food Safety Officer deposed that she used cleaned and dry tins, she did not depose who cleaned the tins before lifting the samples. In this regard, it is helpful to rely upon a decision of Hon'ble High Court of Gujarat in State of Gujarat Vs. Punabhai Ramabhai Machhi, it was held as hereunder:

7 “In the instant case also, the Food Inspector has in his deposition admitted that the helpers were responsible for cleaning the bottles and he himself has not cleaned the bottles. The Prosecution has not examined, or led any positive evidence to prove that the bottles were cleaned by examining the helper who was responsible for cleaning the bottles, and therefore, it is clear that the Prosecution has failed in proving its case beyond reasonable doubt that there was complete compliance with Rule 14 of the Rules, 1955”.

12. As this Court earlier discussed, PW1/S.Eswari, Food Safety Officer did not give any positive evidence about cleaning the tins by whom, so, it cannot be said that the Rules under Food Safety and Standards Act is properly complied. The other documents marked on behalf of the Prosecution such as,

Exs. P5, P6, P8 to P17 are the forms and postal communications which assume no importance in view of the above discrepancies pointed out. Under these circumstances, it is not safe to rely upon the sole testimony of

PW1/S.Eswari, Food Safety Officer. Hence, this Court holds that the

Prosecution failed to prove its case beyond reasonable doubt and the

Accused/A1 and A2 are entitled for benefit of doubt and acquittal accordingly.

The point is answered accordingly.

13.In the result, I find that the Accused/A1 and A2 is not guilty for the offences under Sections 3(1)(zz)(vii)(viii), 26(2)(i) and 27(i) of Food Safety and Standard Act, 2006 and for the offence punishable under Section 59(i) of

Food Safety and Standard Act, 2006 and hence, he is acquitted under Section 255(1) of CrPC. The Bail Bonds of the Accused shall stand cancelled after expiry of six months, as per the Section 437-A of Cr.P.C. The unmarked case property, if any, shall be destroyed after expiry of appeal time.

Typed to my dictation by Typist, corrected and pronounced by me in the open Court, this the 19thday of March, 2019.

Sd/-Sri G.Lenin Babu

Judicial Magistrate of First Class,

Srikakulam.

8

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION :

P.W.1: S.Eswari, Food Safety Officer. P.W.2: Suvvari Venkata Satish. FOR DEFENSE: NONE

Exhibits Marked

For Prosecution: Ex.P1 is the Copy of Notification of G.O.Ms.No.243 H.M. &F.W. (L1) Department dt.25.08.2011 of the Commissioner of Food Safety, Government of Andhra Pradesh, regarding appointment of Smt.S.Eswari as Food Safety Officer. Ex.P2 is the Copy of the proceeding Rc.No.571/FSSA/AP/2013-17, dt. 12.06.2017 of Division allotment order from Commissioner Food Safety. Ex.P3 is the Attested Copy of the GORt.No.101 HM & FW (L1) Department, dated. 16.01.2013 regarding appoint of Commissioner of Food Safety. Ex.P4 is the Cash Receipt dated. 14.02.2018 for Rs.400/-. Ex.P5 is the Copy of Form -VA Notice, Dated. 14.02.2018. Ex.P6 is the Copy of label on the sample container, Dt. 14.02.2018. Ex.P7 is the Mediator Report, Dt. 14.02.2018. Ex.P8 is the Copy of Form-VI Memorandum, Dt. 15.02.2018. Ex.P9 is Attested copy of Postal receipt of Regd.Parcel No. CA 817877880 in dt.15.02.2018. Ex.P10 is the Attested copy of Postal Receipt bearing No. RN 823744335 in Dt.15.02.2018. Ex.P11 is the Copy of Intimation Letter to the Food safety Officer Dt.15.02.2018. Ex.P12 is the Analyst report in Form-B bearing No. 1001/2017-18 Dt.02.03.2018 of the Food Analyst, SFL., A.P., Hyderabad. Ex.P13 is the Intimation Letter to the FBO to make an appeal before Designated Officer. Ex.P14 is the Postal Acknowledgement from business operator. Ex.P15 is the Food safety officer submits a detailed report to the Assistant Food Controller and Designated Officer, Srikakulam District. Ex.P16 is the Assistant Food Controller and Designated Officer, Srikakulam District sent a detailed report to the Food Safety Commissioner. Ex.P17 is the Prosecution order received Rc.No. 691/F1/2018 Dt.10.09.2018. For Defence: NIL.,

MATERIAL OBJECTS MARKED:NIL.

Sd/-Sri G.Lenin Babu

Judicial Magistrate of First Class,

Srikakulam. //True Copy//

Judicial Magistrate of First Class,

Spl.Mobile Court,Srikakulam (FAC) I Addl.Judl. Magistrate of I Class, Srikakulam 9

CALENDAR AND JUDGMENT IN C.C. NO. 1146/2018

Calendar cases tried by the Judicial Magistrate of First Class, Srikakulam.

Date of offence : 14.02.2018

Date of filing : 30.10.2018

Date of Apprehension

& Appearance : 08.02.2019

Date of release on bail : --- Date of commencement of trail : 15.02.2019 Date of closing of trial : 22.02.2019 Date of sentence : 19.03.2019 Explanation for delay: The offence was occurred 14.02.2018. Later, the Complainant filed Complaint on 30.10.2018 and the same was numbered on 15.12.2018. Later, the First Examination was conducted on 15.02.2019. The trial was conducted from 15.02.2019 to 22.02.2019. Hence, the delay.

The Name of the Complainant : The State, represented by the Food Safety Officer, Division- I, Srikakulam District. Prosecution RC No. 691/F1/2018, Dt.10.09.2018.

The Name of the Accused : 1) Potnuru Shanmukha Rao S/o. Bhaskara Rao,aged about 35 years, Managing Partner, M/s. S.V.A Hotel Grand, Ramalakshmana Junction, Srikakulam Town and District. Occupation: Business.

2) M/s S.V.A. Hotel Grand Ramalakshmana Junction, Srikakulam Town and District. Occupation: Business.

The offence complained of: punishable under Section 3(1)(zz)(vii)(viii), 26(2)(i) and 27(i) of Food Safety and Standard Act, 2006 punishable under Section 59(i) of Food Safety and Standard Act, 2006.

U/Sec. 3(1)(zz)(vii)(viii), 26(2)(i),27(i): “Unsafe food” means an article of of Food Safety and Standard Act, 2006 food whose nature, substance or quality is so affected as to render it injurious to health.

By the article being so coloured, flavoured or coated, powdered or polished, as to damage or conceal the article or to make it appear better or of greater value than it really is; or 10

By the presence of any clouring matter or preventive other than that specified in respect thereof; offence punishable U/S. 59(i) of Food Punishment for unsafe food Safety And Standard Act, 2006

(i) Where such failure of contravention does not result in injury with imprisonment for a term which may extend to six months and also with fine which may extend to one lakh rupees.

Finding: Found not guilty .

Sentence or Order :In the result, I find that the Accused/A1 and A2 is not guilty for the offences under Sections 3(1)(zz)(vii)(viii), 26(2)(i) and 27(i) of Food Safety and Standard Act, 2006 and for the offence punishable under Section 59(i) of Food Safety and Standard Act, 2006 and hence, he is acquitted under Section 255(1) of CrPC. The Bail Bonds of the Accused shall stand cancelled after expiry of six months, as per the Section 437-A of Cr.P.C. The unmarked case property, if any, shall be destroyed after expiry of appeal time.

Sd/-Sri G.Lenin Babu

Judicial Magistrate of First Class,

Srikakulam Copy submitted to The Hon'ble I Additional District & Sessions Judge, Srikakulam for perusal.

//True Copy//

Judicial Magistrate of First Class,

Spl.Mobile Court,Srikakulam (FAC) I Addl.Judl. Magistrate of I Class, Srikakulam

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST

CLASS, SRIKAKULAM

Present : Sri. G. Lenin Babu,

Judicial Magistrate of First Class,

Special Mobile Court, Srikakulam. (FAC) Judicial Magistrate of First Class, Srikakulam.

Dated this the Wednesday, 10th day of April, Two Thousand and Nineteen.

CALENDAR CASE No. 602/2017

Between :

The State, represented by the Food Safety Officer,

Division- I, Srikakulam. ..... Complainant.

and

Vaddi Kameswara Rao s/o. Narasimhulu, aged about 65 years, Proprietor of M/s. Vaddi Kameswara Rao Kirana Shop, Vappangi Village, Srikakulam Mandal and District.

.....Accused.

This Case is coming on 26-03-2019 before me for final hearing and disposal in the presence of the Sr. Assistant Public Prosecutor for the Complainant/State and of M/s. L.Srinivasa Rao and G.Siva Krishna, Advocates for Accused and having stood over for determination till this day, this Court delivered the following :-

J U D G M E N T

01. The Food Safety Officer, Division-I, Srikakulam has filed the

Complaint against the Accused for contravention of sale of unsafe Red Gram

Dall under Sections 3(1)(zz)(iii), 26(2)(i) of Food Safety and Standard Act, 2006 and for the offence punishable under Section 59(i) of Food Safety and

Standard Act, 2006.

02.The Case of the Prosecution in brief is that, the Complainant/Food

Safety Officer, Division-I, Srikakulam/L.W.1/S.Eswari was notified as Food

Safety Officer for the local area of entire State of A.P. vide G.O.M.S.No. 243 of Health Medical and Family Welfare Department (L1) Dt.25.08.2011. On 26.03.2015 at about 11:30 a.m., L.W.1/S.Eswari, Food Safety Officer along with her Office Subordinate/M.Laxmana Rao inspected M/s. Vaddi

Kameswara Rao Kirana Shop, Vappangi Village, Srikakulam District. At the time of visit, the Proprietor of the shop i.e., the Accused was present. Then, she disclosed her identity as Food Safety Officer and also the purpose of her visit. She called one Baratam Srinivasa Rao/(LW2) to act as mediator. In his 2 presence, LW1/S.Eswari inspected the shop and found stock of 25 Kgs of Red

Gram Dhal in 50 Kgs. of Gunny Bag and kept for sale to the public for human consumption. The Food Safety Officer suspected the quality of the Red Gram

Dall and purchased 4 Kgs. of Red Gram Dhal for Rs.200/- from the Accused and obtained Cash Receipt duly attested by LW2/Baratam Srinivasa Rao.

Then, a Notice in Form No.VA was served on the Accused in the presence of witnessintimating her intention that she so purchased sample of Red Gram

Dall will be sent to the State Food Laboratory, Nacharam, Hyderabad for the purpose of analysis and obtained acknowledgement on the copy of the notice and the same is also attested by the said mediator. Then, the purchased 4 Kgs.

of Red Gram Dall was divided into four equal parts, so that, each part approximately weighing about one Kg and placed in four clean and dry plastic jars and closed their caps and tied their caps with twin and affixed seals with sealing wax on each sample tin. Then, labels duly filled in, with particulars of the sample, code and Serial No. A001/01591/2015 were fixed on each sample part by means of gum. Further, each part was separately wrapped in a fairly thick brown paper and their ends were folded neatly inside and affixed by means of gum. Then, the paper slip issued with seal and signature of Assistant

Food Controller and Designated Officer, Srikakulam District were affixed on each sample part separately running around from bottom to top by means of gum. The signatures of Accused and Mediator were taken on each sample part in such a manner that wrapper and paper slip both carry part of their signatures. Further, each sample part was tied with a strong twine both above and across and four distinct seals were affixed on each sample part, one on the top, one at the bottom and two on either side of the sample part covering the knot of thread using specimen seal of L.W.1/S.Eswari, Food Safety Officer with sealing wax. Then, shedrafted entire process into a Mediator’s Report and read over the same to the Accused and Mediator and obtained their signatures.

One part of the sample along with copy of Memorandum in Form-VI containing specimen impression seal of L.W.1/S.Eswari, Food Safety Officer was sent to the Public Analyst, State Food Laboratory, Hyderabad, by registered parcel. Another copy of the Memorandum in Form-VI having the specimen impression of seal of L.W.1/S.Eswari, Food Safety Officer which 3 was used in sealing the sample, was handed over to the Assistant Food

Controller and Designated Officer, Srikakulam District on 27.03.2015 and obtained acknowledgment.

The Public Analyst, Hyderabad, after causing analysis of the sample, delivered the Report dated 16.04.2015 in Form –B No.04/2015 and the same was received by the Assistant Food Controller and Designated Officer,

Srikakulam District, wherein, the Public Analyst opined that the sample is artificially ripened with carbide gas which is prohibited in ripening of fruits as per Regulation 2.3.5 of Food Safety and Standards (Prohibition and

Restriction on Sales) Regulation, 2011. Therefore, the Assistant Food

Controller and Designated Officer, Srikakulam District send the copy of

Analysis Report of Red Gram Dall with covered letter to Food Business operator/Accused and thereby, given an opportunity to make an appeal within 30 days from the date of receipt of sample to the referral Laboratory under

Section 46(4) of FSS Act, 2006. The Assistant Food Controller, Srikakulam

District sent the Detailed Report to the Commissioner of Food Safety having satisfied that there is a prima facie case against the Accused, for sale of unsafe

Red Gram Dall and in exercise of powers conferred under Section 30(2)(e) of

Food Safety and Standard Act, 2006 in the Public interest accorded Food

Safety Designated Officer received Prosecution Rc.No. 634/FI/2015 dt.06.02.2016 and directed FSO to file case against the Accused. Hence, this

Complaint.

03.This Court took cognizance of the offences punishable under Sections 3(1)(zz)(iii), 26(2)(i) of Food Safety and Standard Act, 2006 and for the offence punishable under Section 59(i) of Food Safety and Standard Act, 2006, against the Accused. On appearance of Accused before the Court, copies of documents were furnished to them, as required under Section 207 Cr.P.C.

The Accused was examined under Section 251 Cr.P.C., by explaining the particulars of the offence punishable under Sections 3(1)(zz)(iii), 26(2)(i) of

Food Safety and Standard Act, 2006 and for the offence punishable under

Section 59(i) of Food Safety and Standard Act, 2006, in Telugu. He pleaded not guilty and claimed to be tried.

04.To prove the guilt of the Accused, the Prosecution has examined

P.W.'s 1 to 3 and Exs. P1 to P19 were marked through them. After closure of 4 the Prosecution evidence, the Accused were examined under Section 313 of

Cr.P.C., by explaining the incriminating evidence appearing against him. He denied it totally and reported no defence evidence.

05. Heard Arguments on both sides.

06. Now the point for determination is:

Whether the Accused has committed the offences punishable under Sections 3(1)(zz)(iii) and 26(2)(i) of Food Safety and Standard Act, 2006 and for the offence punishable under Section 59(i) of Food Safety and Standard Act, 2006, & Whether the Prosecution has proved the guilt of the Accused beyond all reasonable doubt?

07.The learned Assistant Public Prosecutor had argued that the evidence of

P.W.1 is sufficient to come to the conclusion that she followed the entire procedure and the sample lifted by P.W.1 was analysed by the Public Analyst and opined that the sample contains added synthetic colour by the Accused for sale for human consumption is an offence. Therefore, the Accused is liable to be convicted.

08.On the other hand, the learned Defense Counsel had argued that the eye witness to the alleged incident did not support the case of the Prosecution. He also argued that the Complainant did not secure any independent witness to prove the real facts of the case. Hence, he prayed that the Accused is entitled for benefit of doubt.

Point:

09.To bring home the guilt of the Accused beyond reasonable doubt, the

Prosecution examined the Food Safety Officer as P.W.1 and the independent witness who did not support the Prosecution Case as P.W.2 and relied upon

Ex.P1 to P19. Hence, it is for the Prosecution to prove that the Accused added synthetic colour to the sample and committed offences punishable under

Sections 3(1)(zz)(iii) and 26(2)(i) of Food Safety and Standard Act, 2006 and for the offence punishable under Section 59(i) of Food Safety and

Standard Act, 2006.

10.According to the evidence of PW1/S.Eswari, Food Safety Officer coupled with Ex.P7/Mediators Report, after she had purchased the Red Gram

Dall under Ex.P4/Cash Receipt, she lifted four samples of Red Gram Dall. As can be seen from the record, PW3/Baratam Srinivasa Rao who was said to be mediator for lifting the samples did not support the Prosecution Case and the 5

Food Inspector did not cite his office subordinate/M.Laxmana Rao as a witness to the case. According to the evidence of PW3/Baratam Srinivasa Rao, he did not act as mediator and he put his signature on Ex.P7 at the request of the Food Safety Officer, but he does not know the contents of it. Since

PW3/Baratam Srinivasa Rao did not support the Prosecution Case and he turned hostile, the leaned A.P.P was permitted to question the witness in the form of cross examination according to Section 154 of the Indian Evidence

Act, 1872. The witness categorically denied a suggestion that he acted as a mediator at the time of lifting the samples. Hence, there is no evidence on record except the evidence of PW1/S.Eswari, Food Safety Officer. The sole testimony of a witness need not be thrown away for want of consistency by other witness and it can be relied upon, provided it shall totally be found reliable.

11.According to the evidence of PW1/S.Eswari, Food Safety Officer coupled with Exs.P1 to P3, those are in respect of her appointment and there is no dispute about the same. According to the evidence of PW1/S.Eswari

Rao, Food Safety Officer coupled with Ex.P4, she purchased 4 Kgs. of Red

Gram Dall for a sum of Rs.200/-. If the Food Safety Officer purchased the Red

Gram Dall from the Accused, she could have obtain reimbursement of the amount from the Department, but, she did not file any document to prove the same. Obviously, PW1/S.Eswari, Food Safety Officer is the Government

Servant and if she paid any amount to the Accused, it shall not be from her pocket and she could have obtain reimbursement, but she has not filed any proof to show that she has obtained reimbursement of amount from

Government with reference to amount paid by him under Ex.P4. So, the sole testimony of PW1/S.Eswari, Food Safety Officer creates a doubt as to the purchase of Red Gram Dall under Ex.P4. It is admitted fact that P.W.1 did not examine any independent witnesses to prove the real facts of Complaint as well as Ex.P7/Mediators Report. When the stock is not kept for sale, mere possession or custody does not amount to an offence. In this regard, it is helpful to rely upon a decision of Hon’ble High Court of Madhya Pradesh in

State of M.P. Vs. Ganesh Prasad Bhagwantdas and Anr., reported in 2000

FAJ 308, wherein, at Para No.16 it was held as hereunder:

6 “Storage simpliciter would not be an offence. If an article of food is not intended for sale and is in the possession of a person who does not fulfill the character of a seller, conveyer, deliverer, consignee, manufacturer or storer for sale such as is referred to in Sub-sections (1)

(a) and (2) of Section 10 of the Act, the Food Inspector will not be competent, under the law, to take a sample and on such sample being found adulterated to validly launch the Prosecution thereon”.

Apart from it, PW1/S.Eswari, Food Safety Officer also failed to mention the thickness of the brown paper in which, the tins were wrapped. In this regard, it is helpful to rely upon a decision of Hon’ble High Court of

Madhya Pradesh in Jagdish v. State of M.P., reported in 2004(1)FAJ 112, wherein, at Para No.9, it was held as hereunder:

“I have perused the panchnama (P-4) prepared by Shri K.P.Shrivastava (PW1) and after going through it, I find there is complete omission as to mention about the thickness of the paper in which the bottles were wrapped, so as to comply with the said rule in its true spirit, it was incumbent upon the Food Inspector to completely wrap the container of the sample in fairly strong thick paper, the ends of which should be neatly folded and this fact should find place in the panchnama. In view of this, the non-compliance of Rule 16(b) is apparent”.

Apart from it, as argued by the learned Counsel for the Accused, though

PW1/S.Eswari, Food Safety Officer deposed that she used clean and dry tins, she did not depose who cleaned the tins before lifting the samples. In this regard, it is helpful to rely upon a decision of Hon'ble High Court of Gujarat in State of Gujarat Vs. Punabhai Ramabhai Machhi,,it was held as hereunder:

“In the instant case also, the Food Inspector has in his deposition admitted that the helpers were responsible for cleaning the bottles and he himself has not cleaned the bottles. The Prosecution has not examined, or led any positive evidence to prove that the bottles were cleaned by examining the helper who was responsible for cleaning the bottles, and therefore, it is clear that the Prosecution has failed in proving its case beyond reasonable doubt that there was complete compliance with Rule 14 of the Rules, 1955”.

7

12.As this Court earlier discussed, PW1/S.Eswari, Food Safety Officer did not give any positive evidence about cleaning the tins by whom, so, it cannot be said that Rule 14 of P.F.A Rules, 1955 is properly complied. The other documents marked on behalf of the Prosecution such as, Exs. P5, P6, P8 to

P19 are the forms and postal communications which assume no importance in view of the above discrepancies pointed out. Under these circumstances, it is not safe to rely upon the sole testimony of PW1/S.Eswari, Food Safety

Officer. It is further considering point is that P.W.2/G.Prabhakara Rao, Food

Safety Officer, Divisional-I, Srikakulam after receiving the case file from

P.W.1, he has filed Complaint before the Court only. In view of above foregoing discussion, this Court holds that the Prosecution failed to prove its case beyond reasonable doubt and the Accused is entitled for benefit of doubt and acquittal accordingly. The point is answered accordingly.

13.In the result, I find that the Accused is not guilty for the offences punishable under Sections 3(1)(zz)(iii) and 26(2)(i) of Food Safety and

Standard Act, 2006 and for the offence punishable under Section 59(i) of

Food Safety and Standard Act, 2006 and hence, he is acquitted under Section 255(1) of CrPC. The Bail Bonds of the Accused shall stand cancelled after expiry of six months, as per the Section 437-A of Cr.P.C. The unmarked case property, if any, shall be destroyed after expiry of appeal time.

Typed to my dictation by Typist, corrected and pronounced by me in the open Court, this the 10thday of April, 2019.

Sd/-Sri G.Lenin Babu

Judicial Magistrate of First Class,

Srikakulam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION :

P.W.1: S.Eswari, Food Safety Officer.

P.W.2:G.Prabhakara Rao, Food Safety Officer.

P.W.3: Baratam Srinivasa Rao.

FOR DEFENSE: NONE 8

Exhibits Marked

For Prosecution:

Ex.P1 is the Copy of Notification of G.O.Ms.No.243 H.M. &F.W. (L1) Department dt.25.08.2011 of the Commissioner of Food Safety, Government of Andhra Pradesh, regarding appointment of Smt.S.Eswari as Food Safety Officer. Ex.P2 is the Copy of the proceeding Rc.No.742/FSSA/2015, dt. 05.06.2015 of Division allotment order from Commissioner Food Safety. Ex.P3 is the Attested Copy of the GORt.No.101 HM & FW (L1) Department, dated. 16.01.2013 regarding appoint of Commissioner of Food Safety. Ex.P4 is the Cash Receipt dated. 26.03.2015 for Rs.200/-. Ex.P5 is the Copy of Form -VA Notice, Dated. 26.03.2015. Ex.P6 is the Copy of label on the sample container, Dt. 26.03.2015. Ex.P7 is the Mediator Report, Dt. 26.03.2015. Ex.P8 is the Copy of Form-VI Memorandum, Dt. 27.03.2015. Ex.P9 is Attested copy of Postal receipt of Regd.Parcel No. CA 802944923 in dt.27.03.2015. Ex.P10 is the Attested copy of Postal Receipt bearing No. RN 966229283 in Dt.27.03.2015. Ex.P11 is the Copy of Intimation Letter to the Food safety Officer Dt.27.03.2015. Ex.P12 is the Analyst report in Form-B bearing No. 04/2015 Dt.13.04.2015 of the Food Analyst, SFL., A.P., Hyderabad. Ex.P13 is the Intimation Letter to the FBO to make an appeal before Designated Officer Dt.17.04.2015. Ex.P14 Postal Receipt vide N. RLAD RN 947843264 Dt.18.04.2015. Ex.P15 is the Postal Acknowledgement from Vaddi Kameswara Rao. Ex.P16 is Report of Referral Labaratory Ref.No. G.14/D.O/2015 (pt-2)-635, Dt.05.08.2015. Ex.P17 is the Food safety officer submits a detailed report to the Food Safety Designated Officer, Srikakulam District. Ex.P18 is the Food Safety Designated Officer, Srikakulam District sent a detailed report to the Food Safety Commissioner. Ex.P19 is the Prosecution order received RC.No. 634/F1/2015 Dt.06.02.2016 on 22.06.2016. For Defence: NIL.,

MATERIAL OBJECTS MARKED:NIL.

Sd/-Sri G.Lenin Babu

Judicial Magistrate of First Class,

Srikakulam //True Copy//

Judicial Magistrate of First Class,

Special Mobile Court, Srikakulam (FAC) I Addl. Judl. Magistrate of I Class, Srikakulam 9

CALENDAR AND JUDGMENT IN C.C. NO. 602/2017

Calendar cases tried by the Judicial Magistrate of First Class, Srikakulam. Date of offence : 26.03.2015

Date of filing : 26.03.2015

Date of Apprehension

& Appearance : 09.01.2018

Date of release on bail : --- Date of commencement of trail : 08.03.2019 Date of closing of trial : 19.03.2019 Date of sentence : 10.04.2019 Explanation for delay: The offence was occurred 26.03.2015. Later, the Complainant filed Complaint on 24.07.2017 and the same was numbered on 26.08.2017. Later, the First Examination was conducted on 14.02.2019. The trial was conducted from 08.03.2019 to 14.03.2019. Hence, the delay.

The Name of the Complainant : The State, represented by the Food Safety Officer, Division- I, Srikakulam District. (Prosecution RC No.634/F1/2015 Dt.06.02.2016.)

The Name of the Accused:Vaddi Kameswara Rao s/o. Narasimhulu, aged about 65 years, Proprietor of M/s. Vaddi Kameswara Rao Kirana Shop, Vappangi Village, Srikakulam Mandal and District. Occupation: Business.

The offence complained of: under Section 3(1)(zz)(iii), 26(2)(i) of Food Safety and Standard Act, 2006 punishable under Section 59(i) of Food Safety and Standard Act, 2006.

U/Sec. 3(1)(zz)(iii), 26(2) of Food:Unsafe food” means an article of Safety and Standard Act, 2006 food whose nature, substance or quality is so affected as to render it injurious to health. By virtue of its unhygienic processing or the presence in that article of any harmful substance; or offence punishable U/S. 59(i) of Food Punishment for unsafe food any Safety And Standard Act, 2006 person who, whether by himself or by any other person on his behalf, manufactures for sale or stores or sells or distributes or imports any article of food for human consumption which is 10 unsafe, shall be punishable.

(i) Where such failure of contravention does not result in injury.

Finding: Found not guilty .

Sentence or Order :In the result, I find that the

Accused is not guilty for the offences punishable under

Sections 3(1)(zz)(iii) and 26(2)

(i) of Food Safety and Standard

Act, 2006 and for the offence punishable under Section 59(i) of Food Safety and Standard

Act, 2006 and hence, he is acquitted under Section 255(1) of

CrPC. The Bail Bonds of the

Accused shall stand cancelled after expiry of six months, as per the Section 437-A of Cr.P.C. The unmarked case property, if any, shall be destroyed after expiry of appeal time.

Sd/-Sri. G. Lenin Babu.

Judicial Magistrate of First Class,

Srikakulam Copy submitted to The Hon'ble I Additional District & Sessions Judge, Srikakulam for perusal.

//True Copy//

Judicial Magistrate of First Class,

Special Mobile Court, Srikakulam (FAC) I Addl. Judl. Magistrate of I Class, Srikakulam.