Sri.G.Raj Gopal

IN THE COURT OF THE II ADDL.CHIEF METROPOLITAN

MAGISTRATE,HYDERABAD.

Present : Sri.G.Raja Gopal, II Addl. Chief Metropolitan Magistrate, Hyderabad.

Dated Friday the 17 th day of February, 2017.

C.C.No.1229 of 2013.

Between: The State through Sub Inspector of Police,

Afzalgunj Police Station, Hyderabad ... Complainant.

And

D.Pramod Kumar S/o. D.Nagnath Rao, aged 60 yrs occu: Business, R/o.H.No.5-2-88, Jambagh,Hyderabad. …. Accused.

This case is coming before me final hearing on 24.1.2017 in the presence of learned APP for the state and of M/S.D.Raji Reddy– Counsel for the accused,and upon hearing them and upon perusing the evidence adduced by both sides, this matter having stood over for consideration till this day, this court made the following :

J U D G M E N T

The State represented by Sub-Inspector of police,Afzalgunj Police

Station , Hyderabad has filed the charge sheet in Cr.No616/2012 for the offence punishable Under Section 420 IPC against the accused.

2The case was taken for the offence punishable Under Section 420

IPC against the accused.

3On appearance of the accused, copies of case documents were furnished to him as required u/sec 207 of Cr.PC. Thereafter, the accused was examined under section 239 Cr.P.C to explain the accusation leveled against him in brief for the offences U/S 420 IPC .

4The accused has denied the accusation leveled against him.

Therefore, a charge for the offence under section 420 IPC has been framed,readover and explained to the accused. The accused has denied the charge, pleaded not guilty and claimed to be tried.

5The brief facts of the charge sheet are as under: That PW1

D.Hemanth Kumar and PW2D.Mohan Rao are own brothers. They are

Page No. 2CC No. 1229 of 2013 having house property bearing municipal number 7-2-616 having plinth area of 8300 Sq.Feets together with land admeasuring 230.56 Sq.yards situated at R.P.Road, Secunderabad. The accused is also brother of Pw1.

and 2. The accused planned to do business of Dall Mills in the name of

M/s.Venkateswara Dall Mill at Nagaram Village of Keesara Mandal,

RR.District. So he need Rs.60-00 lakhs to start the business. Therefore, the accused put his proposal before Pws1 and 2 to mortgage their property and get some loan from the Bank.But Pws 1 and 2 rejected the proposal of the accused. The accused planned to get loan from APSFC, without knowledge of his brothers. As per his plan, he went to SRO, Secunderabad and collected the copy of original title deed, and he approached APSFC and known about the procedure to get loan. As per the process, the accused along with his two brothers have to deposit the title deed in APSFC. As Pws 1 and 2 already denied to do the said work. The accused planned to cheat his brothers. As per his plan he arranged two persons ( names and address particulars are not known to the accused) to act as his brothers i.e., Pws.1 and 2. On 22.11.2011, the accused along with two persons went to APSFC and deposited the title deeds and got Rs.60.00 lakhs loan from APSFC.

While so on 13.7.2012, Pws.1 and 2 were served with a notice by APSFC informing that a cheque issued by the accused for Rs.3,16,000/- was returned un paid and the notice under section 138 of Negotiable

Instruments Act being issued to the accused. On receipt of said notice,

Pws1 and 2 approached APSFC and inquired regarding the said notice. On inquiry, Pws.1 and 2 came to know that the accused has obtained a loan of

Rs.60.00 lakhs from APSFC by mortgaging their property. PWs1 and 2 also came to know about the memorandum of deposit of title deed executed by all the joint owners including Pws1 and 2. After obtaining the certified copy

Page No. 3CC No. 1229 of 2013 of memorandum of deposit of title deed they surprised to see that in the place of PWs1 and 2 names and photographs of un known persons were affixed by the accused to obtain loan from APSFC by executing memorandum of deposit of title deeds. After the accused came to know that

Pws.1 and 2 filed a case against him, he cleared the loan amount on 13.12.2012. Hence,the accused has cheated Pws 1 and 2, thereby, he has committed an offence under section 420 IPC.

6During course of trial, Pws.1 to 5 are examined and EX.P.1 to P.9 have been marked on behalf of the prosecution.

7 After closure of the prosecution evidence, the accused was examined

U/S 313 Cr.P.C to explain the incriminating circumstances appearing in the evidence adduced on behalf of the prosecution. The accused has denied the said incriminating circumstances and he did not choose to adduce any evidence on his behalf.

8When the matter was posted for arguments , the learned Sr.APP has filed Crl.M.P.No.324/16 Under section 216 Cr.P.C with a prayer to add

additional charges for the offences under section 468 and 471 IPC with

section 420 IPC. After inquiry the said petition was allowed by order dt.1.11.2016.

9Inpursuance of the said order, that the charges for the offences under section 468 and 471 IPC against the accused have been framed, readover and explained to the accused. The accused denied the said additional charges, pleaded not guilty. No additional eidence is let in after framing

additional charges.

10 Heard the arguments from both sides.

11 Now the point for determination in this case is :

Page No. 4CC No. 1229 of 2013 “Whether the prosecution is able to bring home the guilt of accused for the offences leveled against them beyond all reasonable doubt ?” 12 Point :- To substantiate the case of prosecution, 5 witnesses in all are examined.PW1 is the complainant and brother of accused. PW2 is the circumstantial witnesses he is also brother of the accused and PW1. PW3 is the circumstantial witness and the then Sub-Registrar of Kavadiguda. PW4 is another circumstantial witness and officer of APSFC and PW5 is the

Investigating Officer.

13The story of the prosecution as un folded by the prosecution witnesses in brief is as under:-

PW1 Sri D.Hemanth Kumar is the complainant and brother of the accused. He deposed that Mohan Rao ( PW2 ) is his elder and the accused is his younger brother. That all the three brothers are the joint owners of house bearing number 7-2-616, R.P.Road, Secunderabad.

14The above said house original documents are in his custody and that they have let out the said house for rent. On 16.7.2012, he and his brother

PW2 have received a notice from APSFC stating that they have to pay amounts due for Rs.3,16,000/- PW1 and his brother PW2 inquired with

APSFC and both of therm shocked to find a memorandum of deposit of title deed showing that their property mortgaged with APSFC and that the accused took a loan of Rs.60,00 lakhs by mortgaging the property. He further deposed that they also found that some other persons photo and signatures were obtained and found as if it belongs to him. The same were affixed against his name. He approached police and they advised him to approach the Court. Therefore, he lodged a complaint vide EX.P.1 and the same was referred to the police under section 156(3) Cr.P.C for investigation and report. Through this witness Ex.P.2 to P6. are marked.

Page No. 5CC No. 1229 of 2013

EX.P.2 is the notice of APSFC dt.11.7.2012. EX.P.3 is the certified copy of the memorandum of deposit of title deed. Ex.P.4 is the conveyance deed.

EX.P.5 is the certificate of incumbrance, Ex.P.6 is Adhar Card of PW1. He further deposed that the photo and thmub impression containing in EX.P.3 does not belong to him.

15PW2D.Mohan is the elder brother of PW1 and the accused is his youngest brother. He also deposed on similar lines with that of PW1 on all material particulars. Through this witness EX.P.7 and p.8 have been marked. EX.P.7 is the similar notice with that of EX.P.2. EX.P.8 is the

Aadhar Card of PW2.

16PW5 G.Srinivas is the Investigating Officer, and the then S.I of police of P.S.Afzalgunj, Hyderabad. He deposed that on receipt of EXP.1 complaint Sri Ch.Upender the then S.I of police (LW5) of P.S.Afzalgunj,

Hyderabad has registered a case in Cr.No.616/2012 under section 420,406 and 506 and 120(b) IPC and issued FIR to all concerned vide EXP.9. LW5 is examined as Pws 1 to 4 and recorded their statements, on h is transfer to

P.S.Asifnagar, the case file was handed over to this witness.

17PW5 further deposed that he has arrested the accused on 5.11.2013 and produced him before the Court for judicial remand. On completion of investigation,he filed charge sheet.

18PW3 Sri M.S.Charan previously worked as Sub-Registrar Kavadiguda,

Secunderabad. He deposed that the document bearing number 1540/2011 of Book I is a deposit f title deed presented in his office on 22.11.2011 between 3 and 4 by M/S Sri Venkateswara Dal Mills, Represented by

Mr.D.Pramodkumar. After due formalities he registered document.

19PW4 Sri D.Suresham previously worked as Branch Manager APSFC ,

Hyderabad branch. He succeeded Mr.K.S.Rao as the branch Manager of

Page No. 6CC No. 1229 of 2013

Hyderabad Branch. M/S Venkateswara Dall Mill Represented by Mr.Pramod

Kumar have availed loan of Rs.60.00 lakhs from their Corporation by offering collateral security property located at R.P.Road, Secunderabad.

The loan account is presently closed as the amount is repaid. EX.P2 and P7 are the notices sent by them inrespect of said account. He further deposed that the original of EX.P.3 is lying with their office.

20The submission of the learned Sr.APP during his argument is that

PW1, PW2 and the accused are the joint owners of house bearing number 7- 2-616, situated at R.P.Road, Secunderabad and the accused has mortgaged the said property infavour of APSFC and availed loan of Rs.60.00 lakhs by showing some other persons as his brothers i.e., Pws.1 and 2 and cheated

Pws.1 and . That he has availed loan by creating false documents, thereby the accused has committed an offence punishable under section 420,468 and 471 IPC. Further the learned Sr.APP argued to compare the photographs of PWs1 and 2 available on EX.P.2 and P.8 Aadhar Cards with the disputes photographs signatures thumb impressions available on

EX.P.3 by invoking section 73 of Indian Evidence Act and punish the accused according to law.

21The submission of the learned defence counsel for the accused is that there are property disputes between the accused and Pws.1 and 2. That admittedly PW1 has filed a suit against the accused and others vide OS

No.340/2008 on the file of Honble XI ACJ inrespect of property situated at

Osmanshahi and the same was dismissed and that to take revenge against the accused they have created false story and filed the present case and the accused did not commit any offence and that the prosecution has not placed any material evidence or acceptable evidence before this Court to prove the ingredients of section 420,468 and 471 IPC and he further argued

Page No. 7CC No. 1229 of 2013 to acquit the accused since the prosecution has miserably failed to prove the guilt of the accused for the alleged offences, beyond all reasonable doubt.

22In view of rival contentions of both parties, now the documentary evidence and cross examination of prosecution witnesses has to be scrutinized carefully and also ingredients of section 420,468 and 471.

23That section 420 IPC is applicable to the serious cases of cheating while section 417 of IPC is applicable to the less serious offences. Further use of the word “Dishonestly in section 420 makes all the difference. Where inpursuance of deception no property passes the offence is under section 417 but wherein inpursuance of deception the property is delivered section 420 will apply. The offence of cheating U/S 420 IPC is of an aggravated form. The offence of cheating under section 415 definition has two essential ingredients:

(1) Deceit i.e.,dishonest or fraudulent misrepresentation; and (2) The inducing of that person to deliver property.

24The deception must be with a dishonest and fraudulently intention.

cheating amounts to inducing the victim or to enter in to a bargain which he would not enter into, if he knew the real facts.

25It is well settled law that unless the criminal intention of the accused.

When the offence was committed is established, no offence u/S 420 IPC can be said tobe committed.

26Unless the above said ingredients are proved by the prosecution, no offence can be made out against the accused. Now firstly let me examine whether prosecution has proved the above ingredients of section 420 IPC?

27PW1 in his cross examination categorically deposed that the accused did not inform him that he was in need of money and moreover neither

Page No. 8CC No. 1229 of 2013

PW1 nor PW2 have deposed anything against the accused regarding his dishonest intention or inducement or mis-representation to deliver any property, attracting the ingredients of section 420 IPC. Absolutely, there is no evidence on record to show that the accused has made or done any act with an intention to deceive Pws.1 and 2. Admittedly, PW1 and PW2 did not incur any monitory loss.

28Therefore,in the above said circumstances of the case, I found that the prosecution has not placed any cogent or acceptable evidence to prove that the accused has cheated PWs1 and 2 with a dishonest intention and that he induced them to deliver any property. Undisputedly, even Pws.1 and 2 did not spell anything against the accused regarding inducing them to deliver any property to any person. Hence, in these circumstances, I have no hesitation to hold that the prosecution has miserably failed to prove the ingredients of section 420 IPC.

29Inorder to succeed by the prosecution, the burden of proof heavily lies on the prosecution to prove the ingredients of section 468 IPC i.e., forgery for the purpose of cheating.

30The ingredients of this section are:

1.The document is forged.

2.The accused forged the document.

3.The accused forged the document intending that the forged document would be used for the purpose of cheating.

31The other charge framed against the accused is under section 471 IPC i.e., using as genuine a forged document: That the prosecution must establish the ingredients of section 471 IPC which are:

1.The document is a forged one.

2.The accused used the said document as genuine.

Page No. 9CC No. 1229 of 2013 3.The accused knew or he had reason to believe that it was a forged document.

4.The accused used it fraudulently or dishonestly, knowing or having reason to believe that it was a forged document.

32 Now let me examine whether the prosecution has proved the ingredients of section 468 and 471 IPC referred above.

33Pws 1 to 4 much less Pws 1 and 2 did not depose specifically that the accused has committed forgery of their signatures and fabricated the document. Pws 1 and 2 simply deposed that they found that the accused took an amount of Rs.60.00 lakhs by mortgaging the property. But they did not whisper anything against the accused that he had committed forgery or fabricated the documents. EX.P.3 is the only certified copy of memorandum of deposit of title deed. Even the Investigating Officer did not take any pain to collect the original of EX.P.3 from the APSFC if available with them 34A perusal of EX.P.3 goes to show that the document was executed by

M/S Sri Venkateswara Dall Mills represented by D.Pramod Kumar ( Accused) D.Hemanth Kumar ( PW1 ) D.Mohan Rao ( PW2 ) and the same was executed in favour of APSFC. According to PW3 after due formalities,only he registered the document. That EX.P.3 further goes to show that address proof of executants were verified with their voter

I.D.Cards i.e., the address proof of the parties are verified by Sub-

Registrar. PW3 after verifying the same, he has registered the document as per the procedure. PW3 also did not depose anything stating that EX.P.3 is forged or fabricated document. According to prosecution under section 114(e) that the official acts have been regularly performed.

Page No. 10CC No. 1229 of 2013 35According to the prosecution, for availing the loan the accused deposited the original title deed of the house property with APSFC. But according to PW1 and PW2 the original document of title under EX.P.4 inrespect of house number 7-2-616, R.P.Road, Secunderabad is in the custody of PW1. It means that the same was not deposited with APSFC for obtaining the alleged loan. Apart from that PW1 has filed the original

Conveyance deed which is EX.P.4 and the same was not collected by

Investigating Officer from the office of APSFC. So it is clearly established that the original title deed was not deposited as security with APSFC for obtaining the loan.

36PW4 also did not depose that the accused came and deposited the original title deed for security purpose.

37PW4 in his cross examination admitted that “it is true that I did not state before the police that the accused has taken the loan and also I did not state before the police that the original of EX.P.3 is lying with us”.

38Thus from the above cross examination of PW4 also it is clear that there is no material on record to show that the accused alone had availed loan from APSFC.

39There was no investigation by the Investigating Officer to ascertain who is the owner of M/S Venkateswara Dall Mills who availed loan of

Rs.60,00,000 from APSFC. The trade licence of the said Dall mills is also not filed to show it's owner or owners.

40Though PW4 deposed that the entire amount was re-paid and loan account is closed but it is not known to this Court who repaid the said loan amount since no material is placed in this regard.

Page No. 11CC No. 1229 of 2013 41 Undisputedly, no expert opinion was called for by the Investigating

Officer for comparing the admitted writings of Pws 1 and 2 and also the accused with the disputed signatures available on EX.P.3. Even otherwise, the Investigating Officer has failed to collect the original of EX.P.3 and also failed to forward the same to the hand writing expert at FSL for examination and opinion. EX.P.3 is only certified xerox copy. The learned

Sr.APP submitted to compare the photographs of Pws 1 and 2 available on

EX.P.6 and P.8 Aadhar Cards with the photographs affixed against their names on EX.P.3 by invoking the section 73 of Indian Evidence Act.

42Section 73 of Indian Evidence Act deals with:

Comparison of signature, writing, or seal with others admitted or proved.

43It is well settled principle of law that comparison of hand writing is a dangerous mode of proof when the Court is not guided by the evidence of an expert and the provision does not deal with comparison of photographs.

Even other wise, no original photograph are available for comparison.

Therefore, the said task can not be taken by the Court.

44In the case of VIROTHI TIRUPATHI RAO VS.KOTA VENU 2016 Law suit ( Hyd) 356. The Hon'ble High Court of Judicature for the State of

Telangana and for the State of A.P held that:

“ Photostat copies is generally not of assured and reliable nature for comparison”.

In the above case, the hand writing expert gave his opinion basing on the xerox copy of the document. The Honble High Court did not accept the said report.

In the case of RATAN SARKAR VS.SURAJIT LAHIRI 2016 Law suit ( Calcatta) 1392 it was held that:

Page No. 12CC No. 1229 of 2013 “ Under section 73 of Indian Evidence Act Comparison can not be made by considering the photostat copy of the cheque on which neither the disputed signature of the plaintiff in original nor the alleged alteration in original appears”.

It was further held that:

“ Such dispute can not be resolved by way of comparison of the admitted signature and / or hand writing of the author of such signature and his writing with the disputed photocopy of the hand writing and / or the disputed photo copy of the signature of the said author appearing on the photostat copy of the cheque”.

It is also held that:

Such dispute can only be resolved by hand writing expert's opinion who may submit his opinion after comparing the original writing and / or original signature of the plaintiff with his disputed signature and / or writing appearing on the original cheque which is in dispute”.

In view of the above said citations it is crystal clear that the comparison can not be taken basing on the photostat copy of the document.

In this case, EX.p.3 is only a certified xerox copy but not original. Therefore, neither this Court under section 73 and hand writing expert under section 45 of Evidence Act can compare with xerox copy and give opinion.

45It is also not established by placing cogent evidence on record that whose photographs were affixed on EX.P.3 and by whom? That the the I.O neither ascertained the names and other particulars of the said persons nor they were examined as witnesses nor they were arrayed as accused in the

Page No. 13CC No. 1229 of 2013 charge sheet if the said photographs does not belong to PW1 and PW2.

46Assuming for a moment that some other persons photographs were affixed against the names of Pws1 and 2 it is only an offence of impersonation and the said persons only are liable for prosecution and punishment. But in this case, the identity of the said persons is not found or established.

47Even section 45 of Indian Evidence Act does not deal with comparison of photographs. It deals with identity of hand writings or finger

Impressions. But as discussed above, no expert opinion is called for by sending the admitted and disputed signatures or thumb impressions of the parties respectively.

48Here it is important to mention that the Investigating Officer has not collected any document during the course of investigation. The record shows that EX.p.2 to P.8 were filed during the course of trial as per the orders in Crl.M.P.No.3405/14 by PW3 and he admitted the said fact in his cross examination. It shows that the Investigating Officer had investigated in a casual and routine manner without application of mind and the

Investigation done by the Investigating Officer appears to be not on proper lines.

49Here it is also important to mention that no provision of law or any authority is brought to my notice by the prosecution to compare the photographs of Pws 1 and 2 available on EX.P6 and P.8 with the EX.P.3 photographs. Even I found that the photographs on xerox copy of Ex.P.3 are not visible not clear to compare the same. In my opinion EX.P.6 and P.8 are also not proved by examining any person or authority on behalf of the prosecution.

Page No. 14CC No. 1229 of 2013 50Even assuming for a moment that the photographs on EX.P.3 does not belongs to Pws 1 and 2 then the prosecution has to establish to whom the said photographs belongs. Apart from that it is to be proved who affixed the said photographs. Absolutely, there is no material on record to show that the accused has affixed false photographs impersonating PW1 and PW2.

51To sum up, that the prosecution has miserably failed to prove that the accused had dishonest or fraudulent intention to cheat Pws 1 and 2 who are his own brothers and joint owners of the property covered by EX.P.4 conveyance deed, and that the prosecution also miserably failed to establish that the accused has forged any document and that he had intention to use such forged document for the purpose of cheating his brothers i.e., Pws.1 and 2, and that the prosecution also miserably failed to prove that the accused used the said forged document as genuine. From the material available on record and from the facts and circumstances of the case, it is crystal clear that there are property disputes between the accused on one side and Pws 1 and 2 on other side. In these circumstances of the case, I am of the opinion that the Pws. 1 and 2 are interested witnesses and their evidence is not convincing and not believable with regard to committing of any offence by the accused. In fact the evidence on record goes to show that the property covered by EX.P.4 was not furnished as security by depositing the original title deed with APSFC.

52With the foregoing discussion, and inview of the material available on record, I am of the opinion that the prosecution has miserably failed to prove the guilt of the accused for any of the offences leveled against him beyond all reasonable doubt. As such, accused is found not guilty for the offences under section 420,468 and 471 IPC. Accordingly, this point is answered.

Page No. 15CC No. 1229 of 2013 53As a result, the accused is acquitted U/s 248(1) Cr.P.C for the offence Under Section 420,468 and 471 IPC. He is set at liberty. The bail bonds of Accused shall stand canceled after expiry of 6 months.

Dictated to Grade-I Stenographer, transcribed and typed by him,

corrected and pronounced by me in the open court on this the 17th day of February, 2017.

II ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD.

Appendix of Evidence No. of witnesses examined for Prosecution: Defence

PW1 : D.Hemanth Kumar, complainant and brother of PW1. Nil. PW2 : D.Mohan, brother of PW1 and accused. PW3 : M.S.Charan,witness. PW4 : D.Suresham,official of APSFC. PW5 : G.Srinivas,S.I and I.O.

No. Of documents marked for Prosecution Defence ExP1 : is the Complain lodged by LW1. Nil ExP2 : is the Notice issued by APSFC. EXP3 : is the Certified copy of Memorandum of Depot of title deed. EXP4 : is the Conveyance Deed. EXP5 : is the Certified copy of the encumbrance Certificate. EXP6 : is the Original Adhar Card of PW1. EXP7 : is the Notice issued by APSFC. EXP8 : is the Original Adhar Card of PW2. EXP9 : is the FIR.

No. of Material Objects marked:

Nil.

II ADDL. CHIEF METROPOLITAN MAGISTRATE.

HYDERABAD.

Page No. 16CC No. 1229 of 2013

FORM NO.72 OF CRIMINAL RULES OF PRACTICE

CALENDER CASE TRIED BY THE II ADDL CHIEF METROPOLITAN

MAGISTRATE HYDERABAD

CALENDER CASE NO: 1229/2013

DATE OF OFFENCE : 22-11-2011

DATE OF REPORT OF COMPLAINT : 30-8-2012

DATE OF APPREHENSION OF ACCUSED : 11-11-2013

DATE OF RELEASE ON BAIL : 11-11-2013

DATE OF COMMENCEMENT OF TRIAL : 17-3-2015

DATE OF CLOSE OF TRIAL : 29-11-2016

DATE OF SENTENCE OF ORDER : 17.2.2017

EXPLANATION OF DELAY AND REMARKS : -

NAME OF THE COMPLAINANT; The Sub-Inspector of Police, PS Afzalgunj, Hyderabad

NAME OF THE ACCUSED: .D.Pramod Kumar

OFFENCE UNDER SECTION 420,468 and 471 IPC.

FINDING Accused is e found not guilty for the offence u/sec.420,468 and 471 IPC and he is acquitted U/sec 248 (1) Cr.PC

SENTENCE : TO THE HON'BLE I ADDL. METROPOLITAN SESSIONS JUDGE, HYDERABAD

DIS NO /II ACMM/HYD DATED 25-2-2017

CALENDER CASE NO: 1229/2013 DATE OF JUDGMENT: 17-02-2017

DATE OF DESPATCH DATE OF RECEIPT

01. DATE OF FILING CHARGE SHEET : 24-12-2013

02. DATE OF TAKING COGNIZANCE : 24-12-2013 03 . DATE OF FURNISHING COPIES TO ACCUSED : 10-3-2013 04 . DATE OF RECORDING PLEA OF ACCUSED : 06-6--2014

05. DATE OF EXAMINATION OF ACCUSED U/SEC. 313 Cr.P.C. : 27-11-2015

II ADDL CHIEF METROPOLITAN MAGISTRATE 

HYDERABAD

1

IN THE COURT OF THE II ADDL.CHIEF METROPOLITAN MAGISTRATE:HYDERABAD.

PRESENT : G. Raja Gopal, II Addl. Chief Metropolitan Magistrate, Hyderabad.

Dated this the 20th day of FEBRUARY, 2017

C.C.NO. 318/ 2013 Between:

The State of Telanagana through the Sub-Inspector of Police, PS Afzalgunj,

Hyderabad... Complainant

A N D

Mohammed Akram S/o Md Khaja, Aged 30 years, Occ: Auto Driver , R/o H.No. 16-125/B , Near Khadria Masjid,

Saidabad Colony, Saidabad. ... Accused

This case is coming before me for final hearing on 14-2-2016 in the presence of learned Senior APP for the State and of Sri P. Sudhakar Rao and associates Advocate, counsel for the accused and upon perusing the evidence adduced by both sides, this matter having stood over for consideration till this day, this court made the following :

J U D G M E N T

The Sub-Inspector of Police, PS Afzalgunj, Hyderabad, has filed charge sheet in Cr.No. 216/2013 for the offence under Section 379

IPC against the accused.

2.The case was taken on file for the offence punishable under

Section 379 of IPC against the accused.

3.On appearance of the accused , copies of case documents were furnished to him as required under Section 207 of Cr.P.C.

Thereafter, the accused is examined under Section 239 of Cr.P.C by explaining the accusation levelled against him. The accused denied the accusation levelled against him. Therefore, a charge for the above said 2 offence has been framed, read over and explained to the accused. The accused pleaded not guilty and claimed to be tried.

4.The accusation levelled against the accused person in brief is that on 17-4-2013 , PW2 Sri Kailash Kumavath has engaged an auto bearing no AP 11 Y 3736 at Feelkhana to go to Manikonda with goods – ie prestige mixers -2; butterfly mixers -02; premier mixers-3; Preeti mixer -1; bajaj mixer-1; maple mixer -1; butterfly gas stove-1; prestige gas stove-1; pigeon gas stove -1; butterfly roti maker-1 bullet company small cartons two containing electrical extension boxes. The accused is driver of the above said auto . While so PW1 took the accused to

Begum Bazar for purchasing steel items and asked the accused to wait for sometime there. But the accused sped away from there with the above items with an intention to steal the same . Thereby he has committed an offence punishable under Section 379 of IPC.

5.During the course of trial, PWs. 1 to 4 are examined and

Exs.P-1 to P-4 and MO1 to MO11 are marked on behalf of the prosecution.

6.After closure of the prosecution evidence, the accused is examined under Section 313 of Cr.P.C by explaining the incriminating circumstances, appearing in the evidence adduced on behalf of the prosecution. The accused denied the said incriminating material and he did not choose to adduce any evidence on his behalf.

7.Heard both sides.

3

8.Now the point for determination in this case is :

“Whether the prosecution is able to bring home the guilt of the accused for the offence levelled against him beyond all reasonable doubt ?”

9.P O I N T :

To substantiate the case of the prosecution four witnesses in all are examined. PW1 is the owner of the auto. PW2 is the defacto complainant.

PW3 is one of the mediator to the confession cum seizure panchanama.

PW4 is the Investigating Officer.

10. The story of the prosecution as unfolded by the testimony of the prosecution witnesses in brief is as under -

PW2 /Sri K. Kailash Kumavath is the defacto complainant and resident of Manikonda . He deposed that he is running Sri Balaji Steel

Palace and Plastics at Manikonda, Hyderabad. On 18-4-2013 at about 2.00 P.M , he came to Begum Bazar and purchased one roti maker, ten mixer grinders , three gas stoves and extension wire boxes of two cartoons. He engaged an auto bearing no. A P 11 Y 3736 at Feelkhana to go to Manikonda. While so he stopped the auto at Begum Bazar to purchase some more articles and went inside of the market . After ten minutes he came back to the place and found the said auto was missing .

The accused was the driver of the of the auto. Thereafter, he lodged a written report in PS Afzalgunj vide Ex P1. After one day the police have recovered the stolen property and the same is in his interim custody as per the orders in Crl.M.P. No. 1568 of 2012. Ex P2 is the said petition along with the order.

4

11. PW4/ Sri Y.V. Santa Rao is the Investigating Officer and the then SI of Police of PS Afzalgunj. He deposed that on 17-4-2013 at about 4.30

P.M , LW5 Sri M.A. Aslam , HC of PS Afzalgunj has received Ex P1 from

PW2 and registered a case in Cr.No. 216/2013 Under Section 379 IPC and issued FIR vide Ex P4 . Thereafter PW4 took up investigation.

During the course of investigation he has examined and recorded the statements of PW1 and PW2 and visited the scene of offence and found it was disturbed. He had collected address of the accused from the RTO office. Basing on it he arrested the accused and recorded the confessional cum seizure panchanama of the accused in the presence of

PW3 and LW4 . Then he has seized 1. prestige mixers-2 ; 2. butterfly mixers -2; 3. premier mixers -3; 4. preeti mixer-1; 5. Bajaj mixers; 6.

maple mixer-1 ; 7. butterfly gas stove-1; 8. prestige gas stove-1; 9.

pigeon gas stove-1; 10. butterfly roti maker-1; 11. bullet company small cartons two containing electrical extension boxes under cover of panchanama and deposited before this court vide PI.No. 67/2013 and the said property is marked as MO1 to MO11.

12. PW-1/Anwar Khan deposed that the auto bearing no. AP 113736 belongs to his nephew by name Mansoor Ali Khan and that PW1 gave the said auto to the accused on rent of Rs 200/- . He further deposed that about two years back the police Afzalgunj came to him and informed that the accused took away mixers, grinders from Begum

Bazar in his auto and asked him to show the house of the accused.

Accordingly PW1 has shown the house of the accused to the police and police apprehended him.

5

13. PW3 /Sri Jasraj is one of the mediators to the confession cum seizure panchanama under EX P3 . His evidence is that on 18-4-2015 at about 11.30 A.m Polcie Afzalgunj has summoned him to their Police

Station and the accused was present in the Police Station. On his enquiry the accused disclosed that he has committed theft of 1) 10 mixer grinders; 2) three gas stoves; 3) one roti maker and 4) extension wire box carton . That the police has seized the above items under cover of panchanama and LW4 Sri Thana Ram Kumawat was also present along with him at that time. Ex P3 is the relevant portion of seizure panchanama which bears their signatures.

14. According to oral evidence of PW2 coupled with E x P1 that on 17-4- 2013 at about 3.45 P.M , PW1 came to Feelkhana and purchased two mixis, three gas stoves, table fans and two boxes of extension electrical boxes and one roti maker ie MO1 to MO11 etc and that he engaged the auto bearing no. AP 11 Y 3736 at Feelkhana and came to Begum Bazar for purchase of steel items at M/s Satyanarayana Steels . When he returned from the steel shop and after purchasing steel items, he noticed the auto driver'accused along with the above items sped away from there. PW2 categorically deposed that the accused was the driver of the said auto . PW2 in his cross examination categorically deposed he noted the auto number while he was going inside the shop . He denied the suggestion that at the instance of the traffic police, the accused moved his auto a little a head and that he had no intention of committing theft. This suggestion clinchingly proves that the accused was the driver of the auto bearing no. AP 11 Y 3736 and also proves that the same was engaged by PW2 and kept MO1 to MO11 in the said 6 auto. Here it is also important to mention that PW2 got ample time to observe the physical features of the driver of the auto ie accused which was engaged by him. Therefore in the circumstance of the case, I am of the opinion that the identity of the accused is established as the driver of the above said auto which was engaged by PW2 for transporting MO1 to MO11 from Feelkhana , Begum Bazar to Manikonda.

15. PW2 further denies that he did not search for the auto after coming out of the shop. This suggestion also clinchingly proves that the said auto was not found at that place when PW2 left to Begum Bazar to purchase the steel items.

16. PW4 the Investigation Officer denies the suggestion of the learned defence counsel that in collusion with PW2 a false case has been foisted against the accused. Here it is important to mentioned that there is no meaning to foist a false case against the accused without any reason.

There was no animosity between PW2 and the accused so as to foist a false case against the accused.

17. Ex P3 a relevant portion of seizure panchanama goes to show the seizure of MO1 to MO11 in the presence of PW3 and another mediator.

The evidence of PW1 also goes to show that the accused is the driver of the auto bearing no. AP 11 Y 3736 which the accused has taken for rent from PW2.

18. With the foregoing discussion and in view of the material evidence available on record , I found that the prosecution has proved the ingredients of Section 379 IPC against the accused beyond all 7 reasonable doubt. Therefore the accused is found guilty for the offence

U/s 379 IPC . Accordingly the point is answered.

Dictated to the Stenographer Grade-II, transcribed by her,

corrected and pronounced and signed by me in the open court on this the 20th day of FEBRUARY, 2017.

II ADDL. CHIEF METROPOLITAN MAGISTRATE

HYDERABAD.

The accused is heard with regard to the quantum of sentence .

He submitted that he is an auto driver and requested to take a lenient view .

Having regard to the facts and circumstances of the case, I am of the opinion that it is not a fit case to consider the Provisions of 360 Cr.P.C or Section 3 and 4 of

P.O.Act .

As a result, the accused is convicted U/s 248(2) Cr.P.C for the offence U/s 379 IPC and he is sentenced to undergo Rigorous Imprisonment for a period of ONE year .

MO1 to MO11 are in interim custody of PW2 and he shall retain the same absolutely after expiry of appeal time, if no appeal is referred.

II ADDL. CHIEF METROPOLITAN MAGISTRATE

HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

PW1 is the owner of the auto. NIL

PW2 is the defacto complainant.

PW3 is one of the mediator to the confession cum seizure panchanama.

PW4 is the Investigating Officer

EXHIBITS MARKED

PROSECUTION FOR DEFENCE

Ex.P-1 is the report lodged by PW-2. NIL 8

Ex.P-2 is the order in Crl.M.P. No. 1569/2012

Ex.P-3 is the relevant portion of seizure panchanama which bears signature

Ex.P-4 is FIR

MOs. MARKED

MO1. prestige mixers-2 MO2. butterfly mixers -2 MO3. premier mixers -3 MO4. preeti mixer-1 MO5. Bajaj mixers MO6. maple mixer-1 MO7. butterfly gas stove-1 MO8. prestige gas stove-1 MO9. pigeon gas stove-1 MO10. butterfly roti maker-1 MO11. bullet company small cartons two containing electrical extension boxes

II ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD.

9

CALENDER OF CASES TRIED BY II ADDL. CHIEF METROPOLITAN MAGISTRATE : HYD. FORM NO: 71/72 OF CRL. RULES OF PRACTICE

CALENDER AND JUDGEMENT

C.C.NO. 318/13

Date of offence: 17-4-2013 Date of report/complaint : 17-4-2013 Taking cognizance : 25-4-2013

Furnishing copies to the accused : 2-5-2013

Plea of the accused : 5-6-2013

Examination U/Sec.313 Cr.P.C.: 31-1-2017

Date of apprehension of accused : 18-4-2013

Date of Release on bail : 20-4-2013

Date of Commencement of trial : 7-4-2015

Date of Close of Trial : 18-10-2016

Date of Judgment: 20-2-2017

Name of the Complainant : SI of Police, PS Afzalgunj

Name of the accused : Mohammed Akram Explanation for delay: No delay / Due to non production of witnesses by the prosecution. Offence under Section : 379 IPC Finding : Found guilty

Result : the accused is convicted U/s 248(2) Cr.P.C for the offence U/s 379 IPC and he is sentenced to undergo Rigorous

Imprisonment for a period of ONE year .

II ADDL. CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

To: The Hon'ble I Addl., Metropolitan Sessions Judge, Hyderabad.

Dis.No. /II ACMM/2017 Date :

IN THE COURT OF THE II ADDL.CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD.

Present : Sri.G.Raja Gopal, II Addl. Chief Metropolitan Magistrate, Hyderabad.

Dated Thursday the 16 th day of February, 2017.

C.C.No. 44 of 2013.

Between: The State through Sub Inspector of Police,

Afzalgunj Police Station, Hyderabad ... Complainant.

And

1.Nagari Kunal S/o.Subash aged 28 yrs occu: Business, R/o.15-6-353/1.2,Nagari Market,Begumbazar, Hyderabad.

2.Nagari Rajesh S/o. Rajendar aged 25 yrs occu: Business,R/o.13-2-370,Raheempura, Jalihanuman,Hyderabad.

3.Vijayawargi Kailash S/o.Satya Prakash aged 29 yrs occu:Business R/o.21-3-805, Chelapura,Hyderabad.. …. Accused.

This case is coming before me final hearing on 14-2-.2017 in the presence of learned APP for the state and of M/S.K.Anoop Kumar Counselss for the accused,and upon hearing them and upon perusing the evidence adduced by both sides, this matter having stood over for consideration till this day, this court made the following :

J U D G M E N T

The State represented by Sub-Inspector of police, Afzalgunj Police

Station , Hyderabad has filed the charge sheet in Cr.No.809 /2011 for the offence punishable Under Section 63 and 65 of Copy Right Act,957 and 420 IPC against the accused/A1 to A3.

2The case was taken on file for the offences punishable Under

Section 63 and 65 of Copy Right Act,1957 against the accused/A1 to A3.

3On appearance of the accused/A1 to A3 , copies of case documents were furnished to them as required u/sec 207 of Cr.PC. Thereafter, the accused /A1 to A3 were examined under section 239 Cr.P.C to explain the accusation leveled against them in brief for the offences U/S 63 and 65

Page No. 2CC No. 44 of 2013 of Copy Right Act,957 .

4The accused persons have denied the accusation leveled against them. Therefore, charges for the offence under section 63 and 65 of Copy

Right Act,1957 have been framed,readover and explained to the accused/A1 to A3, and the accused persons have denied the charges, pleaded not guilty and claimed to be tried.

5The accusation leveled against the accused persons in brief is that A1 to A3 are running business under the name and style as M/SBeauty

Collection, Nagari Market, Begumbazar, 2.M/S Nagari Rajnsa Nagar,

Market, Begumbazar,Hyderabad and 3.M/S Pooja Enterprises, Balaji

Market, Nagari Market, Begumbazar, Hyderabad. They purchased 80 Nivea

Lip Care sticks each from one Mr.Ramesh for @ Rs.12/- per each lipstick and they are selling the duplicate lip sticks to the customers @ Rs.120/- per stick and thereby earning profit on duplicate Nivea Lip Care products.

That LW1 Sri Santosh Dwivedi of M/S Nievea India Pvt, Ltd, lodged a complaint before the police. During the course of investigation, the police have conducted raid in the said shops and seized duplicate Nivea products under cover of panchanama. Thereby, the accused persona have committed an offence punishable under section 63 and 65 of Copy Rights Act,1957.

6During course of trial, Pws.1 to 3 are examined and EX.P.1 to P.10 and MO.s1 to 3 have been marked on behalf of the prosecution.

7 After closure of the prosecution evidence, the accused/A1 to A3 were examined U/S 313 Cr.P.C to explain the incriminating circumstances appearing in the evidence adduced on behalf of prosecution. The accused/A1 to A3 have denied the said incriminating circumstances and they did not choose to adduce any evidence on their behalf.

8Heard the arguments from both sides.

Page No. 3CC No. 44 of 2013 9Now the point for determination in this case is :

“Whether the prosecution is able to bring home the guilt of accused for the offences leveled against them beyond all reasonable doubt ?” 10 Point :- To substantiate the case of prosecution, 3 witnesses in all are examined to prove it's case.

11PWs1 and 2 are the panch witnesses for the search proceedings and confession cum seizure panchanama of A.1 to A3. PW3 is the Investigating

Officer.

12The story of the prosecution as un folded by the prosecution witnesses in brief is as under:-

PW1 Sri Gurudeep Singh deposed that about 3 years back ( as on the date of giving his evidence dt.16.9.2014) the police called him to

P.S.Begumbazar, Hyderabad and issued search proceedings of three shops and he found the accused in 3 shops in which the police have conducted raid. He further deposed that the accused confessed that they were selling duplicate Niva Products and the police have seized the same under cover of confession cum seizure panchanamas and he attested same, EX.P.1 is the search proceedings, Ex.P.2 to P.4 are the confession cum seizure panchanamas of A1 to A3. He also deposed that the police have seized

MO.s1 to 3 i.e.,duplicate Niva Products from the shops of A.1 to A3 respectively.

13PW1 in his cross examination deposed that he do not know anything about this case and he do not know the contents of EX.P1 to P.3 and that he signed on Ex.P.2 to P.4 in the police Station and that no property was seized in his presence. This witness is treated as hostile and the learned Sr.APP cross examined him with the permission of the Court. But nothing worth while could be elicited from his mouth to establish the prosecution case.

Page No. 4CC No. 44 of 2013 14PW2 Sri Y.Arvind is another mediator. He deposed that he is resident of Jiyaguda, Hyderabad and about 5 years ago, the police Afzalgunj, obtained his signatures on some written papers and that he do not know the contents of said papers. He also do not know the accused persons and anything about this case, Ex.P.5 to P7 are his signatures on the confession cum seizure panchanamas of A1 to A3 respectively. This witness also treated hostile and he was also cross examined by the learned Sr.APP with the permission of the Court. But nothing worth while could be elicited from his mouth to establish the seizure of MO.s1 to 3 from the shops of A.1 to A3 respectively.

15PW3 Sri Y.V.Santa Rao,is the Investigating Officer and the then S.I of police of P.S.Afzalgunj. He deposed that on 14.12.2001 at 8.25 a.m, he received a written report under EX.P.8 from LW1 Sri Santosh Dwivedi.

Basing on same, he registered a case in Cr.No.809/2011 under section 63 and 65 of Copy Right Act, 1957 and issued FIR vide Ex.P.9. He has examined and recorded the statements of Lws.1 and 2. On 15.11.2011 at 9.30- a.m, he secured the presence of PWs1 and 2 and drafted search proceedings vide EX.P.1 and raided the premises No.15-6-353/1, and Nagari

Market, Begumbazar, Hyderabad and seized 72 Nivea Lip care sticks, A1 is the owner of the said shop. He recorded the confession cum seizure panchanama vide EX.P.5. Thereafter, he along with mediators visited the shop of A2 and seized 74 Nivea Lip Care sticks under cover of EX.P7 panchanama. He brought the accused and seized property to P.S and effected their arrest .He further deposed that he forwarded the seized objects and original of Nivea Lip Care Stiks to the FSL,Hyderabad for comparision and opinion. After enalysis he has received FSL report vide

EX.P.10. After completion of investigation,he laid charge sheet.

Page No. 5CC No. 44 of 2013 16PW3 in his cross examination admits that EX.P.8 i.e., attested copy of the complaint does not contain the date. It is elicited that he has not collected any documents of A.1 to A3 inrespect of their shops. PW3 denied that A1 to A3 are only shops employees and they were falsely implicated in this case and that he filed a false charge sheet for statistical purpose.

17In this case, the defacto complainant i.e., LW1 Santosh Dwevedi has not been examined on behalf of the prosecution. Since LW1 sent a letter dt.17.1.2017 stating that he is no longer associated with Nivea India

Pvt,Ltd and requested to relieve him. Hence, his evidence was closed. LW2

Naveen Kumar Dodla also not examined , because police Afzalgunj has filed report stating that his address is not traced.

18PW1 and 2 did not support the prosecution case with regard to search and seizure of allegedly to have been made by PW3 in the respective shops of A.1 to 3. Now the entire case of prosecution is rests upon the sole and un corroborated evidence of PW3 who is the Investigating Officer.

19The prosecution has not filed any document to show the ownership certificates or the trade licence to connect the accused to shops and that they are the responsible persons of the said shops. PW3 did not depose anything regarding the collecting original Nivea Lip Care etc. No person from that company has been examined on behalf of the prosecution to prove its case muchless to depose that MO.s 1 to 3 are duplicate products.

20Admittedly, the scene of offence is situated in Begum Bazar which is a busy, commercial locality. The reasons best known to the Investigating

Officer, he did not called any independent mediators from the scene of offence locality to act as panch witnesses. Pws.1 and 2 are the residents of

Attapur, Jiyaguda locality. The code of criminal procedure mandates securing two respectable independent persons from the scene of offence

Page No. 6CC No. 44 of 2013 locality to act as mediators. But PW3 miserably failed to follow the said procedure. Moreover, no explanation has been offered by the prosecution for non securing the local panch witnesses to observe the search and seizure. Therefore, in my opinion it is fatal to the case of prosecution.

21Under these circumstances, I am of the opinion that it is un safe to rely upon the un corroborated evidence of PW3 who is the Investigating

Officer.

22With the foregoing discussion, and inview of the material available on record, I therefore, found that the prosecution has miserably failed to connect the accused with the shops in question or the seizure of MO.s 1 to 3 from their respective shops. As such A1 to A3 are found not guilty for the offences under section 63 and 65 of Copy Right Act, 1957. Accordingly, this point is answered.

23As a result, the accused/A1 to A3 are acquitted U/s 248(1) Cr.P.C for the offence Under Section 63 and 65 of Copy Right Act,1957. They are set at liberty. The bail bonds of Accused/A1 to A3 shall stand canceled after expiry of 6 months.

24MO.s1 to 3 shall be destroyed after expiry of appeal time.

Dictated to Grade-I Stenographer, transcribed and typed by him,

corrected and pronounced by me in the open court on this the 16th day of February, 2017.

II ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD.

Appendix of Evidence No. of witnesses examined for Prosecution: Defence

PW1 : S.Gurudeep Singh,panch witness. Nil. PW2 : Y.Aravind, panch witness. PW3 : Y.Santa Rao,S.I and I.O.

Page No. 7CC No. 44 of 2013

No. Of documents marked for Prosecution Defence ExP1 : is the search proceedings. Nil ExP2 to P4 are the confession cum seizure panchanamas of A1to A3. EXP5 to P.7 are the signatures of PW2. EXP8 : is the attested copy of complaint. EXP9 : is the FIR. EXP10: is the FSL Report.

No. of Material Objects marked:

MO.1 is the 74 Nos of duplicate lipstik care sticks. Nil. MO.2 is the 72 Nos of duplicate lipstik care sticks. MO3 is the 76 Nos of duplicate lipstik care sticks.

II ADDL. CHIEF METROPOLITAN MAGISTRATE.

HYDERABAD.

Page No. 8CC No. 44 of 2013

FORM NO.72 OF CRIMINAL RULES OF PRACTICE

CALENDER CASE TRIED BY THE II ADDL CHIEF METROPOLITAN

MAGISTRATE HYDERABAD

CALENDER CASE NO: 44/2013

DATE OF OFFENCE : 14-12-2011

DATE OF REPORT OF COMPLAINT : 41-12-2011

DATE OF APPREHENSION OF ACCUSED : 15-12-2011

DATE OF RELEASE ON BAIL : 15-12-2011

DATE OF COMMENCEMENT OF TRIAL : 16-9-2014

DATE OF CLOSE OF TRIAL : 17-1-2017

DATE OF SENTENCE OF ORDER : 31.1.2017

EXPLANATION OF DELAY AND REMARKS : -

NAME OF THE COMPLAINANT; The Sub-Inspector of Police, PS Afzalgunj, Hyderabad

NAME OF THE ACCUSED: 1.Kunal Nagari.2.Rajesh nagari.3.Kailash

OFFENCE UNDER SECTION 63 and 65 of Copy Rights Act,1957.

FINDING Accused are found not guilty for the offences u/sec. 63 and 65 of Copy Rights Act,1957 and they are acquitted U/sec 248 (1) Cr.PC

SENTENCE : TO THE HON'BLE I ADDL. METROPOLITAN SESSIONS JUDGE, HYDERABAD

DIS NO /II ACMM/HYD DATED 25-2-2017

CALENDER CASE NO: 44/2013 DATE OF JUDGMENT: 16-02-2017

DATE OF DESPATCH DATE OF RECEIPT

01. DATE OF FILING CHARGE SHEET : 31-1-2013

02. DATE OF TAKING COGNIZANCE : 31-1-2013 03 . DATE OF FURNISHING COPIES TO ACCUSED : 26-2-2013 04 . DATE OF RECORDING PLEA OF ACCUSED : 04-7-2013

05. DATE OF EXAMINATION OF ACCUSED U/SEC. 313 Cr.P.C. : 07-2-2017

II ADDL CHIEF METROPOLITAN MAGISTRATE 

HYDERABAD

IN THE COURT OF THE II ADDL.CHIEF METROPOLITAN

MAGISTRATE,HYDERABAD.

Present : Sri.G.Raja Gopal, II Addl. Chief Metropolitan Magistrate, Hyderabad.

Dated Thursday the 17th day of February, 2017.

C.C.No. 04 of 2016.

Between: The State through Sub Inspector of Police,

Sultanbazar Police Station, Hyderabad ... Complainant.

And

Rukiya Begum @ Rukiya Naseem @ Naseem W/o. Mohd.Buranuddin aged 45 yrs occu: Housewife, R/o.H No.19-5-32/F/58/1,Asadbabnagar, Kishanbagh,Hyderabad. …. Accused.

This case is coming before me final hearing on 08.2.2017 in the presence of learned APP for the state and of M/S.G.Narayana– Counsel for the accused, and upon hearing them and upon perusing the evidence adduced by both sides, this matter having stood over for consideration till this day, this court made the following :

J U D G M E N T

The State represented by Sub-Inspector of police, Sultanbazar Police

Station , Hyderabad has filed the charge sheet in Cr.No. 98/2015 for the offence punishable Under Section 379 IPC against the accused.

2The case was taken for the offence punishable Under Section 379 r/w 411 IPC against the accused.

3On appearance of the accused, copies of case documents were furnished to the sole accused as required u/sec 207 of Cr.PC. Thereafter, the accused is examined under section 239 Cr.P.C to explain the accusation leveled against her in brief for the offence U/S 379 r/w 411 IPC .

4The accused has denied the accusation leveled against her.

Therefore, a charge for the offence under section 379 r/w 411 IPC has been framed,readover and explained to the accused. The accused has denied the charge, pleaded not guilty and claimed to be tried.

5The accusation leveled against the accused in brief is that on

Page No. 2CC No. 04 of 2016 31.7.2013 at 2.30 p.m, she has committed theft of a purse containing gold locket weighing 40 gms gold coins weighing 10 gms, chain hook S shaped from the purse of PW2 Smt.Prabhavathi at Koti Bus stop, Hyderabad and during the course of investigation,the accused was apprehended and the police have recovered the stolen property from her possession under cover of panchanama. Thereby, the accused has committed an offence punishable under section 379 r/w 411 IPC.

6During course of trial, Pws.1 to 4 are examined and EX.P.1 to P.3 and MO.1 have been marked on behalf of the prosecution.

7 After closure of the prosecution evidence, the accused was examined U/S 313 Cr.P.C to explain the incriminating circumstances appearing in the evidence adduced on behalf of prosecution. The accused has denied the said incriminating circumstances and she did not choose to adduce any evidence on her behalf.

8Heard the arguments from both sides.

9Now the point for determination in this case is :

“Whether the prosecution is able to bring home the guilt of accused for the offence leveled against her beyond all reasonable doubt ?” 10 Point :- To substantiate the case of prosecution, four witnesses in all are examined on behalf of the prosecution. PW1 is the one of the mediators to the confession cum seizure panchanama of the accused. PW2 is the defacto complainant, PW3 is the receiver of stolen property and PW4 is the Investigating Officer.

11PW2 Smt.V.Prabhavathi deposed that in the month of Jyuly,2013 she came to Abids for shopping in a RTC bus. While traveling in the bus she noticed that one gold locket, weighing 40 gms, gold coin of 10 gms, 'S' shaped chain hook were found missing from her purse. She searched for the

Page No. 3CC No. 04 of 2016 same, but the same were not traced. Therefore, she lodged written report in

P.S.Sultanbazar vide EX.P.2. After one year the police informed her about recovery of gold locket which is marked as MO.1 and the same is in her interim custody.

12PW4 Sri K.Rami Reddy is the Investigating Officer and the then S.I of police of P.S.Sultanbazar, Hyderabad. He deposed that on 2.8.2013 LW8 Sri

Mohd.Fareeduddin the then S.I of police P.S.Sultanbazar, Hyderabad has received a complaint under EX.P.2 from PW2 and registered a case in

Cr.No.187/2013 under section 379 IPC and issued FIR to all concerned vide

EX.P.3 and that he has examined and recorded the statement of PW2 and handed over the CD file to him for further investigation. On 19.7.2014 their crime staff i.e., LWs4 to 6 have apprehended the accused near

Osmania Medical College, Koti, Hyderabad and produced her before him in

P.S. On interrogation, the accused confessed that she has committed the property offences in the limits of P.S.Sultan Bazar and P.S Afzalgunj .

Immediately, he summoned two mediators namely PW1 and LW2 Smt.Rajan

Bai and in their presence, he has recorded the confession statement cum seizure panchanama of the accused vide EX.P.1 and seized I Phone pertaining to Cr.No.227/14 of P.S.Sultanbazar. The accused also confessed that she has kept the gold property in her house and lead the police and panchas to her house at Asadbabanagar, Kishanbagh,Hyderabad and at the instance of accused PW4 has seized two gold chains each 25 gms, one gold neclace 50 gms, one gold chandraharam 25 gms, pertaining to other crimes. The accused also confessed that she has pledged some gold items at Goshamahal and she lead them to the shop of PW3. Where, PW4 said to have seized one black beed chain, 15 gms, gold chain 20 gms, pertaining to other crimes and one gold locket 30 gms i.e., MO.1 pertaining to this case

Page No. 4CC No. 04 of 2016 from the shop of PW3 under a seizure report he also examined and recorded the statement of PW3. Later, he effected arrest of accused and sent her to

Court for judicial remand. Later on completion of investigation,he filed charge sheet.

13PW1 Santosh Kumar deposed that he is resident of Sultan Bazar,

Hyderabad. On 19.7.2014 at about 2.30 p.m the police Sultanbazar called him to Police Station and the accused herein was present in the Police

Station. On his inquiry the accused confessed that she has committed theft in RTC buses and she was found in possession of one I phone and same was seized by the police under cover of panchanama EX.P.1 is the relevant portion of the confession cum seizure panchanama dt.19.7.2014.

14In his cross examination, PW1 deposed that he has Sweet Corn business near P.S.Sultanbazar and that the accused revealed her name as

Saroj Begum and she was wearing parda and that he can not say the name of police who called him to P.S.

15PW3 Mohan Jain is said to be the receiver of stolen property. His evidence is that he is running jewellery business under the name and style as Mahaveer Jewellers at Goshamahal. In the year 2014 the accused along with police came to their shop and the police have seized 3 gold items.

1.One black beed chain.

2.One gold chain.

3.One gold locket.

Earlier the accused has pledged the above said gold items.

16The socalled mediator who is examined as PW1 did not depose anything against the accused regarding she leading the police and mediators to her house situated at Azadbabanagar, Kishanbagh,Hyderabad and recovery of property and also seizure of MO.1 gold locket and other

Page No. 5CC No. 04 of 2016 properties from the shop of PW3 etc, as deposed by PW4. Therefore,the evidence of Pws 1 and 4 is in consistent and not corroborated with each other on material particulars.

17PW4 said to have seized the MO.1 under cover of seizure report and the same is also not filed to prove his version.

18According to EX.P.2 coupled with oral evidence of PW2 some un- known offender have committed theft of her gold item on 31.7.2013 at Koti,

Hyderabad. Therefore, there is no incriminating material on record against the accused and to prove that the accused has committed theft of the same.

19Though PW3 deposed that the accused has pledged MO.1 and other properties with him. But no document or registers are produced by prosecution before this Court to show that the accused has pledged the properties with him by the accused. Absolutely there is no corroboration to the evidence of PW4 either oral or documentary. Therefore, in these circumstances of the case, I am of the opinion that it is un safe to rely upon the un corroborated evidence of PW4 regarding the seizure of MO.1 at the instance of the accused. Since the version of PWs1 and 4 are not corroborated on material particulars.

20With the foregoing discussion, and inview of the material available on record, I therefore, found that the prosecution has miserably failed to prove the guilt of the accused for the offence under section 379 r/w 411

IPC. Accordingly, this point is answered.

21As a result, the accused is acquitted U/s 248(1) Cr.P.C for the offence Under Section 379 r/w 411 IPC. She is set at liberty. The bail bonds of Accused if any shall stand canceled after expiry of 6 months.

22MO.1 is in the interim custody of PW2, and she shall retain the same absolutely after expiry of appeal time.

Page No. 6CC No. 04 of 2016

Dictated to Grade-I Stenographer, transcribed and typed by him,

corrected and pronounced by me in the open court on this the 17th day of February, 2017.

II ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD.

Appendix of Evidence No. of witnesses examined for Prosecution: Defence PW1 : K.Santosh Kumar, witness. Nil. PW2 : S.Pravbhavathi, complainant. PW3 :Mohan Jain,receiver of propperty. PW4 :K.Rami Reddy,,S.I and I.O.

No. Of documents marked for Prosecution Defence ExP1 : is the confession of the accused. EXP2 : is the report lodged by PW2. Nil ExP3 : is the FIR.

No. of Material Objects marked: MO1: is gold locket. Nill.

II ADDL. CHIEF METROPOLITAN MAGISTRATE.

HYDERABAD.

Page No. 7CC No. 04 of 2016

FORM NO.72 OF CRIMINAL RULES OF PRACTICE

CALENDER CASE TRIED BY THE II ADDL CHIEF METROPOLITAN

MAGISTRATE HYDERABAD

CALENDER CASE NO: 04/2016

DATE OF OFFENCE : 31-7-2013

DATE OF REPORT OF COMPLAINT : 31-7-2013

DATE OF APPREHENSION OF ACCUSED : 19-7-2014

DATE OF RELEASE ON BAIL : 28-7-2014

DATE OF COMMENCEMENT OF TRIAL : 06-12-2016

DATE OF CLOSE OF TRIAL : 18-1-2017

DATE OF SENTENCE OF ORDER : 17.2.2017

EXPLANATION OF DELAY AND REMARKS : -

NAME OF THE COMPLAINANT; The Sub-Inspector of Police, PS Sultanbazar, Hyderabad

NAME OF THE ACCUSED: Rukiya Begum

OFFENCE UNDER SECTION 379 r/w 411 IPC.

FINDING Accused is found not guilty for the offence u/sec.380 r/w 34 IPC and she is acquitted U/sec 248 (1) Cr.PC

SENTENCE : TO THE HON'BLE I ADDL. METROPOLITAN SESSIONS JUDGE, HYDERABAD

DIS NO /II ACMM/HYD DATED 21-2-2017

CALENDER CASE NO: 04/2016 DATE OF JUDGMENT: 17-02-2017

DATE OF DESPATCH DATE OF RECEIPT

01. DATE OF FILING CHARGE SHEET : 28-12-2015

02. DATE OF TAKING COGNIZANCE : 04-6-2015 03 . DATE OF FURNISHING COPIES TO ACCUSED ; 17-2-2016 04 . DATE OF RECORDING PLEA OF ACCUSED : 30-3--2016

05. DATE OF EXAMINATION OF ACCUSED U/SEC. 313 Cr.P.C. : 25-1-2017

II ADDL CHIEF METROPOLITAN MAGISTRATE 

HYDERABAD

IN THE COURT OF THE II ADDL.CHIEF METROPOLITAN

MAGISTRATE,HYDERABAD.

Present : Sri.G.Raja Gopal, II Addl. Chief Metropolitan Magistrate, Hyderabad.

Dated Tuesday the 21st day of February, 2017.

C.C.No.349 of 2006.

Between: The State through Sub Inspector of Police,

Afzalgunj Police Station, Hyderabad ... Complainant.

And

1.Mohd.Harshuddin S/o. Mohmood Sharfuddin aged 36 yrs occu: Car Driver, R/o.H No.22-1-96,Sultanpoora,Noorkhanbazar, Hyderabad.

2.Mohd.Majeed S/o.Mohd.Amjad aged 45 yrs occu: Pvt worker,R/o.18-8-485/20,Edibazar, Santoshnagar, Hyderabad. …. Accused.

( Case against A2 is splitup vide C.C.No.861/2016)

This case is coming before me final hearing on 14.2.2017 in the presence of learned APP for the state and of M/S.Ahmed Khan– Counsel for the accused, and upon hearing them and upon perusing the evidence adduced by both sides, this matter having stood over for consideration till this day, this court made the following :

J U D G M E N T

The State represented by Sub-Inspector of police, Afzalgunj Police

Station , Hyderabad has filed the charge sheet in Cr.No.765/2003 for the offences punishable Under Section 382 IPC against the accused/A1 and A2.

2The case was taken for the offence punishable Under Section 382

IPC against the accused/A1 and A2.

3In view of pendency of NBW against A2, the case against A2 is splitup vide C.C.No.861/2016. Therefore, the present case is against A1 only.

4On appearance of the accused/A1 copies of case documents were furnished to him as required u/sec 207 of Cr.PC. Thereafter, the accused/A1 is examined under section 239 Cr.P.C to explain the accusation leveled against him in brief for the offences U/S 382 IPC .

Page No. 2CC No. 349 of 2006 5The accused/A1 has denied the accusation leveled against him.

Therefore, a charge for the offence under section 382 IPC has been framed,readover and explained to the accused. The accused/A1 has denied the charge, pleaded not guilty and claimed to be tried.

5The accusation leveled against the accused in brief is that on 5.8.2003 at 8.30 p.m, while PW1 Sri S.Shanker Rao was going to his office after collection of money at that time, the accused came and snatched away

Rs.11,000/- and sped away. Thereby, the accused has committed anoffence under section 382 IPC.

6During course of trial, Pws.1 to 4 are examined and EX.P.1 to P.3 have been marked on behalf of the prosecution.

7 After closure of the prosecution evidence, the accused/A1 was examined U/S 313 Cr.P.C to explain the incriminating circumstances appearing in the evidence adduced on behalf of prosecution. The accused/A1 has denied the said incriminating circumstances and he did not choose to adduce any evidence on his behalf.

8Heard the arguments from both sides.

9Now the point for determination in this case is :

“Whether the prosecution is able to bring home the guilt of accused for the offence leveled against him beyond all reasonable doubt ?” 10 Point :- To substantiate the case of prosecution, four witnesses in all are examined. PW1 is the defacto complainant. PW.2 is one of the mediators to the confession cum seizure panchanama. Pws.3 and 4 are the police officials.

11The story of the prosecution as un folded by the prosecution witnesses in brief is as under:-

Page No. 3CC No. 349 of 2006

PW1 Sri S.Shanker Rao is resident of Dilsukhnagar, Hyderabad. He deposed that he is working as Janatha Deposit Collection for Corporation

Bank, Siddiambarbazar branch, Hyderabad. On 4.8.,2003 at about 8.30 p.m, the incident took place and on the above date, he has collected an amount of Rs.11,000/- and kept the same in hand bag and also kept his personal amount of Rs.11,000/- along with his Driving Licence, Telephone Directory personal diary, bank collection cards of about 164 etc. While he was going on his two wheeler near Bademiya Petrol Pump near Afzalgunj by keeping the bag to his wrist and at that time two persons came from his back side on a Bajaj Chetak Scooter and dashed against him. Due to which he fell down and the said persons took away the hand bag containing cash of Rs.22,000/- and documents and that he can not identify the said persons. Thereafter, he lodged written report vide EX.P.1 on 4.89.2003 in P.S.Afzalgunj.

12PW2 Sri Syed Khaja is said to be one of the panch witness for the confession cum seizure panchanama but he did not support the prosecution case. He deposed that he do not know accused herein and do not know anything about this case. In the year 2003 the police Chaderghat have obtained his signatures on papers. The learned Sr.APP cross examined him with the permission of the Court after declaring him hostile. But nothing worthwhile could be elicited from his mouth to prove the seizure of case property from the possession of the accused.

13PW3G.Sreedhar previously worked as S.I of police in P.S.Chaderghat.

He deposed that on 30.9.2003 at about 4.0-0 p.m he has apprehended both the accused at Chaderghat and effected their arrest in Cr.No.441/2003 of

P.S.Chaderghat. He secured two mediators namely Pw2 and LW3

Md.Munna and in their presence, he has recorded the confessional statement of both the accused. Inpursuance of confession of A2, he

Page No. 4CC No. 349 of 2006 proceeded to his house situated at Madina and recovered cash of Rs.5,000/-.

He sent both the accused to the Court for judicial remand. The above said cash of Rs.5000/- pertains to this case. He intimated arrest and seizure to the police Afzalgunj for taking necessary action and also forwarded the material papers and cash of Rs.5,000/- EX.P.2 is the confession cum seizure panchanama of A2.

14PW4 is the Investigating Officer and previously worked as S.I of police in P.S.Afzalgunj. He deposed that on 4.8.2003, at 9.45 p.m, he received

EX.P.1 from PW1 and registered a case in Cr.No.765/2003 under section 382 IPC and issued FIR vide EX.p.3. He also recorded the statement of

PW1, visited the scene of offence. He has received the material papers from

PW3. On completion of investigation, he laid charge sheet.

15Another panch witness by name Md.Munna ( LW3 ) is not examined, since, the police, Afzalgunj have filed report stating that his address is not traced.

16Absolutely, there is no incriminating material in the oral evidence of

PW1 coupled with EX.P.1 and P.3, as the offence was committed by some un known offenders. The alleged panch witness did not support the prosecution case and PW3 also did not depose anything against the accused

No.1 herein, about the seizure of cash from his possession. The alleged cash of Rs.5,000/- was seized at the instance of A2 from his house.

17With the foregoing discussion, and inview of the material available on record, I am of the opinion that the prosecution has miserably failed to prove the guilt of the accused No1 for the offence under section 382 IPC.

As such A1 is found not guilty for the said offence. Accordingly, this point is answered.

Page No. 5CC No. 349 of 2006 18As a result, the accused/A1 is acquitted U/s 248(1) Cr.P.C for the offence Under Section 382 IPC. He is set at liberty. The bail bonds of

Accused/A1 if any shall stand canceled after expiry of 6 months.

20The order regarding disposal of case property of Rs.5,000/- shall be passed in splitup case Vide C.C.No.861/2016 pending against A2.

Dictated to Grade-I Stenographer, transcribed and typed by him,

corrected and pronounced by me in the open court on this the 21st day of February, 2017.

II ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD.

Appendix of Evidence No. of witnesses examined for Prosecution: Defence

PW1 : S.Shanker Rao, complainant. Nil. PW2 : Syed Khaja,panch witness. PW3 :G.Sreedhar,S.I apprehended A1 and A2. PW4 :Ramdas Teja,S.I and I.O.

No. Of documents marked for Prosecution Defence ExP1 : is the report lodged by PW1. Nil ExP2 : is the Confession cum seizure panchanama. EXP3 : is the FIR.

No. of Material Objects marked:

Nil.

II ADDL. CHIEF METROPOLITAN MAGISTRATE.

HYDERABAD.

Page No. 6CC No. 349 of 2006

FORM NO.72 OF CRIMINAL RULES OF PRACTICE

CALENDER CASE TRIED BY THE II ADDL CHIEF METROPOLITAN

MAGISTRATE HYDERABAD

CALENDER CASE NO: 349/2006

DATE OF OFFENCE : 05-8-2003

DATE OF REPORT OF COMPLAINT : 05-8-2003

DATE OF APPREHENSION OF ACCUSED : 30-9-2003

DATE OF RELEASE ON BAIL : 08-10-2004

DATE OF COMMENCEMENT OF TRIAL : 06-12-2016

DATE OF CLOSE OF TRIAL : 07-2-2017

DATE OF SENTENCE OF ORDER : 14.2.2017

EXPLANATION OF DELAY AND REMARKS : -

NAME OF THE COMPLAINANT; The Sub-Inspector of Police, PS Afzalgunj, Hyderabad

NAME OF THE ACCUSED: Mohd.Harshuddin OFFENCE UNDER SECTION 379 r/w 411 IPC.

FINDING Accused is found not guilty for the offence u/sec.382 IPC and he is acquitted U/sec 248 (1) Cr.PC

SENTENCE : TO THE HON'BLE I ADDL. METROPOLITAN SESSIONS JUDGE, HYDERABAD

DIS NO /II ACMM/HYD DATED 21-2-2017

CALENDER CASE NO: 349/2006 DATE OF JUDGMENT: 21-02-2017

DATE OF DESPATCH DATE OF RECEIPT

01. DATE OF FILING CHARGE SHEET : 05-8-2003

02. DATE OF TAKING COGNIZANCE : 4-7-2006 03 . DATE OF FURNISHING COPIES TO ACCUSED : 27-9-2016 04 . DATE OF RECORDING PLEA OF ACCUSED : 08-11-2016

05. DATE OF EXAMINATION OF ACCUSED U/SEC. 313 Cr.P.C. : 14-2-2017

II ADDL CHIEF METROPOLITAN MAGISTRATE 

HYDERABAD