Smt.Gayathri Vemugadda

Page 1 of total 12 papers CC No. 265/2018

IN THE COURT OF I-ADDITIONAL JUDICIAL MAGISTRATE OF

FIRST CLASS AT: GADWAL

PRESENT: SMT.V.GAYATHRI

I-Addl.JMFC, Gadwal

DATED THIS THE 12 th DAY OF APRIL, 2023

C.C. No. 265 OF 2018

BETWEEN:-

The State of Telangana through Sub-Inspector of Police, by P.S. Dharoor … Complainant

Vs

A1:Palem Veeresh, S/o Narsappa, Age: 28 yrs, Caste:Telugu, Occ:Driver cum owner of jeep No. AP-02-U-8831, R/o Nettempadu village

A2:Thokala Hanmanthu, S/o Thippanna, Age: 45 yrs, Caste:Telugu, Occ:Coolie, R/o Nettempadu village

A3:Katikanna Dubbanna, S/o Late: Bheemanna, Age: 55 yrs, Caste: Madiga, Occ:Coolie, R/o Nettempadu village

A4:Sulthan Ali, S/o Dharvesh Ali, Age: 52 years, Caste:Muslim, Occ, PDS dealer Guddemdoddi I/c Nettempadu village R/o.Uppair

A5:Sadiq, S/o Sardhar Ali, Age: 25 years, Caste:Muslim, Occ: Business r/o. Gadwal … Accused nos. 1 to 5

This case came before me on 10-04-2023 for final hearing in the presence of the learned Asst. Public Prosecutor, for the complainant and of Sri. MD. Khaja Moinuddin, counsel for Accused Nos. 1 to5 and the matter having stood over for consideration, this court delivered the following:-

Smt. V. Gayathri (I-Addl. JMFC,Gadwal)

Page 2 of total 12 papers CC No. 265/2018

J U D G M E N T

1. The accused nos. 1 to 5 are indicted for the offences U/s. 420 of IPC and Section 7 of Essential Commodities Act, 1955 by the Sub-Inspector of

Police, PS Dharoor in Crime No.260 of 2017.

2. The brief facts of the case are as follows:

On 18.12.2017 at 06:30 hours the Pw1 Anjaneyulu s/o Dubbanna, aged, 43 yrs, VRO Nettempadu of Dharoor mandal r/o Chintharevula village came to Police Station and lodged a petition, in which he stated that on 18-12-2017 while he was at his house at about 5:00 hours he received a reliable information that PDS rice loaded in Jeep bearing No AP 02-U8831 was proceeding towards Gadwal via Uppair from Nettempadu village. On that information the Pw1 reached to Narsandoddi chourasta.

At about 5:40 am a Jeep bearing No. AP-02-U8831 was coming from

Uppair then the Pw1 intercepted the said jeep and found the jeep was loaded with rice bags and found driver and two other persons. On enquiry they disclosed their names as Palem Veeresh s/o Narsappa, Jeep driver/accused no. 1, Thokala Hanmanthu s/o Thippanna/accused no. 2 and K Dubbanna s/o Bheemanna/accused no. 3 all residents of

Nettempadu village and they stated that the PDS rice bags were loaded in jeep at PDS rice shop in Nettempadu on the advice of dealer Sulthan of

Guddemdoddi/accused no. 4 and his relative Sadiq/accused no. 5 and the same was being transported to Gadwal to the house of Sadiq/accused no.

5. Further the Pw1 stated that jeep contained 19 PDS bags i.e., 50 kgsper

Smt. V. Gayathri (I-Addl. JMFC,Gadwal)

Page 3 of total 12 papers CC No. 265/2018 bag, weighing about 8.50 quintals. The PDS rice loaded Jeep and accused nos. 1 to 3 were handed to police for legal action against them.

3. Basing on the petition lodged by the Pw1, LW15/Keshava Rao, ASI of police, PS Dharoor registered a case in Cr No 260/2017, U/Ss. 420 IPC and Sec. 7 of EC Act and took up investigation.

4. During course of investigation the LW15 examined and recorded the statement of Pw1. Further the LW15 interrogated the accused nos. 1 to 3, who confessed their guilt, then the LW15 recorded the confession of the accused nos. 1 to 3 and seized Jeep bearing no. AP 02 U 8831 and 19

PDS rice bags weighing nearly 8 to 8.50 quintals under the cover of confession cum seizure panchanama in the presence of mediators i.e.,

LW8/Kondanna and LW9/BoyaRanganna (Died). During the confession of accused no. 1, he stated that he belongs to Nettempadu village, he is the owner cum driver of Jeep bearing No AP-02 U-8831, as intimacy with the accused nos. 4 and 5 and on their instructions and advice, accused no. 1 met the accused nos. 2 and 3, on the intervening night of 17/18-12- 2017; took his vehicle to the ration shop of Nettempadu along with accused nos. 2 and 3, where the accused no. 1 loaded the 19 PDS rice bags in his jeep with the help of accused nos. 2 and 3 and proceeded from Nettempadu to Gadwal via Uppair along with accused nos. 2 and 3 to the house of accused no. 5 for disposal purpose; on the way at about 5.40 AM at Narsandoddi chourasta, the PW1 VRO of Nettempadu stopped

Smt. V. Gayathri (I-Addl. JMFC,Gadwal)

Page 4 of total 12 papers CC No. 265/2018 his jeep. Even the accused nos. 2 and 3 deposed on same lines as that of accused no. 1.

5. Lw15 arrested accused nos. 1 to 3 and visited the scene of offence located at Nettempadu village where accused nos. 1 to 3 loaded PDS rice and conducted the scene of offence panchanama in the presence of mediators Lw6/Kathalapa and Pw4 Dobbalanna. Later, the accused nos. 1 to 3 were sent to judicial remand on 18-12-2017.Pw3 came to the police station, seized the PDS rice and conducted seizure panchanama in the presence of Pw5 and Lw11 and took the PDS rice to his custody.

6. Subsequently, on 24-12-2017 the Pw8 taken the CD file from LW15, verified the investigation done by the LW15 and found it on correct lines.

Pw8 examined and recorded the statement of LW2.

7. On 02-01-2018, Pw8 received information about the presence of accused nos. 4 and 5 at the house of accused no. 4 in Uppair village. They were apprehended by HC 1627 PS Dharoor and produced before the Pw8.

Immediately the PW8 interrogated the accused nos. 4 and 5, who confessed their guilt and the accused no. 4 stated that he belongs to

Uppair village and fair price shop dealer of Guddemdoddi village for long period; in the month of July the accused no. 4 had taken the in charge of

Nettempadu fair price shop dealer on instructions of revenue official as

Nettempadu dealer namely Sardhar Ali who is husband of Accused no. 4’s younger sister had died. The accused no. 4 took the assistance of accused

Smt. V. Gayathri (I-Addl. JMFC,Gadwal)

Page 5 of total 12 papers CC No. 265/2018 no. 5 in supplying the PDS rice and Government sponsored ration from

August 2017 and in the month of December 2017 the accused no. 4 and 5 disbursed the PDS rice to public in Nettempadu village. Later the accused nos. 4 and 5 collected the PDS rice from Public in Nettempadu and surrounding villages on low price i.e., Rs. 5/- per Kg of about nearly 8.50 quintals i.e., 19 bags each bag weighing nearly 50 kgs and stocked the same in Nettempadu village. On 17-12-2017 on accused no. 4 and 5 instructions the accused nos. 1 to 3 loaded the PDS rice in jeep NO AP-02

U 8831 of Accused no. 1 and were transporting the rice to Gadwal. While on their way at Narsandoddi Center the VRO Nettempadu/Pw1 caught hold the loaded PDS rice Jeep including accused nos. 1 to 3 and handed the PDS rice along with accused nos. 1 to 3 in PS Dharoor. The Pw8 recorded the confession of accused nos. 4 and 5 in presence of mediators i.e., Pw7 and Pw6 and effected their arrest sent them to judicial remand.

8. Further the Pw8 visited the Nettempadu village, where he examined and recorded the statements of Lw3 and Pw2, the inhabitants of the scene of offence in detailed in part II CD u/s 161(3) Cr.P.C.As per the orders of Collector (CS) Jogulamba Gadwal, seized vehicle i.e., Jeep No

AP-02-U 8831 was handed to accused no. 1on 25-01-2018 vide No

CS2/76/2017, dt 25:01 2017.

Smt. V. Gayathri (I-Addl. JMFC,Gadwal)

Page 6 of total 12 papers CC No. 265/2018

9. Subsequently, the Pw8 sent the samples to the District Supply

Officer, Jogulamba Gadwal District, for analysis and report, the District

Manager, who is Quality Control officer, analysed the samples and gave opinion stating that the rice is having streaks on the grains, head cuts, storage smell, mixed varieties, loose bran; all these symptoms indicate that the rice is PDS in nature. The Pw8 concluded the investigation on the following lines:

The accused nos. 1 to 3 hails from Nettempadu village, the accused no 4 is the dealer of Guddemdoddi village and in-charge of Nettempadu village for the last 5 months. Accused no 5 is the son of former dealer of

Nettempadu village and nephew of accused no 4. The Accused no. 1 is the driver cum owner of Jeep No AP-02-U 8831, The accused nos. 2 and 3 aided the accused nos. 1, 4 and 5. The accused nos. 4 and 5 collected the

PDS rice from public in Nettempadu and surrounding villages on low price i.e., each Rs. 5/- per kg. On intervening night of 17/18-12-2017 on direction of accused nos.4 and 5, accused nos. 1 to 3 loaded the PDS rice (19 bags i.e., 8 to 8. 50 quintals) in jeep of accused no. 1 at Nettempadu fair price shop and were transporting it to Gadwal to the house of accused no. 5, on their way on 18-12-2017 at 05:40 hours at Narsandoddi chourasta the PW1 caught the loaded PDS rice vehicle i.e., jeep bearing

No AP-02 U 8831 including accused nos. 1 to 3 and brought the PDS rice to PS along with accused nos. 1 to 3 The accused nos. 4 and 5 were selling the rice to public on excess price as original Rice, cheated the

Smt. V. Gayathri (I-Addl. JMFC,Gadwal)

Page 7 of total 12 papers CC No. 265/2018 public and got profit. Thus, thereby accused persons accused nos. 1 to 5 committed offences punishable U/s 420 IPC, Sec 7 of Essential commodities Act-1955.

10. The cognizance was taken U/s. 420 of IPC against the Accused nos.

1 to 5. After appearance of the accused nos. 1 to 5, copies of the documents as required U/s. 207 of Cr.P.C. were furnished to them and they were examined U/s. 239 of Cr.P.C. for the offence under section 420 of IPC to which they denied and claimed to be tried. Hence charge U/s.

420 of IPC was framed, read over and explained to them in Telugu.

11. During the course of trial, the prosecution got examined eight witnesses and Ex.P1 to P13 got marked on behalf of prosecution. PW-1 is informant, PW-2 is the witness, PW-3, Deputy Tahsildar Enforcement (CS), conducted seizure panchanama of PDS rice, Pw4 is the panch mediators for scene of offence panchanama, Pw5 is the panch mediator for seizure panchanama of PDS rice conducted by Pw3, Pw6 and Pw7 are the panch mediators for confession of accused no. 4 and accused no. 5 and Pw8 is the investigation officer who filed the charge sheet. The learned A.P.P. had given up the evidence of LWs. 2, 3, 6, 8, 9, 11, 12 and

Lw15. As such this court closed the evidence of LWs. 2, 3, 6, 8, 9, 11, 12 and Lw15.

12. After closure of prosecution side evidence, the Accused nos. 1 to 5 were examined U/s. 313 of Cr.P.C. by explaining the incriminating

Smt. V. Gayathri (I-Addl. JMFC,Gadwal)

Page 8 of total 12 papers CC No. 265/2018 material in the evidence of prosecution witnesses to the accused nos. 1 to 5, to which they denied and reported no defence evidence. Hence the defence evidence was closed and posted the matter for arguments.

13. Heard arguments of both sides and perused the record.

14. Point for determination:

“Whether the prosecution proved the accused nos. 1 to5 committed an offence punishable U/s. 420 IPC beyond all reasonable doubt?”

POINT:-

15. It is a simple case of the prosecution that the accused nos. 4 and 5 collected the PDS rice from public in Nettempadu and surrounding villages on low price i.e., each Rs. 5/- per kg. On intervening night of 17/18-12-2017 on direction of accused nos.4 and 5, accused nos. 1 to 3 loaded the PDS rice (19 bags i.e., 8 to 8. 50 quintals) in jeep of accused no. 1 at Nettempadu fair price shop and was transporting it to Gadwal to the house of accused no. 5, on the way on 18-12-2017 at 05:40 hours at

Narsandoddi chourasta the PW1 caught the loaded PDS rice vehicle i.e., jeep bearing No AP-02 U 8831 including accused nos. 1 to 3 and brought the PDS rice to PS along with accused nos. 1 to 3 The accused nos. 4 and 5were selling the rice to public on excess price as original Rice, cheated the public and got profit.

Smt. V. Gayathri (I-Addl. JMFC,Gadwal)

Page 9 of total 12 papers CC No. 265/2018

Before proceeding with the appreciation of evidence it is apt to refer

to the essential ingredients of Sec. 420 of IPC.

In Ram Jas v. State of U.P. , (1970) 2 SCC 740 : 1970 SCC (Cri)

516 at page 742, the Hon’ble Apex Court laid the ingredients required to constitute the offence of cheating as follows—

(i) There should be fraudulent or dishonest inducement of a person by deceiving him;

(ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or

(b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and

(iii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.

16. It is the case of the prosecution that the accused nos. 4 and 5 had cheated the public by selling the PDS rice as original rice and also obtained profit from such sale. Then it is fundamental on part of the prosecution to lead the evidence of that the public who are allegedly cheated. But no such witness is either examined by the police or any such cheated public were produced as witnesses before this court.

17. Furthermore the allegations to fall under the fulcrum of section 420

IPC, the villagers of Nettampaadu and surrounding villages induced by the accused nos. 4 and 5 to deliver the PDS rice at Rs. 5/- per kg should be the same villagers who were cheated. But the prosecution case is other way round. As per the prosecution case villagers of Nettampadu village and other villages were alleged to have been induced to deliver the PDS

Smt. V. Gayathri (I-Addl. JMFC,Gadwal)

Page 10 of total 12 papers CC No. 265/2018 rice by the accused nos. 4 and 5 and the public were alleged to have been cheated by the accused nos. 4 and 5. It is not the case of the prosecution that the villagers of Nettampadu village and other villages induced by the accused nos. 4 and 5 are the same villagers who were cheated.

18. It appears to this court that the case of the prosecution is wholly based on surmises and conjectures. When it is alleged that the accused no.4 is the fair price shop dealer of Guddemdoddi village and was also holding in charge duties of Netempaadu village, and thus have access to the PDS rice, no piece of evidence is placed on record to prove the same.

The allegation point that the accused nos. 4 and 5 were selling the PDS rice to public as original rice, cheated them and obtained profit, then the persons to whom it was sold was completely not part of record.

19. Here it is pertinent to mention that mere purchase of the PDS rice at Rs. 5/- per kg without evidence to the extent that it was purchased by the accused pursuant to the accused inducing the sellers to sell them at low prices and subsequent selling the same PDS rice by accused to public at high rates as original rice does not attract the wrath of section 420 of

IPC without the evidence of those buyers allegedly cheated. Adding to it, as per the prosecution case, the villagers induced to sell the PDS rice at low rates by the accused persons and the buyers of the PDS rice, alleged to be cheated are not examined as witnesses. In such eventuality the allegations do not take satisfy the ingredients of section 420 IPC.

Smt. V. Gayathri (I-Addl. JMFC,Gadwal)

Page 11 of total 12 papers CC No. 265/2018

20. None of the witnesses who supported the prosecution case explicitly or implicitly deposed that the accused indeed had mensrea while doing the alleged act, which are material to sustain the conviction under section 420 of IPC, are completely silent in the prosecution evidence.

21. Therefore taken from any angle the prosecution evidence is completely silent about the existence and proof of essential ingredients

U/s 420 of IPC. Hence it can be said that the prosecution miserably failed to lead the evidence showing the complicity of the accused with the allegedly seized PDS rice. In the absence of evidence the accused No. 1 and 2 become entitled for an acquittal.

22. In the result, the Accused no. 1 to 5 are found not guilty for the offence U/Sec. 420 of IPC. Accordingly they are acquitted U/s. 248 (1) of

Cr.P.C. guilty for the offence U/Sec. 420 of IPC and they are set at liberty.

The bail bonds of the Accused nos. 1 to 5 shall stand cancelled for a period of six months subject to section 437–A Cr.P.C. Since no property was deposited there is no order as to property.

Typed to my dictation by Sri. D. Srikanth, Typist, I-Addl. JCJ cum I-Addl. JMFC Court, Gadwal corrected and pronounced by me in the open court on this the 12th day of April, 2023

I-ADDL. JUDICIAL MAGISTRATE OF FIRST CLASS

GADWAL

Smt. V. Gayathri (I-Addl. JMFC,Gadwal)

Page 12 of total 12 papers CC No. 265/2018

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED ON BEHALF OF)

FOR PROSECUTION: FOR ACCUSED: PW-1: Anjaneyulu, -NONE- PW-2: GiriBabu PW-3: KhajaDoulath PW-4: Dubbalanna PW-5: K. Maddileti, PW-6: Venkataiah, PW-7: Narsimhulu, PW-8: A. MuraliGoud/IO

EXHIBITS MARKED

FOR PROSECUTION: FOR ACCUSED: Ex.P-1: Petition, - Nil - Ex.P-2: Sec. 161 Cr.P.C statement of Pw2 Ex.P-3: Panchanama, dt: 19-12-2017 Ex.P-4: Portion of signature of Pw4 on CDF Ex.P-5: Portion of signature of PW4 on Scene of offence panchanama Ex.P-6: Portion of signature of Pw6 on Confession panchanama of Accused no. 4 and 5,

dt: 02-01-2018

Ex.P-7: Portion of signature of Pw7 on Confession panchanama of Accused no. 4 and 5, Ex.P-8: FIR Ex.P-9: Confession cum Seizure panchanama, Dt; 18-12-2017 at 8:00 hours, Ex.P-10: Crime Details Form, Ex.P-11: Rough sketch Ex.P-12: confession panchanama of the accused no. 4 and 5 Ex.P-13: Lab Analysis report.

MATERIAL OBJECTS

-NIL-

I-ADDL. JUDICIAL MAGISTRATE OF FIRST CLASS,

GADWAL

Smt. V. Gayathri (I-Addl. JMFC,Gadwal)

Page 13 of total 12 papers CC No. 265/2018

CALENDAR AND JUDGMENT

IN THE COURT OF I-ADDL. JUDICIAL MAGISTRATE OF FIRST CLASS AT:GADWAL

C.C. No. 265 OF 2018

1. Complainant : State, SI of Police, P.S. Dharoor

2. Cr.No. & Nature of Offence : Cr.No.260/2017, U/S.420 of IPC

3. Name of the accused : A1: Palem Veeresh, S/o Narsappa, Age: 28 yrs, Caste:Telugu, Occ: Driver cum owner of Jeep No. AP-02-U-8831, R/o Nettempadu village A2. Thokala Hanmanthu, S/o Thippanna, Age: 45 yrs, Caste:Telugu, Occ:Coolie, R/o Nettempadu village A3. Katikanna Dubbanna, S/o Late: Bheemanna, Age: 55 yrs, Caste: Madiga, Occ:Coolie, R/o Nettempadu village A4: Sulthan Ali, S/o Dharvesh Ali, Age: 52 years, Caste: Muslim, Occ, PDS dealer Guddemdoddi I/c Nettempadu village R/o. Uppair A5. Sadiq, S/o Sardhar Ali, Age: 25 years, Caste: Muslim, Occ: Business r/o. Gadwal

D A T E S:

4. OFFENCE 18-12-2017

5. COMPLAINT 18-12-2017

Accused nos. 1 to 3 arrested on

6. APPREHENSION OF ACCUSED 18-12-2017 and accused nos. 4 and 5 arrested on 02-01-2018

7. COMMENCEMENT OF TRIAL 23-01-2023

8. CLOSURE OF TRIAL 29-03-2023

9. JUDGMENT 12-04-2023

10. PLEA OF THE ACCUSED Not Guilty

11. SENTENCE OR ORDER In the result, the Accused no. 1 to 5 are found not guilty for the offence U/Sec. 420 of IPC. Accordingly they are acquitted U/s. 248 (1) of Cr.P.C. guilty for the offence U/Sec. 420 of IPC and they are set at liberty. The bail bonds of the Accused nos. 1 to 5 shall stand cancelled for a period of six months subject to section 437–A Cr.P.C. Since no property was deposited there is no order as to property.

12. REMARKS : -Nil-

I-ADDL.JUDICIAL MAGISTRATE OF FIRST CLASS,

GADWAL To: The Hon’ble I Addl. District and Sessions Judge, Jogulamba Gadwal Dis. No.

Smt. V. Gayathri (I-Addl. JMFC,Gadwal)

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS AT: GADWAL.

DATED THIS THE 11 TH DAY OF OCTOBER, 2021.

PRESENT:- Smt.V.USHA KRANTHI,

Judicial First Class Magistrate,

Gadwal

C.C. No. 167 of 2018.

BETWEEN:- The State of Telangana Rep. by P.S. Aize. … Complainant

AND

A-1: Nallabothula Nagaraju S/o Maldakal, age:35 Years, Occ:Tractor Driver, A-2: Nallabothula Babu S/o Keshanna, age:40 Years, Occ:Tractor owner, Both are R/o Pedda Dhanwada Village of Rajoli Mandal. … Accused No.1 & 2.

This case coming before me on 11-10-2021 for final hearing in the presence of the learned Asst. Public Prosecutor for the State and of Sri.M.D.Khaja Moinuddin, counsel for Accused No.1 & 2 and the matter having stood over till this day for consideration, this court delivered the following:-

J U D G M E N T

1. The Station House Officer, Aize filed charge sheet against the Accused No.1 & 2 for the offence Under Section.379 R/w 34 of IPC and Sec.181 of MV Act.

2. The brief allegations of the charge sheet are as follows:-

That on 11-07-2018 at 1030 hours the LW-1 Thalari Divakar, Police constable of

Aize PS lodged a written petition with the contents that on credible information to SHO,

Aize about few Tractors were committing sand theft at Thungabadra river via

Medikonda Village and illegally transporting the sand to Aize Village, on 11-07-2018

LW-1 along with LW-2 V.Narendra Varma were proceeding to neary by Thupathrala

Village, meanwhile one sand loaded Tractor bearing Engine No.3B45000A18 and Chassis bearing No.M1TAF31RDAD000146 and its Trailer Chassis bearing No.B201807205

SAGRNGL001700502TT coming from opposite direction, on seeing the police officials the Tractor driver stopped his Tractor and fled away from the spot leaving the sand loaded Tractor. On enquiry with the villagers, they came to know that the driver of

SMT. V.USHA KRANTHI [JFCM] 2

Tractor was transporting the sand illegally and without having any permission from the concerned department or Government. On enquiry with the villagers came to know about the tractor driver name as Nallabothula Nagaraju S/o Maldakal, R/o Pedda

Dhanwada Village of Rajoli Mandal. Thereafter the police officials shifted the crime vehicle to the police station, Aize and lodged a petition for taking necessary legal action.

Basing on the contents of the petition, LW-7 Venkatrami Reddy, Head Constable No.289 of Aize PS registered a case in Cr.No.135/2018 for the offence U/s.379 of Indian Penal

Code and took up the investigation. During the course of investigation LW-7 examined and recorded the statements of LW-1 and LW-2 at police station. Thereafter LW-7 secured two mediators as LW-3 V.Narendra Varma and LW-4 K.Kiran, in their presence

LW-7 conducted seizure panchanama of crime vehicle. On 20-07-2018 the Accused No.1 & 2 voluntarily surrendered before the LW-7, on interrogation the Accused No.1 & 2 admitted their guilt of offence and confessed. Thereafter Later LW-7 secured two mediators as LW-5 G.Ramesh and LW-6 Chinna Sandyapogu Anjaneyulu, in their presence LW-7 conducted confession panchanama of Accused No.1 & 2, during the confession panchanama Accused No.1, he confessed his guilt of offence that on the instructions of Accused No.2, the driver of Tractor Accused No.1 used to commit sand theft by said crime vehicle at Thungabadra river and the same has been sold in Aize

Village on higher rates for gain easy money. The Accused No.2 also confessed his guilt.

Later LW-7 visited the scene of offence leading the Accused No.1 & 2 along with confession panchas, in their presence LW-7 conducted scene of offence panchanama and also drawn a rough sketch of scene in prescribed crime details form. On 20-07-2018 LW-7 served Sec.41-A Cr.P.C notice to the Accused No.1 & 2. The LW-7 noticed that the Accused No.1 & 2 have no valid driving license to the crime vehicle in violation of M.V. Act Rules and norms U/s.181 of M.V. Act. Thereafter LW-7 forwarded the letter to the Asst. Director, Mines and Geology, Jogulamba Gadwal District and the officer imposed fine amount of Rs.5000/- against the above Tractor. As such the

Accused No.2 who was the owner of the Tractor paid penalty. During the course of interrogation LW-8 C.H.Raju, S.I of Police, Aize took up the case from the LW-7 verified

SMT. V.USHA KRANTHI [JFCM] 3 investigation done by him and found it on proper lines. The Thahasildar, Aize receipt of furnished sand unloaded at Tahasil office premises. After completion of the investigation

LW-8 laid charge sheet against the Accused No.1 & 2 for the offence Under Section.379

R/w 34 of IPC and Sec.181 of M.V. Act.

3. The case is taken on cognizance Under Section. 379 R/w 34 of IPC against the

Accused No.1 & 2. After appearance of the Accused No.1 & 2, copies of the documents as required U/s. 207 of Cr.P.C were furnished to them and when they were examined

U/s. 239 of Cr.P.C. by explaining the charges leveled against them in vernacular for committing the offence Under Section. 379 R/w 34 of IPC, they pleaded not guilty and claimed to be tried.

4. During the course of trial, the prosecution got examined Six witnesses as PWs-1 to PW-6 and exhibited Ex. P-1 to P-11. The prosecution not served summons to LW-2 and LW-8. Hence this court closed the evidence of the same after giving reasonable opportunity.

5. After closure of prosecution side evidence the Accused No.1 & 2 were examined

U/s. 313 of Cr.P.C. for the incriminating material voiced against them to which they pleaded not guilty and reported no defence evidence.

6. Heard both sides.

7. Now point for determination :

Whether the prosecution has proved their case beyond all the reasonable doubt for the offence U/s. 379 R/w 34 of IPC against the Accused No.1 & 2?

8. The APP argued that the evidence of prosecution witnesses more particularly the evidence of PW-1 and PW-6 are clearly proving the guilt of the Accused No.1 and 2 as such they prayed the court to convict the Accused No.1 & 2.

9. The case of the Accused No.1 & 2 are one of total denial. The learned defense counsel argued that the evidence of PW-1 and PW-6 are no way connecting the

Accused No.1 & 2 and the hostile behavior of PW-2 to PW-5 proving the innocence of the Accused No.1 & 2 as such they prayed the court to acquit the Accused No.1 & 2.

SMT. V.USHA KRANTHI [JFCM] 4

10. This court have gone through the evidence of PW-1 (T.Divakar) who is

Complainant, Police Constable and he deposed that on 11-07-2018 as per the instructions of

LW-7 Venkatrami Reddy about myself along with HG 78 proceeded to Thuppatrala Village, there they noticed one Tractor bearing No.AP-22-AN-7115 and its Trailer bearing No.TS-33-0742. On seeing Police the Accused fled away from the scene. On enquiry with the villagers they revealed the driver name as Nallabothula Nagaraju S/o Maldakal, R/o Pedda Dhanwada Village and they shifted the crime vehicle to police station. In this regard LW-1 lodged petition before the Police,

Ex.P1 is petition. Further he was examined by Police and the Police recorded his statement.

11. PW-2 (Kashapogu Kiran) and PW-4 (V.Narendra Varma) who are panchas for seizure of crime vehicle and they turned hostile.

12. PW-3 (Chinna Sandhyapogu Anjaneyulu) and PW-5 (G.Ramesh) who are panchas for confession of A-1 and A-2 and they turned hostile.

13. PW-6 (Venkatrami Reddy) who is Investigation Officer and he deposed that on 11-07-2018 he received petition Ex.P1 from PW-1, basing on the contents of petition he regd. a case in Cr.No.135/2018 U/s.379 R/w 34 of IPC and issued FIR. Ex.P6 is FIR.

Thereafter he examined and recorded the statements of PW-1 and LW-2 Narsimha

Reddy at PS, he secured PW-2 and PW-4 as mediators, in their presence conducted seizure panchanama of the crime vehicle, Ex.P7 is seizure panchanama. During the course of investigation on 20-07-2018 the Accused No.1 & 2 voluntarily surrendered

before him and orally confessed their guilt immediately he secured PW-3 and PW-5

conducted confession panchanama of A-1 and A-2, Ex.P8 is confession panchanama of

A-1 and A-2. Accused No.1 confessed that he is the driver of crime vehicle and upon instructions of Accused No.2, he committed theft from the Thungabadra river. Accused

No.1 & 2 also laid them to the scene of offence, there he also drafted the scene of offence panchanama before the same mediators, Ex.P9 is scene of offence panchanama. On verification of the crime vehicle he found that there is motor vehicle violation rules and hence added section of law Sec.181 of MV Act, PW-6 also addressed a letter to Asst. Director, Mines and Geology for imposing fine amount, the kind officer

SMT. V.USHA KRANTHI [JFCM] 5 imposed fine amount of Rs.5000/-, Ex.P10 is challan. He deposed that he addressed a letter to Thahasildar, Aize for safe custody of sand. Ex.P11 is letter addressed to

Tahasildar. Thereafter PW-6 handed over the CD file to LW-8 CH.Raju, SHO for investigation, he know LW-8 he is his superior. And he identified LW-8 signature. He further deposed that the above said crime vehicle deposited before this court and the same was released vide Crl.M.P.No.209/2018 in Cr.No.135/2018 of PS Aize. After completion of entire investigation LW-8 SHO, PS Aize laid charge sheet against the

Accused No.1 & 2.

14. POINT NO.1:

Whether the prosecution has proved their case beyond all the reasonable doubt for the offence U/s. 379 R/w 34 of IPC against the Accused No.1 & 2?

15. The main contention of APP that the evidence of police witnesses i.e. PW-1 &

PW-6 are sufficient to convict the Accused No.1 & 2. But, the learned defence counsel contended that the police has not followed the provisions of Sec. 165 Cr.P.C

Proceedings and the accusation against the Accused No.1 & 2 are not proved by them. It is true in this case the entire case is based on the evidence of only police witnesses i.e., PW-1 & PW-6. Since, the other independent eye witnesses was not examined by the police, further PW-2 to PW-5 are seizure panchas and confession panchas and they turned hostile, the evidence of police officials can be relied on if it is convincing in nature”. But, in this case, the evidence of PW-1 & PW-6 are not convincing in nature for the reason that the panchanama for confession and seizure of property was done at the police station not at the scene of offence. Further the Accused

No.1 & 2 voluntarily surrendered before the LW-7 and on interrogation the Accused

No.1 & 2 admitted their guilt and even the police officers PW-1 and LW-2 Varla

Narsimha Reddy, Police Constable who detected this case were not present when the seizure panchanama was prepared and they did not signed on that panchanama. Apart from it, the hostile behaviour of mediators for seizure of crime vehicles and scene of panchanama is also creating doubt about the genuineness of the case. The un- corroborated testimony of PW-1 and PW-6 are unsafe to rely as such this court has no

SMT. V.USHA KRANTHI [JFCM] 6 formidable evidence before it to invoke the presumption as per Sec.114 (a) illustration of Indian Evidence Act.

16. Apart from it, the prosecution failed to prove that special authority was given to the complainant to file this case. Even though this court has taken U/s. 379 R/w 34 of

IPC and the evidence of PW-6 is not proved the essential ingredients of U/s. 379 R/w 34 of IPC. Since prosecution failed to show the authority that the property which was stolen is indirectly owned by the complainant. On that point also the case is not proved in a proper way and the scant evidence of PW-1 & PW-6 are unsafe to rely on in view of the hostile behavior of other witnesses.

17. In a case reported in GIAN CHAND Vs. STATE OF HARYANA (AIR 2013

SUPREME COURT 3395), the Hon’ble Supreme Court has considered a question whether the prosecution case has to be doubted if all the witnesses are from police department. While referring to the previous case on the subject, it is categorically held in the said decision at Para Nos. 25 and 26 and also in GURUJALA RAMESH Vs.

STATE OF A.P. 2003 (2) ALD (Crl.) 12 .A.P. the Hon’ble High Court of Andhra

Pradesh has categorically held that when a Police Officer who detected the offence and arrested the accused, gave a report which was registered as FIR and the same officer investigated the case and filed the charge sheet, any conviction based on such investigation cannot be sustained and considering the Judgments and the ratio laid down in the above both cases this court is inclined to not consider the evidence of

PW-6. As the Prosecution failed to prove the guilt of the Accused beyond reasonable doubt, as the point is answered U/s. 379 R/w 34 of IPC the Accused No.1 & 2 are entitled for acquittal.

18. In the result, the Accused No.1 & 2 are found not guilty for the offence Under

Section.379 of IPC and Sec. 196, 181, 192(1) of M.V. Act, accordingly they are acquitted

U/s. 248 (1) of Cr.P.C. The bail bonds of the Accused No.1 & 2 shall stands cancelled set at liberty. The unmarked case property which was given to its owner vide in

Crl.M.P.No.209 of 2018 in Cr.No.135 of 2018 of PS Aize in CC.No.167 of 2018, dt.16-08-

SMT. V.USHA KRANTHI [JFCM] 7 2018 towards interim custody shall be made absolute after appeal time is over.

Typed to my dictation by Typist, corrected and pronounced by me in the open court on this the 11th day of October, 2021.

JUDICIAL FIRST CLASS MAGISTRATE,

GADWAL.

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED ON BEHALF OF)

FOR PROSECUTION: FOR ACCUSED: PW-1: T.Divakar, - None - PW-2: K.Kiran, PW-3: Chinna Sandhyapogu Anjaneyulu, PW-4: V.Narendra Varma, PW-5: G.Ramesh, PW-6: Venkatrami Reddy, I.O.

EXHIBITS MARKED

FOR PROSECUTION: FOR ACCUSED: Ex.P-1: Petition, -NIL- Ex.P-2: Portion of PW-2 signature on Seizure panchanama, Ex.P-3: Portion of PW-3 signature on Confession-cum-Seizure panchanama, Ex.P-4: Portion of PW-4 seizure panchanama, Ex.P-5: Portion of PW-5 signature on Confession panchanama, Ex.P-6: FIR, Ex.P-7: Seizure panchanama, Ex.P-8: Confession panchanama, Ex.P-9: Scene of offence panchanama, Ex.P-10: Challan, Ex.P-11: Letter addressed to Tahasildar.

MATERIAL OBJECTS

FOR PROSECUTION:- -NIL- FOR ACCUSED: -NIL-

JUDICIAL FIRST CLASS MAGISTRATE,

GADWAL.

SMT. V.USHA KRANTHI [JFCM] 8

CALANDAR AND JUDGMENT

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS AT: GADWAL.

C.C. No. 167 OF 2018.

1. Complainant : State, SI of Police, P.S, Aize.

2. Cr.No. & Nature of Offence : Cr.No.135/2018 U/s.379 R/w 34 IPC

3. Name of the accused :

A-1: Nallabothula Nagaraju S/o Maldakal, age:35 Years, Occ:Tractor Driver, A-2: Nallabothula Babu S/o Keshanna, age:40 Years, Occ:Tractor owner, Both are R/o Pedda Dhanwada Village of Rajoli Mandal.

D A T E S:

4. OFFENCE 05-07-2018

5. COMPLAINT 05-07-2018

6. APPREHENSION OF ACCUSED 20-07-2018 Served 41-A Cr.P.C.

7. COMMENCEMENT OF TRIAL 25-02-2021

8. CLOSURE OF TRIAL 27-09-2021

9. JUDGMENT 11-10-2021

10. PLEA OF THE ACCUSED Not Guilty

11. SENTENCE OR ORDER : In the result, the Accused No.1 & 2 are found not guilty for the offence Under Section.379 R/w 34 of IPC, accordingly they are acquitted

U/s. 248 (1) of Cr.P.C. The bail bonds of the Accused No.1 & 2 shall stands cancelled set at liberty. The unmarked case property which was given to its owner vide in

Crl.M.P.No.209 of 2018 in Cr.No.135 of 2018 of PS Aize in CC.No.167 of 2018, dt.16-08-

2018 towards interim custody shall be made absolute after appeal time is over.

12. REMARKS: -Nil-

JUDICIAL FIRST CLASS MAGISTRATE,

GADWAL.

To: The Hon’ble I Addl. District and Sessions Judge, Mahabubnagar. Dis. No.

SMT. V.USHA KRANTHI [JFCM]

Page 1 of total 10 pages CC No. 37 of 2019

IN THE COURT OF I-ADDITIONAL JUDICIAL MAGISTRATE OF

FIRST CLASS AT: GADWAL

DATED THIS THE 27 th DAY OF APRIL, 2023

PRESENT:-Smt.V.GAYATHRI,

I-Addl. Judicial First Class Magistrate,

Gadwal

C.C. No.37 of 2019

BETWEEN:-

The State of Telangana Rep. by the Sub Inspector of Police, P.S. K. T. Doddy

... Complainant

AND Boya Jangilappa, S/o. Baligera Govindu, Age: 28 years, Occ: Tractor Driver cum Owner, R/o. K.T. Doddy village and Mandal … Accused

This case came before me on 24-04-2023 for final hearing in the presence of the learned Asst. Public Prosecutor, for the complainant and of Sri.Md. Khaja Moinuddin counsel for Accused and the matter having stood over for consideration, this court delivered the following:-

J U D G M E N T

1. The accused is indicted for offence punishable U/S. 379 of IPC by the Sub-Inspector of Police, P.S. K.T. Doddy in Crime No.117 of 2018.

2. The allegation against the accused is that the accused is the driver cum owner of the Tractor bearing number TS 06 EP 0776 and trolley bearing no. TS 06 EP 0779. On 17-11-2018, the accused took the earlier

Smt.V. GAYATHRI, I-ADDL.JFCM, Gadwal

Page 2 of total 10 pages CC No. 37 of 2019 stated tractor-trolley and had been to Guvvaladinne stream in the limits of Guvvaladhinne village loaded the sand into the tractor-trolley without any permission from the Government and was transporting the same towards K. T. Doddy village without any way bills from the concerned authority for wrongful gain by selling it to customers. On the way at about 12:30 hours when the said tractor-trolley was proceeding from Nandinne village towards K. T. Doddy village, then the Pw2 B. Kurmaiah, HG 404,

PS K.T. Doddy and Lw1 P. Balreddy, HC1255 of PS K. T. Doddy who were on day patrolling duty intercepted the tractor and on their enquiry the accused failed to account for the sand laden in the tractor-trolley and disclosed that he was transporting the sand without having any waybill or permission from the Government. Later, they brought the sand loaded tractor-trolley to the police station along with accused on the allegation of sand theft by accused.

3. Basing on the contents of the petition lodged by Lw1/Bal Reddy, HC 1255, PS K.T. Doddy, LW-7/Md. Khaja Khan registered a case in Cr. No.

117/2018, U/sec. 379 of IPC against the accused and took up the investigation.

4. During the course of investigation the LW7 examined and recorded the statements of PW1 and Lw1 at Police Station, K. T. Doddy, U/s 161 (3)

Cr.P.C. Later, the LW7 recorded the confession statement of accused and

Smt.V. GAYATHRI, I-ADDL.JFCM, Gadwal

Page 3 of total 10 pages CC No. 37 of 2019 seized the tractor bearing no. TS 06 EP 0776 and trolley bearing no. TS 06 EP 0779 under the cover of confession cum seizure panchanama in the presence of Pw2 and Lw4. Thereafter the Lw7 visited the scene of offence situated at K.T. Doddy village, conducted scene of offence panchanama in the presence of Pw3 and Pw4. On the same day Lw7 served U/s. 41-A

Cr.P.C notice to the accused.

On 21-11-2018, the Lw7 addressed a letter to the Asst. Director,

Mines by Geology, Gadwal for imposing penalty of seized tractor bearing no. TS 06 EP 0776 and Trolley no.TS 06 EP 0779. Then the Asst. Director,

Mines by Geology, Gadwal imposed penalty of Rs. 5000/-and same was collected through Challan no. 9315 and Lr. No. 24/PTY/2018, dt: 27-11- 2018. After completion of investigation Lw7 filed charge sheet against the accused.

5. The cognizance was taken under section 379 of IPC against the

Accused. After appearance of the accused, copies of the documents as required U/s. 207 of Cr.P.C. were furnished to him and he was examined

U/s. 239 of Cr.P.C. by explaining the accusation for the offence under section 379 of IPC, in Telugu, to which he denied, pleaded not guilty and claimed to be tried. Hence Charge under section 379 IPC was framed, read over and explained to him in Telugu Language.

6. During the course of trial, the prosecution got examined four witnesses and Ex.P1 to Ex.P3 got marked on behalf of prosecution. PW1 is

Smt.V. GAYATHRI, I-ADDL.JFCM, Gadwal

Page 4 of total 10 pages CC No. 37 of 2019 the eye witness, Pw2 is the panch mediator for confession cum seizure panchanama of the accused, PW3 and Pw4 are the panch mediators for scene of offence panchanama. The learned APP has given up the evidence of Lw4 due to his death. Hence the evidence of Lw1, Lw4 and Lw7 is closed. In this case despite multiple opportunities the prosecution failed to examine the LW-1 and Lw-7. Hence this court on 10-2-2023 closed the evidence of LW1 and Lw-7 and posted the matter for Section 313 Cr.P.C.

examination but the accused failed to appear before this court. As such this court was constrained to issue NBW against the accused on 21-02- 2023. The said NBW was cancelled vide order in Crl.M.P. No. 580 of 2023

dated 12/04/2023. Yet during the said period or till the date of final

hearing in this case the prosecution did not take any steps for re-opening the prosecution evidence for the evidence of LW 1 and 7, for the best reasons known to it.

7. After closure of prosecution side evidence, the Accused was examined U/s. 313 of Cr.P.C. for the incriminating material appearing against him in the evidence of the prosecution witnesses, to which he denied and reported no defense evidence.

8. Heard both sides and perused the case record.

9. Now point for determination is:- “Whether the prosecution proved that on 17-11-2018 the accused with a dishonest intention removed the sand that belongs

Smt.V. GAYATHRI, I-ADDL.JFCM, Gadwal

Page 5 of total 10 pages CC No. 37 of 2019 to the Government of Telangana from Guvvaladhinne Stream in the limits of Guvvaladhinne village, out of the possession of the Government, without prior permission from the concerned authorities of the Government and transported it in his tractor bearing no. TS 06 EP 0776 and trolley no. TS 06 EP 0779 without having any way bills from competent authority towards K. T. Doddy village for wrongful gain and thus accused there by committed sand theft which is a punishable offence under section 379 IPC?”

POINT:-

10. It is the simple case of the prosecution that the accused with a dishonest intention to earn easy money committed sand theft from

Guvvaladhinne stream in the limits of Guvvaladhinne village.On17-11- 2018, the accused Boya Jangilappa, driver cum owner of the tractor bearing no.TS 06 EP 0776 and trolley no. TS 06 EP 0779, loaded the sand from Guvvaladhinne stream in the limits of Guvvaladhinne village, into the earlier stated tractor-trolley and was transporting the sand towards K. T.

Doddy village. On the way at about 12:30 hours when the said tractor- trolley was proceeding from Nandinne village towards K. T. Doddy village, then the Pw2 B. Kurmaiah, HG 404, PS K.T. Doddy and Lw1 P. Balreddy,

HC 1255 of PS K. T. Doddy who were on day patrolling duty intercepted the tractor and on their enquiry the accused failed to account for the sand laden in the tractor-trolley and disclosed that he was transporting the sand without having any waybill or permission from the Government for selling to customers to obtain wrongful gain.

11. On perusal of the evidence of prosecution witnesses, Pw2/Srinu

Smt.V. GAYATHRI, I-ADDL.JFCM, Gadwal

Page 6 of total 10 pages CC No. 37 of 2019 panch mediator of the confession cum seizure panchanama, Pw3/H.

Narsimhulu and Pw4/K.Mareppa who are the panch mediators of the scene of offence panchanama, they except identifying their signatures in the panchanama had completely disowned the case of prosecution and were declared hostile and Ex. P1 to Ex. P3, got marked. Pw1/B. Kurmaiah,

Homeguard404 of PS K. T. Doddy the eye witness who is the police official alone supported the case of the prosecution.

12. In order to attract offence under section 378 of IPC, it is imperative on the part of the prosecution to establish that the seized sand belonged to the Government and it was stolen from Guvvaladhinne Stream in the limits of Guvvaladhinne village by the accused. On perusal of the oral and documentary evidence the prosecution miserably failed to prove that the sand belonged to the Government of Telangana and is the public property. It is not the case of the prosecution that the seized sand was sent for Forensic science lab analysis to prove that the sand seized and the sand at Guvvaladhinne stream in the limits of Guvvaladhinne village is one and the same.

13. In Pradeep Narayan Madgaonkar and Ors. vs. State of

Maharashtra(1995) 4 SCC 255 at Para 11 the Apex court held that the evidence of the official (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigating or the prosecuting agency. But prudence dictates that

Smt.V. GAYATHRI, I-ADDL.JFCM, Gadwal

Page 7 of total 10 pages CC No. 37 of 2019 their evidence needs to be subjected to strict scrutiny and as far as possible a corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation and requires greater care to appreciate their testimony".

14. The PW1 deposed in consonance with the prosecution case.

Applying the judgment of Hon’ble Supreme Court as stated Supra, the testimony of PW 1, who is a police official is alone not reliable as his evidence stands uncorroborated in material particulars. Therefore his evidence alone is not useful to prove the prosecution case.

15. Furthermore apart from the confession of the Accused, the prosecution did not take any pain to show that Accused was the driver cum owner of the vehicle at the material point of the alleged offence, he loaded the sand in the crime vehicle from Guvvaladhinne stream in the limits of Guvvaladhinne village and was transporting the same towards

K. T. Doddy. Moreover no material is placed on record to show that the seized sand belonged to the Government.

As per Section 25 in the Indian Evidence Act, 1872 “No confession made to a police officer, shall be proved as against a person accused of any offence.”

Section 26 in the Indian Evidence Act, 1872

Confession by accused while in custody of police not to be proved against him.—

Smt.V. GAYATHRI, I-ADDL.JFCM, Gadwal

Page 8 of total 10 pages CC No. 37 of 2019 “No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a

Magistrate, shall be proved as against such person."

16. As per the judgment of the Apex court in Lohit Kaushal v.

State of Haryana , (2009) 17 SCC 106: (2011) 1 SCC (Cri) 955 at

page 110, it was held that.

“The disclosure statements made by accused are hit by

Sections 25 and 26 of the Evidence Act, 1872, as they had the status of being statements made to the police and nothing more and are, thus, not admissible in evidence. It will be seen that a statement made to the police can only be used to the limited extent provided under Section 27 of the Evidence Act and that too only against the person making the statement.“

17. Applying the observed provisions and citations to the facts of the present case, admittedly the confession statement of Accused was recorded by the LW 7, the Sub Inspector of Police, PS KT doddy in the police station and the same did not lead to the recovery of any item whatsoever and basing on his confession, the crime cannot be attributed to the accused. Thus according to section 25 of Indian Evidence Act, statements made to a police officer by the accused cannot be used to support the prosecution case or base a conviction.

18. Therefore the confession made by the Accused where the panch witness i.e., Pw2 turned hostile, is inadmissible in evidence.

Smt.V. GAYATHRI, I-ADDL.JFCM, Gadwal

Page 9 of total 10 pages CC No. 37 of 2019

19. In view of the observations made in the foregoing paragraphs, it is apparent that the prosecution has miserably failed to establish its case against the accused. There is no evidence available on record attributing the alleged act to the accused herein. Point is answered accordingly in favour of the accused and against the prosecution.

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

U/Sec. 379 IPC. Accordingly he is acquitted U/s. 248 (1) of Cr.P.C. The bail bond of the Accused shall stand cancelled for a period of six months subject to section 437–A Cr.P.C. Since no property was deposited there is no order with respect to the property.

Typed to dictation by Sri D. Srikanth, Typist, I-Addl. JCJ cum I-Addl. I-Addl. JMFC Court, Gadwal, corrected and pronounced by me in open court on this the 27th day of April, 2023

I-ADDL. JUDICIAL FIRST CLASS MAGISTRATE

GADWAL

Smt.V. GAYATHRI, I-ADDL.JFCM, Gadwal

Page 10 of total 10 pages CC No. 37 of 2019

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED ON BEHALF OF)

FOR PROSECUTION: FOR ACCUSED:

PW-1: B. Kurmaiah/HG 404 - Nil - PW-2: Srinu PW-3: H. Narsimhulu PW-4: K. Mareppa

EXHIBITS MARKED

FOR PROSECUTION: FOR ACCUSED:

Ex.P-1: Portion of signature of Pw2 on confession -Nil- cum seizure panchanama of the accused Ex.P-2: Portion of signature of Pw3 on scene of offence panchanama Ex.P-3: Portion of signature of Pw4 on scene of offence panchanama

MATERIAL OBJECTS

-Nil-

I-ADDL. JUDICIAL FIRST CLASS MAGISTRATE,

GADWAL

Smt.V. GAYATHRI, I-ADDL.JFCM, Gadwal

Page 11 of total 10 pages CC No. 37 of 2019

CALENDAR

IN THE COURT OF I-ADDL JUDICIAL MAGISTRATE OF FIRST CLASS AT: GADWAL

C.C. No. 37 OF 2019

1. Complainant : State, SI of Police, P.S. K. T. Doddy

2. Cr.No. & Nature of Offence : Cr.No.117/2018, U/s. 379 of IPC

3. Name of the accused :

Boya Jangilappa, S/o. Baligera Govindu, Age: 28 years, Occ: Tractor Driver cum Owner, R/o. K.T. Doddy village and Mandal

D A T E S:

4.OFFENCE17-11-2018

5.COMPLAINT17-11-2018

Sec. 41-A Cr.P.C notice served to accused

6.APPREHENSION OF ACCUSED on 17-11-2018

7.COMMENCEMENT OF TRIAL03-01-2022

8.CLOSURE OF TRIAL10-02-2023

9.JUDGMENT27-04-2023

10.PLEA OF THE ACCUSEDNot Guilty

11. SENTENCE OR ORDER : In the result, the accused is found not guilty for the offence U/Sec. 379 IPC. Accordingly he is acquitted U/s. 248 (1) of Cr.P.C. The bail bond of the Accused shall stand cancelled for a period of six months subject to section 437–A Cr.P.C. Since no property was deposited there is no order with respect to the property.

12. REMARKS : -Nil-

I-ADDl. JUDICIAL MAGISTRATE OF FIRST CLASS GADWAL

To: The Hon’ble I Addl. District and Sessions Judge, Jogulamba Gadwal Dis. No.

Smt.V. GAYATHRI, I-ADDL.JFCM, Gadwal

Page 1 of total 8 pagesC.C. No.141 of 2018

IN THE COURT OF I-ADDL. JUDICIAL MAGISTRATE OF FIRST CLASS

AT: GADWAL

Dated this the 27 th day of April, 2023

PRESENT: Smt. V. GAYATHRI,

I-ADDL. JUDICIAL MAGISTRATE OF FIRST CLASS

GADWAL

C.C. No.141 OF 2018

BETWEEN:

The State of Telangana through the Sub-Inspector of Police, P.S.Dharoor … Complainant

AND

Bodrai Narsimhulu, S/o. Bheemanna, @ Goundla Bheemanna, Age: 48 years, Occ: Agriculture, R/o. Chinthrevula Village of Dharoor Mandal.

… Accused

This case came before me on 24-04-2023 for final hearing in the presence of the learned Asst. Public Prosecutor for the complainant and of Sri. S. Srikanth counsel for Accused and the matter having stood over for consideration this court delivered the following:-

J U D G M E N T

1. The Accused is indicted for the offences U/s. 374 of IPC, Sec 3, 7, 8, 14 of Child Labour Act-1986, section 16 of the Bonded Labour System (Abolition) Act, 1976 by the Sub Inspector of Police, PS Dharoor, in Crime

No. 244 of 2017 with following allegations:-

2. On 28-12-2017 at about 12:00 hours as per the instructions of SP,

Jogulamba Gadwal, the Pw1 B. Shankar, District secretary of child protection forum and Pw2 Dasari Hanmanth, Police constable, who are deputed for rescuing the children from services, found Pw4 Anji, S/o.

Smt.V. GAYATHRI, I-ADDL.JFCM, Gadwal

Page 2 of total 8 pagesC.C. No.141 of 2018

Ramudu grazing the cattle of accused at outskirts of Chintharevula village.

On enquiry caused by the Pw1 and Pw2, the Pw4 stated that he was working at the accused for grazing the Buffalos on salary of Rs. 10,000/- per annum.

3. Basing on the contents of the petition lodged by PW1, the Pw9 K.

Murali Goud, SI of Police, Dharoor PS registered a case as Cr. No.244 of 2017, U/Ss. 374 of IPC, Sec 3, 7, 8, 14 of Child Labour Amendment Act, 1986 and Sec.16 of Bonded Labour system Act and took up the investigation.

4. During course of investigation, PW-9 examined and recorded the statements of Pw1 who is the informant and Pw2, at PS Dharoor. Later, Pw9 visited scene of offence situated at out skirts of Chintharevula village at the field of accused, where he examined the scene and conducted scene of offence panchanama in the presence of mediators Pw7 and Pw8. Later Pw9 examined and recorded the statements of Pw3/ mother of PW 4 and Pw4/ victim. On the next day i.e., on 29-11-2017, the Pw9 visited the

Chintharevula village, where he examined and recorded the statements of

Pw5 and Pw6, the neighbourhood of the accused.

5. On 27-02-2017 the accused surrendered himself before Pw9 and confessed his guilt. Pw9 served notice U/s. 41-A Cr.P.C to the accused.

6. Cognizance was taken for the offences U/ss. 374 of IPC and Sec 3, 7, 8, 14 of Child Labour (Prohibition and Regulation) Act,1986 against the

Accused. The copies of the documents were furnished to him as required

Smt.V. GAYATHRI, I-ADDL.JFCM, Gadwal

Page 3 of total 8 pagesC.C. No.141 of 2018

U/Sec.207 of Cr.P.C. The Accused was examined U/s. 239 of Cr.P.C. by explaining the accusation for the offences U/s. 374 of IPC and Sec. 3, 7, 8, 14 of Child Labour Act in Telugu language, to which he denied, pleaded not guilty and claimed to be tried. Hence charges U/s. 374 of IPC and Sections 3, 7, 8, 14 of Child Labour(Prohibition and Regulation) Act, 1986 were framed, read over and explained to him in Telugu language.

7. In order to bring home the guilt of the Accused, the prosecution got examined nine witnesses and Ex.P1 to Ex.P12 got marked on behalf of prosecution. Pw-1 is the informant, Pw2 is the witness, Pw3 is the mother of

Pw4/ the victim boy, Pw4 is the victim boy. Pw5 and Pw6 are neighbourhood of the accused, Pw7 and Pw8 are the panch witnesses for the scene of offence panchanama and Pw9 is the investigating officer.

8. After closure of prosecution side evidence, the Accused was examined

U/s. 313 of Cr.P.C. by explaining the incriminating evidence appearing in the evidence of prosecution witnesses against him, to which he denied and reported no defence evidence.

9. Heard, the arguments from both sides and perused the case record.

10. Now the point for determination is:-

Whether the prosecution has proved its case beyond reasonable doubt for the offences punishable U/Ss. 374 of IPC and Sec 3, 7, 8, 14 of Child Labour (Prohibition and Regulation) Act, 1986 against the accused?

Smt.V. GAYATHRI, I-ADDL.JFCM, Gadwal

Page 4 of total 8 pagesC.C. No.141 of 2018

POINT:

11. The allegation against the accused is that prior to 28-11-2017 the accused engaged the Pw4 who is below 14 years of age for grazing his buffaloes on an annual payment of Rs. 10,000/-, thus thereby committed offences punishable U/Ss. 374 of IPC and Sec 3, 7, 8, 14 of Child Labour

Act, 1986.

12. In order to prove the offences under sections 374 IPC and under the respective provisions of Child labour Act, it is imperative on the part of the prosecution to establish that the accused unlawfully compelled the PW4, the

PW-4 is aged below14 years as on 28-11-2017 and the accused engaged the said PW4 as child labour for grazing his cattle on an annual payment of Rs.

10,000/-.

13. In this case the evidence of alleged child labour PW-4, PW-4’s mother

Pw3, Pw5 and Pw6/ the neighbourhood of the accused assume greatest significance. But on perusal of the evidence of PW-3 to 6 they completely disowned the prosecution case; they all deposed that they did not know the accused; any facts of the case and police never examined them and recorded their Sec. 161 Cr.P.C statements. The Pw3, the mother of Pw4 deposed that

Pw4 is her son and they did agriculture in their own land and that the accused did not engage Pw4 as child labour, while the Pw4 deposed that he did not know why this case was filed against the accused and he was not engaged as child labour by the accused. The Pw5 and Pw6 also deposed that they did not know Pw3 and Pw4. All the Pw3 to Pw6 were declared by the

Smt.V. GAYATHRI, I-ADDL.JFCM, Gadwal

Page 5 of total 8 pagesC.C. No.141 of 2018 learned APP and even during the examination in the nature of cross they denied the suggestion that they stated before the police as in their Sec. 161

Cr.P.C statements. Ex.P2 to P5 are the 161 Cr.P.C statements of Pw3 to Pw6 respectively.

14. Thus the evidence of the star witnesses to the prosecution case could not fetch any utility to the prosecution case to prove that the accused unlawfully compelled the PW-4 to labour against his will and also engaged the said PW4 as child labour and used his service for grazing the buffaloes of the accused.

15. PW-7 and Pw8 mediators to the scene of offence panchanama, except identifying their signatures on the panchanama denied the conducting of panchanama by the police in their presence and their knowledge to the contents of the panchanama and they categorically deposed that the police did not conduct any panchanama in their presence, but obtained their signatures, through them Ex.P-6: Portion of signature of

Pw7 on CDF, Ex.P-7: Portion of Signature of PW-7 on scene of offence sketch, Ex.P-8: Portion of signature of Pw8 on CDF Ex.P-9: Portion of

Signature of PW-8 on Scene of offence sketch got marked.

16. On perusal of the evidence of the PW-1, the informant and Pw-2, who allegedly rescued the PW4, it categorically reveals that they learnt that the

PW 4 was working under the accused through the Pw 4, which goes to show that their evidence is only hear-say evidence and such evidence is an inadmissible in nature.

Smt.V. GAYATHRI, I-ADDL.JFCM, Gadwal

Page 6 of total 8 pagesC.C. No.141 of 2018

17. The PW 9, the investigation officer deposed as to the registration of

FIR and the procedure followed by him in investigating this case, through him Ex.P-10: FIR, Ex.P-11: Scene of offence panchanama and Ex.P-12:

rough sketch got marked. During the course of cross examination of PW 9, he deposed that no bonafide certificate or ossification test of PW 4 was filed.

Thus on perusal of the entire material the prosecution did not provide any documentary evidence to show that the PW 4 is aged below fourteen years as on the date of the alleged offence and that the buffaloes that the PW 4 is alleged to have had grazed on 28-11-2017 belonged to the accused.

18. Thus on perusal of the evidence of all the prosecution witnesses, there is no independent oral or documentary evidence showing that the PW - 4, the alleged child labour is aged below 14 years as on the date of the alleged offence, Accused engaged the PW 4 as child labour and unlawfully compelled him to work against his will. In the absence of the said evidence it cannot be believed that the accused engaged the PW 4 as child labour and compelled him to labour against his will as alleged by the prosecution.

19. In view of the discussion made in the foregoing paragraphs as the prime prosecution witnesses the PW4, alleged child labour, PW 3, mother of

PW-4 and PW 5 and PW 6/the neighbourhood of the accused and PW 7 and

PW 8, the scene of offence panchanama mediators did not support the prosecution case, the evidence of the PW 1 and PW 2 being hear say in nature and due to lack of any other independent evidence showing that the

Smt.V. GAYATHRI, I-ADDL.JFCM, Gadwal

Page 7 of total 8 pagesC.C. No.141 of 2018

Accused engaged the PW4 as child labour, it can be said that the prosecution utterly failed to connect the accused with the offences alleged to have been committed by him. Thus the Accused becomes entitled for an acquittal. Hence the point is answered accordingly in favour of the Accused and against the prosecution.

20. In the result, the Accused is found not guilty for the offences punishable U/Ss. 374 of IPC and Sec. 3, 7, 8, 14 of Child Labour (Prohibition and Regulation) Act, 1986. Accordingly, he is acquitted U/s.

248 (1) of Cr.P.C. The bail bond of the Accused shall stand cancelled for a period of six months subject to section 437–A Cr.P.C. Since no property was deposited there is no order with respect to the property.

Typed to my dictation by Sri. D. Srikanth, Typist, I-Addl.JCJ cum I- Addl. JFCM Court, Gadwal, corrected and pronounced by me in open Court on this the 27th day of April, 2023

I-ADDL.JUDICIAL MAGISTRATE OF FIRST CLASS,

GADWAL

Smt.V. GAYATHRI, I-ADDL.JFCM, Gadwal

Page 8 of total 8 pagesC.C. No.141 of 2018

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED ON BEHALF OF)

FOR PROSECUTION FOR ACCUSED

PW-1: Shankar -NIL- PW-2: D. Hanmanthu PW-3: Smt. Ashamma PW-4: Anji PW-5: Bheemanna PW-6:Bheemesh PW-7: B. Eshwar PW-8: Prakash PW-9: A. MuraliGoud/IO

EXHIBITS MARKED

FOR PROSECUTION: FOR ACCUSED:

Ex.P-1: Petition Ex.P-2: Sec. 161 Cr.P.C Statement of Pw3 - None - Ex.P-3: Sec. 161 Cr.P.C Statement of Pw4 Ex.P-4: Sec. 161 Cr.P.C Statement of Pw5 Ex.P-5: Sec. 161 Cr.P.C Statement of Pw6 Ex.P-6: Portion of signature of Pw7 on CDF, Ex.P-7: Portion of signature of Pw7 on scene of offence sketch Ex.P-8: Portion of signature of Pw8 on CDF, Ex.P-9: Portion of signature of Pw8 on scene of offence sketch Ex.P-10: FIR Ex.P-11: Scene of offence panchanama Ex.P-12: rough sketch

MATERIAL OBJECTS

-NIL-

I-ADDL.JUDICIAL MAGISTRATE OF FIRST CLASS,

GADWAL

Smt.V. GAYATHRI, I-ADDL.JFCM, Gadwal

Page 9 of total 8 pagesC.C. No.141 of 2018

CALENDAR AND JUDGMENT

IN THE COURT OF I-ADDL. JUDICIAL MAGISTRATE OF FIRST CLASS AT:

GADWAL

C.C. No. 141 OF 2018

1. Complainant : State, SI of Police, P.S.Dharoor

2. Cr.No. & Nature of Offence : Cr.No.244/2017, U/Ss. 374 of IPC, Sec 3, 7, 8, 14 of Child Labour(Prohibition and regulation amendment Act, 16 of the Bonded labour System(Abolition) Act, 1976

3. Name of the accused :

Bodrai Narsimhulu, S/o. Bheemanna, @ Goundla Bheemanna, Age: 48 years, Occ: Agriculture, R/o. Chinthrevula Village of Dharoor Mandal.

D A T E S:

4. OFFENCE On and prior to 28-11-2017

5. COMPLAINT 28-11-2017

On 27-02-2018 Pw9 Served Sec.

6. APPREHENSION OF ACCUSED 41-ACr.P.C notice to the accused.

7. COMMENCEMENT OF TRIAL 12-01-2023

8. CLOSURE OF TRIAL 29-03-2023

9. JUDGMENT 27-04-2023

10. PLEA OF THE ACCUSED Not Guilty

11. SENTENCE OR ORDER: In the result, the Accused is found not guilty for the offences punishable U/Ss. 374 of IPC and Sec. 3, 7, 8, 14 of Child Labour (Prohibition and Regulation) Act, 1986. Accordingly, he is acquitted U/s. 248 (1) of Cr.P.C. The bail bond of the Accused shall stand cancelled for a period of six months subject to section 437–A Cr.P.C. Since no property was deposited there is no order with respect to the property.

12. REMARKS : -Nil-

I-ADDL.JUDICIAL MAGISTRATE OF FIRST CLASS,

GADWAL To: The Hon’ble I-Addl. District and Sessions Judge, Jogulamba Gadwal Dis. No.

Smt.V. GAYATHRI, I-ADDL.JFCM, Gadwal

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS AT: GADWAL.

Dated this the 11th day of October, 2021.

Present: Smt.V. USHA KRANTHI Judicial First Class Magistrate, Gadwal

C.C.No. 379 of 2019..

Between:- The State Through Proh. & Excise S.I. Gadwal

..... Complainant

Vs

Venkat Reddy S/o Somi Reddy, age:32 Years, Occ:Agriculture, R/o Garlapad Village of Dharoor Mandal, Jogulamba Gadwal District.

... Accused

This case is coming on this day for final hearing before me on 11-10-2021 in the presence of the A.P.P. for the State and of Sri.N.Vijay Kumar, counsel for the Accused and having stood upon hearing him and on perusing the record available, this matter having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. The brief facts of the charge sheet are that on 02-01-2018 at about 05:30 PM

LW-3 L.Shivaiah, Prohibition and Excise Inspector, SHO, Excise PS Gadwal along with his staff proceeded to Garlapad Village by securing two mediators, and explained them that on reliable information regarding the illegal sales of liquor by one Venkat Reddy at his house at Garlapad Village. For which police officials and mediators went in a jeep to the house of Accused at Garlapad Village. There they noticed one person present and conducting the sales of liquor, on enquiry he revealed his name as Venkat Reddyk S/o

Somi Reddy, R/o Garlapad Village. During the search LW-3 found (10) King Fisher

Premium beer bottles, each 650 ml. On enquiry about the liquor, the Accused stated that the said liquor bottles were sold to public for higher rates. On demand he failed to produce any valid license or permit to sell the liquor, LW-3 informed him that without license the sales of liquor is an offence under Excise Act. LW-3 seized the liquor bottles and drawn two samples each sample containing (01) beer bottle, and sealed them as

SMT.V.USHA KRANTHI [JFCM] 2 per procedure under cover of panchanama in the presence of panchas by LW-3.

Immediately LW-3 apprehended the Accused and shifted him to Excise Police Station along with samples. Thereafter LW-3 issued PCOR No.1/2018 U/s.34(a) of T.S. Excise

Act, 1968 and he issued Sec.41-A Cr.P.C notice to the Accused. Further the LW-3 deposited the samples before this court vide CPR No.99/2018, dt:03-03-2018 with a request to send one of the sample to the Chemical Examiner, Regional Excise

Laboratories, Hyderabad for analysis report. The Chemical Examiner vide in his report

No.3168/2018/1, dt:29-05-2018 opined that “The sample contains alcohol sugars and carbon dioxide, it is beer”. Thereafter remaining seized property i.e., beer bottles are deposited into the Deputy Commissioner, Prohibition and Excise,

Mahabubnagar. Further LW-3 handed over the CD file to LW-4 G.Gopal, Prohibition and

Excise Inspector of Police, Excise Police, Gadwal for further investigation. After completion of the investigation LW-4 filed charge sheet against Accused for the offence

U/s.34(a) of T.S. Excise Act, 1968.

2. Upon taking cognizance for the offence punishable U/s.34(a) of T.S. Excise Act, 1968 this court furnished copies of documents to the Accused. When the Accused examined under Sec.239 Cr.P.C by framing charges for the offence punishable U/s.34(a) of T.S. Excise Act, 1968 and the Accused pleaded not guilty and claimed to be tried.

3. To prove the guilt of Accused, Prosecution examined as PW-1 to PW-3 and got marked Ex’s:P1 to P5, MO.1. The prosecution failed to produce the witness LW-3 and this court closed the evidence of the same, after giving reasonable opportunity.

4. After closure of prosecution evidence the Accused was examined Under Section 313 Cr.P.C by explaining the incriminating evidence appeared against the Accused for which he denied the same and reported no defence evidence.

5. Heard the learned Asst. Public Prosecutor and learned counsel for the Accused and perused the material on record.

SMT.V.USHA KRANTHI [JFCM] 3

6. Now the point for determination is

Whether the prosecution has proved the guilt of the Accused beyond reasonable doubt for the offence U/s.34(a) of T.S. Excise Act, 1968?

7. POINT: To make out its case for an offence U/s.34(a) of T.S. Excise Act, 1968, the prosecution examined PW-1 to PW-3. The PW-1 & PW-2 are eye witnesses and

PW-3 is Investigation Officer and got marked Ex.P1 to P5 and MO-1 (Sample of liquor bottle).

8. PW-1 & PW-2 are the independent mediators said to have assisted the LW-3

L.Shivaiah, Prohibition and Excise Sub-Inspector, Excise PS Gadwal in the detection of the offence and for recording the confession-cum-seizure panchanama and they turned hostile. Though the PW-1 & PW-2 admitted their signatures, categorically stated that the Excise police obtained their signatures on some papers and they do not know the contents of the said papers and further they deposed that the Accused/no person never confessed and police did not seized toddy in their presence. As they turned hostile, the learned Asst. Public Prosecutor cross examined them at length, wherein the PW-1 &

PW-2 denied that the police conducted confession-cum-seizure panchanama and seizure of liquor bottles.

9. PW-3 who is Investigation Officer he deposed that on 02-01-2018 at about 05:30 PM LW-3 L.Shivaiah, Prohibition and Excise Inspector, SHO, Gadwal along with staff proceeded to Garlapad Village, on reliable information of illegal sales of liquor, there LW-3 secured two mediators and went to Garlapad Village, there LW-3 noticed one person conducting sales of liquor bottles in his house. There they noticed one person present and conducting the sales of liquor, on enquiry he revealed his name as

Venkat Reddyk S/o Somi Reddy, R/o Garlapad Village. During the search LW-3 found (10) King Fisher Premium beer bottles, each 650 ml. On demand he failed to produce any valid license or permit to sell the liquor, LW-3 informed him that without license the sales of liquor is an offence under Excise Act. LW-3 seized the liquor bottles and drawn two samples each sample containing (01) beer bottle, and sealed them as per

SMT.V.USHA KRANTHI [JFCM] 4 procedure under cover of panchanama in the presence of panchas by LW-3, Ex.P3 is seizure panchanama. Immediately LW-3 apprehended the Accused on the spot and returned excise station along with seized samples. Thereafter LW-3 issued PCOR

No.1/2018 for the offence U/s. 34(a) of A.P. Excise Act, Ex.P4 is PCOR. Thereafter he issued 41-A notice to the Accused. The samples were deposited before this court vide

CPR No.99/2018 and sent the samples to the Chemical Examination. Ex.P5 is Chemical

Analysis Report. Thereafter LW-3 handed over the case papers to him for further investigation. He verified the investigation done by LW-3 who is his colleague and he identified his signatures and he laid charge sheet against the Accused. MO-1 is sample of liquor bottle. In the cross examination, PW-3 admitted that he do not know whether

LW-3 have examined any independent eye witnesses or not and that he do not know whether the scene of offence was busy locality or not and that he do not know whether the LW-3 have pasted search memo at Accused house door and no search memo placed

before this court and hence the version of PW-1 & PW-2 are not inspiring confidence

and it appears LW-3 conducted perfunctory investigation, more so LW-3 was not examined by the Police.

10. In the absence of evidence of PW-1 & PW-2 the evidence remained for consideration is that of PW-3 who is Excise police officer and he is the person who laid except charge sheet.

11. It is settled law that unless independent witnesses corroborates the version of the police official, his evidence alone cannot be sustained to record the conviction of the

Accused. The Hon’ble High Court of A.P. considered a similar case in the decision reported in 2001(1) ALT (Crl.) 66 (A.P.) between Poddutur Sarvam Reddy Vs

State of A.P., and it was held that the evidence of a complainant cum investigation officer alone cannot be based to convict the Accused for an excise offence in the absence of any corroborative independent evidence.

SMT.V.USHA KRANTHI [JFCM] 5

12. However, as per the PW-3, the accused confessed before the LW-3/Prohibition and Excise Inspector his guilt and basing on the said confession panchanama, LW-3 apprehended the accused and seized the property. The contents of Ex.P5, clearly shows that it was recorded in the immediate presence of the police. Section. 25 and 26 of

Indian Evidence Act provides a bar to receive the confession made to police officer.

Since the contents of PW-1 & PW-2 and the evidence of PW-3 clearly shows that it was recorded in the immediate presence of the police official, this court hold that the confession cum seizure panchanama as relied by the prosecution under Ex.P3 is inadmissible in evidence. The said aspect was considered by the Hon’ble High Court of Andhra Pradesh in a decision reported in 2005 (1) ALD (NOC) 52 between

Mudavath Mothia Vs State of Andhra Pradesh held that the confession made to the police officials and the seizure there under is hit by Sec.25 and 27 of Indian

Evidence Act and the Hon’ble High Court hold as follows.

13. “The offence U/s.34(a) of T.S. Excise Act, 1968 is made cognizable offence and once the excise officials are entrusted with the investigation of cognizable offence, they become police officials and the excise officials can never say that they are not the police officials. When once they become police officials, the confessions recorded by them in the proceedings is inadmissible. Moreover Ex.P3 is hit by Section.25,27 of the Evidence

Act and Section. 161 of Cr.P.C. The benefit if any cases due to the invalidity of the investigation only goes to the Accused. Once the Ex.P5 is hit by Sections.25 and 27 of the Evidence Act, and Section.161 of Cr.P.C and when the independent witness are not examined by the prosecution, the prosecution theory of seizing of toddy from the custody of the Accused has to the looked with suspicion. The seizure proceedings drafted also cannot be considered in view of the bar Under Section.25 and 27 of the

Evidence Act and Section.161 of Cr.P.C. It is not a case where the property was seized by virtue of confession made. When it is also not admissible in view of the legal bar and invalid proceedings, it is a fit case where the accused be given the benefit of doubt.“

SMT.V.USHA KRANTHI [JFCM] 6

14. To sum up, in view of the above observations as the independent mediators i.e.,

PW-1 & PW-2 did not supported the case and it is found that the confession-cum- seizure panchanama is inadmissible in evidence in view of the above legal bar and in view of the above legal principles laid by the Hon’ble High Court of A.P. This court hold that the prosecution miserably failed to establish the guilt of the accused for an offence

U/s.34(a) of T.S. Excise Act, 1968 and the Accused is entitled for an acquittal.

15. In the result, the Accused is found not guilty for the offence U/s.34(a) of T.S.

Excise Act, 1968 and he is acquitted Under Section.248(1) of Cr.P.C. The bail bonds of

Accused shall stands cancelled and he is set at liberty. The MO-1 shall be destroyed after the appeal time is over.

Typed to my dictation by Typist, corrected and pronounced by me in the open court on this the 11th day of October, 2021.

JUDICIAL MAGISTRATE OF FIRST CLASS

GADWAL.

APPENDIX OF EVIDENCE

WITNESS EXAMINED

For Prosecution: For Defence:

PW-1 : Srinu, -None- PW-2 : T.Anjaneyulu, PW-3 : G.Gopal, I.O.

EXHIBITS MARKED

For Prosecution: For Defence

Ex-P1 : Portion of PW-1 signature on Confession-cum-seizure panchanama, - Nil - Ex-P2 : Portion of PW-2 signature on Confession-cum-seizure panchanama, Ex-P3 : Confession-cum-seizure panchanama, Ex.P4 : PCOR, Ex-P5 : Chemical Analysis Report.

MATERIAL OBJECTS MARKED

MO-1: Sample of liquor bottle.

JUDICIAL MAGISTRATE OF FIRST CLASS

GADWAL.

SMT.V.USHA KRANTHI [JFCM] 7

CALENDAR AND JUDGMENT

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS AT: GADWAL.

C.C. No. 379 OF 2019.

1. Complainant : The State Through Proh. & Excise S.I. Gadwal.

2. Cr.No. & Nature of Offence : PCOR. No.1/2018 U/s.34(a) of T.S. Excise Act, 1968

3. Name of the accused :

Venkat Reddy S/o Somi Reddy, age:32 Years, Occ:Agriculture, R/o Garlapad Village of Dharoor Mandal, Jogulamba Gadwal District.

D A T E S:

4. OFFENCE 02-01-2018

5. COMPLAINT 02-01-2018 02-01-2018 (Served 41-A Cr.P.C notice to

6. APPREHENSION OF ACCUSED Accused)

7. COMMENCEMENT OF TRIAL 23-03-2021

8. CLOSURE OF TRIAL 30-03-2021

9. JUDGMENT 11-10-2021

10. PLEA OF THE ACCUSED Not Guilty

11. SENTENCE OR ORDER : In the result, the Accused is found not guilty for the offence U/s.34(a) of T.S. Excise Act, 1968 and he is acquitted Under Section.248(1) of

Cr.P.C. The bail bonds of Accused shall stands cancelled and he is set at liberty. The

MO-1 shall be destroyed after the appeal time is over.

12. REMARKS: - Nil -

JUDICIAL MAGISTRATE OF FIRST CLASS

GADWAL.

To:

The Hon’ble I Addl. District and Sessions Judge, Mahabubnagar. Dis. No.

SMT.V.USHA KRANTHI [JFCM]