Smt. Harika Ravuri

1 C.C.No.619 of 2021

IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF

I CLASS: RAYACHOTY

PRESENT: SMT. R. HARIKA,

ADDL., JUDICIAL MAGISTRATE OF I CLASS,

RAYACHOTY.

Wednesday, this the 13th day of April, 2022.

C.C.No.619/2021

Represented by the SEB Inspector, Rayachoty

….. Complainant

Vs.

A1. Derangula Venkataramana, S/o Late D.Guravaiah, Age 28 years, Caste Vadde, R/o Kothajangam Palli Village, T.Sundupalli Mandal, Y.S.R Kadapa District.

A2. M.Reddaiah, S/o Late Rudraiah, Age 45 years, Caste Jangam, R/o Kothajangam Palli Village, T.Sundupalli Mandal, Y.S.R Kadapa District. …..A1 and A2

This calendar case coming on this day before me for final hearing in the presence of Assistant Public Prosecutor for Complainant/State and of Sri R.Veerabadraiah, Advocate for A1 and A2, upon hearing both sides, upon perusing the entire material on record having stood over for consideration to this day, this court delivered the following:

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

TheSEB Inspector, Rayachoty laid charge sheet against A1 and A2 in

Crime No.147/2020 for the offence punishable Under Sec.7(a) r/w 8(e) of AP

Prohibition Act, 2019.

2) The case of the prosecution as set out in the charge sheet, in brief, are as follows:

On 07.05.2020 As per the instructions of the Assistant Commissioner of the Prohibition and Excise, YSR Kadapa during raids conducted by PW1 along with staff at about 05.00 PM raided at ½ kilometer distance from T.Vaddepalli situatued on Janagampalli to T.Vaddipalli metal road of T.Sundupalli Mandal where they found the A1 and A2 were in possession of one white colour plastic urea bag in his right hand. On seeing the excise officials, the A1 and

A2 tried to escape but he was detained. On enquiry done by PW1, the A1 and A2 revealed that the plastic can containing ID liquor. On interrogation the A1 and A2 identity particulars. Then they tried for mediators but in vain.

2 C.C.No.619 of 2021

Then P.W.1 verified the plastic can and found 10 liters of ID liquor in it and then he drawn one 180 ML sample bottle for chemical analysis and then seized and then he seized the remaining property. Then after informing the grounds of their arrest, PW1 has arrested the A1 and A2 under the cover of special report drafted on the spot. Later P.W.1 registered a case in

Cr.No.147/2020 Under Sec.7(A) r/w 8(e) of AP Prohibition Act, 2019 and he forwarded A1 and A2 Hon;ble Court for Judicial remand. Later PW.1 sent the sample bottle to Government Regional Proh., & Excise Chemical Laboratory,

Kurnool for analysis and report and the Chemical Examiner opined that the sample is “Illicitly distilled liquor unfit for human consumption and injurious to health”. The remaining seized liquor was destroyed as per the orders of

Superintendent of Police, Kadapa. After completion of investigation,

LW4/Enforcement Inspector, SEB Station, Rayachoty laid charge sheet against A1 and A2. Hence, the Charge.

3) Cognizance was taken for the offence punishable U/Sec.8(e) r/w 7(A) of A.P Prohibition Act against the A1 and A2.

4) On appearance of A1 and A2, copies of documents were furnished to them as contemplated U/Sec.207 of Cr.P.C.

5) A1 and A2 were examined U/Sec.239 Cr.P.C., they were denied the accusation made against them. A charge U/Sec. 8(e) r/w 7(A) of A.P

Prohibition Act has been framed against them and the contents of the said charge was read over and explained to them in Telugu for which they pleaded not guilty and claimed to be tried.

6) The prosecution in order to bring home the guilt of A1 and A2 has examined P.W.1 and got marked Ex.P.1 to P3 and M.O.1. Learned Assistant

Public Prosecutor given up the evidence of Lws.2 and 3.

3 C.C.No.619 of 2021

7) On closure of prosecution evidence, A1 and A2 were examined

U/Sec.313 Cr.P.C., for the incriminating material appearing against them in the prosecution evidence by explaining the same to them in Telugu, for which they denied the same and further they stated that they has no defence evidence on their behalf.

8) Heard learned Assistant Public Prosecutor and the Counsel appearing for A1 and A2. Perused the material on record.

9) Learned Assistant Public Prosecutor argued that the evidence of

P.W.1 and the contents of Exs.P.1 to P.3 and M.O.1 are sufficient to prove the case of prosecution and prayed to convict the A1 and A2 as per law.

10) Learned Counsel appearing for A1 and A2 contended that P.W.1 is an Excise Official and his evidence is not corroborated by the evidence of any independent witness, as such it is not sufficient to prove the case of the prosecution. Learned counsel appearing for A1 and A2 further contended that Excise Officials should have made an attempt to secure the panchayatdars from the immediate vicinity of the scene of offence, but they did not do so and it throws a doubt about the version of the P.W.1. Learned counsel appearing for A1 and A2 further contended that except the self serving testimonies of Excise official, absolutely there is no evidence on record to prove the recovery of the property from the possession of A1 and

A2 and its disposal. He further contended that in the absence of any corroborative evidence from independent source as to the recovery of ID liquor from the possession of A1 and A2, or that the very same property was tested by the chemical analyst and the property was destroyed, it is unsafe to conclude that the A1 and A2 committed the offence punishable U/Sec. 8(e) r/w 7(A) of A.P Prohibition Act.

4 C.C.No.619 of 2021

11)Point for determination is:- “Whether the prosecution could able to prove the guilt of A1 and A2 for the offence punishable U/Sec. 8(e) r/w 7(A) of A.P Prohibition Act beyond all reasonable doubt?”

12)POINT:

The case of the prosecution is that on 07.05.2020 at about 05.00 PM raided at ½ kilometer distance from T.Vaddepalli situatued on Janagampalli to T.Vaddipalli metal road of T.Sundupalli Mandal, the A1 and A2 were found in possession of 10 liters of ID liquor without having license in white colour plastic can, as such a special report was drafted on the spot evidencing recovery of ID liquor. Prosecution in order to substantiate its case examined

P.W.1 and got marked Exs.P.1 to P.3 and M.O.1 to prove the guilt of the A1 and A2.

13)P.Ws.1 is an Excise Official. P.W.1 in his chief-examination deposed that about the conducting of raids on 07.05.2020 at about 05.00 PM raided at ½ kilometer distance from T.Vaddepalli situatued on Janagampalli to T.Vaddipalli metal road of T.Sundupalli Mandal, the A1 and A2 were found in possession of 10 liters of ID liquor without having license in white colour plastic can, seizure liquor, arrest of the A1 and A2, lifting of one 180 ML sample bottle, drafting of Ex.P.1 Special Report, registration of case in

Cr.No.147/2020 U/Sec.7(A) r/w 8(e) of AP Prohibition Act and Issued FIR under

Ex.P.2, released the A1 and A2 on station bail, sending of sample bottle to the chemical examiner through this Hon’ble Court, obtaining of chemical analysis report under Ex.P.3 and laying of charge sheet before this Hon’ble court.

14)P.W.1 in his cross-examination admitted that the scene of offence is busy locality and it is surrounded by so many villages and they did not prepare any rough sketch of the scene of offence. As the scene of offence is busy locality and it is surrounded by so many villages as admitted by P.W.1 5 C.C.No.619 of 2021 in his cross-examination what prevented P.W.1 to secure independent mediators at the scene of offence. Even they did not prepare the rough sketch of the scene of offence and atleast they did not try to secure the independent mediators after they reached to the police station from scene of offence.

15)As can be seen from the evidence of P.W.1, no serious attempts were made for securing mediators. In this case, except the oral testimony of

P.W.1, no other independent witness is examined by the prosecution. When the independent witnesses are not examined by the prosecution, the prosecution theory of seizing the contraband from the custody of the A1 and

A2 cannot be believed. Therefore, non examination of independent mediators at the vicinity of the scene of offence is fatal to the case of the prosecution.

16)Our Hon'ble High Court in Mudavath Mothia Vs. State Of A.P.

reported in 2002 1 ALT(Cri) 437= 2002 0 Supreme(AP) 232 at para

No.5, it was held as follows:- “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 confession recorded by them in the proceedings is inadmissible.”

It is further held that: “When the independent witnesses are not examined by the prosecution, the prosecution theory of seizing the contraband from the custody of the accused has to be looked with suspicion. The non-examination of independent mediators is fatal to the prosecution version. The seizure proceedings drafted also cannot be considered in view of the bar under Secs. 25 and 27 of the Indian

EVIDENCE ACT, 1872 and Sec. 161 of Cr. P. C.” 6 C.C.No.619 of 2021

17)Further our Hon'ble High Court S. BABU SAHEB ALIAS BABU

VS.STATE OF A.P reported in 2010 (1) ALT(Cri) 32 at para No.16, it was held as follows:- “When the police conducting the search in a colony or at a place wherein there is possibility of securing the presence of independent mediators, the excise officials or prohibition officers are bound to take the local respectable independent inhabitants. They must make sincere efforts to secure local respectable mediators.That is the mandate of Section 100 (4) of Cr. P. C. As referred to in the above provisions, the excise officials are also authorized to issue an order in writing asking them to act as mediators under subsection (4) of Section 100 Cr.P. C. The object of Section 100 Cr. P. C. is to ensure confidence in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted. The presence of independent respectable mediators at a search is always desirable and the presence of mediators of any other locality would not only weaken, but sometimes destroy the prosecution case.”

18)In the case on hand, the prosecution failed to secure the independent mediators and failed to examine any independent witness rather than the interested witness to establish the guilt of the A1 and A2 and failed to follow proper procedure prescribed under law. Hence, viewed from any angle there is no credibility to the prosecution witnesses to establish the guilt of the accused and their evidence cannot be believed. Therefore, there is no cogent and reliable evidence to implicate the complicity of the A1 and

A2 in commission of the offence. The material produced by the prosecution is not sufficient to bring home the guilt of the A1 and A2 beyond reasonable doubt. Thereby, the point is decided in favour of the defence and against to the prosecution.

19)In the result, A1 and A2 found not guilty for the offence punishable U/Sec.8(e) r/w 7(A) of A.P Prohibition Act and accordingly, they are acquitted U/Sec.248 (1) Cr.P.C. The bail bonds of the A1 and A2 shall be in force for a period of six months U/Sec.437-A of Cr.P.C., and thereafter 7 C.C.No.619 of 2021 which shall stand cancelled. M.O.1 sample bottle which was received vide

CPR Item No.79/2021 shall be destroyed after lapse of appeal time.

Typed to my dictation to the Stenographer, Grade-III, corrected and

pronounced by me in open court, this the 13th day of April, 2022.

Sd/- R. Harika

ADDL., JUDL., MAGISTRATE OF I CLASS,

RAYACHOTY.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence:

P.W.1: P. Bhargava Reddy, -NONE- P & E Inspector, Rayachoty.

EXHIBITS MARKED

For Prosecution: For Defence:

Ex.P.1 Special Report. -NIL- Ex.P.2 FIR Ex.P.3 Chemical analysis Report.

MATERIAL OBJECTS MARKED

M.O.1 is sample bottle.

Sd/- R. Harika

ADDL., JUDL., MAGISTRATE OF I CLASS,

RAYACHOTY.

8 C.C.No.619 of 2021

CALENDAR AND JUDGMENT

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

Court, Rayachoty.

C.C.No :619/2021

DATE OF

Offence ReportApprehensionRelease onCommencemenClose of Judgment of A1 and A2bailt of trial trial 07.05.202007.05.202007.05.202007.05.202031.03.202206.04.202213.04.2022

State: Represented by the SEB Inspector, Rayachoty. ….Complainant

Vs.

A1. Derangula Venkataramana, S/o Late D.Guravaiah, Age 28 years, Caste Vadde, R/o Kothajangam Palli Village, T.Sundupalli Mandal, Y.S.R Kadapa District.

A2. M.Reddaiah, S/o Late Rudraiah, Age 45 years, Caste Jangam, R/o Kothajangam Palli Village, T.Sundupalli Mandal, Y.S.R Kadapa District. ….. A1 and A2

Offence : U/Sec. 8(e) r/w 7(A) of A.P Prohibition Act

Finding : Not guilty

Sentence :

In the result, A1 and A2 found not guilty for the offence punishable U/Sec.8(e) r/w 7(A) of A.P Prohibition Act and accordingly, they are acquitted U/Sec.248 (1) Cr.P.C. The bail bonds of the A1 and A2 shall be in force for a period of six months U/Sec.437-A of Cr.P.C., and thereafter which shall stand cancelled. M.O.1 sample bottle which was received vide CPR Item No.79/2021 shall be destroyed after lapse of appeal time.

Sd/- R. Harika

Addl., Judl., Magistrate of I Class,

Rayachoty.

Copy to The Hon'ble I Addl. District and Sessions Judge, Kadapa.

1

IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF I

CLASS: RAYACHOTY.

PRESENT: R.HARIKA,

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

RAYACHOTY.

TUESDAY, THIS THE 21 st DAY OF MAY, 2019.

C.C.No.636/2016

Between: State represented by Sub-Inspector of Police, Rayachoty U/G P.S.

….. Complainant

Vs

Shaik Mahaboob Basha @ Mabasha, S/o Khajapeer @ Basha, age 37 years, D.No.29/146-2, Bethal colony, Rayachoty town, driver of Bolero Pickup vehicle No.GJ-08-Y-1453.

…..Accused

This calendar case is coming on this day before me for final hearing on 20-05-2019 in the presence of learned Sri D.Anil Kumar,Assistant Public Prosecutor for complainant/State and Sri.G.Ravi Kumar, advocate for accused upon hearing both sides, upon perusing the entire material on record and having stood over for consideration to this day, this court delivered the following:

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

State represented by Sub-Inspector of Police, Rayachoty U/G Police Station laid charge sheet against accused in Cr.No.342/2016 for the offences punishable

U/Sec.337, 304-A of Indian Penal Code (IPC in brevity) and Sec.134 (a)(b) r/w 187 of

Motor Vehicle Act (M.V.Act in brevity).

2. The case of the prosecution in nut shell is that LW.1/J.Samba Siva Reddi is having auto bearing No.AP-04-TU-0709 and is living by running his auto for hire.

While so on 16.09.2016 morning LW.1/J.Samba Siva Reddi went to Kadapa town for servicing of his auto and after servicing his auto, LW.1/J.Samba Siva Reddi left Kadapa 2 in his auto and when reached near ITI Circle, Kadapa, LW.2/R.Reddi Sekhar boarded in the auto of LW.1/J.Samba Siva Reddi and LW.1 is proceeding towards Rayachoty side, en-route when reached near Chitloor Harijanawada, then PW.1 and deceased/G.Venkata

Ramana boarded in the auto of LW.1/J.Samba Siva Reddi and LW.1 proceeding towards

Rayachoty, at about 3.30 p.m., after passing Indian Petrol Bunk, Masapeta, Rayachoty in the meantime accused being the driver of Bolero Pickup vehicle No.GJ-08-Y-1453 proceeding from back side of LW.1/J.Samba Siva Reddi auto, drove the vehicle in a rash and negligent manner without any taking any due care and dashed on left side of

LW.1/J.Samba Siva Reddi’s auto bearing No.AP-04-TU-0709 and the auto turned turtle on right side, as a result LW.1/J.Samba Siva Reddi sustained bleeding injury over his right elbow, deceased/G.Venkata Ramana sustained bleeding injuries on back side of head, both legs ankles and right hand wrist. LW.2 and PW.1 escaped from the injuries and PW.2 witnessed the occurrence. Later P.Ws.1, 2 and LW.2 shifted LW.1/J.Samba

Siva Reddi and deceased/G.Venkata Ramana to Government hospital, Rayachoty for treatment, on coming to know the incident, PW.3 rushed to Government hospital,

Rayachoty after taking first aid, PW.3 shifted deceased/G.Venkata Ramana to SVRRGG hospital, Tirupati for better treatment where deceased/G.Venkata Ramana could not survive and succumbed due to injuries on 18.09.2016 while undergoing treatment at

SVRRGG hospital, Tirupati.

Basing on the receiptof hospital intimation, LW.15/M.Venugopal Naik, HC- 135, Rayachoty U/G police station recorded the statement of LW.1/J.Samba Siva Reddi and handed over the same to PW.5/M.Mohammad Rafi, S.I of police, Rayachoty U/G police station. Then PW.5 initially registered a case in Cr.No.342/2016, U/sec.337 of

IPC and investigated into. During the course of investigation, PW.5 secured the presence of P.Ws.1, 2, LW.1/J.Samba Siva Reddi and LW.2/R.Reddi Sekhar, recorded their 3 detailed statements, visited the scene of offence and prepared rough sketch of the scene of offence. On 19.09.2016 on the receipt of death intimation of deceased/G.Venkata

Ramana, PW.5 altered the section of law from U/sec.337 of IPC to Secs.337, 304-A of

IPC and investigated into. During further investigation on 21.09.2016 PW.5 arrested accused and sent him for remand through this Hon’ble court. After completion of the investigation PW.5/M.Mohammad Rafi, S.I of police filed charge sheet against accused.

Hence, the CHARGE.

3. In this case cognizance was taken by my predecessor for the offences punishable U/Secs.337, 304-A of IPC and Sec.134 (a)(b) r/w 187 of M.V.Act against accused.

4. After the appearance of the accused, the copies of the documents as required U/sec.207 code of Criminal Procedure (Cr.P.C in brevity) were furnished to him.

5. The accused was examined U/sec.251 of Cr.P.C. and the substance of accusation for the offences punishable U/Secs.337, 304-A of IPC and Secs.134 (a)(b) r/w 187 of M.V.Act is put to him, read over and explained to him. He has pleaded not guilty and claimed to be tried.

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

PW.1 to 5 and got marked Exs.P1 to P15. On 08.03.2018 the police of Rayachoty U/G police station filed a report against LW.1/J.Samba Siva Reddi stating that LW.1/J.Samba

Siva Reddi went to Kuwait and unable to secure his presence and the same is allowed, hence evidence of LW.1/J.Samba Siva Reddi is closed. The learned A.P.P. has given up 4 the evidence of L.Ws.2, 7 to 15 namely R.Reddi Sekhar, V.Chinnaiah, K.Kutubuddin

Khan, B.Murali Krishna, C.Venkata Subba Reddi, B.Krishnaiah, Dr.Reddy Maheswara

Raju, Dr.S.Venkateswara Rao, D.Sreenivasulu and M.Venugopal Naik respectively.

7.After the closure of the prosecution side evidence, the accused is examined under section 313 of Cr.P.C., and the incriminating was put to him. He denied the same and reported no defence evidence.

8.Heard both sides. Perused the material on record.

9. The point germane for determination is :- “Whether the prosecution is successful in establishing the accusation levelled against the accused under Secs.337, 304-A of IPC and Sec.134(a)(b) r/w 187 of M.V.Act beyond all reasonable doubt” ?

10. POINT:-

It is the case of the prosecution that on 16.09.2016 LW.1 is proceeding towards Rayachoty side, en-route when reached near Chitloor Harijanawada, then PW.1 and deceased/G.Venkata Ramana boarded in the auto of LW.1/J.Samba Siva Reddi and

LW.1 proceeding towards Rayachoty, at about 3.30 p.m., after passing Indian Petrol

Bunk, Masapeta, Rayachoty in the meantime accused being the driver of Bolero Pickup vehicle No.GJ-08-Y-1453 proceeding from back side of LW.1/J.Samba Siva Reddi auto, drove the vehicle in a rash and negligent manner without any taking any due care and dashed on left side of LW.1/J.Samba Siva Reddi’s auto bearing No.AP-04-TU-0709 and the auto turned turtle on right side, as a result LW.1/J.Samba Siva Reddi sustained bleeding injury over his right elbow, deceased/G.Venkata Ramana sustained bleeding 5 injuries on back side of head, both legs ankles and right hand wrist. PW.3 shifted deceased/G.Venkata Ramana to SVRRGG hospital, Tirupati for better treatment where deceased/G.Venkata Ramana could not survive and succumbed due to injuries on 18.09.2016 while undergoing treatment at SVRRGG hospital, Tirupati.

11.On the other hand the case of the defence is that total denial. In order to prove this case the prosecution examined P.Ws.1 to 5.

12.PW.1 deposed in his evidence that about 2 years back on one day in the morning while he was proceeding towards his work place at that time he observed deceased/G.Venkata Ramana met with an accident at Masapeta, Rayachoty, later with the help of surrounding people he shifted deceased/G.Venkata Ramana to Government hospital, Rayachoty for treatment. He deposed that he does not know anything about this case and reasons for the accident. He further deposed that police did not examine him.

13.PW.2 deposed in his evidence that he does not know the deceased/G.Venkata Ramana as well as accused. He further deposed that he does not know anything about this case and police did not examine him.

14.PW.3 deposed in his evidence that about two years back on one day while he was present in his house he received a phone call from PW.1 stating that his son i.e., deceased/G.Venkata Ramana met with an accident and he was shifted deceased/G.Venkata ramana to Government hospital, Rayachoty for treatment. He further deposed that during the course of treatment deceased/G.Venkata Ramana died due to sustained injuries in accident, except this he does not know anything about this case and police did not examine him.

6

15.PW.4 deposed in his evidence that about 3 years back on one day he along with PW.3 and LW.7/V.Chinnaiah went to Government hospital, Rayachoty at that time police of Rayachoty asked them to stand as inquest panchayatdars. He further deposed that police of Rayachoty conducted inquest over deceased/G.Venkata Ramana in their presence and prepared inquest report and obtained their signatures. Ex.P.6 is inquest report. In his cross examination he denied the suggestion that he does not know the contents of Ex.P.6.

16.PW.5 deposed in his evidence that on 16.09.2016 while he was present at police station he received hospital intimation along with statement of LW.1/J.Samba

Siva Reddi. Ex.P.7 is hospital intimation. Ex.P.8 is statement of LW.1/J.Sambasiva

Reddi. Basing on the Ex.P.8 he registered a case in Cr.No.342/2016, U/sec.337 of IPC and issued F.I.R to all concerned officers. Ex.P.9 is F.I.R. He deposed that he recorded the statements of P.Ws.1, 2, LW.1 and LW.2, visited the scene of offence and he prepared rough sketch of the scene of offence. Ex.P.10 is rough sketch. He deposed that on 18.09.2016 while he was present at police station he received hospital intimation from

SVRR Government hospital, Tirupati about the death of deceased/G.Venkata Ramana.

Ex.P.11 is death intimation. Basing upon Ex.P.11 he added section of law 304-A of IPC and issued alter F.I.R to all concerned officer. Ex.P12 is alter F.I.R. He deposed that he prepared inquest over deceased/G.Venkata Ramana in the presence of PW.3, PW.4 and

LW.7/V.Chinnaiah, he forwarded deceased/G.Venkata Ramana to LW.13 for postmortem. He deposed that on 21.09.2016 while he was present at police station

LW.8/K.Kutubuddin Khan along with accused came to the police station, accused voluntarily surrendered before him, after verification of his identity particulars he arrested accused and produced before this court for judicial custody. He deposed that on 7 22.09.2016 LW.14/M.V.I inspected the crime vehicle and issued MVI report i.e.,

Ex.P.13. On 29.10.2016 he received wound certificate of LW.1 which is marked as

Ex.P.14. He further deposed that during further investigation he received postmortem certificate of deceased/G.Venkata Ramana i.e., Ex.P.15 and after completion of investigation he laid charge sheet against accused. In his cross examination he denied the suggestion that he prepared entire documents in their police station and he filed charge sheet before this court to help the deceased/G.Venkata Ramana family.

17.As Pws.1 to 3 did not supported the case of the prosecution, they were cross examined by the learned A.P.P. and during the cross examination except marking of

Exs.P.1 to Ex.P.5, nothing was elicited in favour of the prosecution.

18.According to the prosecution, PW.4 is the panchayatdar of inquest over the dead body of deceased/G.Venkata Ramana. The evidence of PW.4 inquest mediator shows that police conducted inquest to know the apparent cause of death of the deceased. PW.5 investigating officer deposed his part of role in investigation as mentioned in the charge sheet.

19. On perusal of entire evidence on record, the evidence on record only shows that the deceased/G.Venkata Ramana died as the Bolero Pickup bearing No.GJ-08-Y- 1453 which was driven by its driver in a rash and negligent manner and hit the deceased, resulting deceased/G.Venkata Ramana died. But, it failed to prove that the accused acted as the driver of the crime vehicle at the time of accident. Even though PW.5 deposed about the accused as the driver of the crime vehicle at the time of accident, but his evidence cannot be looked into due to the lack of corroboration from any 8 independent witnesses.

20.On considering the above facts and circumstances, this court is of the opinion that the prosecution utterly failed to prove that the accident occurred due to the rash and negligent driving of the driver of the crime vehicle leading to the death of the deceased and there is no evidence on record that the accused is the driver of the crime vehicle at the time of this accident and hence, this court is of the opinion that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt for the offence punishable U/secs.337, 304-A of IPC and Sec.134 (a) (b) r/w 187 of M.V.Act and accordingly, he is acquitted under Section.255 (1) Cr.P.C.

21.In the result, the accused is found not guilty for the offences punishable

U/secs. 337, 304-A of IPC and Sec.134(a)(b) r/w 187 of M.V.Act and accordingly, he is acquitted U/Sec.255 (1) of Cr.P.C. The bail bonds of accused shall be in force for six months under Sec.437-A of Cr.P.C. The unmarked case property, if any, shall be destroyed after expiry of appeal time.

Directly typed to my dictation to the Typist, corrected and pronounced by me in open court, this the 21st day of May, 2019.

Sd/- R.Harika,

Addl. Judl. Magistrate of I Class, Rayachoty.

MEMO OF EVIDENCE

Witnesses examined for prosecution:For Defence: NIL

PW.1: A.Sreenivasulu, PW.2: C.Gangaiah, PW.3: G.Gangulaiah, PW.4: G.Venkata Ramana, PW.5: M.Mohammad Rafi – I.O.

9

Exhibits marked for prosecution: For Defence: NIL

Ex.P1: 161(3) Cr.P.C statement PW.1

Ex.P2: 161(3) Cr.P.C statement PW.1

Ex.P3: 161(3) Cr.P.C statement PW.2

Ex.P4: 161(3) Cr.P.C statement PW.2

Ex.P5: 161(3) Cr.P.C statement PW.3

Ex.P6: Inquest report

Ex.P7: Hospital intimation

Ex.P8: Statement of LW.1

Ex.P9: F.I.R in Cr.No.342/2016 of Rayachoty U/G P.S.

Ex.P10: Rough sketch

Ex.P11: Death Intimation

Ex.P12: Alter F.I.R in Cr.No.342/2016 of Rayachoty U/G P.S.

Ex.P13: M.V.I. Report

Ex.P14: Wound certificate of LW.1

Ex.P15: Postmortem Certificate.

Material Objects:- NIL.

Sd/- R.Harika,

A.J.F.C.M., Rct.

1 C.C.No.727 of 2021

IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF

I CLASS: RAYACHOTY

PRESENT: SMT. R. HARIKA,

ADDL. JUDICIAL MAGISTRATE OF I CLASS,

RAYACHOTY.

Wednesday, this the 13th day of April, 2022.

C.C.No.727/2021

Represented by the SEB Inspector, Rayachoty

….. Complainant

Vs.

Mahadevapalli Venkata Siva, S/o M.Venkataswamy, Age 26 years, R/o Gandlaveedhi, Vempalli Village and Mandal, Y.S.R Kadapa District.

…..Accused

This calendar case coming on this day before me for final hearing in the presence of Assistant Public Prosecutor for Complainant/State and of Sri R.Veerabadraiah, Legal Aid Counsel for Accused, upon hearing both sides, upon perusing the entire material on record having stood over for consideration to this day, this court delivered the following:

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

TheSEB Inspector, Rayachoty laid charge sheet against Accused in

Crime No.208/2020 for the offence punishable Under Sec.34 (a) of AP Excise

Act , 2019.

2) The case of the prosecution as set out in the charge sheet, in brief, are as follows:

On 30.06.2020 during raids and vehicle checking conducted by PW1 along with staff reached at Gollapalli cross whichi is situated on the bus road from Rayachoty to Vempalli of Rayachoty Mandal where they found the accused was coming two wheeler i.e., Hero Honda Splendor Plus and PW1 stopped the vehicle and he verified the side bag of vehicle and found one black color plastic cover. On enquiry done by PW1, the accused revealed that the plastic cover containing liquor bottles. On interrogation the accused his name and identity particulars. Then they tried for mediators but in vain.

Then P.W.1 verified the black plastic cover and found 15 nips of Old Timer

Deluxe Whisky bottles and 09 nips of Sentini Special Deluxe Grain whisky pet bottles and then he drawn two 180 ML samples bottle for chemical analysis 2 C.C.No.727 of 2021 and then seized the remaining property and got sealed and labeled. Then after informing the grounds of his arrest, PW1 has arrested the accused under the cover of special report drafted on the spot. Later P.W.1 registered a case in Cr.No.208/2020 Under Sec.34(a) of AP Excise Act, 2019 and released the accused on station bail. Later PW.1 sent the sample bottles to

Government Regional Proh., & Excise Chemical Laboratory, Kurnool for analysis and report and the Chemical Examiner opined that the sample is “Indian Liquor”. The remaining seized liquor was destroyed as per the orders of Superintendent of Police, Kadapa. After completion of investigation,

LW4/Enforcement Inspector, SEB Station, Rayachoty laid charge sheet against accused. Hence, the Charge.

3) Cognizance was taken for the offence punishable U/Sec.34(a) of AP

Excise Act against the accused.

4) On appearance of accused, copies of documents were furnished to him as contemplated U/Sec.207 of Cr.P.C.

5) Accused was examined U/Sec.239 Cr.P.C., he denied the accusation made against him. A charge U/Sec.34(a) of AP Excise Act has been framed against him and the contents of the said charge was read over and explained to him in Telugu for which he pleaded not guilty and claimed to be tried.

6) The prosecution in order to bring home the guilt of accused has examined P.W.1 and got marked Ex.P.1 to P3 and M.Os.1 & 2. Learned

Assistant Public Prosecutor given up the evidence of Lws.2 to 4.

7) On closure of prosecution evidence, Accused was examined

U/Sec.313 Cr.P.C., for the incriminating material appearing against him in the prosecution evidence by explaining the same to him in Telugu, for which he denied the same and further he stated that he has no defence evidence on his behalf.

3 C.C.No.727 of 2021

8) Heard learned Assistant Public Prosecutor and the Counsel appearing for Accused. Perused the material on record.

9) Learned Assistant Public Prosecutor argued that the evidence of

P.W.1 and the contents of Exs.P.1 to P.3 and M.Os.1 & 2 are sufficient to prove the case of prosecution and prayed to convict the accused as per law.

10) Learned Counsel appearing for accused contended that P.W.1 is an Excise Official and his evidence is not corroborated by the evidence of any independent witness, as such it is not sufficient to prove the case of the prosecution. Learned counsel appearing for accused further contended that

Excise Officials should have made an attempt to secure the panchayatdars from the immediate vicinity of the scene of offence, but they did not do so and it throws a doubt about the version of the P.W.1. Learned counsel appearing for accused further contended that except the self serving testimonies of Excise official, absolutely there is no evidence on record to prove the recovery of the property from the possession of accused and its disposal. He further contended that in the absence of any corroborative evidence from independent source as to the recovery of liquor bottles from the possession of accused, or that the very same property was tested by the chemical analyst and the property was destroyed, it is unsafe to conclude that the accused committed the offence punishable U/Sec.34(a) of AP Excise

Act, 2019.

11)Point for determination is:- “Whether the prosecution could able to prove the guilt of Accused for the offence punishable U/Sec.34(a) of AP Excise Act, 2019 beyond all reasonable doubt?”

12)POINT:

The case of the prosecution is that on 30.06.2020 at Gollapalli cross whichi is situated on the bus road from Rayachoty to Vempalli of Rayachoty

Mandal found the accused was coming two wheeler i.e., Hero Honda 4 C.C.No.727 of 2021

Splendor Plus and PW1 stopped the vehicle and he verified the side bag of vehicle and found one black color plastic cover and the accused was found in possession of 15 nips of Old Timer Deluxe Whisky bottles and 09 nips of

Sentini Special Deluxe Grain whisky pet bottles without having license in a blue plastic cover, as such a special report was drafted on the spot evidencing recovery of liquor bottles. Prosecution in order to substantiate its case examined P.W.1 and got marked Exs.P.1 to P.3 and M.Os.1 & 2 to prove the guilt of the accused.

13)P.Ws.1 is an Excise Official. P.W.1 in his chief-examination deposed that about the conducting of raids on 30.06.2020 at Gollapalli cross whichi is situated on the bus road from Rayachoty to Vempalli of Rayachoty

Mandal found the accused was coming two wheeler i.e., Hero Honda

Splendor Plus and PW1 stopped the vehicle and he verified the side bag of vehicle and found one black color plastic cover and the accused was found in possession of 15 nips of Old Timer Deluxe Whisky bottles and 09 nips of

Sentini Special Deluxe Grain whisky pet bottles, seizure contraband, arrest of the accused, lifting of one 180 ML sample bottles, drafting of Ex.P.1 Special

Report, registration of case in Cr.No.208/2020 U/Sec.34(a) of AP Excise Act, 2019 and Issued FIR under Ex.P.2, sending of accused to remand, sending of sample bottle to the chemical examiner through this Hon’ble Court, obtaining of chemical analysis report under Ex.P.3 and laying of charge sheet before this Hon’ble court.

14)P.W.1 in his cross-examination admitted that the scene of offence is busy locality and it is surrounded by so many villages and they did not prepare any rough sketch of the scene of offence. As the scene of offence is busy locality and it is surrounded by so many villages as admitted by P.W.1 in his cross-examination what prevented P.W.1 to secure independent mediators at the scene of offence. Even they did not prepare the rough 5 C.C.No.727 of 2021 sketch of the scene of offence and atleast they did not try to secure the independent mediators after they reached to the police station from scene of offence.

15)As can be seen from the evidence of P.W.1, no serious attempts were made for securing mediators. In this case, except the oral testimony of

P.W.1, no other independent witness is examined by the prosecution. When the independent witnesses are not examined by the prosecution, the prosecution theory of seizing the contraband from the custody of the accused cannot be believed. Therefore, non examination of independent mediators at the vicinity of the scene of offence is fatal to the case of the prosecution.

16)Our Hon'ble High Court in Mudavath Mothia Vs. State Of A.P.

reported in 2002 1 ALT(Cri) 437= 2002 0 Supreme(AP) 232 at para

No.5, it was held as follows:- “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 confession recorded by them in the proceedings is inadmissible.”

It is further held that: “When the independent witnesses are not examined by the prosecution, the prosecution theory of seizing the contraband from the custody of the accused has to be looked with suspicion. The non-examination of independent mediators is fatal to the prosecution version. The seizure proceedings drafted also cannot be considered in view of the bar under Secs. 25 and 27 of the Indian

EVIDENCE ACT, 1872 and Sec. 161 of Cr. P. C.”

17)Further our Hon'ble High Court S. BABU SAHEB ALIAS BABU

VS.STATE OF A.P reported in 2010 (1) ALT(Cri) 32 at para No.16, it was held as follows:- “When the police conducting the search in a colony or at a place wherein there is possibility of securing the presence of independent mediators, the excise officials or prohibition officers are bound to take the local respectable independent inhabitants. They must make sincere efforts to secure local 6 C.C.No.727 of 2021 respectable mediators.That is the mandate of Section 100 (4) of Cr. P. C. As referred to in the above provisions, the excise officials are also authorized to issue an order in writing asking them to act as mediators under subsection (4) of Section 100 Cr.P. C. The object of Section 100 Cr. P. C. is to ensure confidence in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted. The presence of independent respectable mediators at a search is always desirable and the presence of mediators of any other locality would not only weaken, but sometimes destroy the prosecution case.”

18)In the case on hand, the prosecution failed to secure the independent mediators and failed to examine any independent witness rather than the interested witness to establish the guilt of the accused and failed to follow proper procedure prescribed under law. Hence, viewed from any angle there is no credibility to the prosecution witnesses to establish the guilt of the accused and their evidence cannot be believed. Therefore, there is no cogent and reliable evidence to implicate the complicity of the accused in commission of the offence. The material produced by the prosecution is not sufficient to bring home the guilt of the accused beyond reasonable doubt. Thereby, the point is decided in favour of the defence and against to the prosecution.

19)In the result, Accused found not guilty for the offence punishable U/Sec.34(a) of A.P. Excise Act and accordingly, he is acquitted

U/Sec.248 (1) Cr.P.C.,. The bail bonds of the accused shall be in force for a period of six months U/Sec.437-A of Cr.P.C., and thereafter which shall stand cancelled. M.O.1 sample bottle which was received vide CPR Item

No.138/2021 shall be destroyed after lapse of appeal time.

Typed to my dictation to the Stenographer, Grade-III, corrected and

pronounced by me in open court, this the 13th day of April, 2022.

Sd/- R. Harika

ADDL., JUDL., MAGISTRATE OF I CLASS,

RAYACHOTY.

7 C.C.No.727 of 2021

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence:

P.W.1: P. Bhargava Reddy, -NONE- P & E Inspector, Rayachoty.

EXHIBITS MARKED

For Prosecution: For Defence:

Ex.P.1 Special Report. -NIL- Ex.P.2 FIR Ex.P.3 Chemical analysis Report.

MATERIAL OBJECTS MARKED

M.O.1 is sample bottle.

M.O.2 is sample bottle.

Sd/- R. Harika

ADDL., JUDL., MAGISTRATE OF I CLASS,

RAYACHOTY.

8 C.C.No.727 of 2021

CALENDAR AND JUDGMENT

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

Court, Rayachoty.

C.C.No :727/2021

DATE OF

Offence ReportApprehensionRelease onCommencemenClose of Judgment of accusedbailt of trial trial 30.6.202030.6.202030.6.202030.6.202031.03.202206.04.202213.04.2022

State: Represented by the SEB Inspector, Rayachoty. ….Complainant

Vs.

Mahadevapalli Venkata Siva, S/o M.Venkataswamy, Age 26 years, R/o Gandlaveedhi, Vempalli Village and Mandal, Y.S.R Kadapa District.

…..Accused

Offence : U/Sec.34(a) of A.P. Excise Act.

Finding : Not guilty

Sentence :

In the result, Accused found not guilty for the offence punishable U/Sec.34(a) of A.P. Excise Act and accordingly, he is acquitted U/Sec.248 (1) Cr.P.C.,. The bail bonds of the accused shall be in force for a period of six months U/Sec.437-A of Cr.P.C., and thereafter which shall stand cancelled. M.O.1 sample bottle which was received vide CPR Item No.138/2021 shall be destroyed after lapse of appeal time.

Sd/- R. Harika

Addl., Judl., Magistrate of I Class,

Rayachoty.

Copy to The Hon'ble I Addl. District and Sessions Judge, Kadapa.

1

IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF I

CLASS: RAYACHOTY.

PRESENT: R.HARIKA,

ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

RAYACHOTY.

WEDNESDAY, THIS THE 22 nd DAY OF MAY, 2019.

C.C.No.361/2017

Between: State represented by Sub-Inspector of Police, Rayachoty U/G P.S.

….. Complainant

Vs

Kyathm Ganesh, S/o Bala Rajesham, age 25 years, D.No.3-136, Indira Nagar, Prasanth Nagar, Siddipet Town, Medak District, Telangana State, owner cum driver of Tempo No.AP-01-Y-3387.

…..Accused

This calendar case is coming on this day before me for final hearing on 17-05-2019 in the presence of learned Sri D.Anil Kumar,Assistant Public Prosecutor for complainant/State and Sri.T.Jaganmohan Reddy, advocate for accused upon hearing both sides, upon perusing the entire material on record and having stood over for consideration to this day, this court delivered the following:

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

State represented by Sub-Inspector of Police, Rayachoty U/G Police Station laid charge sheet against accused in Cr.No.298/2017 for the offence punishable

U/Sec.304-A of Indian Penal Code (IPC in brevity) and Sec.134 (a)(b) r/w 187 of Motor

Vehicle Act (M.V.Act in brevity).

2. The case of the prosecution in nut shell is that about 6 years back PW.1 performed the marriage of deceased/S.Subhan and deceased/S.Subhan blessed with three daughters. PW.1 brother by name Allabakash is residing at Kadapa City and suffering with ill health. While so on 24.05.2017 night at about 11.00 p.m., deceased/S.Subhan 2 left his house in his motorcycle bearing No.AP-04-BH-6212 to go to Kadapa to see his ill health junior paternal uncle and proceeding towards Kadapa side, en-route on 25.05.2017 at about 12.15 a.m., after passing Rayachoty and when reached near Sai

Engineering College, Rayachoty town, in the meantime accused being the driver of

Tempo vehicle No.AP-01-Y-3387 proceeding from Kadapa side, drove the tempo vehicle in a rash and negligent manner without taking any due care and dashed the motorcycle of deceased/S.Subhan, as a result deceased/S.Subhan jumped and fell down on ground and sustained severe bleeding injury on his back side, injuries over his left knee, left hand wrist and seems to be fracture and died on the spot and accused tempo driver fled away from the spot by leaving the crime vehicle itself there. PW.2 witnessed the occurrence and telephoned PW.1 and informed about the occurrence. On coming to know the incident, PW.1 and PW.3 rushed to the spot and found dead body of deceased/S.Subhan.

Basing on the report of PW.1, the PW.5/M.Venugopal Naik, HC-135,

Rayachoty U/G police station registered a case in Cr.No.298/2017, U/sec.304-A of IPC and investigated into. During the course of investigation, on 25.05.2017 PW.5 conducted inquest over the deceased/S.Subhan in the presence of kith and kin of deceased/S.Subhan and also inquest panchayatdars i.e., PW.4, LW.6/S.Taj Basha and

LW.7/S.Syed Basha, sent the dead body of deceased/S.Subhan before LW.8/Dr.Nissar

Ahammad for conducting autopsy over the dead body, secured the presence of P.Ws.1 to 3, recorded their detailed statements, visited the scene of offence and prepared rough sketch of the scene of offence. LW.11/M.Mohammad Rafi, S.I of police, Rayachoty U/G police station verified the investigation done by PW.5. During further investigation

LW.11/M.Mohammad Rafi, S.I of police, arrested accused and sent him for remand through this Hon’ble court. On 25.05.2017 LW.8/Dr.Nissar Ahammad issued 3 postmortem certificate and opined that deceased/S.Subhan died due to cardio respiratory failure due to grave paenarr head due to traffic accident. LW.9/D.Sreenivasulu, Motor

Vehicle Inspector, Rayachoty inspected the crime vehicle and issued MVI report and opined that the accident occurred not due to mechanical defects of vehicle. Thus accused being the driver of temp vehicle No.AP-01-Y-3387 drove the vehicle in a rash and negligent manner without taking any due care and dashed the motorcycle of deceased/S.Subhan and caused death of deceased/S.Subhan, after commission of offence, accused fled away from the spot without providing the medical aid to victim of deceased/S.Subhan or inform the occurrence nearby the police station. Hence, accused is punishable U/sec.304-A of IPC and Sec.134(a)(b) r/w 187 of M.V.Act. Hence, the

CHARGE.

3. In this case cognizance was taken by my predecessor for the offence punishable U/Sec.304-A of IPC and Sec.134 (a)(b) r/w 187 of M.V.Act against accused.

4. After the appearance of the accused, the copies of the documents as required U/sec.207 code of Criminal Procedure (Cr.P.C in brevity) were furnished to him.

5. The accused was examined U/sec.251 of Cr.P.C. and the substance of accusation for the offence punishable U/Sec.304-A of IPC and Secs.134 (a)(b) r/w 187 of M.V.Act is put to him, read over and explained to him. He has pleaded not guilty and claimed to be tried.

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

PW.1 to 5 and got marked Exs.P1 to P10. The learned A.P.P. has given up the evidence 4 of L.Ws.6 to 9 and LW.11 namely S.Taj basha, S.Syed Basha, Dr.Nissar Ahammad,

D.Sreenivasulu, MVI and M.Mohammad Rafi, S.I of police, Rayachoty U/G police station respectively.

7.After the closure of the prosecution side evidence, the accused is examined under section 313 of Cr.P.C., and the incriminating was put to him. He denied the same and reported no defence evidence.

8.Heard both sides. Perused the material on record.

9. The point germane for determination is :- “Whether the prosecution is successful in establishing the accusation levelled against the accused under Sec.304-A of IPC and Sec.134(a)

(b) r/w 187 of M.V.Act beyond all reasonable doubt” ?

10. To prove the offence U/sec.304-A of IPC the prosecution has to establish the following aspects:-

1) The involvement of the Tempo bearing No.AP-01-Y-3387 in the present accident.

2) The accused to be the driver of the crime vehicle at the relevant time of accident.

3) The rash/negligent driving on the part of the accused is causing the death of Sri S.Subhan.

To prove the offence U/sec.134 (a) & (b) r/w 187 of M.V. Act, the prosecution has to establish that the accused herein has not informed about the accident at the near by police station and not shifted the injured to the hospital and has fled away.

5

11. POINT:-

It is the case of the prosecution that on 25.05.2017 at about 12.15 a.m., when deceased/S.Subhan reached near Sai Engineering College, Rayachoty town in his motorcycle bearing No.AP-04-BH-6212, in the meantime accused being the driver of

Tempo vehicle No.AP-01-Y-3387 proceeding from Kadapa side, drove the tempo vehicle in a rash and negligent manner without taking any due care and dashed the motorcycle of deceased/S.Subhan, as a result deceased/S.Subhan jumped and fell down on ground and sustained severe bleeding injury on his back side, injuries over his left knee, left hand wrist and seems to be fracture and died on the spot and accused tempo driver fled away from the spot by leaving the crime vehicle itself there.

12.On the other hand the case of the defence is that total denial. In order to prove this case the prosecution examined P.Ws.1 to 5.

13.PW.1 deposed in his evidence that about 2 years back on one day, deceased/S.Subhan about to go to Kadapa and he proceeded in his two wheeler vehicle at 11.00 p.m. He deposed that he received a phone call from unknown person stating that deceased/S.Subhan met with an accident at Sai Engineering College, Rayachoty, immediately, he went to scene of offence, by that time deceased/S.Subhan lying dead on the road. He deposed that immediately he made a phone call to 108 ambulance and shifted deceased/S.Subhan to Government hospital, Rayachoty, afater examination the doctors of Government hospital, Rayachoty decalred deceased/S.Subhan died due to sustained injuries in the accident. He further deposed that he does not know the reasons for the accident, during the period the police obtained his signatures on one written paper, he does not know the contents of the said paper, but he identified his signatures which is shown to him and the same is marked as Ex.P.1. He deposed that police did not 6 examine him.

14.P.Ws.2 and 3 deposed in their evidence that they do not know accused, they do not know anything about this case and police did not examine them.

15.PW.4 deposed in his evidence that about 2 years back on one day he along with LW.6S.Taj Basha and LW.7/S.Syed Basha went to Government hospital, Rayachoty at that time police of Rayachoty conducted inquest over deceased/S.Subhan in their presence and prepared inquest report and obtained their signatures. Ex.P.5 is inquest report. In his cross examination he stated that police of Rayachoty obtained their signatures at Rayachoty police station.

16.PW.5 deposed in his evidence that on 25.05.2017 at 6.00 a.m., while he was present at police station, he received written report from PW.1. Ex.P.6 is written report.

Basing upon Ex.P.6 he registered a case in Cr.No.298/2017, U/sec.304-A of IPC and issued F.I.Rs to all concerned officers. Ex.P.7 is F.I.R. He deposed that immediately he reached the scene of offence and conducted inquest over the deceased/S.Subhan, forwarded deceased/S.Subhan to Government hospital, Rayachoty for postmortem. He deposed that at the scene of offence he recorded the statements of P.Ws.1 to 3 and also prepared rough sketch of the scene of offence. ex.P.8 is rough sketch. He deposed that he made a request to LW.9/S.Sreenivasulu, Motor Vehicle Inspector, Rayachoty and he forwarded case file to LW.11/M.Mohammad Rafi, Sub Inspector of police, Rayachoty.

He depose that on 08.06.2017 LW.11/S.I of police arrested accused and remanded to judicial custody through this Hon’ble court. After completion of the investigation he filed charge sheet against accused. In his cross examination he admitted that the scene of offence is National Highway and it is a busy road.

7

17.As Pws.1 to 3 did not supported the case of the prosecution, they were cross examined by the learned A.P.P. and during the cross examination except marking of

Exs.P.1 to Ex.P.4, nothing was elicited in favour of the prosecution.

18.According to the prosecution, PW.4 is the panchayatdar of inquest over the dead body of deceased/S.Subhan. The evidence of PW.4 inquest mediator shows that police conducted inquest to know the apparent cause of death of the deceased. PW.5 investigating officer deposed his part of role in investigation as mentioned in the charge sheet.

19. On perusal of entire evidence on record, the evidence on record only shows that the deceased/S.Subhan died as the Tempo vehicle bearing No.AP-01-Y-3387 which was driven by its driver in a rash and negligent manner and hit the deceased, resulting deceased/S.Subhan died. But, it failed to prove that the accused acted as the driver of the crime vehicle at the time of accident. Even though PW.5 deposed about the accused as the driver of the crime vehicle at the time of accident, but his evidence cannot be looked into due to the lack of corroboration from any independent witnesses.

20.On considering the above facts and circumstances, this court is of the opinion that the prosecution utterly failed to prove that the accident occurred due to the rash and negligent driving of the driver of the crime vehicle leading to the death of the deceased and there is no evidence on record that the accused is the driver of the crime vehicle at the time of this accident and hence, this court is of the opinion that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt for the offence punishable U/sec.304-A of IPC and Sec.134 (a) (b) r/w 187 of M.V.Act and 8 accordingly, he is acquitted under Section.255 (1) Cr.P.C.

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

U/sec.304-A of IPC and Sec.134(a)(b) r/w 187 of M.V.Act and accordingly, he is acquitted U/Sec.255 (1) of Cr.P.C. The bail bonds of accused shall be in force for six months under Sec.437-A of Cr.P.C. The unmarked case property, if any, shall be destroyed after expiry of appeal time.

Directly typed to my dictation to the Typist, corrected and pronounced by me in open court, this the 22nd day of May, 2019.

Sd/- R.Harika,

Addl. Judl. Magistrate of I Class, Rayachoty.

MEMO OF EVIDENCE

Witnesses examined for prosecution:For Defence: NIL

PW.1: S.Mahaboob Basha, PW.2: M.Basha @ B.Basha, PW.3: S.Mohammad Valli, PW.4: P.Shafi Khan, PW.5: M.Venugopal Naik. Exhibits marked for prosecution: For Defence: NIL

Ex.P1: Signature of PW.1 in the complaint Ex.P2: 161(3) Cr.P.C statement PW.1 Ex.P3: 161(3) Cr.P.C statement PW.2 Ex.P4: 161(3) Cr.P.C statement PW.3 Ex.P5: Inquest report Ex.P6: Written report Ex.P7: F.I.R in Cr.No.298/2017 of Rayachoty U/G P.S. Ex.P8: Rough sketch Ex.P9: M.V.I. Report Ex.P10: Postmortem report.

Material Objects:- NIL.

Sd/- R.Harika,

A.J.F.C.M., Rct.

1 C.C.No.725 of 2021

IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF

I CLASS: RAYACHOTY

PRESENT: SMT. R. HARIKA,

ADDL. JUDICIAL MAGISTRATE OF I CLASS,

RAYACHOTY.

Wednesday, this the 13th day of April, 2022.

C.C.No.725/2021

Represented by the SEB Inspector, Rayachoty

….. Complainant

Vs.

Patan Mahaboob Khan, S/o Pathan Hussain Khan, Age 47 years, Caste Muslim, R/o H.No.10/160, Mahaboob Nagar, Rayachoty Village and Mandal, Y.S.R Kadapa District.

…..Accused

This calendar case coming on this day before me for final hearing in the presence of Assistant Public Prosecutor for Complainant/State and of Sri R.Veerabadraiah, Advocate for Accused, upon hearing both sides, upon perusing the entire material on record having stood over for consideration to this day, this court delivered the following:

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

TheSEB Inspector, Rayachoty laid charge sheet against Accused in

Crime No.201/2020 for the offence punishable Under Sec.34 (a) of AP Excise

Act, 2019.

2) The case of the prosecution as set out in the charge sheet, in brief, are as follows:

On 25.06.2020 during raids conducted by PW1 along with staff reached at thorn bushes in Vanka which is ½ kilometer distance and South direction to Madapeta Reddyvaripalli Village of Rayachoty Mandal where they found the accused with one black color plastic cover in front off him. On seeing the excise officials, the accused tried to escape but he was detained. On enquiry done by PW1, the accused revealed that the plastic cover containing liquor bottles. On interrogation the accused his name and identity particulars.

Then they tried for mediators but in vain. Then P.W.1 verified the black colour plastic cover and found 14 nips of SPY HD Gold Whisky bottles and then he drawn one 180 ML sample bottle for chemical analysis and then 2 C.C.No.725 of 2021 seized the remaining property and got sealed and labeled. Then after informing the grounds of his arrest, PW1 has arrested the accused under the cover of special report drafted on the spot. Later P.W.1 registered a case in

Cr.No.201/2020 Under Sec.34(a) of AP Excise Act and released the accused on station bail. Later PW.1 sent the sample bottle to Government Regional

Proh., & Excise Chemical Laboratory, Kurnool for analysis and report and the

Chemical Examiner opined that the sample is “Indian Liquor”. The remaining seized liquor was destroyed as per the orders of Superintendent of

Police, Kadapa. After completion of investigation, LW4/Enforcement

Inspector, SEB Station, Rayachoty laid charge sheet against accused. Hence, the Charge.

3) Cognizance was taken for the offence punishable U/Sec.34(a) of AP

Excise Act against the accused.

4) On appearance of accused, copies of documents were furnished to him as contemplated U/Sec.207 of Cr.P.C.

5) Accused was examined U/Sec.239 Cr.P.C., he denied the accusation made against him. A charge U/Sec.34(a) of AP Excise Act has been framed against him and the contents of the said charge was read over and explained to him in Telugu for which he pleaded not guilty and claimed to be tried.

6) The prosecution in order to bring home the guilt of accused has examined P.W.1 and got marked Ex.P.1 to P3 and M.O.1. Learned Assistant

Public Prosecutor given up the evidence of Lws.2 to 4.

7) On closure of prosecution evidence, Accused was examined

U/Sec.313 Cr.P.C., for the incriminating material appearing against him in the prosecution evidence by explaining the same to him in Telugu, for which he denied the same and further he stated that he has no defence evidence on his behalf.

3 C.C.No.725 of 2021

8) Heard learned Assistant Public Prosecutor and the Counsel appearing for Accused. Perused the material on record.

9) Learned Assistant Public Prosecutor argued that the evidence of

P.W.1 and the contents of Exs.P.1 to P.3 and M.O.1 are sufficient to prove the case of prosecution and prayed to convict the accused as per law.

10) Learned Counsel appearing for accused contended that P.W.1 is an Excise Official and his evidence is not corroborated by the evidence of any independent witness, as such it is not sufficient to prove the case of the prosecution. Learned counsel appearing for accused further contended that

Excise Officials should have made an attempt to secure the panchayatdars from the immediate vicinity of the scene of offence, but they did not do so and it throws a doubt about the version of the P.W.1. Learned counsel appearing for accused further contended that except the self serving testimonies of Excise official, absolutely there is no evidence on record to prove the recovery of the property from the possession of accused and its disposal. He further contended that in the absence of any corroborative evidence from independent source as to the recovery of liquor bottles from the possession of accused, or that the very same property was tested by the chemical analyst and the property was destroyed, it is unsafe to conclude that the accused committed the offence punishable U/Sec.34(a) of AP Excise

Act, 2019.

11)Point for determination is:- “Whether the prosecution could able to prove the guilt of Accused for the offence punishable U/Sec.34(a) of AP Excise Act, 2019 beyond all reasonable doubt?”

12)POINT:

The case of the prosecution is that on 25.06.2020 at thorn bushes in

Vanka which is ½ kilometer distance and South direction to Madapeta

Reddyvaripalli Village of Rayachoty Mandal, the accused was found in 4 C.C.No.725 of 2021 possession of 14 nips of SPY HD Gold Whisky bottles without having license in a black colour plastic cover, as such a special report was drafted on the spot evidencing recovery of liquor bottles. Prosecution in order to substantiate its case examined P.W.1 and got marked Exs.P.1 to P.3 and

M.O.1 to prove the guilt of the accused.

13)P.Ws.1 is an Excise Official. P.W.1 in his chief-examination deposed that about the conducting of raids on 25.06.2020 at thorn bushes in

Vanka which is ½ kilometer distance and South direction to Madapeta

Reddyvaripalli Village of Rayachoty Mandal, the accused was found in possession of 14 nips of SPY HD Gold Whisky bottles without having license in a black colour plastic cover, seizure contraband, arrest of the accused, lifting of one 180 ML sample bottle, drafting of Ex.P.1 Special Report, registration of case in Cr.No.201/2020 U/Sec.34(a) of AP Excise Act and

Issued FIR under Ex.P.2, released the accused on station bail, sending of sample bottle to the chemical examiner through this Hon’ble Court, obtaining of chemical analysis report under Ex.P.3 and laying of charge sheet before this Hon’ble court.

14)P.W.1 in his cross-examination admitted that the scene of offence is busy locality and it is surrounded by so many villages and they did not prepare any rough sketch of the scene of offence. As the scene of offence is busy locality and it is surrounded by so many villages as admitted by P.W.1 in his cross-examination what prevented P.W.1 to secure independent mediators at the scene of offence. Even they did not prepare the rough sketch of the scene of offence and atleast they did not try to secure the independent mediators after they reached to the police station from scene of offence.

15)As can be seen from the evidence of P.W.1, no serious attempts were made for securing mediators. In this case, except the oral testimony of 5 C.C.No.725 of 2021

P.W.1, no other independent witness is examined by the prosecution. When the independent witnesses are not examined by the prosecution, the prosecution theory of seizing the contraband from the custody of the accused cannot be believed. Therefore, non examination of independent mediators at the vicinity of the scene of offence is fatal to the case of the prosecution.

16)Our Hon'ble High Court in Mudavath Mothia Vs. State Of A.P.

reported in 2002 1 ALT(Cri) 437= 2002 0 Supreme(AP) 232 at para

No.5, it was held as follows:- “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 confession recorded by them in the proceedings is inadmissible.”

It is further held that: “When the independent witnesses are not examined by the prosecution, the prosecution theory of seizing the contraband from the custody of the accused has to be looked with suspicion. The non-examination of independent mediators is fatal to the prosecution version. The seizure proceedings drafted also cannot be considered in view of the bar under Secs. 25 and 27 of the Indian

EVIDENCE ACT, 1872 and Sec. 161 of Cr. P. C.”

17)Further our Hon'ble High Court S. BABU SAHEB ALIAS BABU

VS.STATE OF A.P reported in 2010 (1) ALT(Cri) 32 at para No.16, it was held as follows:- “When the police conducting the search in a colony or at a place wherein there is possibility of securing the presence of independent mediators, the excise officials or prohibition officers are bound to take the local respectable independent inhabitants. They must make sincere efforts to secure local respectable mediators.That is the mandate of Section 100 (4) of Cr. P. C. As referred to in the above provisions, the excise officials are also authorized to issue an order in writing asking them to act as mediators under subsection (4) of Section 100 Cr.P. C. The object of Section 100 Cr. P. C. is to ensure confidence in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted. The presence of independent respectable mediators at a search is always desirable and the presence of mediators of any other locality would not only weaken, but sometimes destroy the prosecution case.” 6 C.C.No.725 of 2021

18)In the case on hand, the prosecution failed to secure the independent mediators and failed to examine any independent witness rather than the interested witness to establish the guilt of the accused and failed to follow proper procedure prescribed under law. Hence, viewed from any angle there is no credibility to the prosecution witnesses to establish the guilt of the accused and their evidence cannot be believed. Therefore, there is no cogent and reliable evidence to implicate the complicity of the accused in commission of the offence. The material produced by the prosecution is not sufficient to bring home the guilt of the accused beyond reasonable doubt. Thereby, the point is decided in favour of the defence and against to the prosecution.

19)In the result, Accused found not guilty for the offence punishable U/Sec.34(a) of A.P. Excise Act and accordingly, he is acquitted

U/Sec.248 (1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months U/Sec.437-A of Cr.P.C., and thereafter which shall stand cancelled. M.O.1 sample bottle which was received vide CPR Item

No.133/2021 shall be destroyed after lapse of appeal time.

Typed to my dictation to the Stenographer, Grade-III, corrected and

pronounced by me in open court, this the 13th day of April, 2022.

Sd/- R. Harika

ADDL., JUDL., MAGISTRATE OF I CLASS,

RAYACHOTY.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence:

P.W.1: P. Bhargava Reddy, -NONE- P & E Inspector, Rayachoty.

EXHIBITS MARKED

For Prosecution: For Defence:

Ex.P.1 Special Report. -NIL- Ex.P.2 FIR Ex.P.3 Chemical analysis Report.

7 C.C.No.725 of 2021

MATERIAL OBJECTS MARKED

M.O.1 is sample bottle.

Sd/- R. Harika

ADDL., JUDL., MAGISTRATE OF I CLASS,

RAYACHOTY.

8 C.C.No.725 of 2021

CALENDAR AND JUDGMENT

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

Court, Rayachoty.

C.C.No :725/2021

DATE OF

Offence ReportApprehensionRelease onCommencemenClose of Judgment of accusedbailt of trial trial 25.6.202025.6.202025.6.202025.6.202009.02.202206.04.202213.04.2022

State: Represented by the SEB Inspector, Rayachoty. ….Complainant

Vs.

Patan Mahaboob Khan, S/o Pathan Hussain Khan, Age 47 years, Caste Muslim, R/o H.No.10/160, Mahaboob Nagar, Rayachoty Village and Mandal, Y.S.R Kadapa District.

…..Accused

Offence : U/Sec.34(a) of A.P. Excise Act.

Finding : Not guilty

Sentence :

In the result, Accused found not guilty for the offence punishable U/Sec.34(a) of A.P. Excise Act and accordingly, he is acquitted U/Sec.248 (1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months U/Sec.437-A of Cr.P.C., and thereafter which shall stand cancelled. M.O.1 sample bottle which was received vide CPR Item No.133/2021 shall be destroyed after lapse of appeal time.

Sd/- R. Harika

Addl., Judl., Magistrate of I Class,

Rayachoty.

Copy to The Hon'ble I Addl. District and Sessions Judge, Kadapa.