Smt J.katyaini

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IN THE COURT OF I ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS: KOVUR

Present: Smt J.Kathyayini, I Additional Judicial Magistrate of First Class, Kovur.

Wednesday, this the Seventh (07th ) day of August, 2024

CALENDAR CASE No.1030 of 2023

The State of A.P., represented by Sub-Inspector of Police,

Kodavalur Police Station. .. Complainant.

Versus:

1. Chalamcharla @ Dodla Venkataramanamma @ Lakshmi, W/o Penchalaiah, aged 42 years, Yanadi by caste, Jandadibba Village, Sangam Mandal, SPSR Nellore District.

2. Avula Rajavelu, S/o Ponnaiah, aged 30 years, Mala by caste, opposite Malakondareddy Hospital, Tanguturu Town & Mandal, Prakasam District, R/o Venkateswarapuram

Under Bridge, Nellore. .. Accused.

This case is coming on 05-08-2024 for final hearing before this Court in the presence of learned Assistant Public Prosecutor for the State and the learned Counsel Ch.Chandra Mohan for the Accused/A1 and A2, upon hearing both sides and the matter having stood over for consideration till this day, this Court delivered the following:-

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

The State represented by Sub-Inspector of Police, Kodavalur Police

Station, filed charge sheet in crime No.95/2023 of Kodavalur Police Station against the accused for the offences punishable under Sections 448, 363 and 379 of Indian Penal Code (herein after referred to as ‘IPC’), alleging as follows:

2. On 08-08-2023 the de-facto-complainant/Thummala Srini came to his house, situated at Konduruvari Street, North Rajupalem Village, Kodavalur

Mandal, at that time, his wife/Muthaiah Pandu Shelvi/LW1, who was working 2 as woman Mahila Sishu Samrakshna Karyadarsi in Sachivalayam,

Gangavaram went to her job and her parents are in the house. After completion of their lunch, LW1 and his father were slept in their house, his mother/Thummala Vani/LW3 lay down his female child in a swing cradle in their house Varandha and she slept on a cot near the cradle. At about 02-00

P.M., the unknown female and male accused trespassed into the house varanda of LW1 and while taking up the child from the cradle, at that time the female person hands touched LW3, she woke up and noticed the accused while escaping from their verandah by kept the child on the shoulders and followed them by screaming, on hearing her scream, LW1 woke up and rushed out, noticed the same and he also followed the accused by run by screaming. On hearing their screams, the neighbors came from their houses and when they ran on the back side of the accused for some distance, the accused/unknown female and male persons committed theft of silver anklets of the child, weighing about 40 grams, worth Rs.3,000/-, kept the kidnapped child on the ground and escaped from there by running. Then LW1 and LW3 took up the child and went back to their house and he informed the same to his wife/LW1, immediately LW2 came to the house and they found silver anklets were committed theft from the legs of child.

(i) Basing on the report of LW1, LW12/Bandi Srikanth, Assistant

Sub-Inspector of Police, Kodavalur Police Station registered a case in crime

No.95/2023 for the offence punishable under Section 363 IPC and investigated into. During the course of investigation, LW14/G.Subba Rao,

Sub-Inspector of Police, Kodavalur Police Station, examined the victims/LW1 and LW2 and their parents and recorded their statements and then he visited the scene of offence, noticed the victim female child, aged 08 months, got up photo of the child and verified the CC Camera footages, examined the witnesses and recorded their statements. On 14-08-2023

LW14 arrested A1 and A2 and seized stolen property/silver anklets from the 3 possession of accused under cover of mahazarnama and sent for judicial remand. On 16-08-2023 the mediators/LW11/Kota Padmaja and LW12/Bandi

Srikanth conducted identification parade of stolen property, in turn LW2 rightly identified the property in this case. LW13/Smt.R.Varalakshmi, the then AJMFC., Kavali conducted Test Identification Parade of accused/A1 and

A2 at Central Prison, Nellore and forwarded the TIP proceedings to this

Court. After completion of entire investigation, LW14 filed charge sheet against A1 and A2 for the offences punishable under Sections 448, 363 and 379 IPC.

3. This Court took cognizance against the accused/A1 and A2 for the offences under Sections 448, 363 and 379 IPC.

4. On appearance of the accused before this Court, copies of relevant case records were furnished to them as required under Section 207 of Cr.P.C.

5. The accused/A1 and A2 were examined under Section 239 Cr.P.C and the charges for the offence punishable under Sections 448, 363 and 379 IPC were framed, read over and explained to the accused in Telugu, for which, they denied the offences by pleading not guilty and claimed to be tried.

6. During the course of trial, the prosecution examined PW1 to PW11 and marked Ex. P1 to Ex. P8 and MO1.

7. After completion of the prosecution evidence, A1 and A2 were examined under Section 313 of Cr.P.C in respect of incriminating material available in the evidence of prosecution, for which, the accused pleaded not guilty and reported no defense evidence.

8. Heard both sides. Perused the record.

9. The learned APP submitted that the evidence of PW1 to PW11 coupled with Ex. P1 to Ex. P8 and MO1 and MO2 proved the guilt of the accused No.1 and 2 for the alleged charges. Hence, he prayed to convict the accused No.1 4 and 2 basing on the evidence of PW1 to PW11.

10. On the other hand, the learned counsel for the accused submitted that PW9 and PW10 are the investigating officers in this case, they have interested over their case and there is no corroboration to their evidence.

Though the prosecution examined punch witness as PW8 and PW9 who participated at the time of arrest of accused and seizure of stolen property deviated their chief-examination in their cross-examination, which is fatal to the prosecution case. He further argued that there is no incriminating material against the accused available on record and no iota of evidence placed by the prosecution to show that the accused committed theft of MO1.

Hence, prayed to acquit the accused.

11. Now the point for determination is:

(i) Whether the prosecution proved the guilt of accused No.1 and 2 that they committed house-trespass by entering into the house of LW1 to commit an offence for the offence punishable under

Section 448 r/w 34 IPC beyond all reasonable doubt?

(ii) Whether the prosecution proved the guilt of the accused No. 1 and 2 that they committed kidnapping the female of child of LW1 for the offence punishable under Section 363 r/w 34 IPC beyond all reasonable doubt? and

(iii) Whether the prosecution proved the guilt of the accused No. 1 and 2 that they committed silver anklets of the female child of

LW1 for the offence punishable under Section 379 r/w 34 IPC beyond all reasonable doubt?

Point No.1 to 3 discussed together:

12. In order to substantiate its case, prosecution has examined Pws.1 to 11 out of 14 listed witnesses and got marked Ex. P1 to P8. PW.1 is the de facto complainant, PW.2 is the wife of PW.1. P.Ws.3, PW 4 and PW6 are direct eye witnesses, PW.5 is not eye witness PW8 and 9 are acted as mediators. PW.10 is the Investigating Officer, who registered and 5 investigated the above case. PW11 is a Magistrate who conducted test identification parade of accused No. 1 and2. Ex.P1 is the complaint of PW.1, dt.12.12.2020, Exs.P.2 and P3 are seizure mahzarnamas, Ex.P.4 is the property identification report, Ex.P.5 is the Original First Information Report,

Ex.P.6 is the rough sketch of scene of offence, Ex.P 7 is the requisition sent by PW10 to PW11 and Ex.P 8 is the test identification report.

13. The Stand of Accused No.1 and 2 are total denial. No evidence was adduced on their behalf.

14.The learned Assistant Public Prosecutor submitted that the evidence of P.W.1/de facto complainant is supported by the evidence of P.W.2 to 6 coupled with Ex.P 1 to Ex.P8 clinchingly establishes that both the accused criminally trespassed in to house of PW1 and kidnapped baby of PW1 and also committed theft of silver anklets. He further submitted that the acts of the accused No. 1 and 2 are heinous and they deserve to be punished severely under the leveled charges and no sort of lenient view shall be taken against both the accused in the light of grievous nature of offence.

15.Fulminating the submissions of prosecution, the learned legal aid

Counsel for accused argued that in the absence of any independent and reliable evidence, the testimonies of P.Ws.1 to 3 related witnesses cannot be believed and the same shall not be taken into consideration for the posing conviction against the accused No.1 and 2. He further contended that the

Investigating Officer failed examine the local independent witnesses, PW11 is a judicial officer who conduct test identification parade of A1 and A2 admitted in her cross examination witnesses did not identify the accused no.2. In view of these vital deficiencies in the case of prosecution, both the accused are entitled for acquittal on the ground of benefit of doubt.

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16.In view of these rival contentions, entire evidence is perused and this court has given thoughtful consideration to the contention of both sides.

APPRECIATION OF EVIDENCE:

17. In order to bring home the guilt of both the accused No.1 and 2 for the offences punishable under section 448, 363 and 379 r/w34 IPC. The prosecution has to prove that the accused no. 1 and 2 criminally tress passed in to the house of PW1 and kidnapped his daughter and committed theft of silver anklets of his daughter.

18.So, it is the initial burden of prosecution to establish that

Accused No. 1 and 2 were criminally trespassed in to the house of PW1 and kidnapped his daughter and also committed theft . In order to prove the same, the prosecution has placed reliance on the evidence of PW1, PW3.

Coming to the evidence let in by the prosecution, firstly it would be beneficial go through the evidence of PW1, who set the criminal law into motion by giving EX. P1. report to the police. His evidence goes to show that on 08-08-2023 at about 2 PM he was sleeping along with his father in his house. LW3/PW3 his mother and his daughter were sleeping in the veranda, at that time A1 and A2 kidnapped his daughter and escaped from that place.

At that time A1 hand touched to PW3/ LW3, immediately PW3/ LW3 woke up and raised cries.

On hearing the cries of his mother, he also woke up and asked his mother. Then LW3 stated him that one lady and one male kidnapped his daughter. PW1 searched the surroundings for his daughter with his neighbors. On seeing them, A1 and A2 left his daughter under a Eucalyptus tree and fled. Later, he along with LW2 went to police station and gave a report the police. The evidence of PW1 is corroborated with the contents of

Exhibits P1 reports. The learned counsel for accused tried to discredit the veracity of PW1 By posing many questions denying the case of prosecution, he failed to elicit any material doubt the credibility of witness.

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19.Coming to the evidence of P.W.2 who is wife of P.W.1, she candidly deposed before the Court that on 08-08-2023, she was in duty PW1 made a phone call and informed as some unknown persons tried to kidnap her daughter. Immediately she went to her house. LW3 who is mother-in law of PW2, also informed the same to her. Then she observed her daughter and found silver anklets were missing from her daughter. Then PW1 and

She, went to the police station and gave a report the police. Police conduct test identification of property in the presence of mediators. Police recover the property, PW2 identified silver anklets of her daughter which was stolen by accused no. 1 and 2 in the presence of mediators. The learned counsel for defense did not elicit any material to doubt the genuineness and credibility of the version spoken by the witness.

20. Turning to the evidence of P.W.3, who is eye witness in this case, she deposed before the Court that on 08-08-2023, at about 2.00PM she slept in veranda with her granddaughter, while she was in sleeping leg of her granddaughter touched her right hand. She immediately woke up and noticed that one lady took her granddaughter from cradle and tried to escape from the place. Then she called PW1 and at the same time A1 ran into Eucalyptus trees. On hearing her cries public gathered. The public tried to chase that lady. At that time, one male person was accompanying that lady. A1 dropped her granddaughter under eucalyptus trees. After that A1 and 2 escaped from there. PW3 identified A1 and A2 in the open court.PW3 is a crucial witness to the prosecution. The learned counsel for defense did not elicit any material to doubt the genuineness and credibility of the version spoken by the witness.

21. Coming to the evidence of PW4 deposed that on 08-08-2023 at about 2 PM he heard some cried from the house of PW1 and immediately he went to the house of PW1. At that time A1 and A2 were escaping from the 8 house of PW1 along with the daughter of PW1. He along with some others tried to chase them. PW4 identified A1 and A2 in open court. He is an eye witness in this case. The learned counsel for defense did not elicit any material to doubt the genuineness and credibility of the version spoken by the witness.

22. Turning to the evidence of PW5 on 8-8-2023 at about 2.pm he heard some cries from the house of PW1, immediately he rushed to house of PW1, then PW3 informed that some unknown persons try to kidnap her granddaughter. Then he along with other searched for A1 and A2. He is not eye witness but corroborate with evidence of PW3.

23. Coming to the evidence of PW6 on 08-08-2023 at about 02.00 pm he heard some cries from the house of PW1 and he went to the house of

PW1 at that time Accused no. 1 escaped with one baby girl from the house of PW1. One male person also accompanied with A1. Then A1, A2 left her off near eucalyptus bushes and ran way.PW6 identified A1and A2 in the open court. he is an eye witness in this case. The learned counsel for defense did not elicit any material to doubt the genuineness and credibility of the version spoken by the witness.

24. PW7 working as constables deposed that he observed CC footage near the house of PW1 and copied in to CD in the presence of mediators and hand over to LW11. he admitted in his cross examination he did not obtain permission to verify the CC footage.

25. PW8 who acted as a mediator at the time of arrest of A1 and A2, seizure of property from the possession of A1. PW8 deposed that at request of police he acted as mediator at the time of arrest of A1 and A2. EX. P3 is arrest cum seizure mahazarnama. Police copied CD from CC footage in his presence which was situated near the house of PW1. Ex.P2 is mahazarnama.

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M.O2 is the C.D. Coming to the evidence of PW 8 is an independent mediator corroborated the version of PW1, as well as all the contents of Ex. P3. In all aspects with regards to recovery of M.O 1 from the possession of A1 and A2, confession given by A1 and A2 as offenders.

26. No enmity or antipathy is attributed to PW8 against Accused number 1 and 2. Even by way of investigation and no reason was assigned as to PW8 to depose falsehood against accused number 1 and 2. Further mediator report Ex. P2 and Ex. P3 contained signature of PW8 and thumb impression of accused number 1 and 2, establishing their presence at the time of alleged arrest and seizure. So viewed from any angle the evidence of PW8 is found to be credible and trust worthy.

27. PW9 is working as Mahila Police and acted as a mediator at the time conduct property identification. PW9 deposed that PW1 and 2 are correctly identified their property in her present. EX.P4 is the property identification mahazarnama marked in her evidence.

28. PW10 is the investigating officer, deposed that basing on the report of

PW1 he registers the case and conduct investigation and arrested A1 and A2 in the presence of mediators and also seized M.O 1 form the possession of

Accused. Coming to the evidence of PW.10, Investigating Officer it corroborates with the version of PW.1 with regard to recording of Ex.P.1 is report of PW1. His evidence further goes to show about examination of witnesses, recording of their statements, visiting scene of offence and preparation of rough sketch, recovery of property and conduct identification parade. His evidence also goes to show about seizure of property and arrest of A1and A2 in the presence of LW 9.10 and the filing of charge sheet against the accused no. 1 and 2 culminations of investigation. After completion of investigation, he files charge sheet against A1 and A2.

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29. PW11 is a Judicial Officer, who conducted test identification of A1 and

A2 in the central prison Nellore. PW11 deposed that LW1/PW1, LW3/PW3,

LW6/PW6 correctly identified A1 in her presence, LW1/PW1, LW3/PW3,

LW6/PW6 correctly identified A2 in her presence. Ex.P8 got marked. But in her cross examination LW1 to LW3 did not identified A2 before her. Although

PW3, PW4, PW6 identified the accused No.1 and 2 as they are eye witnesses.

Test identification report is not substantive piece of evidence to the prosecution.

30.Coming to the case on hand, it is crystal clear from the evidence of P.W.1 and PW3, PW4, PW6 and identification of the accused No. 1 and 2 in the Open Court. Although PW11 deposed two versions in her evidence. On careful reading of the depositions enumerated above, it is evident that the learned counsel for the defense did not dispute M.O1,

31. Thus, this Court holds in unequivocal terms that the prosecution is successful in proving that soon after the alleged incident, A1 and A2 criminally trespassed in to the house of PW1 and kidnapped his daughter from lawful custody and committed theft of silver anklets. P.W.1 and PW3 were identified A1 and A2, PW10 recovered the property from the possession of A1.

32. Though the learned counsel for defense tried to discredit the veracity of P.W.1 and PW.3 by posing many questions denying the case of prosecution, he failed to elicit any material to doubt the credibility of witnesses. The evidence of these two witnesses clearly reflects about the criminal acts committed by both the accused.

33.It is also the contention of learned defense counsel that in the absence of any independent evidence, the testimonies of P.Ws.1 and 3 11 related witnesses could not be relied upon for the sake of arriving at a conclusion of guilt against accused no. 1 and 2. With reference to the before said contention, it is apposite to mention that the evidence of P.W.3 stand at a great pedestal over the evidence of remaining witnesses as she is the best witness to speak about the acts committed by accused No. 1 and 2 and her version, which is wholly reliable not trustworthy cannot be thrown aside.

PW4, PW6 are independent eye witness and also support the version of PW1 and identified accused No. 1 and 2.

34.Except posing suggestions during cross examination that the accused 1 and 2 did not commit any offence, the learned counsel for defense could not elicit any material to doubt the genuineness and credibility of the version spoken by PW1 to PW6.

35. The prosecution with its impeccable and satisfactory evidence could establish before the Court that it is the accused1 and 2 are criminally tress passed into the house of PW1 and kidnapped his daughter and committed theft of silver anklets. Though there are minor discrepancies in between the evidence of P.Ws.1 and 3 the same have affected the core of the prosecution and in fact no witnesses are expect to speak on same lines, as they are giving evidence before the Court after the incident. In view of the above discussion, the Court holds that the evidence of PW1 supported PW.3 clinchingly establishes that A1 and A2 committed an offence .

36. As observed in preceding paragraphs, there is no reason to doubt the credibility or reliability of PW1 and PW3. Therefore, it will be safe to convict the accused by placing reliance on the deposition of PW1 to PW11, which is free from material omissions and contradictions. In view of the same, the

Court holds that the prosecution is able to establish the guilt of Accused

No. 1 and 2 for the offence punishable under section 448,363 and 379 r/w34 12 of Indian Penal Code, beyond the reasonable doubt. Accordingly, the point

No.1 to 3 are answered in favor of the prosecution.

37. In the result, accused/A1 and A2 are found guilty for the offences punishable under Sections 448, 363 and 379 r/w34 IPC and accordingly, they are convicted under Section 248 (2) Cr.P.C for the said offences.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the Open Court, this the 07th day of August, 2024.

Sd/- J.Kathyayini

I Additional Judicial Magistrate of First Class

Kovur

Heard the accused/A1 and A2 on the quantum of sentence proposed to be imposed on them, they submitted that they are the sole bread earners of their families and requested this Court to take lenient view. The accused are not entitled the provisions of Section 3 & 4 of Probation of Offenders

Act, 1958 basing on the facts of the above case. However, the offence proved against the accused No. 1 and 2 are not punishable with either death or imprisonment for life. Hence, a lenient view may be considered about the sentence. In the facts and circumstances of the case, this Court feels that the following sentence would meet the ends of justice.

The accused No.1 and 2 are sentenced to undergo simple imprisonment for a period of three (03) years each and they are also sentenced to pay a fine of Rs.5,000/-(Rupees five thousand only) each for the offence punishable under Section 363 of IPC. In default to pay the fine amount of

Rs.5,000/-, to undergo simple imprisonment of two (02) months.

Further, the accused No.1 and 2 are sentenced to undergo simple imprisonment for a period of two (02) years each and they are also sentenced to pay a fine of Rs.1,000/-(Rupees one thousand only) each for the offence punishable under Section 379 of IPC. In default to pay the fine amount of Rs.1,000/-, to undergo simple imprisonment of one (01) month 13 each.

Further, the accused No.1 and 2 are sentenced to undergo simple imprisonment for a period of one (01) year each for the offence punishable under Section 448 of IPC.

The sentences imposed against accused No.1 and 2 in the above said three offences shall run concurrently.

The remand period already undergone by the accused No.1 and 2 i.e., from 14-08-2023 to 07-08-2024 (Both Days inclusive) shall be set off under Section 428 Cr.PC.

The total fine amount of Rs.12,000/- (Rupees twelve thousand only).

MO1 already given to its owner/PW1 for interim custody shall made absolute after expiry of appeal time. MO2 shall be destroyed after expiry of appeal time. The unmarked property if any shall be destroyed after lapse of appeal time.

The office is directed to serve free copy of judgment to the accused.

The accused is explained the right of appeal and free legal aid. When asked the accused about their means to prefer an appeal, accused stated that the accused have no capacity to engage an Advocate as vcounsel.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the open court this the 07th day of August, 2024.

Sd/- J.Kathyayini

I Additional Judicial Magistrate of First Class

Kovur

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defense:

PW1: Thummala Sreenu. -None- PW2: Muthaiah Pandu Selvi. PW3: Thummala Vani. PW4: Peta Madhu Babu. PW5: Balu Srinivasulu. PW6: D.Anil. PW7: N.Nava Kumar, Constable. PW8: A.Priya Darshini. PW9: K.Padmaja.

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PW10: G.Subba Rao, Sub-Inspector of Police. PW11: Smt.R.Varalakshmi, the then Principal Junior Civil Judge, Kavali.

EXHIBITS MARKED

For Prosecution:

Ex.P1: Report, dated 08-08-2023. Ex.P2: Seizure Mahazarnama, dated 09-08-2023. Ex.P3: Seizure Mahazarnama, dated 14-08-2023. Ex.P4: Property Identification mahazarnama, dated 16-08-2023. Ex.P5: F.I.R. Ex.P6: Rough-sketch. Ex.P7: Requisition of S.H.O., Kodavalur Police Station. Ex.P8: Test Identification Report.

For Defence: Nil

MATERIAL OBJECTS MARKED

MO1: Silver Anklets. MO2: C.D.

Sd/- J.Kathyayini

I Additional Judicial Magistrate of First Class

Kovur

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IN THE COURT OF I ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS::

KOVUR

Present: Smt J.Kathyayini, I Additional Judicial Magistrate of First Class, Kovur.

Thursday, this the Eleventh (11th) day of January, 2024

CALENDAR CASE No.368 of 2019

The State of A.P., represented by Sub-Inspector of Police,

Dagadarthi Police Station. .. Complainant.

Versus:

Tambi Sathish, S/o Satyam, aged 31 years, Chembuni by Caste, N/o East Street, Vidavalur Village and Mandal, R/o Ramachandrapuram Village, Kattubadipalem Panchyat, Buchireddypalem Mandal,

SPSR Nellore District. .. Accused.

This case is coming on 28-11-2023 for final hearing before this Court in the presence of learned Assistant Public Prosecutor for the State and the learned Counsels S.Vijaya Ramaraju and T.Sai Swaroop for the Accused, upon hearing both sides and the matter having stood over for consideration till this day, this Court delivered the following:-

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

The State represented by Sub-Inspector of Police, Dagadarthi Police

Station, filed charge sheet in crime No.17/2019 against the accused for the offences under Section 457, 380 or 411 of Indian Penal Code (herein after referred to as ‘IPC’), alleging as follows:

2. On the intervening night of 21/22-02-2019 at Dagadarthi Village and

Mandal, SPSR Nellore District, some unknown offenders gained entry into the house of the defacto-complainant/Kalluru Kistamma/LW1 by broke open the doors of the said house and opened the almyrah with the available keys and committed theft of gold and silver articles, i.e., 1) Gold Flowers chain weighing about 04 sovereigns, 2) One pair of ear studs weighing about ½ sovereign, 3) White, red stones locket (Addiga) weighing about 3 ½ 2 sovereigns, 4) Plain ear studs weighing about ¾ sovereigns, 5) Green stone ring-1 weighing about 01 sovereign, 6) LakshmiDevi ring-1 weighing about ¾ sovereign, 7) White, red stones cross ring-1 weighing about ¾ sovereign, 8)

Chempa Saralu weighing about 01 sovereign, 9) Papati Billa weighing about ¾ sovereign, 10) Mateelu weighing about ½ sovereign, 11) Plain gold chain weighing about 1 ½ sovereign, 12) Plain ear studs weighing about ¾ sovereign, 13) Silver Kumkuma Barina small-2, 14) Silver Gandapu Ginne-2 and 15) Silver Small devotional lamp-1, all worth Rs.1,70,000/- and decamped with the booty. Basing on the report of LW1, a case in crime

No.17/2019 under Sections 457 and 380 IPC was registered by

LW14/N.Srinivasulu Reddy/Assistant Sub-Inspector of Police, Dagadarthi

Police Station and investigated into.

During the course of his investigation, LW14 inspected the scene of offence in the presence of mediators and drew rough-sketch of scene of offence and examined the witnesses as many as 07 witnesses and recorded their statements. On 14-05-2019 at 07-30 hours at Podalakur, the Sub-

Inspector of Police, Podalakuru Police Station along with his staff arrested the accused and recovered the stolen property in this case from his possession under cover of confession and seizure mahazarnama in the presence of mediators and sent the accused for remand. On 15-06-2019 LW1 identified her gold and silver articles in identification parade conducted by

LW12/Kappala Narayana and LW13/Madiyala Venkata Prasad and the same were received by her before the Court. After completion of entire investigation, LW16/G.Subba Rao, Sub-Inspector of Police, Dagadarthi Police

Station filed charge sheet in this case against the accused for the offences punishable under Section 457 and 380 IPC or 411 IPC.

3. This Court took cognizance against the accused under Sections 457 and 380 or 411 IPC.

4. On appearance of the accused before this Court, copies of relevant case records were furnished to him as required under Section 207 of Cr.P.C.

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5. The accused was examined under Section 239 Cr.P.C and the charges for the offences punishable under Section 457 and 380 or 411 IPC were framed, read over and explained to the accused in Telugu, for which, he denied the offences by pleading not guilty and claimed to be tried.

6. During the course of trial, the prosecution examined PW1 to PW10 and marked Ex.P1 to Ex.P11 and MO1 to MO13.

7. After completion of the prosecution evidence, accused was examined under Section 313 of Cr.P.C in respect of incriminating material available in the evidence of prosecution, for which, the accused pleaded not guilty and reported no defence evidence.

8. Heard both sides. Perused the record.

9. The learned APP submitted that the evidence of PW1 to PW10 coupled with Ex.P1 to Ex.P11 and MO1 to MO13 proved the guilt of the accused for the alleged charges. Hence, he prayed to convict the accused basing on the evidence of PW1 to PW10.

10. On the other hand, the learned counsel for the accused submitted that PW3, PW9 and PW10 who are the investigating officers are official witnesses who have interest over their case. Though the prosecution examined another punch witness as PW4 who participated at the time of arrest of accused and seizure of stolen property along with PW2, he did not support the prosecution, which is fatal to the prosecution case. He further argued that there is no incriminating material against the accused available on record and no iota of evidence placed by the prosecution to show that the accused committed theft of MO1 to MO13. Hence, prayed to acquit the accused.

11.Now the point for determination is:

Whether the prosecution proved the guilt of accused for the offences punishable under Sections 457 and 380 or 411 IPC beyond all reasonable doubt?

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Point:-

12. The crux of the prosecution case is that on the intervening night of 21/22-02-2019 at Dagadarthi Village and Mandal, SPSR Nellore District, some unknown offenders gained entry into the house of the defacto-complainant/Kalluru Kistamma/LW1 by broke open the doors of the said house and opened the almyrah with the available keys and committed theft of gold and silver articles and decamped with the booty. Basing on the report of LW1, a case was registered by Dagadarthi Police and during the course of investigation, Police arrested the accused and recovered the stolen property in this case from his possession under cover of confession and seizure mahazarnama in the presence of mediators.

13. To prove the case of prosecution, prosecution examined PW1 to PW10 and got marked Ex.P1 to P11 and MO1 to MO13. PW1 is the defacto complainant. PW2 is the mediator for arrest of accused and seizure of stolen property. PW4 is the punch witness for arrest of accused and seizure of stolen property who participated along with PW2. PW5 and PW8 are the mediators for identification parade of stolen property and PW6 and PW7 are the mediators who conducted identification parade of stolen property and

PW3, PW9 and PW10 are the Investigating Officers. The evidence of

LW2/Rayasam Subhashini, LW3/Kalluru Sridhar, LW4/Kalluru Priyanka,

LW5/Kalluru Rajendra, LW6/Chejerla Kamakshamma, LW7/Jaladanki Haritha and LW13/Madiyala Venkata Prasad was given up by the learned APP. The description of Ex.P1 to ExP11 and MO1 to MO13 was mentioned in the appendix of evidence.

14. PW1 who is the defacto-complainant deposed that about 03 years back on one day, she went to hospital at Nellore for treatment of her husband and after one week, LW3 informed her as some unknown persons committed theft in her house. Immediately she went to her house at

Dagadarthi Village and found some gold and silver articles i.e., Gold poola 5 haram, Addiga, Ear studs, Papadi bottu, Lakshmi devi ring, Mettalu, Plain ear studs, Silver kumkuma barina, Silver sandal bowel, Silver devotion lamp were found missing and then she went to Police Station and lodged a written report. After 03 months, police informed her that her gold and silver articles were recovered and accordingly, she went to Police Station and identified her articles and later she received those articles from the Court.

15. PW2 who acted as mediator for arrest of accused and seizure of stolen property, deposed that she is working as VRO, Podalakur. On 14-05-2019 at the request of police, she acted as mediator in this case, and that in her presence, police arrested the accused and seized stolen property from his possession under cover of mahazarnama as the accused was going on a motor cycle and on seeing them, he tried to escape from that place, but the police caught hold him, and that on further enquiry by police, he disclosed his name as Thambi Sateesh/accused and he also confessed about the commission of theft in this case and also in various places in Indukurpet,

Alluru, Buchireddypalem, Podalakur and Thadiparthi and some other Villages.

16. PW4 who acted as mediator with PW2 and PW5 to PW8 who condcucted identification of stolen property and who acted as mediators of scene observation conducted by police, did not depose anything about the prosecution case. They stood hostile to the prosecution case and not supported its case. Though the learned Assistant Public Prosecutor cross- examined them, but he did not elicit any incriminating material from their evidence against the accused.

17. PW3 who is one of the Investigating Officers, deposed that previously he worked as Sub-Inspector of Police, Podalakur Police Station. On 14-05- 2019 on receipt of credible information, he went to Ramanagar gate center,

Podalakur along with his staff to conduct vehicle checking. At that time one person came on his bike from Podalakur to Manubolu side and on seeing them, he tried to escape from that place, but he along with his staff caught 6 hold him and on enquiry, he revealed his name as T.Sathish/accused and he also confessed the commission of offences in 08 cases in various places and then he seized gold ornaments and silver articles from his possession in the presence of mediators/PW2 and LW7.

18. Further, PW9 who is another Invesetigating Officer, deposed in his evidence that previously he worked as Assistant Sub-Inspector of Police in

Dagadarthi Police Station. On 22-02-2019 at about 09-00 hours while he was in the police station, LW1 came and gave a written report to him, basing on it, he registered a case in crime No.17/2019 under Sections 457 and 380 IPC and investigated into. During the course of his investigation, he went to the scene of offence situated at Velama Street, Dagadarthi Village and prepared rough-sketch of scene of offence and he examined the witnesses and recorded their statements, and that he handed over CD file to LW16 for further investigation.

19.Finally coming to the evdence of PW10 who conducted a part of investigation, deposed that previously he worked as Sub-Inspector of Police,

Dagadarthi Police Station. On 11-05-2019 he received CD file from PW9 and conducted further investigation, and that during the course of his investigation, on 14-05-2019 he produced the accused before the Court on

PT warrant and then he received case property from Podalakuru Police

Station in this case, and that after completion of investigation, he filed charge sheet in this case against the accused.

20. Admittedly the prosecution examined another mediator/LW11 as

PW4 who participated along with PW2, but he did not depose any overt acts against the accused, except identified his signature on mahazarnama, which was marked as Ex.P4. He stood hostile to the prosecution case and denied the suggestions put by the prosecution in his cross-examination. For which this Court relied on a decision reported in 2013(1) ALD(Crl)582 (SC) between Hema Vs State , wherein Para 10, it was held that “There may be 7 highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal.

If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc., which resulted in defective investigation, there is a legal obligation on the part of the Court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial”. In our case also there are some defectives by the investigating agency. But there is a legal obligation on the part of this Court to examine the prosecution evidence de hors such lapses, carefully, to find out the truth. Therefore, let us peruse the prosecution case available on record.

21. As seen from the record, it shows that PW1 who is not eye witness to the commission of offence, did not identified the accused as he committed theft. So, the prosecution relying upon the confession of accused which was recorded by the Investigating Officer/PW3, in the presence of PW2 and PW4, who are said to be mediators for Ex.P3.

22. It is well settled principle of law that the confession of the accused in the custody of police is not admissible under Section 26 of Indian Evidence

Act unless it leads to discovery of fact or recovery of an article. Admittedly, in this case the prosecution proved that the stolen property was seized from the possession of the accused. The admissions made by PW2, in cross examination is not fatal to the case of prosecution since the confession of 8 the accused before the police officer cannot be taken into consideration.

Further it cannot be presumed that the accused confessed the commission of offence correctly and without any hiding of the real fact. Merely because the accused never confessed the commission of the offence with details is not a ground to discard the entire evidence of prosecution.

23.Furthermore, on perusing the evidence PW2, who is mahazar witness to Ex.P3 arrest cum seizure mahazarnama of MO1 to MO13 and seizure mahazarnama of other stolen properties possessed by accused pertaining to other crimes, clearly stated that in his presence the accused admitted the guilt of offence vide Ex.P3. Though Ex.P3 was recorded in the custody of police which is hit by Section 26 of Indian Evidence Act, 1872. But as per Section 27 of Indian Evidence Act when the information given by the accused even in the custody or presence of police, when it leads to discovery of fact it shall be relevant as per above Section. This Court felt necessity to quote Section 27 of Act How much of information received from accused may be proved:-“ provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence , in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distantly to the fact thereby discovered, may be proved”. In this case on hand, the accused who was in the police custody, revealed the commission of offence in the presence of PW2 and PW4 who are said to be independent mediators, basing on the commission of offence, the police discovered MO1 to MO13. So, this part of admission made by the accused is relevant though stated in the custody of police. It is not the case of the accused that MO1 to MO13 are belongs to him or planted by the prosecution. So it can be safely relay that basing on the confession made by the accused even in the custody of police, in the presence of PW2, leads to the discovery of material fact which is MO1 to MO13 as per Ex.P3 statement.

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24. It is the burden on the accused as to how he came into the possession of stolen property if he has not committed theft of the same or received the same knowingly that the same was stolen property. Once the prosecution proved the seizure, the presumption should be raised in favour of the prosecution Under Section 114 (A) of Indian Evidence Act that the accused either must have committed the theft or received with the knowledge that the same was stolen property. In the absence of explanation offered by the accused with regard to the possession of stolen property, the burden to rebut the presumption cannot said to have been discharged by him. The defence counsel though cross-examined PW1, PW2, PW4 to PW8, elicited nothing in his favour, remaining cross examination is nominal by putting suggestions which were denied by the witnesses. It is need not to say, mere suggestions to the witness are not evidence and there is no valid.

It is well settled law that “suggestive questions cannot be held evidence of fact if denied”.

25. On perusing the entire evidence on record and after going through the discussion stating supra, there is no evidence or material to say that the accused was committed theft of MO1 to MO13 because none witnessed the commission of theft. But prosecution proved its case to say MO1 to MO13 were in the possession of accused as per Section 411 IPC that the accused possessed or retained the stolen property/MO1 to MO13. This Court as a matter of rule cannot reject in toto the evidence of PW3, PW9 and PW10 on the mere ground that they are interested witnesses to the prosecution case.

This Court is bound to scrutinize their evidence with care, so as to arrive at conclusion, whether there is any ring of truth in their version. Since there is bleak chance to see the commission of offence by anybody, the Investigating

Officer who conducted investigation has every chance to find out the stolen article in whose presence it was. As such, PW3 being investigating officer found stolen articles/MO1 to MO13 in the possession of accused. The mediator in whose presence the accused confessed the commission of 10 offence and in whose presence the seizure taken place also supported the prosecution case. As per Section 27 of the Indian Evidence Act, though the accused confessed the commission of offence before the independent mediator, not proved against him in the custody of police, but if such confession leads to discovery of information of property may be relevant. In this case on hand, basing on the statement/confession made by the accused in the presence of PW2, who is said to be mediator for Ex.P3 confessional and seizure panchanama, the prosecution recovered the stolen articles from the possession of accused. As already discussed MO1 to MO13 were not planted by the investigating officer/PW3 to implicate the accused. Even more, it is not the case of the accused that the investigating officer planted

MO1 to MO13 and their motive to do so. In the absence of that the seizure of

MO1 to MO13 from the possession of accused is believable.

26. On consideration of above stated discussion, this Court have no hesitation to say that the prosecution failed to prove its case beyond all reasonable doubt under Section 457 and 380 IPC as there is no evidence or material to say the accused committed theft of MO1 to MO13, but the prosecution proved its case under Section 411 IPC.

27. In the result, accused is found not guilty for the offences punishable under Section 457 and 380 IPC and he is acquitted under Section 248 (1)

Cr.P.C for the said offences. Further, the accused is found guilty for the offence punishable under Section 411 IPC and accordingly he is convicted under Section 248 (2) Cr.P.C for the said offence.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the Open Court, this the 11th day of January, 2024.

Sd/- J.Kathyayini

I Additional Judicial Magistrate of First Class

Kovur

Heard the accused on the quantum of sentence proposed to be imposed on him and the accused submitted that he is the sole bread earner of his family and requested this Court to take lenient view. The accused is not entitled 11 the provisions of section 3 & 4 of Probation of Offenders Act, 1958 basing on the facts of the above case and as stated by the prosecution that the accused involved in many offences in Podalakur, Buchireddypalem and

Thadiparthi and some other Police Stations limits. However, the offence proved against the accused is not punishable with either death or imprisonment for life. Hence, a lenient view may be considered about the sentence. In the facts and circumstances of the case, this Court feels that the following sentence would meet the ends of justice.

The accused is sentenced to undergo simple imprisonment for a period of four (04) months and also sentenced to pay a fine of Rs.200/- (Rupees two hundred only) for the offence under Section 411 of IPC. In default to pay the fine amount of Rs.200/-, to undergo simple imprisonment of one (1) month.

The remand period already undergone by the accused i.e., from 11-06-2019 to 05-10-2019 (Both Days inclusive) shall be set off under Section 428 Cr.PC.

MO1 to MO13, which were given for interim custody to its owner/PW1 shall made absolute after lapse of appeal time. The unmarked property if any shall be destroyed after lapse of appeal time.

The office is directed to serve free copy of judgment to the accused.

The accused is explained the right of appeal and free legal aid. When asked the accused about his means to prefer an appeal, accused stated that the accused have capacity to engage an advocate counsel.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the open court this the 11th day of January, 2024.

Sd/- J.Kathyayini

I Additional Judicial Magistrate of First Class

Kovur

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence:

PW1: Kalluru Kistamma. -None- PW2: Chevuru Amaravathi. PW3: M.Ravi Naik, Sub-Inspector of Police. PW4: T.Mahendra. PW5: K.Narayana.

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PW6: G.Prudhvi Raj. PW7: N.Ananda Rao. PW8: M.Venkata Prasad. PW9: N.Srinivasulu Reddy, Assistant Sub-Inspector of Police. PW10: G.Subba Rao, Sub-Inspector of Police.

EXHIBITS MARKED

For Prosecution:

Ex.P1: Report, dated 22-02-2019. Ex.P2: Receipt, dated 02-08-2019. Ex.P3: Certified copy of Arrest-cum-seizure mahazarnama, 14-05-2019. Ex.P4: Signature of PW4 on mahazarnama, dated 14-05-2019. Ex.P5: Signature of PW5 on property identification mahazarnama,

dated 16-06-2019.

Ex.P6: Signature of PW6 on scene observation report, dated 22-02-2019. Ex.P7: Signature of PW7 on scene observation report, dated 22-02-2019. Ex.P8: Signature of PW8 on property identification mahazarnama,

dated 15-06-2019.

Ex.P9: F.I.R. Ex.P10: Rough-sketch. Ex.P11: Scene observation report, dated 22-02-2019.

For Defence: Nil

MATERIAL OBJECTS MARKED

MO1: Gold flower chain. MO2: One pair of Big ear studs. MO3: Gold Addiga fixed with white, read stones. MO4: Gold ear studs. MO5: Gold Lakshmi ring. MO6: Gold Red stone ring. MO7: Champa Saralu (one pair). MO8: Papadi Billa. MO9: Gold Matilu (one pair). MO10: Gold ear studs (one pair). MO11: Silver small devotional deepam. MO12: Kumkuma Barina. MO13: Silver Andal bowel.

Sd/- J.Kathyayini

I Additional Judicial Magistrate of First Class

Kovur

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IN THE COURT OF I ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS::

KOVUR

Present: Smt J.Kathyayini, I Additional Judicial Magistrate of First Class, Kovur.

Thursday, this the Eleventh (11th) day of January, 2024

CALENDAR CASE No.365 of 2019

The State of A.P., represented by Sub-Inspector of Police,

Dagadarthi Police Station. .. Complainant.

Versus:

Tambi Sathish, S/o Satyam, aged 31 years, Chembuni by Caste, N/o East Street, Vidavalur Village and Mandal, R/o Ramachandrapuram Village, Kattubadipalem Panchyat, Buchireddypalem Mandal,

SPSR Nellore District. .. Accused.

This case is coming on 28-11-2023 for final hearing before this Court in the presence of learned Assistant Public Prosecutor for the State and the learned Counsels S.Vijaya Ramaraju and T.Sai Swaroop for the Accused, upon hearing both sides and the matter having stood over for consideration till this day, this Court delivered the following:-

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

The State represented by Sub-Inspector of Police, Dagadarthi Police

Station, filed charge sheet in crime No.129/2018 against the accused for the offences under Section 457, 380 or 411 of Indian Penal Code (herein after referred to as ‘IPC’), alleging as follows:

2. In between 15-08-2018 and 22-08-2018 at Kattubadipalem Village,

Dagadarthi Mandal, SPSR Nellore District, some unknown offenders gained entry into the house of the defacto-complainant/ Kotha Kameswaramma/LW1 by broke open the doors of the said house and opened the almyrah with the available keys and committed theft of gold and silver articles, i.e., 1) Black beads gold chain weighing about 02 sovereigns, 2) Parol gold chain weighing about 2 ½ sovereigns, 3) Gold Nagaram weighing about 01 sovereign, 4) Ear 2 studs weighing about ½ gram, 5) Gold nose stud, 6) Gold dollar weighing about 01 grams, 7) Lakshmi Kasulu-2 weighing about 1 ½ gram and Silver

Gandapu Ginne, Kumkuma Barine, lord Vinayaka dollar, Silver coins-5, total weighing about 250 grams and gold ornaments total weighing about 06 grams and decamped with the booty. Basing on the report of LW1, a case in crime No.129/2018 under Sections 457 and 380 IPC was registered by

LW10/G.C.M.Dass/Assistant Sub-Inspector of Police, Dagadarthi Police Station and investigated into.

During the course of his investigation, LW10 inspected the scene of offence in the presence of mediators and drew rough-sketch of scene of offence and examined the witnesses as many as 05 witnesses and recorded their statements. On 14-05-2019 at 07-30 hours at Podalakur, the Sub-

Inspector of Police, Podalakuru Police Station along with his staff arrested the accused and recovered the stolen property in this case from his possession under cover of confession and seizure mahazarnama in the presence of mediators and sent the accused for remand. On 15-06-2019 LW1 identified her gold and silver articles in identification parade conducted by

LW8/Kappala Narayana and LW9/Madiyala Venkata Prasad and the same were received by her before the Court. After completion of entire investigation, LW12/G.Subba Rao, Sub-Inspector of Police, Dagadarthi Police

Station filed charge sheet in this case against the accused for the offences punishable under Section 457 and 380 IPC or 411 IPC.

3. This Court took cognizance against the accused under Sections 457 and 380 or 411 IPC.

4. On appearance of the accused before this Court, copies of relevant case records were furnished to him as required under Section 207 of Cr.P.C.

5. The accused was examined under Section 239 Cr.P.C and the charges for the offences punishable under Section 457 and 380 or 411 IPC were framed, read over and explained to the accused in Telugu, for which, he 3 denied the offences by pleading not guilty and claimed to be tried.

6. During the course of trial, the prosecution examined PW1 to PW8 and marked Ex.P1 to Ex.P7 and MO1 to MO8.

7. After completion of the prosecution evidence, accused was examined under Section 313 of Cr.P.C in respect of incriminating material available in the evidence of prosecution, for which, the accused pleaded not guilty and reported no defence evidence.

8. Heard both sides. Perused the record.

9. The learned APP submitted that the evidence of PW1 to PW8 coupled with Ex.P1 to Ex.P7 and MO1 to MO8 proved the guilt of the accused for the alleged charges. Hence, he prayed to convict the accused basing on the evidence of PW1 to PW8.

10. On the other hand, the learned counsel for the accused submitted that PW3, PW7 and PW8 who are the investigating officers are official witnesses who have interest over their case. Though the prosecution examined another punch witness as PW4 who participated at the time of arrest of accused and seizure of stolen property along with PW2, he did not support the prosecution, which is fatal to the prosecution case. He further argued that there is no incriminating material against the accused available on record and no iota of evidence placed by the prosecution to show that the accused committed theft of MO1 to MO8. Hence, prayed to acquit the accused.

11.Now the point for determination is:

Whether the prosecution proved the guilt of accused for the offences punishable under Sections 457 and 380 or 411 IPC beyond all reasonable doubt?

Point:-

12. The crux of the prosecution case is that in between 15-08-2018 and 22-08-2018 at Kattubadipalem Village, Dagadarthi Mandal, SPSR Nellore 4

District, some unknown offenders gained entry into the house of the defacto- complainant/ Kotha Kameswaramma/LW1 by broke open the doors of the said house and opened the almyrah with the available keys and committed theft of gold and silver articles and decamped with the booty. Basing on the report of LW1, a case was registered by Dagadarthi Police and during the course of investigation, Police arrested the accused and recovered the stolen property in this case from his possession under cover of confession and seizure mahazarnama in the presence of mediators.

13. To prove the case of prosecution, prosecution examined PW1 to PW8 and got marked Ex.P1 to P7 and MO1 to MO8. PW1 is the defacto complainant. PW2 is the mediator for arrest of accused and seizure of stolen property. PW4 is the punch witness for arrest of accused and seizure of stolen property. PW5 and PW6 are the mediators for identification parade of stolen property and PW3, PW7 and PW8 are the Investigating Officers. The evidence of LW2/Kotha Raghavaiah @ Raghaiah, LW3/Kotha Bujjamma,

LW4/Kotha Srinivasulu and LW5/Siddi Raghuramaiah was given up by the learned APP. The description of Ex.P1 to ExP7 and MO1 to MO8 was mentioned in the appendix of evidence.

14. PW1 who is the defacto-complainant deposed that on 15-08-2018 herself along with her family members went to Chennai for taking treatment and after one week, they returned to her house situated at Kattubadipalem

Village, Dagadarthi Mandal and found lock of their main door of house, was broke opened and then they went inside the house and found that iron safe was opened and gold ornaments and silver ornaments i.e., Black beeds gold chain, Gold pagadala chain, Gold Nagara, Gold Lakshmi Dollar, One pair white stone ear studs, one gold nose stud, One gold dollar, Lakshmi Kasulu and Silver articles i.e., Silver Kumkuma Barina, Silver 2 lord vinayaka dollars,

Silver Gandapu Ginne were found missing and then she went to Police

Station and lodged a written report. After 10 months, police informed her 5 that her gold and silver articles are recovered and accordingly, she went to

Police Station and identified her articles and later she received those articles from the Court.

15. PW2 who acted as mediator for arrest of accused and seizure of stolen property, deposed that she is working as VRO, Podalakur. On 14-05-2019 at the request of police, she acted as mediator in this case, and that in her presence, police arrested the accused and seized stolen property from his possession under cover of mahazarnama as the accused were going on a motor cycle and on seeing them, he tried to escape from that place, but the police caught hold of the accused. She further deposed that on further enquiry by police, accused confessed about the commission of theft in this case and also committed thefts in various places in Indukurpet, Alluru,

Buchireddypalem, Podalakur and Thadiparthi and some other Villages.

16. PW4 who acted as mediator with PW2 and PW5 and PW6 who condcucted identification parade of stolen property, did not depose anything about the prosecution case. They stood hostile to the prosecution case and not supported its case. Though the learned Assistant Public Prosecutor cross- examined them, but he did not elicit any incriminating material from their evidence against the accused.

17. PW3 who is one of the Investigating Officers, deposed that previously he worked as Sub-Inspector of Police, Podalakur Police Station. On 14-05- 2019 on receipt of credible information, he went to Ramanagar gate center,

Podalakur along with his staff to conduct vehicle checking. At that time one person came on his bike from Podalakur to Manubolu side and on seeing them, he tried to escape from that place, but he along with his staff caught hold him and on enquiry, he revealed his name as T.Sathish/accused and he also confessed the commission of offences in 08 cases in various places and then he seized gold ornaments and silver articles from his possession in the presence of mediators/PW2 and LW7.

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18. Further, PW7 who is another Invesetigating Officer, deposed in his evidence that previously he worked as Assistant Sub-Inspector of Police in

Dagadarthi Police Station. On 23-08-2018 while he was in the police station,

LW1 came and gave a written report to him, basing on it, he registered a case in crime No.129/2018 under Sections 457 and 380 IPC and investigated into. During the course of his investigation, he went to the scene of offence situated at Kattubadipalem Village and prepared rough-sketch of scene of offence and he examined the witnesses and recorded their statements, and that he handed over CD file to LW12 for further investigation.

19.Finally coming to the evdence of PW8 who conducted a part of investigation, deposed that previously he worked as Sub-Inspector of Police,

Dagadarthi Police Station. On 11-05-2019 he received CD file from PW7 and conducted further investigation, and that during the course of his investigation, on 14-05-2019 he produced the accused before the Court on

PT warrant and then he received case property from Podalakuru Police

Station in this case, and that after completion of investigation, he filed charge sheet in this case against the accused.

20. Admittedly the prosecution examined another mediator/LW7 who participated along with PW2 as PW4, but he did not depose any overt acts against the accused, except identified his signature on mahazarnama, which was marked as Ex.P4. He stood hostile to the prosecution case and denied the suggestions put by the prosecution in his cross-examination. For which this Court relied on a decision reported in 2013(1) ALD(Crl)582 (SC) between Hema Vs State , wherein Para 10, it was held that “There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal.

If primacy is given to such designed or negligent investigations or to the 7 omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc., which resulted in defective investigation, there is a legal obligation on the part of the Court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial”. In our case also there are some defectives by the investigating agency. But there is a legal obligation on the part of this Court to examine the prosecution evidence de hors such lapses, carefully, to find out the truth. Therefore, let us peruse the prosecution case available on record.

21. As seen from the record, it shows that PW1 who is not eye witness to the commission of offence, did not identified the accused as he committed theft. So, the prosecution relying upon the confession of accused which was recorded by the Investigating Officer/PW3, in the presence of PW2 and PW4, who are said to be mediators for Ex.P3.

22. It is well settled principle of law that the confession of the accused in the custody of police is not admissible under Section 26 of Indian Evidence

Act unless it leads to discovery of fact or recovery of an article. Admittedly, in this case the prosecution proved that the stolen property was seized from the possession of the accused. The admissions made by PW2, in cross examination is not fatal to the case of prosecution since the confession of the accused before the police officer cannot be taken into consideration.

Further it cannot be presumed that the accused confessed the commission of offence correctly and without any hiding of the real fact. Merely because the accused never confessed the commission of the offence with details is not a ground to discard the entire evidence of prosecution.

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23.Furthermore, on perusing the evidence PW2, who is mahazar witness to Ex.P3 arrest cum seizure mahazarnama of MO1 to MO8 and seizure mahazarnama of other stolen properties possessed by accused pertaining to other crimes, clearly stated that in his presence the accused admitted the guilt of offence vide Ex.P3. Though Ex.P3 was recorded in the custody of police which is hit by Section 26 of Indian Evidence Act, 1872. But as per Section 27 of Indian Evidence Act when the information given by the accused even in the custody or presence of police, when it leads to discovery of fact it shall be relevant as per above Section. This Court felt necessity to quote Section 27 of Act How much of information received from accused may be proved:-“ provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence , in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distantly to the fact thereby discovered, may be proved”. In this case on hand, the accused who was in the police custody, revealed the commission of offence in the presence of PW2 and PW4 who are said to be independent mediators, basing on the commission of offence, the police discovered MO1 to MO8. So, this part of admission made by the accused is relevant though stated in the custody of police. It is not the case of the accused that MO1 to MO8 are belongs to him or planted by the prosecution. So it can be safely relay that basing on the confession made by the accused even in the custody of police, in the presence of PW2, leads to the discovery of material fact which is MO1 to MO8 as per Ex.P3 statement.

24. It is the burden on the accused as to how he came into the possession of stolen property if he has not committed theft of the same or received the same knowingly that the same was stolen property. Once the prosecution proved the seizure, the presumption should be raised in favour of the prosecution Under Section 114 (A) of Indian Evidence Act that the accused either must have committed the theft or received with the 9 knowledge that the same was stolen property. In the absence of explanation offered by the accused with regard to the possession of stolen property, the burden to rebut the presumption cannot said to have been discharged by him. The defence counsel though cross-examined PW1, PW2, PW4 to PW6, elicited nothing in his favour, remaining cross examination is nominal by putting suggestions which were denied by the witnesses. It is need not to say, mere suggestions to the witness are not evidence and there is no valid.

It is well settled law that “suggestive questions cannot be held evidence of fact if denied”.

25. On perusing the entire evidence on record and after going through the discussion stating supra, there is no evidence or material to say that the accused was committed theft of MO1 to MO8 because none witnessed the commission of theft. But prosecution proved its case to say MO1 to MO8 were in the possession of accused as per Section 411 IPC that the accused possessed or retained the stolen property/MO1 to MO8. This Court as a matter of rule cannot reject in toto the evidence of PW3, PW7 and PW8 on the mere ground that they are interested witnesses to the prosecution case.

This Court is bound to scrutinize their evidence with care, so as to arrive at conclusion, whether there is any ring of truth in their version. Since there is bleak chance to see the commission of offence by anybody, the Investigating

Officer who conducted investigation has every chance to find out the stolen article in whose presence it was. As such, PW3 being investigating officer found stolen articles/MO1 to MO8 in the possession of accused. The mediator in whose presence the accused confessed the commission of offence and in whose presence the seizure taken place also supported the prosecution case.

As per Section 27 of the Indian Evidence Act, though the accused confessed the commission of offence before the independent mediator, not proved against him in the custody of police, but if such confession leads to discovery of information of property may be relevant. In this case on hand, basing on the statement/confession made by the accused in the presence of PW2, who 10 is said to be mediator for Ex.P3 confessional and seizure panchanama, the prosecution recovered the stolen articles from the possession of accused. As already discussed MO1 to MO8 were not planted by the investigating officer/PW3 to implicate the accused. Even more, it is not the case of the accused that the investigating officer planted MO1 to MO8 and their motive to do so. In the absence of that the seizure of MO1 to MO8 from the possession of accused is believable.

26. On consideration of above stated discussion, this Court have no hesitation to say that the prosecution failed to prove its case beyond all reasonable doubt under Section 457 and 380 IPC as there is no evidence or material to say the accused committed theft of MO1 to MO8, but the prosecution proved its case under Section 411 IPC.

27. In the result, accused is found not guilty for the offences punishable under Section 457 and 380 IPC and he is acquitted under Section 248 (1)

Cr.P.C for the said offences. Further, the accused is found guilty for the offence punishable under Section 411 IPC and accordingly he is convicted under Section 248 (2) Cr.P.C for the said offence.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the Open Court, this the 11th day of January, 2024.

Sd/- J.Kathyayini

I Additional Judicial Magistrate of First Class

Kovur

Heard the accused on the quantum of sentence proposed to be imposed on him and the accused submitted that he is the sole bread earner of his family and requested this Court to take lenient view. The accused is not entitled the provisions of section 3 & 4 of Probation of Offenders Act, 1958 basing on the facts of the above case and as stated by the prosecution that the accused involved in many offences in Podalakur, Buchireddypalem and

Thadiparthi and some other Police Stations limits. However, the offence proved against the accused is not punishable with either death or imprisonment for life. Hence, a lenient view may be considered about the 11 sentence. In the facts and circumstances of the case, this Court feels that the following sentence would meet the ends of justice.

The accused is sentenced to undergo simple imprisonment for a period of

Five (05) months and also sentenced to pay a fine of Rs.200/- (Rupees two hundred only) for the offence under Section 411 of IPC. In default to pay the fine amount of Rs.200/-, to undergo simple imprisonment of one (1) month.

The remand period already undergone by the accused i.e., from 11-05-2019 to 23-09-2019 (Both Days inclusive) shall be set off under Section 428 Cr.PC.

MO1 to MO8, which were given for interim custody to its owner/PW1 shall made absolute after lapse of appeal time. The unmarked property if any shall be destroyed after lapse of appeal time.

The office is directed to serve free copy of judgment to the accused.

The accused is explained the right of appeal and free legal aid. When asked the accused about his means to prefer an appeal, accused stated that the accused have capacity to engage an advocate counsel.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the open court this the 11th day of January, 2024.

Sd/- J.Kathyayini

I Additional Judicial Magistrate of First Class

Kovur

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence:

PW1: Kotha Kameswaramma. -None- PW2: Chevuru Amaravathi. PW3: M.Ravi Naik, Sub-Inspector of Police. PW4: T.Mahendra. PW5: K.Narayana. PW6: M.Venkata Prasad. PW7: G.C.M.Das, Assistant Sub-Inspector of Police. PW8: G.Subba Rao, Sub-Inspector of Police.

EXHIBITS MARKED

For Prosecution:

Ex.P1: Report, dated 23-08-2018. Ex.P2: Receipt, dated 26-07-2019. Ex.P3: Arrest-cum-seizure mahazarnama. Ex.P4: Signature of PW4 on mahazarnama, dated 14-05-2019.

12

Ex.P5: Signature of PW5 on property identification mahazarnama,

dated 16-06-2019.

Ex.P6: F.I.R. Ex.P7: Rough-sketch.

For Defence: Nil

MATERIAL OBJECTS MARKED

MO1: Gold Black beads chain. MO2: Gold Pagadala chain. MO3: Gold Nagara. MO4: One pair white stone ear studs. MO5: Two Gold Kasulu. MO6: Gold Red stone nose stud. MO7: Silver Gandapu Ginne. MO8: Silver Kumkuma Barine.

Sd/- J.Kathyayini

I Additional Judicial Magistrate of First Class

Kovur

1

IN THE COURT OF I ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS::

KOVUR

Present: Smt J.Kathyayini, I Additional Judicial Magistrate of First Class, Kovur.

Thursday, this the Eleventh (11th) day of January, 2024

CALENDAR CASE No.454 of 2019

The State of A.P., represented by Sub-Inspector of Police,

Allur Police Station. .. Complainant.

Versus:

Tambi Sathish, S/o Satyam, aged 31 years, Chembuni by Caste, N/o East Street, Vidavalur Village and Mandal, R/o Ramachandrapuram Village, Kattubadipalem Panchyat, Buchireddypalem Mandal,

SPSR Nellore District. .. Accused.

This case is coming on 28-11-2023 for final hearing before this Court in the presence of learned Assistant Public Prosecutor for the State and the learned Counsels S.Vijaya Ramaraju and T.Sai Swaroop for the Accused, upon hearing both sides and the matter having stood over for consideration till this day, this Court delivered the following:-

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

The State represented by Sub-Inspector of Police, Allur Police Station, filed charge sheet in crime No.17/2019 against the accused for the offences under Section 457, 380 or 411 of Indian Penal Code (herein after referred to as ‘IPC’), alleging as follows:

2. In between 21-02-2019 and 24-02-2019 at Indupur Village, Allur

Mandal, SPSR Nellore District, some unknown offenders gained entry into the house of the defacto-complainant/Dasari Venkateswarlu/LW1 by broke open the doors of the said house and opened the almyrah with the available keys and committed theft of gold and silver articles, i.e., 1) Gold chains-2 weighing about 03 sovereigns, 2) Long chain-1 weighing about 04 sovereigns, 3) Gold ring-1 weighing about ½ sovereigns, 4) Ear studs-1 pair 2 weighing about ½ sovereigns, 5) Silver plate-1 worth Rs.3,000/-, 6) Silver

Kumkuma Barine-1 worth Rs.2,000/- and 7) Silver Sandal bowels-2 worth

Rs.5,000/-, all weighing 08 sovereigns of gold worth Rs.1,52,000/- and Silver articles worth Rs.10,000/- and decamped with the booty. Basing on the report of LW1, a case in crime No.17/2019 under Sections 457 and 380 IPC was registered by LW12/P.Ravi Babu/Sub-Inspector of Police, Allur Police

Station and investigated into.

During the course of his investigation, LW11/M.Ravi Naik, Sub-Inspector of Police, Podalakur Police Station on 14-05-2019 at 07-30 hours at Podalakur at Ramnagar Gate centre, LW11 arrested the accused and recovered the stolen property in this case from his possession under cover of confession and seizure mahazarnama in the presence of mediators and sent the accused for remand on PT warrant. On 28-08-2019 after identification of stolen property by LW1, LW14/M.Raghunath, Sub-Inspector of Police, Allur

Police Station handed over the stolen property to LW1. After completion of entire investigation, LW13/G.Veerendra Babu, Sub-Inspector of Police, Allur

Police Station filed charge sheet in this case against the accused for the offences punishable under Section 457 and 380 IPC or 411 IPC.

3. This Court took cognizance against the accused under Sections 457 and 380 or 411 IPC.

4. On appearance of the accused before this Court, copies of relevant case records were furnished to him as required under Section 207 of Cr.P.C.

5. The accused was examined under Section 239 Cr.P.C and the charges for the offences punishable under Section 457 and 380 or 411 IPC were framed, read over and explained to the accused in Telugu, for which, he denied the offences by pleading not guilty and claimed to be tried.

6. During the course of trial, the prosecution examined PW1 to PW8 and marked Ex.P1 to Ex.P7 and MO1 to MO5.

3

7. After completion of the prosecution evidence, accused was examined under Section 313 of Cr.P.C in respect of incriminating material available in the evidence of prosecution, for which, the accused pleaded not guilty and reported no defence evidence.

8. Heard both sides. Perused the record.

9. The learned APP submitted that the evidence of PW1 to PW8 coupled with Ex.P1 to Ex.P7 and MO1 to MO5 proved the guilt of the accused for the alleged charges. Hence, he prayed to convict the accused basing on the evidence of PW1 to PW8.

10. On the other hand, the learned counsel for the accused submitted that PW4, PW6 and PW8 who are the investigating officers are official witnesses who have interest over their case. Though the prosecution examined another punch witness as PW5 who participated at the time of arrest of accused and seizure of stolen property along with PW2, he did not support the prosecution, which is fatal to the prosecution case. He further argued that there is no incriminating material against the accused available on record and no iota of evidence placed by the prosecution to show that the accused committed theft of MO1 to MO5. Hence, prayed to acquit the accused.

11.Now the point for determination is:

Whether the prosecution proved the guilt of accused for the offences punishable under Sections 457 and 380 or 411 IPC beyond all reasonable doubt?

Point:-

12. The crux of the prosecution case is that in between 21-02-2019 and 24-02-2019 at Indupur Village, Allur Mandal, SPSR Nellore District, some unknown offenders gained entry into the house of the defacto-complainant/

Dasari Venkateswarlu/LW1 by broke open the doors of the said house and opened the almyrah with the available keys and committed theft of gold and silver articles and decamped with the booty. Basing on the report of LW1, a 4 case was registered by Allur Police and during the course of investigation,

Police arrested the accused and recovered the stolen property in this case from his possession under cover of confession and seizure mahazarnama in the presence of mediators.

13. To prove the case of prosecution, prosecution examined PW1 to PW8 and got marked Ex.P1 to P7 and MO1 to MO5. PW1 is the defacto complainant. PW2 and PW5 are the mediators for arrest of accused and seizure of stolen property. PW3 and PW7 are punch witnesses who conducted identification of stolen property and handed over the same to PW1 and PW4,

PW6 and PW8 are the Investigating Officers. The evidence of LW2/Dasari

Nirmala, LW3/Dasari Suman, LW8/Ragala Seenaiah, LW10/Tandra

Sreenivasulu and LW14/M.Raghunath was given up by the learned APP. The description of Ex.P1 to ExP7 and MO1 to MO5 was mentioned in the appendix of evidence.

14. PW1 who is the defacto-complainant deposed that on 24-02-2019 at about 10-00 A.M., they came to their house from Nellore and found break opened the locks of his house and iron safe was also opened and they found one gold long chain, one gold ring, ear studs, silver plate, silver kumkuma barina, silver sandal bowel were missing and then they went to Police

Station, Allur and gave report. He further deposed that after three months, police informed him about tracing of his gold and silver articles and later they went to Ramakrishna College, Allur and identified his gold and silver articles in the presence of mediators and received the same.

15.PW2 who acted as mediator for arrest of accused and seizure of stolen property, deposed that she is working as VRO, Podalakur. On 14-05- 2019 at about 05-00 A.M., at the request of police, she acted as mediator in this case, and that in her presence, police arrested the accused and seized stolen property from his possession under cover of mahazarnama as the accused was going on a motor cycle and on seeing them, he tried to escape 5 from that place, but the police caught hold of the accused. She further deposed that on further enquiry by police, accused confessed about the commission of theft in this case and also committed thefts in various places in Indukurpet, Alluru, Buchireddypalem, Podalakur and Thadiparthi and some other Villages.

16. PW3 who conducted identification parade of stolen property, deposed that on 20-05-2019, as per the request police, himself and LW8/Raagala

Seenaiah conducted identification parade at Ramakrishna Junior College,

Allur through PW1 by mixing similar articles to each articles of gold and silver. Accordingly, PW1 identified their stolen property and then they prepared property identification mahazarnama duly attested by himself and

LW8.

17. PW5 who acted as mediator with PW2 and PW7 who condcucted identification parade of stolen property, did not depose anything about the prosecution case. They stood hostile to the prosecution case and not supported its case. Though the learned Assistant Public Prosecutor cross- examined them, but he did not elicit any incriminating material from their evidence against the accused.

18. PW4 who is one of the Investigating Officers, deposed that previously he worked as Sub-Inspector of Police, Podalakur Police Station. On 14-05- 2019 on receipt of credible information, he went to Ramanagar gate center,

Podalakur along with his staff to conduct vehicle checking. At that time one person came on his bike from Podalakur to Manubolu side and on seeing them, he tried to escape from that place, but he along with his staff caught hold him and on enquiry, he revealed his name as T.Sathish/accused and he also confessed the commission of offences in 08 cases in various places and then he seized gold ornaments and silver articles from his possession in the presence of mediators/PW2 and LW6.

6

19. Further, PW6 who is another Invesetigating Officer, deposed in his evidence that previously he worked as Sub-Inspector of Police, Probationary in Allur Police Station. On 24-02-2019 while he was in the police station, LW1 came and gave a written report to him, basing on it, he registered a case in crime No.17/2019 and investigated into. During the course of his investigation, he went to the scene of offence situated at Indupuru Village, examined LW2 to LW4 and recorded their statements and prepared rough- sketch of scene of offence. He further deposed that on the same day, he called finger prints team from Nellore to obtain finger prints in the scene of offence and thereafter finger prints team came there and lifted some finger prints from the scene of offence, and that he handed over CD file to LW13 for further investigation.

20.Finally coming to the evdence of PW8 who conducted a part of investigation, deposed that previously he worked as Sub-Inspector of Police,

Allur Police Station. After receiving CD file from PW5, he conducted further investigation, and that during the course of his investigation, on 14-05-2019 he produced the accused before the Court on PT warrant and then he received case property from Podalakuru Police Station in this case, and that after completion of investigation, LW14 filed charge sheet in this case against the accused.

21. Admittedly the prosecution examined another mediator/LW6 who participated along with PW2 as PW5, but he did not depose any overt acts against the accused, except identified his signature on mahazarnama, which was marked as Ex.P5. He stood hostile to the prosecution case and denied the suggestions put by the prosecution in his cross-examination. For which this Court relied on a decision reported in 2013(1) ALD(Crl)582 (SC) between Hema Vs State , wherein Para 10, it was held that “There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any 7 benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal.

If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc., which resulted in defective investigation, there is a legal obligation on the part of the Court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial”. In our case also there are some defectives by the investigating agency. But there is a legal obligation on the part of this Court to examine the prosecution evidence de hors such lapses, carefully, to find out the truth. Therefore, let us peruse the prosecution case available on record.

22. As seen from the record, it shows that PW1 who is not eye witness to the commission of offence, did not identified the accused as he committed theft. So, the prosecution relying upon the confession of accused which was recorded by the Investigating Officer/PW3, in the presence of PW2 and PW5, who are said to be mediators for Ex.P3.

23. It is well settled principle of law that the confession of the accused in the custody of police is not admissible under Section 26 of Indian Evidence

Act unless it leads to discovery of fact or recovery of an article. Admittedly, in this case the prosecution proved that the stolen property was seized from the possession of the accused. The admissions made by PW2, in cross examination is not fatal to the case of prosecution since the confession of the accused before the police officer cannot be taken into consideration.

Further it cannot be presumed that the accused confessed the commission of 8 offence correctly and without any hiding of the real fact. Merely because the accused never confessed the commission of the offence with details is not a ground to discard the entire evidence of prosecution.

24.Furthermore, on perusing the evidence PW2, who is mahazar witness to Ex.P3 arrest cum seizure mahazarnama of MO1 to MO5 and seizure mahazarnama of other stolen properties possessed by accused pertaining to other crimes, clearly stated that in his presence the accused admitted the guilt of offence vide Ex.P3. Though Ex.P3 was recorded in the custody of police which is hit by Section 26 of Indian Evidence Act, 1872. But as per Section 27 of Indian Evidence Act when the information given by the accused even in the custody or presence of police, when it leads to discovery of fact it shall be relevant as per above Section. This Court felt necessity to quote Section 27 of Act How much of information received from accused may be proved:-“ provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence , in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distantly to the fact thereby discovered, may be proved”. In this case on hand, the accused who was in the police custody, revealed the commission of offence in the presence of PW2 and PW5 who are said to be independent mediators, basing on the commission of offence, the police discovered MO1 to MO5. So, this part of admission made by the accused is relevant though stated in the custody of police. It is not the case of the accused that MO1 to MO5 are belongs to him or planted by the prosecution. So it can be safely relay that basing on the confession made by the accused even in the custody of police, in the presence of PW2, leads to the discovery of material fact which is MO1 to MO5 as per Ex.P3 statement.

25. It is the burden on the accused as to how he came into the possession of stolen property if he has not committed theft of the same or received the same knowingly that the same was stolen property. Once the 9 prosecution proved the seizure, the presumption should be raised in favour of the prosecution Under Section 114 (A) of Indian Evidence Act that the accused either must have committed the theft or received with the knowledge that the same was stolen property. In the absence of explanation offered by the accused with regard to the possession of stolen property, the burden to rebut the presumption cannot said to have been discharged by him. The defence counsel though cross-examined PW1, PW2, PW5 and PW7, elicited nothing in his favour, remaining cross examination is nominal by putting suggestions which were denied by the witnesses. It is need not to say, mere suggestions to the witness are not evidence and there is no valid.

It is well settled law that “suggestive questions cannot be held evidence of fact if denied”.

26. On perusing the entire evidence on record and after going through the discussion stating supra, there is no evidence or material to say that the accused was committed theft of MO1 to MO5 because none witnessed the commission of theft. But prosecution proved its case to say MO1 to MO5 were in the possession of accused as per Section 411 IPC that the accused possessed or retained the stolen property/MO1 to MO5. This Court as a matter of rule cannot reject in toto the evidence of PW4, PW6 and PW8 on the mere ground that they are interested witnesses to the prosecution case.

This Court is bound to scrutinize their evidence with care, so as to arrive at conclusion, whether there is any ring of truth in their version. Since there is bleak chance to see the commission of offence by anybody, the Investigating

Officer who conducted investigation has every chance to find out the stolen article in whose presence it was. As such, PW4 being investigating officer found stolen articles/MO1 to MO5 in the possession of accused. The mediator in whose presence the accused confessed the commission of offence and in whose presence the seizure taken place also supported the prosecution case.

As per Section 27 of the Indian Evidence Act, though the accused confessed the commission of offence before the independent mediator, not proved 10 against him in the custody of police, but if such confession leads to discovery of information of property may be relevant. In this case on hand, basing on the statement/confession made by the accused in the presence of PW2, who is said to be mediator for Ex.P3 confessional and seizure panchanama, the prosecution recovered the stolen articles from the possession of accused. As already discussed MO1 to MO5 were not planted by the investigating officer/PW4 to implicate the accused. Even more, it is not the case of the accused that the investigating officer planted MO1 to MO5 and their motive to do so. In the absence of that the seizure of MO1 to MO5 from the possession of accused is believable.

27. On consideration of above stated discussion, this Court have no hesitation to say that the prosecution failed to prove its case beyond all reasonable doubt under Section 457 and 380 IPC as there is no evidence or material to say the accused committed theft of MO1 to MO5, but the prosecution proved its case under Section 411 IPC.

28. In the result, accused is found not guilty for the offences punishable under Section 457 and 380 IPC and he is acquitted under Section 248 (1)

Cr.P.C for the said offences. Further, the accused is found guilty for the offence punishable under Section 411 IPC and accordingly he is convicted under Section 248 (2) Cr.P.C for the said offence.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the Open Court, this the 11th day of January, 2024.

Sd/- J.Kathyayini

I Additional Judicial Magistrate of First Class,

Kovur.

Heard the accused on the quantum of sentence proposed to be imposed on him and the accused submitted that he is the sole bread earner of his family and requested this Court to take lenient view. The accused is not entitled the provisions of section 3 & 4 of Probation of Offenders Act, 1958 basing on the facts of the above case and as stated by the prosecution that the accused involved in many offences in Podalakur, Buchireddypalem and 11

Thadiparthi and some other Police Stations limits. However, the offence proved against the accused is not punishable with either death or imprisonment for life. Hence, a lenient view may be considered about the sentence. In the facts and circumstances of the case, this Court feels that the following sentence would meet the ends of justice.

The accused is sentenced to undergo simple imprisonment for a period of

Five (05) months and also sentenced to pay a fine of Rs.200/- (Rupees Two hundred only) for the offence under Section 411 of IPC. In default to pay the fine amount of Rs.200/-, to undergo simple imprisonment of one (1) month.

The remand period already undergone by the accused i.e., from 22-05-2019 to 03-10-2019 (Both Days inclusive) shall be set off under Section 428 Cr.PC.

MO1 to MO5, which were given for interim custody to its owner/PW1 shall made absolute after lapse of appeal time. The unmarked property if any shall be destroyed after lapse of appeal time.

The office is directed to serve free copy of judgment to the accused.

The accused is explained the right of appeal and free legal aid. When asked the accused about his means to prefer an appeal, accused stated that the accused have capacity to engage an advocate counsel.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the open court this the 11th day of January, 2024.

Sd/- J.Kathyayini

I Additional Judicial Magistrate of First Class,

Kovur.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence:

PW1: Dasari Venkateswarlu. -None- PW2: Chevuru Amaravathi. PW3: P.Vijaya Kumar Reddy. PW4: M.Ravi Naik, Sub-Inspector of Police. PW5: T.Mahendra. PW6: P.Ravi Babu, Sub-Inspector of Police. PW7: A.Radhaiah. PW8: G.Veerendra Babu, Sub-Inspector of Police.

12

EXHIBITS MARKED

For Prosecution:

Ex.P1: Report, dated 24-02-2019. Ex.P2: Receipt, dated 28-08-2019. Ex.P3: Arrest-cum-seizure mahazarnama, dated 14-05-2019. Ex.P4: Property identification mahazarnama, dated 20-05-2019. Ex.P5: Signature of PW5 on mahazarnama, dated 14-05-2019. Ex.P6: F.I.R. Ex.P7: Rough-sketch.

For Defence: Nil

MATERIAL OBJECTS MARKED

MO1: One gold long chain. MO2: One gold Gopi chain. MO3: One pair of ear studs. MO4: One Silver Boul. MO5: Silver Kumkuma Barine.

Sd/- J.Kathyayini

I Additional Judicial Magistrate of First Class,

Kovur.

APNE0C0005872019 1

IN THE COURT OF THE PRINCIPAL JUDICIAL MAGISTRATE OF FIRST

CLASS:: KOVUR

Present: Smt. J.Kathyayini,

Principal Judicial Magistrate of First Class, Kovur

Tuesday, this the Twenty Second (22nd) day of April, 2025

CALENDAR CASE No.286 of 2019

The State of A.P., represented by Sub-Inspector of Police,

Kovur Police Station. .. Complainant.

Versus:

Cheekiri Devasasu, S/o Audaiah, aged 57 years, SC-Mala by caste, Ramannapalem Village Harijanawada, Kodavaluru Mandal,

SPSR Nellore District. .. Accused.

This case is coming on 21-04-2025 for final hearing before this Court in the presence of learned Assistant Public Prosecutor on behalf of the State and the learned Counsel P.Muneendra Babu for the Accused, upon hearing both sides and the matter having stood over for consideration till this day, this Court delivered the following:-

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

The State represented by Sub-Inspector of Police, Kovur Police Station, filed charge sheet in crime No.221/2018 against the accused for the offences punishable under Sections 304-A and 338 of Indian Penal Code (herein after referred to as ‘IPC’) and Section 134 (a) and (b) of Motor Vehicles Act (herein after referred to as M.V. Act), alleging as follows:

2. On 23-06-2019 at evening hours, the defacto-complainant/Putchalapalli

Nancharlu/LW1 and the deceased/Putchalapalli Srinivasulu lefft Golagamudi and were proceeding to Kothapatnam on the motor cycle, bearing No.AP-27-

BT-2801, the said motor cycle was driving by LW1 and the deceased was sitting on its back side as pillion rider and when they reached near

Ramannapalem Railway gate cross road, on NH-16 road at about 06-30 P.M.

APNE0C0005872019 2

At that time, the accused being the driver of a Tractor cum Trailer bearing

No.AP-26-TE-5661 and 5662, drove the same in a rash and negligent manner and came from Ramannapalem to Kovur side and dashed against the motor cycle of LW1 and the deceased. As a result of which, both are fell down on the road, LW1 sustained injuries on his left leg below knee, right leg below knee and the deceased sustained fatal injuries on the back side of head, right side eye, right toe, below right knee and on right side fore-head and went in an unconscious state. The passers shifted the deceased and LW1 to

Simhapuri Hospital, Nellore for treatment, there on the advise of the doctors, the deceased was shifted to Vellore on 14-07-2018 for better treatment, the

Vellore doctors examined the deceased and on the advise of Vellore doctors, the deceased was shifted to Nellore in the same Ambulance and they reached Ayyappagudi Centre, Nellore on 15-07-2018 at 02-30 hours, the deceased was succumbed with fatal head injury.

(i) On 24-06-2018 at about 00-30 hours, LW18/P.Jagadeesh, Head

Constable, Kovur Police Station recorded the statement of LW1 and forwarded to Kovur Police Station, then LW19/A.Venkateswarlu, Head

Constable, Kovur Police Station registered the same as a case in crime

No.221/2018 under Section 337 IPC and investigated into. During the course of investigation, LW19 visited the scene of offence, prepared observation report, drafted rough-sketch of scene of offence in the presence of mediators under cover of mediatornama duly attested by them and examined the witnesses and recorded their statements. On 15-07-2018 at 06-00 hours,

LW7/Putchalapalli Kamakshamma, who is the wife of deceased came to police station and presented a report, in turn, LW20/P.Raghunath, Head

Constable, Kovur Police Station added the section of law under Section 304-A IPC and he examined the witnesses and recorded their statements.

APNE0C0005872019 3

LW20 held inquest over the dead body of deceased and sent the same for postmortem examination. On 05-07-2018 at about 10-00 hours, LW9/Kaki

Vinod produced the accused before LW21/A.Venkata Rao, Sub-Inspector of

Police, Kovur Police Station, in turn, LW21 served notice to the accused under

Section 41-A Cr.P.C. LW15/Dr.Suneel Kumar, who rendered treatment to LW1, issued wound certificate, opining that the injuries of LW1 are simple and grievous in nature, hence the Section of law was altered from 337 IPC into 338 IPC. LW16/Dr.S.Nagendra Prasad, who conducted postmortem examination to the dead body of deceased, issued postmortem certificate, opining that the deceased died due to head injury. LW17/M.B.M. Krishna,

Motor Vehicle Inspector inspected the crime vehicle and issued M.V.I certificate opined that the accident was occurred not due to any mechanical defects of the crime Tractor and Trailer. After completion of entire investigation, LW21 has laid charge sheet against the accused for the offences punishable under Sections 338, 304-A IPC and Section 134 (a) and

(b) of M.V. Act.

3. This Court took cognizance against the accused for the offences punishable under Sections 337, 304-A IPC and Section 187 of M.V. Act against the accused.

4. On appearance of accused before this Court, copies of relevant case records were furnished to him as required under Section 207 Cr.P.C.

5. The accused was examined under Section 251 Cr.P.C for the offences punishable under Sections 337, 304-A IPC and Section 187 of M.V. Act. The contents of the offences were read over and explained to the accused in

APNE0C0005872019 4

Telugu, for which, he denied the offences by pleading not guilty and claimed to be tried.

6. During the course of trial, the prosecution examined PW1 to PW12 and got marked Ex.P1 to Ex.P12.

7. The accused was examined under Section 313 Cr.P.C in respect of incriminating material available in the evidence of prosecution witnesses, for which the accused pleaded not guilty and reported no defence evidence.

8. Heard both sides. Perused the record.

Now the points that arises for determination is:- “Whether the prosecution has proved the guilt of the accused for the offences punishable under Sections 337, 304-A IPC and Section 187 of M.V. Act beyond all reasonable doubt?”

Point:

9. The crux of the prosecution case is that on On 23-06-2019 at evening hours, the defacto-complainant/Putchalapalli Nancharlu/LW1 and the deceased/Putchalapalli Srinivasulu were proceeding to Kothapatnam on the motor cycle, bearing No.AP-27-BT-2801, the said motor cycle was driving by

LW1 and the deceased was sitting on its back side as pillion rider and when they reached near Ramannapalem Railway gate cross road, on NH-16 road at about 06-30 P.M. At that time, the accused being the driver of a Tractor cum

Trailer bearing No.AP-26-TE-5661 and 5662, drove the same in a rash and negligent manner and came from Ramannapalem to Kovur side and dashed against the motor cycle of LW1 and the deceased. As a result of which, both are fell down on the road, LW1 sustained multiple injuries and the deceased sustained fatal injuries on the back side of head, right side eye, right toe, below right knee and on right side fore-head and went in an unconscious state. The passers shifted the deceased and LW1 to Simhapuri Hospital,

APNE0C0005872019 5

Nellore for treatment, there on the advise of the doctors, the deceased was shifted to Vellore on 14-07-2018 for better treatment, the Vellore doctors examined the deceased and on the advise of Vellore doctors, the deceased was shifted to Nellore in the same Ambulance and they reached Ayyappagudi

Centre, Nellore on 15-07-2018 at 02-30 hours, the deceased was succumbed with fatal head injury.

10. To prove the above case, the prosecution examined PW1 to PW12 and got marked Ex.P1 to Ex.P12. PW1 is the relative of the deceased, PW2,

PW3, PW4 and PW7 are the independent witnesses, PW5 is the elder brother of deceased, PW6 is the Motor Vehicle Inspector, PW8 is the Medical Officer,

PW10 is the punch witness for scene observation report, PW9, PW11 and

PW12 are the investigating officers. The description of Ex.P1 to Ex.P12 was mentioned in appendix of the evidence.

11. The learned APP argued that prosecution proved the guilt of the accused for the alleged offences by examining PW1 to PW12 coupled with

Ex.P1 to Ex.P12. Hence, he prayed to convict the accused. On the other hand, the learned counsel for defence argued that there is no incriminating material against the accused available on record and no iota of evidence placed by the prosecution to show that the accused drove the crime vehicle at the time of accident. Hence, he prayed to acquit the accused.

12. PW1, who being the relative of deceased deposed that on 23-06- 2018 at about 05-00 P.M., himself and deceased/Putchalapalli Srinivasulu started from Kothapatnam on a motor cycle to go to Golagamudi

Venkaiahswamy temple, at about 07-30 P.M., they reached Ramannapalem

Railway Gate, Rajupalem, at that time one Tractor came with high speed and

APNE0C0005872019 6 while crossing the road, dashed their motor cycle, then they fell down on the ground and he received bleeding injuries on his left shoulder, forehead and left leg and the deceased received injuries on his right hand, right leg, back side, and back side of his head and they were shifted to Simhapuri Hospital,

Nellore for treatment, there one constable came there and recorded his statement. On the advise of doctors, on 14-07-2018 they shifted the deceased to C.M.C. Hospital, Rayavelluru, Tamilnadu for better treatment, and that on the next day on 15-07-2018 while returning from the hospital, the deceased died.

13. PW2, PW3 and PW4 who are the independent witnesses did not depose anything about the prosecution case, except identifying their signatures on their 161 Cr.P.C statements. They stood hostile to the prosecution case and not supported its case and they denied the suggestions put by the prosecution in their 313 Cr.P.C examination.

14. PW5, who is the elder brother of deceased, deposed that about 06 years back, PW1 and the deceased while going to temple, they reached

Ramannapalem Railway gate, at that time, one Tractor came into opposite direction with high speed and dashed the vehicle of PW1, which resulted

PW1 and the deceased were fell down, on knowing the same, he rushed there, but PW1 and the deceased were shifted to Simhapuri Hospital, Nellore for treatment and then he went to Simhapuri Hospital, Nellore, there he observed that PW1 was with injuries. He further deposed that the deceased died while undergoing treatment in the hospital after 10 days of the incident.

15. PW6, who is the Motor Vehicle Inspector, deposed that on 06-07- 2019 he conducted vehicle test on crime vehicle in the police station and found there is no damages to the crime vehicle, to that effect, he issued MVI

APNE0C0005872019 7 report, opining that the accident was occurred not due to any mechanical defects of the vehicle. Further, PW8, who is the Medical Officer and who rendered treatment to PW1 deposed about his treatment that on 23-06-2018 at about 09-00 P.M., he examined P.Srinivasulu and found two injuries, one is

Reddish swelling and deformity of left forearm distil, X-ray showing fracture distil radiation and two is 4 x 3 cm bone depth lacerated wound over left leg and he issued wound certificate, opining that the injury No.1 is grievous in nature and injury No.2 is simple in nature.

16. PW7, who acted as mediator for inquest, deposed that about conducting of inquest over the dead body of deceased by the police, then he signed on inquest report. PW10, who is another mediator for scene observation report in this case along with LW11, deposed that at the request of police, himself and LW11 were acted as mediators in this case and they went to scene of offence situated at Ramannapalem Railway gate, in their presence police took photographs in the scene of offence and later he put his signature in scene observation report.

17. PW9, who is one of the investigating officers, deposed that on 23-06-2019 while he was in police station, at that time LW18/P.Jagadeesh came there and gave a statement of LW1, basing on it, he registered a case in crime No.221/2018 under Section 337 IPC and investigated into. During the course of his investigation, he went to Simhapuri Hospital, Nellore, there he examined the witnesses and recorded their statements, and that on the next day, he went to Ramannapalem Railway gate at Kovur, there he prepared observation report and took photographs at the scene of offence, later he prepared rough-sketch of scene of offence.

18. PW11, who is another investigating officer, who conducted limited

APNE0C0005872019 8 investigation in this case, deposed that on 15-07-2018 at about 08-00 A.M., he conducted inquest over the dead body of deceased/P.Srinivasulu in the presence of mediators and then he obtained signatures of the mediators in the inquest report, and later he handed over the dead body of deceased to postmortem examination.

19.Finally coming to the evidence of another investigating officer, he deposed that on 05-07-2018 he served notice to the accused under Section 41-A Cr.P.C and obtained postmortem certificate of deceased and wound certificate of PW1, he laid charge sheet in this case against the accused.

20.On perusal of the entire evidence of prosecution, PW1 who is eye witness-cum-injured deposed only rash and negligent driving of tractor and about the accident and receiving of injuries, but he did not state accused was the driver of said tractor at the time of accident. So, his evidence is no way helpful to the prosecution case. Coming to the evidence of PW2, PW3 and PW4 who are the independent witnesses, they did not depose anything about the prosecution case, they turned hostile to the case of prosecution, except identifying their signatures on their 161 Cr.P.C statements and denied the suggestions put by the prosecution in their cross-examination. Further,

PW5, who is hearsay witness deposed about knowing of accident and on perusal of evidence of punch witnesses/PW7 and PW10, they deposed only about conducting of inquest and scene observation by the police in their presence and they signed on inquest report and observation report and further on perusal of Medical officer, he deposed about his rendering of treatment to PW1 and issuance of wound certificate. The official witnesses deposed only their part of participation in this case and during the course of cross-examination by the prosecution, they denied the suggestions put by

APNE0C0005872019 9 the prosecution, it need not to say, mere suggestions to the witness are not evidence and not valid. It is well settled law that “suggestive questions cannot be held evidence of fact if denied”.

21. On considering the evidence of some of the prosecution witnesses, they categorically deposed about the manner of accident occurred on 23-06- 2018. But none of the witness identified the accused before the Court as that of the driver of the crime vehicle and also did not depose in their chief examination that due to rash and negligent driving of accused being driver of crime vehicle, dashed PW1 and deceased, resulting which PW1 received injuries and the deceased received multiple injuries and later he died and after the accident fled away from the spot without informing the accident to the nearest police station. Though the deceased died due to road accident, there is no incriminating material against the accused as he drove the crime vehicle and caused accident due to his rash and negligent driving. Further, the prosecution failed to mark driving licence of accused, RC and other documents pertaining to the crime vehicle. Hence, there is no material on record to establish the guilt of the accused for the offences punishable under

Sections 337 and 304-A IPC and Section 187 of M.V. Act. Hence the accused is entitled for acquittal.

22. In the result, the accused is found not guilty for the offences punishable under Sections 337 and 304-A and Section 187 of M.V. Act.

Accordingly, he is acquitted for the same under Section 255 (1) Cr.P.C. As there is no property in this case, no property order is passed.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the Open Court, this the 22nd day of April, 2025.

Sd/- J.Kathyayini,

Principal Judicial Magistrate of First Class,

Kovur.

APNE0C0005872019 10

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

Prosecution: Defence: -- NONE --

PW1 : Puchalapalli Nancharulu. PW2 : K.Suman. PW3 : S.Rami Reddy. PW4 : K.Vinod. PW5 : P.Subba Reddy. PW6 : A.B.M.Krishna, Motor Vehicle Inspector. PW7 : Ch.Nagaraju. PW8 : Dr.G.Sunil Kumar. PW9 : A.Venkateswarlu, Head Constable. PW10: T.Prudhvi Raju. PW11: P.Raghunadh, Head Constable. PW12: A.Venkata Rao, Sub-Inspector of Police.

EXHIBITS MARKED ON BEHALF OF

Prosecution: Defence: NIL

Ex.P1: Statement of PW1. Ex.P2: Sec.161 Cr.P.C statement of PW2. Ex.P3: Sec.161 Cr.P.C statement of PW3. Ex.P4: Sec.161 Cr.P.C statement of PW4. Ex.P5: M.V.I. Report. Ex.P6: Signature of PW7 on inquest report. . Ex.P7: Wound Certificate of PW1. Ex.P8: F.I.R. Ex.P9: Scene observation report. Ex.P10: Rough-sketch. Ex.P11: Scene observation report. Ex.P12: Inquest report.

MATERIAL OBJECTS MARKED

Nil

Sd/- J.Kathyayini,

Principal Judicial Magistrate of First Class,

Kovur.