K. Anusha

IN THE COURT OF THE SPL. JUDL. I CLASS MAGISTRATE FOR PROHIBITION

AND EXCISE ; GUNTUR

FAC:V Additional Junior Civil Judge Court, Guntur.

Present:- Ms. V. Sri Rama

Spl. Judl. I Class Magistrate for Prohibition and Excise, Guntur

Tuesday, this 30th day of October, 2018

C.C. NO.684 of 2018

Between: State: Sub-Inspector of Police, Arundelpet PS, (Crime No.316/2018)…Complainant.

And:

Pennati Naga Raju, S/o. Subbarao, 32 years, C/Naidu, Naidupet, 4th lane, Guntur.

… Accused

This case had come before me on 30-10-2018 for final hearing in the presence of the learned Assistant Public Prosecutor for defacto complainant and Sri. M.Srinivasarao, Legal Aid counsel for the accused and after hearing of argument and upon perusal of the entire material papers placed on record, this Court had passed the following:-

J U D G M E N T

The Sub-Inspector of Police, Arundelpet PS, Guntur, had filed the charge sheet against the accused that on filing of the report by PW1 before them, a case in Crime No.316/2018 was registered against accused under Section 379

OR 411 of Indian Penal Code.

2.The brief averments of the charge sheet are as follows: That the offence under Section 379 or 411 of Indian Penal Code, and had been committed by the accused at Naidupet, 4th Lane, Guntur, Guntur District within in the limits of

Arundelpet PS and as such it is within the jurisdiction of this Court.

It has been narrated in the charge sheet that PW.1 who was resident of 4th line, Naidupet, Guntur town, has parked his Honda Shine bearing No.AP.07

CG.3620 with Engine No.JC36E739368660 and chassis No.MEJC36 NAF7259388,

Black Color, Model No.2015, on 9-7-2018 night at about 11.00 p.m.in front of his house and had went inside, and that on the next day morning, when he had come out side from his house, he did not find his bike at the place where it was parked and as such, on thinking that some unknown offenders have committed the theft of his bike and had decamped with the stolen motor cycle, he has requested the concerned police to make enquiries and restore his vehicle by lodging the report.

It was further mentioned in the charge sheet that LW.6 has registered the report of LW.1 as a case in cr.No.316/2018, U/s.379 IPC of Arundelpet PS on 18-7- 2018 at 5.00 p.m. and had taken up the case for investigation and that during the 2 course of investigation, LW.6 has examined PW.1, LWs. 2 and 3 and has recorded their detailed statements U/s.161 CrPC, inspected the scene of offence and had prepared the rough sketch. It was further mentioned in the charge sheet that LW.7 has verified the investigation which was done by LW.6 and had arrested the accused in the presence of PWs.2 and 3 on 10-10-2018 at 12 p.m. in front of

Majeti Guravaih High School Ground, Arundelpet 10th line ending, Guntur while investigating the case in Cr.No.316/2018, U/s.379 IPC of Arundelpet PS.

It was also narrated in the charge sheet that the accused had voluntarily confessed in the presence of PWs.2 and 3 that they together committed the

offence in Cr.No.316/2018, U/s.379 IPC, of Arundelpet PS and also the

offences in cr.No.330/2018, 339/2018,416/2018, 460/2018, U/s.379 IPC of

Arundelpet PS with an intention to earn more money easily for their

vices. It was further mentioned in the charge sheet that based upon the statement of confession by the accused, LW.7 has seized the stolen property in

Cr.No.316/2018, 330/2018, 339/2018, 416/2018, 460/2018, U/s.379 IPC of

Arundelpet PS and also seized additional property i.e., Bajaj Pulsar 150 DTSI.

Motor Cycle bearing No.AP.05, BA.8585, chassis No.DHGBPE1513, Chassis

No.MD2DHDHZZPCE76484 from the possession of the accused in the presence of

PWs.2 and 3 under the cover of a Mediatornama and that subsequently, LW.7 has forwarded the accused to judicial custody in cr.No.316/2018, U/s.379 IPC of

Arundelpet PS and that LW.7 has filed charge sheet after completion of investigation.

2.On filing of the charge sheet, this case was taken on file under Section u/s.411 of Indian Penal Code, against the accused.

3.When the accused had appeared before this Court, copies of the case documents were furnished to him by complying with the requirements as stated under Section 207 of Cr.P.C and the accused was examined under Section 239

Cr.P.C., by explaining to them in Telugu, the contents of charges that were framed under u/s.411 of Indian Penal Code, and during their examination, on having understood the same, the accused had pleaded not guilty and claimed to be tried.

4. During the course of trial, to prove its case, prosecution had examined

Pws.1 to 3 and has got marked Exs.P1 to P5. Evidence of LWs.2,3,6 and 7 was given up by the learned APP., by making endorsement to that effect. During the course of examination, PWs.2 and 3, have turned hostile and due to the reason that PWs.2 and 3 had not adduced any incriminating evidence against the accused , evidence of LWs.2,3,6,7 were given up by the learned APP. As no purpose would be served in examining the other list of prosecution witnesses summons were not served to other witnesses and thus, after completion of examination of Pws.1 to 3, the evidence of the prosecution was closed. During 3 the examination of accused under Section 313 of the Criminal Procedure Code the accused has denied the evidence of PW.1 and has stated that he is not aware of the offence alleged to have been committed by him and has reported that there are no witnesses to be examined on his behalf. Hence, Defence evidence was closed. On Hearing the arguments on both sides, for pronouncing the Judgment, this Court has framed following point for determining the main issue in controversy.

5. Now the points for determination is:- Whether the prosecution was able to prove the guilt of the accused for the offences punishable under Section 411 of Indian Penal Code, beyond all reasonable doubt?

6.After completion of the trial proceedings and upon hearing the version of the learned APP and learned legal aid counsel for the accused this Court had opined that accused was not found guilty of the offence punishable under Section u/s.411 of Indian Penal Code, For answering the point that was framed against the accused, this Court had taken into consideration the following aspects which had formed the reasonable grounds for the acquittal of the accused, after the appreciation of evidence of the prosecution.

7.Appreciation of evidence of the prosecution:- For answering Point

No.1:- This Court has taken into consideration the depositions of PWs. 1 to 3 which were made by them and also upon perusal of the averments of the material that was placed before this Court for the purpose of appreciation of evidence.

8.During the examination-in-chief of PW1, PW.1 has stated as follows, “LW2 is my wife, I know LW.3. On 9-7-2018, I have parked my Honda Shine bike bearing

Regd. No.AP07 CG 3620 in front of my house at 11-00 p.m., and on the next day morning, when I have come outside for proceeding to Vegetable market, I have found my bike missing and did not find the same, by enquiry the neighbours and as such I have come to the conclusion that the bike was stolen by some one and I have lodged the report on 10-7-2018 in Arundelpet PS. Later on, I was informed that my bike was recovered by the police. I was examined by the police after lodging of the report. Ex.P1 is the report.

During the cross-examination of PW.1, PW.1 has stated as follows, “I have not received any type of intimation from my neighbours that some person in a suspicious state was roaming and that such suspicious person might have committed the theft of my stolen bike. It is true that I was not informed by the police the identity and particulars of the person who has committed the theft of my bike and from whom my bike was recovered, but the concerned police have only informed me that the bike was recovered. It is true that I have come before this court as for adducing evidence as witness as I have been informed that my bike was recovered”. From the evidence of PW.1, it is clear that the prosecution has failed to establish the identity of the 4 accused as PW.1 has stated that he was only informed of the recovery of his bike and that no particulars were given to him by the concerned police and that no test identification parade of the accused was conducted and that the entire proceedings were police proceedings.

b) During the examination-in-chief of PW2, he had stated, “I have acted as mediator along with LW.5 on the request of my friend PW.1 when PW.1 has informed me that the bike which was stolen was recovered and has requested me to act as a mediator. I do not know whether the police has seized the vehicle from the accused and the accused was not arrested and the vehicle was not seized in my presence. I do not know the other facts of this case”.

At this stage, the Learned A.P.P., had sought the permission from this Court, to declare the witness as hostile and when permission was accordingly granted to him and on further examining PW.2, PW.2 has stated as follows:“It is not true to

suggest that in my presence the arrest of accused and seizer of Honda

Shine bike was effected and the witness added that on the request of

the PW.1, he has acted only as a witness. It is not true to suggest that in order to help the accused, I am deposing false”.

c) During the examination-in-chief of PW3, he had stated as follows, “ I know

PW.2. On one day, I was informed that the stolen bike of PW.1 was recovered and I havbe scribed my signature as witness when I was informed that PW.1 would be given the recovered bike. I do not know whether the police ghas seized the vehicle from the accused and the accused was not arrested and the vehicle was not seized in my presence. I do not know the other facts of the case”.

At this stage, the Learned A.P.P., had sought the permission from this Court, to declare the witness as hostile and when permission was accordingly granted to him and on further examining PW.3, PW.3 has stated as follows,“I have not

scribed my signature as mediator in two mediator’s report and i t is not

true to suggest that in my presence the arrest of accused and seizer of

Honda Shine bike was effected and the witness added that on the

request of the PW.1, he has acted only as a witness. It is not true to suggest that in order to help the accused, I am deposing false”.

From the evidence of PWs.2 and 3, this court has noticed that PWs.2 and 3 have not acted as mediators in this case and were shown as mediators as they have denied that they have scribed their signature in the mediator report and that the arrest of the accused and the recovery of the stolen properties were not made in their presence and that PWs.2 and 3 have scribed their signtaures only to act as witnesses at the request of PW.1, for receiving of stolen property by PW.1 when PW.1 has requested PWs.2 and 3 to act as witness for receiving such property when PW.1 was informed by the concerned police that his lost motor cycle was recovered.

5

9. Finding:

After appreciating the evidence that was adduced by the prosecution witnesses/PWs.1 to 3 and also upon the perusal of the averments that were stated in the documents which were marked through them (Exs.P1 to P5), this Court had opined as follows in answering the point that was framed against the accused, and had found the accused to be not guilty of the offence punishable under

Section 411 of Indian Penal Code, after taking into consideration the following aspects, which had formed the reasonable grounds for the acquittal of the accused.

10. Reasons for the finding:

1. In the charge sheet, it was mentioned that the accused has voluntarily admitted his guilt with regard to commission of offence of theft in various crimes registered by Arundelpet PS, and Cr.Nos.330/18, 339/18, 416/18, and 640/18 have been mentioned in the charge sheet that in all such crimes, the accused along

with other accused have committed the offence of theft of motor bikes

and that the same were recovered under the cover of meditornama.

But, on perusal of charge sheet and memo of PT warrant, this court has

observed that the other persons who were involved in the commission of

the offence were not mentioned as accused in the charge sheet and in addition to the above reason, this court has also noticed that on perusal of the

averments of the charge sheet and the memo of PT warrant, the case

property which was alleged to have been recovered by Arundelpet PS

was not produced before this court and that it was also not mentioned

by Arundelpet PS, that such recovered case property is in their custody

and that the same would be produced during the course of trial.

2)The case of the prosecution had become doubtful as the version given by the prosecution witnesses i.e., PWs. 2 and 3 in the open Court was different from the statements made by them in Exs.P2, P3 and in Exs.P4, P5 respectively.

As conflict has arisen between the sworn testimony of the witnesses made before the Court and the statements recorded in Exs.P2 to P5, superior weight and

preeminence has been given to the evidence adduced by the witnesses

in the open Court. At this stage as Pws. 2and 3 had turned hostile, the learned

APP after examining PWs.1 to 3 had given up the evidence of LWs.2,3,6,7. As no incriminating evidence was adduced by PWs.2 and 3 against the accused and as no useful purpose would be served in examining the other prosecution witnesses and the evidence of LWs.2,3,6,7 was given up. Even though, the learned APP had requested to declare PWs.2 and 3 as hostile, the statements made by PWs.2 and 6 3, has made this court to draw the inference that they have not acted as mediators and that in their presence, either the arrest of the accused or seizure of case property was not effected and PW.s2 and 3 were declared hostile.

3) This court has also relied upon the following principles of law for determining the guilt of the accused.

➔It is a well settled principle of law that in cases where the

accused are not arrested from the scene of offence itself, or the accused

is not known to the eye witnesses prior to the crime in question, the

identity of the accused has to be established by conducting test

identification parade. If this procedure has not been gone through, the

identity of the accused for the first time in the court room has no

evidentiary value and the accused deserves, in such cases, to be entitled

to acquittal. It was held so, in the case of K.Sriramulu Vs State (D.H.

Nasir,J) (A.P) 1998(1) ALT (Crl.) 89 (A.P). In the instant case, the above principle of law was not followed by Arundelpet PS ➔Nothing has come on record to show whether any such secret

information was received or whether it was reduced to writing or

whether a copy thereof was sent to the superior officer. In the absence

of this evidence, the implication of this accused in the commission of

crime falls under the cloud which aggravates the doubtful proposition of

the case. If this evidence was produced it would have served as the conclusive proof to the evidence of the prosecution.

➔ The confession recorded by the police officials is inadmissable in

evidence as it is hit by Section 25 and 27 of The Indian Evidence

Act. Non-examination of independent witnesses of seizure nama is

fatal to the prosecution case. Seizure proceedings are hit by

Section 27 of the Evidence Act.

➔ If article is found and discovered from open place and not found

concealed in consequence of information from the accused it cannot

be held to be a discovery. ( Reported in Sita Ram Vishnu Vs. State of

Maharastra, 1993 Cri.L.J 3364 (Bom).

➔In State Vs. Arun AIR 2003 SC 801 the Hon’ble Supreme Court held

that where there is no independent witness from the locality, the

prosecution must offer reasonable explanation where it transfers

that not only there were many residences in that locality but also

large number of people assembled at the time of recovery, the

selection of outsider as a seizure witness necessarily castes doubt.

In the instant case, no such explanation was given by the

prosecution and no independent witnesses were examined. In the instant case, the above three principles of law were not followed by the 7 concerned police.

11.The prosecution had failed to prove all the ingredients of the offences punishable u/s.411 of Indian Penal Code, had failed to link the accused with the commission of the offence charged against them, by producing relevant evidence, as PWs.2 and 3 had turned hostile by not adducing any incriminating evidence against the accused and more over from the evidence of PW.1, the identity of the accused could not be established by the prosecution and the entire proceedings which were recorded by the police being the police proceedings recorded on the basis of statement of confession made by the accused was opined by this court to be inadmissible in evidence as per the provisions of Sec.25 of Indian Evidence Act, and the recovery shown in this case was not considered as discovery of material object on the basis of statement of confession by the accused as per the provisions of Sec.27 of the Indian Evidence Act, hence, as the prosecution could not establish the guilt of the accused beyond all reasonable doubt and as the evidence adduced by PWs.1 to 3 had not attributed any role to the accused, the accused was not found guilty of the offence punishable under Sections 411 of

Indian Penal Code.

12.In the result, the accused was not found guilty of the offences punishable under Sections 411 of Indian Penal Code, and accordingly, he was acquitted under

Section 248 (1) Cr.P.C. The recovered case property was not produced before this court, hence, no orders were pronounced in respect of case property. As the accused is in judicial custody, the Superintendent of District jail, Guntur hereby directed to release the accused forthwith if his presence is not required in any other case.

Typed to my dictation, corrected and pronounced by me in the open Court, this the 30th day of October, 2018.

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

FAC:V ADDL. JUNIOR CIVIL JUDGE, GUNTUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE: --NONE-- PW1: Y.Nagarajuna. PW.2: Sh.Mohamad Rafi. PW.3:M.Srinivas.

DOCUMENTS MARKED

FOR PROSECUTION:FOR DEFENCE:: NIL Ex.P1: Report. Ex.P2: Signature of PW.2 on the mediator’s report drafted on 10-10-2018 at 10.00 a.m. Ex.P3: Signature of PW.2 on the mediator’s report drafted on 10-10-2018 at 12.30 p.m. Ex.P4: Signature of PW.3 in mediator report drafted on 10-10-2018 at 10.00 a.m. Ex.P5: Signature of PW.3 in mediator report drafted on 10-10-2018 at 12.30 p.m.

8

MATERIAL OBJECTS: -- NIL –

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

FAC:V ADDL. JUNIOR CIVIL JUDGE, GUNTUR.

9

CALENDAR AND JUDGMENT

IN THE COURT OF THE SPL. JUDL. MAGISTRATE OF I CLASS FOR PROHIBITION AND

EXCISE: GUNTUR.

C.C.No.684/ 2018

DATE OF :- Offence: 09-07-2018 Filing: 24.10.2018 Apprehension of accused: Accused is in person Released on bail : -- Commencement of trial: 26.10.2018 Close of trial: 26.10.2018 Sentence or order: 30.10.2018

Complainant :Sub-Inspector of Police,

Arundelpet PS, Guntur Urban.(Cr.No.316/2018)

Name of the accused : Pennati Naga Raju, S/o.Subbarao, 32 years, R/o 4th lane, Naidupet, Guntur. Offence: U/Secs.411 of IPC

Plea of accused: Not Guilty

Finding: Found not guilty

Explanation for delay: No delay, the calendar was prepared on the same date of pronouncing the Judgment. Sentence or Order: In the result, the accused was not found guilty of the offences punishable under Sections 411 of Indian Penal Code, and accordingly, he was acquitted under Section 248 (1) Cr.P.C. The recovered case property was not produced before this court, hence, no orders were pronounced in respect of case property. As the accused is in judicial custody, the Superintendent of District jail, Guntur hereby directed to release the accused forthwith if his presence is not required in any other case.

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

FAC:V Addl. Junior Civil Judge, Guntur.

Copy submitted to : The Hon’ble Chief Judicial Magistrate, Guntur. Copy to: The Superintendent of Police, Guntur.

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS

SPECIAL MOBILE COURT GUNTUR.

Present: Ms. K.ANUSHA,

Judl. Magistrate of I Class Spl. Mobile Court, Guntur

Wednesday, this the 17 th day of June, 2020.

C.C.No.634/2018

Between: State Represented by the Inspector of Police, Nallapadu Police Station. …Complainant.

And:

Patan Sharif Khan, S/o Adam Shafi, Age 43 years, Muslim, Vegetable Busines, D.O 23-5-25/1, Atchempet road, Muslimpet, Sattenapalli village and Mandal, Guntur District. …Accused.

This case coming on 15-06-2020 for final hearing before me in the presence of Learned Assistant Public Prosecutor on behalf of Complainant State represented by the police and of Sri B. Sagar, G. Srinivasa Rao, Learned counsels

for the accused and having stood over for consideration till this day, the court

delivered the following:

J U D G M E N T

The accused is indicted for the offences U/Sec.323, 448 & 506 IPC by

Inspector of police P.S. Nallapadu in Crime No.236/2018 with following allegations.

2.The case of prosecution in brief is as follows:

About 8 months prior to the incident on one day, LW1/Kallam Satyanarayana

Reddy/the informant returned to house from office before the usual time and found the accused present in his bed room and the accused on seeing LW1, beat LW1 and fled away. LW1 and residents of the apartment gave warning to the wife of LW1 and asked to change her behaviour and gave ultimatum that if she repeats the same in future they will report the matter to police. Even prior to the above incident the accused developed illegal intimacy with the wife of LW1 and the wife was admonished by the family elders on many occasions but she did not pay any heed and continued to have relationship with accused. While things stood, on 27.08.18, while LW1 was in the house along with LW2, the accused trespassed into the house and assaulted LW1 and LW2 indiscriminately and left. Later the accused called LW1 over phone and threatened him with dire consequences. Basing on the report of

LW1/PW1, LW6/PW4 registered the case as in crime No.236/2018 under sections 323, 448 & 506 and investigated. During the investigation, he visited the scene of offence and prepared the rough sketch and secured LW1 to LW5 and examined them and recorded their Sec.161 Cr.P.C statements and served sec.41-A Cr.P.C notice to 2 accused and submitted the CD file to LW7/Inspector of police Bala Murali Krishna and LW7 find the investigation of LW6/PW4 on correct lines and filed the charge sheet.

3. This court taken cognizance against accused for the offences punishable under sections 323, 448 & 506 of IPC. On appearance of accused case copies are furnished to him under section 207 Cr.P.C and he is examined under section 251

Cr.P.C. and substance of accusation for the offences under sections 323, 448 and 506 IPC reading over and explained to him in Telugu for which he pleaded not guilty and claimed to be tried.

4.To prove its case, prosecution examined PW1 to PW4 and got marked Exs.P1 to P3. After closure of the prosecution side evidence, the accused was examined u/sec. 313 Cr.P.C. for the incriminating material available against him in the evidence of prosecution witnesses, for which he denied the same and stated the evidence as false and reported no defence evidence.

5. Heard the arguments of the learned Assistant Public Prosecutor and the defence counsel.

6. Now the point that arises for consideration is:

Whether the prosecution is able to prove and establish the guilt of the accused for the offences under sections 323, 448 & 506 of IPC beyond all reasonable doubt?

7. To prove the offences U/sec.323 and 448 IPC, the prosecution has to establish that the accused has criminally trespassed into the house of PW1 and assaulted

PW1 and PW2 and caused simple hurt

8. To prove the offence U/sec.506 (1) IPC, the prosecution has to establish that the accused has criminally intimidated PW1 and threatened them with dire consequences to see his end.

9.PW1, K.Satyanarayana Reddy has deposed that he is the informant in this case. PW2 is his mother. He deposed that accused developed illegal intimacy with his wife and his mother-in-law/LW4 admonished his wife and at the advise of his mother-in-law/LW4, he shifted the family to Sattenpalli. He testified that on 31.12.12, he slept at the daba and the accused trespassed into the house and assaulted his mother/PW2. PW1 has testified that the issues with his wife continued till 2013 and at the advise of his mother-in-law, he shifted the family to Nallapadu.

3

PW1 further testified that on 27.03.18, he returned to home from office and found accused in his bed room and when he tried to caught hold the accused, accused assaulted him and fled away and hence he lodged the report.

In cross-examination, he admitted that his marriage was performed about 15 years back and his wife is the daughter of his paternal aunt. He has denied the suggestion that there is no any bad relation between his wife and the accused. He admitted that he did not lodge report on the incident occurred in the 2012. He admitted that before lodging the report against accused he lodged the report against one Srinivasa Reddy alleging that Srinivasa Reddy has developed illicit relationship with his wife. PW1 did not utter a word of receiving threatening call from the accused. He has also did not depose about accused assaulting PW2.

10.PW2, K. Dhanalakshmi has deposed that PW1 is her son. She deposed that in the year 2012, on one night, she found her daughter-in-law and accused were standing near the apartment beside to her house and are chitchatting. She further deposed that in the month of December, 2014 her daughter-in-law said that she will sleep in the room at daba and she refused the same and entertained a suspicion on the behaviour of her daughter-in-law and in the mid night she went to the daba and found accused and her daughter-in-law there. She further testified that she fed up with behaviour of her daughter-in-law and asked her parents to take her to their home. She further deposed that accused assaulted them indiscriminately and he eloped with her daughter-in-law.

In cross examination PW2 admitted that her daughter-in-law is the daughter of her own brother. She admitted that in her Sec 161 Cr.P.C statement, she stated that her daughter-in-law eloped with one Sreenivasa Reddy prior to marriage. She admitted that in her Sec 161 Cr.P.C statement she did not state fact in the month of

December, 2014 her daughter-in-law said that she will sleep in the room at daba and she refused the same and entertained a suspicion on the behaviour of her daughter-in-law and in the mid night she went to the daba and found accused and her daughter-in-law there. As per the prosecution story she is one of the victim but surprisingly she did not depose about the incident occurred on 27.03.18 so also accused assaulting her.

11. PW3, M. Venkatappa Reddy has deposed that he knows witnesses PW's 1 & and 2 so also accused. He has deposed that one year back a scuffle took place between 4 the family members of PW1 and he being the neighbour of PW1 noticed the same.

He deposed that he is the secretary of the apartment and as the family of PW1 creating nuisance he issued notice to PW1. He has further deposed that he came to know that after one month the accused herein trespassed into the flat of PW1 and assaulted PW1 and pulled him and PW1 sustained injuries.

In cross-examination, he deposed that there are two security guards and watchmen in the apartment. He admitted that CC cameras are installed in the apartment. He has deposed that the incident had occurred in the month of

December, 2018 and within 10 days after the alleged incident police examined him and recorded his statement. As per the prosecution story, he is the eye witness to the alleged incident but he deposed that he came to know about the alleged incident and never witnessed the alleged occurrence. Further according to him the incident was occurred in the month of December, 2018.

12.PW4, Sub-Inspector of Police, Sk.China Mera Saheb has deposed that on 04.05.18 at about 15:00 hours, on the receipt of report of PW1, he registered the case. Accordingly, he investigated the case. He recorded the statement of the witnesses and visited the place of occurrence, prepared the sketch map Ex.P3. He served Sec41-A Cr.P.C notice to the accused. On completion of the investigation, he submitted the case diary to the LW7/Inspector of police. Later, LW7 had submitted the charge-sheet against the accused U/Sec's 323, 448 and 506 IPC.

In the cross-examination PW4 has deposed that he did not collect CC TV footage. He has stated that he did not investigate the incident of 31.2.12 and the incident occurred in the year 2014. He admitted that there is a delay of more than 40 days in lodging report. There is no explanation the reason of delay in lodging the

FIR. He did not investigate whether the incident occurred on day time or night time.

He admitted that PW1 did not state either in the report or statement with regard to date and time of receiving threatening call from the accused. He admitted that the

date 27.03.18 in the report seems to have written later.

13.With regard to the point for determination Learned Counsel for the accused has pointed out that the accused did not do any criminal trespass into the flat of the

PW1 and hence the prosecution did not collect CC TV footage though the CC cameras are installed in the apartment and he further pointed out that the evidence of PW's 3 and 4 clearly discloses that there are two security guards and watchmen 5 in the apartment and as per the rules a stranger will not be allowed in the apartment without intimating the concerned occupier of the flat and further in ward and out ward is also maintained and when that was the case what prevented the investigation officer to examine the watchmen and security guard or to collected the register. Upon hearing both sides on the point, I am of the considered view that to understand the offence of criminal house trespass it is necessary to go through definition of criminal trespass and house trespass. Hence it is necessary to look into the Secs. 441, 442 and 448 IPC have been defined in the Indian Penal Code as follows:-

Sec.441 of IPC. Criminal trespass.— “Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”.

House- trespass Sec 442 of IPC. “Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house – trespass".

Sec 448 of IPC. Punishment for house-trespass.—“Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

14.It is pertinent to mention here that Trespass is generally a civil wrong for which the defendant can sue for damages but when this trespass is committed with a criminal intention, it is treated as an offence and made punishable under the

Indian Penal Code.

15.It appears from the material evidence of the instant case that the charge against the accused framed U/S 448 and 323 IPC. It is alleged by the complainant that the accused has illicit physical relationship with the wife of the PW1 in his house and on seeing him the accused assaulted him

16.Now let us examine and evaluate the evidence on record in the interest of justice. It appears from the evidence on record that the PW1 has deposed that on 6 31.12.12, he slept at daba of the house and accused herein trespassed into house and assaulted his mother/PW2. Whereas, PW2 deposed that in the month of

December 2012, she found her daughter-in-law and accused chitchatting by standing beside the apartment. So the evidence of PW1 and PW2 is completely contradicting with each other on the above fact. Coming to the main story of prosecution that accused trespassed into the house of PW1 and assaulted PW1 and

PW2 and caused simple hurt except PW1 none of the witnesses have uttered a word about the occurrence of incident on 27.03.18. Further as per Ex.P1, PW1 contended in the report the accused trespassed into the house on 27.03.18 at 18:00 hours and he and his mother/PW2 questioned the accused for the same and in turn accused assaulted them. Whereas, in the evidence of PW1 did not depose about accused assaulting PW2. Besides that PW1 in the report contended that accused called him on phone and threatened him dire consequences. But surprisingly either PW1 or

PW2 did not whisper about this fact in their evidence before the court. The prosecution case the main allegation against accused is that he threatened PW1.

Furthermore, PW3 has deposed the incident was occurred in the month of December 2018 and he was examined by police after 10 days of the incident. Adding to this

PW1 and PW4 admitted that the date 27.03.18 in Ex.P1 seems to have written latter. Thus it becomes clear that the incident alleged to be occurred on 27.03.18 is uncorroborated & doubtful. Moreover as rightly contended by the learned counsel

for accused when the CC TV footage is very much available why PW4 the

investigation officer did not put efforts to collect the footage and what prevented him in examining watchmen and security guards. The consequently occurrence of incident on 27.03.18 is doubtful and adding to that there is delay of more than 40 days in lodging the report. In my considered view the said aspect is fatal to the prosecution case for various reasons as discussed below.

17.There is no whisper in Ex.P1 or in the version of PW1 regarding the said delay.

Admittedly, there are disputes between the PW1 and the accused. It is pertinent to note that the scene of offence is situated at Nallapadu itself, where the Police

Station is located. The law regarding the delay in lodging the report to police was time and again considered by the Hon’ble Apex Court in Catena of decisions. The law as enunciated by the Hon’ble Apex Court is that the delay in lodging report to police is not fatal when it is explainable and unavoidable and the delay is always 7 fatal when it is without any reason, unexplainable and avoidable. In the landmark decision rendered by the Hon’ble Apex court between Marudanal Augusti Vs.

State of Kerala as reported in AIR 1980 SC 636, it was held as follows:

“The entire fabric of the prosecution case would collapse if the FIR is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence."

The Hon’ble Apex Court in the decision reported in AIR 1973 SC 501 between Thulia Kali Vs. State of Tamilnadu. First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation.

It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.”

18. In the present case, as there are disputes between the parties and as no cogent explanation could be offered by PW1 for the said delay caused in lodging the report and in view of the above law, I hold that the said inordinate delay of (45) days caused in lodging the report to Police is remained unexplained and without any justification and thus it is fatal to the prosecution case.

19.Thus aforesaid discussion shows that the case of the prosecution regarding the offences U/secs 323, 448 and 506 IPC suffers from numerous contradictions, loop holes & defects whereby it can be safely concluded that the prosecution had failed to prove the commission of the said trespass, simple hurt and criminal intimidation against the accused beyond reasonable doubt.

8

20.In the result, I find the accused is not guilty for the offences under sections 323, 448 and 506 IPC. Hence, the accused is acquitted U/sec 255(1) Cr.P.C. The bail bonds of accused shall be in force for period of 6 months as contemplated

U/Sec.437-A Cr.P.C. No case property is deposited.

Typed to my dictation, corrected and pronounced by me in the open Court, this the 17th day of June, 2020.

Sd/- K. Anusha,

JUDL. MAGISTRATE OF I CLASS,

SPL., MOBILE COURT, GUNTUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE: PW1: Kallam Satyanara Reddy. Nil. PW2: Kallam Dhana Lakshmi. PW3: Mettu Venkatappa Reddy. PW4: Shaik China Meera Saheb.

DOCUMENTS MARKED

FOR PROSECUTION: FOR DEFENCE: EX.P1: Report of P.W1. Nil. EX.P2: FIR. Ex.P3: Rough sketch.

MATERIAL OBJECTS: Nil.

Sd/- K. Anusha,

JUDL. MAGISTRATE OF I CLASS,

SPL., MOBILE COURT, GUNTUR.

//True copy//

JFCM, Spl., M.C, GNT.

9

CALENDAR AND JUDGMENT

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

SPECIAL MOBILE COURT, GUNTUR.

C.C.No.634 of 2018

Date of ApprehensionCommence ReleasedClosure of OffenceFilingof thement ofResult on bailtrial accusedtrial 1234567 27.03.1823.10.1822.04.19 --03.07.1911.03.2017.06.20

Complainant: State Represented by the Inspector of Police, Nallapadu Police Station.

Name of the accused: Patan Sharif Khan, S/o Adam Shafi, Age 43 years, Muslim, Vegetable Busines, D.O 23-5-25/1, Atchempet road, Muslimpet, Sattenapalli village and Mandal, Guntur District.

Nature of Offence: U/Secs. 448, 323, 506 of IPC Plea of the Accused: Not guilty. Finding of the court: Not guilty.

Sentence or Order: In the result, I find the accused is not guilty for the offences under sections 323, 448 and 506 IPC. Hence, the accused is acquitted U/sec 255(1) Cr.P.C. The bail bonds of accused shall be in force for period of 6 months as contemplated U/Sec.437-A Cr.P.C. No case property is deposited.

Explanation for the delay: This case was taken file on 23.10.2018. In this case, copies of documents were furnished to the accused on 22.04.2019. The accused was examined U/s.251 of Cr.P.C on 22.04.2019. During the course of trial, PWs.1 to P.W4 was examined and got marked Exs.P1 to P3 and the prosecution evidence was closed. On 12.03.2020, the accused was examined U/sec 313 Cr.P.C and on 15.06.2020, heard both sides. On 17.06.2020, Judgment pronounced. Hence, the delay.

Sd/- K. Anusha,

JUDL. MAGISTRATE OF I CLASS,

SPL., MOBILE COURT, GUNTUR.

Copy submitted to : The Hon’ble Chief Judicial Magistrate, Guntur.

//True copy//

JFCM, Spl., M.C, GNT.

10

IN THE COURT OF THE SPL. JUDL. I CLASS MAGISTRATE FOR

PROHIBITION AND EXCISE ; GUNTUR

FAC:V Additional Junior Civil Judge Court, Guntur.

Present:- Ms. V. Sri Rama

Spl. Judl. I Class Magistrate for Prohibition and Excise, Guntur

Monday, this 29 th day of October, 2018

C.C. NO.679 of 2018

Between: State: Sub-Inspector of Police, Woman PS, Guntur Urban. (Crime No.147/2018)…Complainant.

And:

1. Kalisetty Srinivas, S/o. Late Narayanarao, 33 years, R/o. Kotinagaiah Hospital, Ganganammapet, VR Residential, 3rd floor, Tenlai.

2. Kalisetti Sivanagamalleswari, W/o.Narayana(late), 55 years, R/o. Opp. Kotinagaiah Hospital, Ganganammapet, VR Residential, 3rd floor, Tenali.

3. Kalisetty @ Kothamasu Purnima, W/o. Sureshbabu, 35 years, R/o.Murtali, Bangalore.

4. Kalisetty @ Nakka Parimala, W/o. Ramesh, 37 years, R/o. Opp. Kotinagaiah Hospital, Ganganammapet, VR residential, 3rd floor, Tenali.

(Case against Accused A3 was split up and re-numbered as CC.No.707 of 2018 as

per docket order on 29.10.2018)

… Accused.

This case had come before me on26-10-2018 for final hearing in the presence of the learned Assistant Public Prosecutor for defacto complainant and Sri. K.Ramesh counsel for the accused A1, A2 and A4 and after hearing of his argument and upon perusal of the entire material papers placed on record, this Court had passed the following:-

J U D G M E N T

The Sub-Inspector of Police, Women PS, Guntur Urban, had filed the charge sheet against the accused A1 to A4 that on filing of the report by PW1 before them, a case in Crime No.147/2018 was registered against accused A1 to A4 under Section 498-A, 506 , r/w Sec.34 of Indian Penal Code and under Sections 3 and 4 of the Dowry Prohibition Act.

2.The brief averments of the charge sheet which was filed based on the private complaint of the defacto complainant: Private complaint was filed under 190 of Cr.P.C with a prayer to forward the same to the concerned 2

S.H.O for conducting of investigation and for filling of the report under

Sec.156(3) of Cr.P.C and based on the private complaint, the FIR was registered as a case in Cr.No.147/18 dt. 24.04.2018 and the charge sheet was filed by the Women PS on completion of the investigation. It was mentioned in the charge sheet that the offences under Section 498-A, 506 r/w sec. 34 of Indian Penal Code and Sections 3 and 4 of the Dowry

Prohibition Act have been committed by the accused A1 to A4 at 2nd Lane of

Naidupet of Koritepadu in Guntur, Guntur District within in the limits of

Woman PS and as such within the jurisdiction of this Court.

It has been narrated in the charge sheet that LW1 is the defacto complainant. LW2 is father of LW1, LW3 is mother of LW1, LW4 is brother of

LW2, LW5 is elder paternal uncle of LW1, LWs.6 and 7 are Police officers. A1 is the husband of LW1. A2 is the mother of A1, A3 and A4 are sisters of A1.

It was narrated in the charge sheet that the marriage of PW.1 was performed with A1 on 14.08.2014 at CA. Nanduri Koteswararao,

Kameswari Garla Kalyana Mandapam, 1st Lane, Salipet, 1/6 Arundelpet,

Guntur, and that on the demand of all the accused, her parents/PW.2 and

Lw.3 have presented an amount of Rs.4,00,000/- to A1 to A4 towards dowry, besides an amount of Rs.1,00,000/- towards “Adapaduchu Lanchanalu” and also presented one house situated at 1st Bharatpet in the name of PW1 for mutual enjoyment of PW.1 and A1 and that since then, they have been enjoying the rent. Within a few months thereafter, A1 has conveyed his intention to have a flat at Bangalore and that he has also tried to raise a loan to purchase a flat. It was specifically mentioned in the charge sheet that again due to persistent demand of A1, A4, PW.2 and LW.3 had paid a sum of Rs.27 -00 Lakhs towards the purchase of flat and later, A1 has also taken the ATM card and Net banking details of PW1 and that A1 had withdraw all her salary without her notice and had been enjoying such sum for his bad vices and that the accused A1 was also accustomed to 3 womanizing. It was further narrated in the charge sheet that when PW.1 had questioned A1, A1 had threatened PW1 with dire consequences with the instigation of A2 and A4 and all accused A1 to A4 had forced her to give divorce. Later A1 had left to USA on his job and since then A1 to A4 had enhanced their harassment towards PW1 to bring more dowry from her parents or give divorce and that due to such unbearable harassment of A1 to

A4, as there was no other go,PW1 had filed a private complaint before this court, and that the same was endorsed to LW6 for conducting of investigation under Sec.156(3) of Cr.P.C and for filing of the report.

It has been further mentioned in the charge sheet that based on the complaint filed under 190 of Cr.P.C and it was forwarded under

Sec.156(3) of Cr.P.C, LW6 had registered the CFR.No.479/18 as a case in

Cr.No.147/2018 under section 498-A, 506 r/w Sec.34 IPC and Secs.3 and 4 of Dowry Prohibition Act of Woman PS on 24.04.2018 at about 11.00 hrs and had taken up the case for investigation and that during the course of investigation, LW6 had visited the scene of offence, observed the same, drafted rough sketch, secured PWs.1 and 2 and LWs. to 5, examined them and had recorded their Sec.161 Cr.P.C. statements. The copy of FIR was sent to the committee, Family Welfare Center, Nyayaseva Sadan Building, District court Compound, Guntur for counseling, but the accused A1 to A4 had not reconciled at the stage of counselling and as such, the committee of Family

Welfare Center, Nyayaseva Sadan Building, District Court Compound, Guntur which had counseled both parties, had informed that the accused A1 to A4 were not reconciled and that during the course of further investigation, LW7-

Sub-Inspector of Police, Women PS, had served the notices under sections.41(A) Cr.P.C. to A1 to A4 on 06.10.2018 in the presence of witnesses and had instructed them to abide by the conditions noted in the

Notice and the notices were acknowledged. After completion investigation,

LW7 had filed the charge sheet. In the charge sheet, it was opined by 4 concerned police, that A1 to A4 has harassed and ill-treated PW1 and also by demanding to bring additional dowry, had rendered themselves to be liable for the offences punishable u/s.498-A IPC, 506 r/w.34 IPC and Sec.3 and 4 of Dowry Prohibition Act.

3.On filing of the charge sheet, this case was taken on file under

Sections u/s.498-A, 506 r/w Sec.34 of Indian Penal Code and Secs.3 and 4 of Dowry Prohibition Act against the accused A1 to A4.

4.Accused A3 has not appeared before this court as on the date of adjournment, copies were not furnished to her and charge was also not framed against accused A3 u/s.498-A, 506 r/w sec.34 of Indian Penal Code and Sec.3 and 4 of Dowry Prohibition Act and as such c ase against Accused

A3 was split up and re-numbered as CC.No.707 of 2018 as per docket order on

29.10.2018). When the accused A1, A2 and A4 had appeared before this

Court, copies of the case documents were furnished to them by complying with the requirements as stated under Section 207 of Cr.P.C and the accused A1, A2 and A4 were examined under Section 239 Cr.P.C., by explaining to them in Telugu, the contents of charges that were framed under u/s.498-A, 506 r/w sec.34 of Indian Penal Code and Sec.3 and 4 of

Dowry Prohibition Act and during their examination, on having understood the same, the accused A1, A2 and A4 had pleaded not guilty and claimed to be tried and based on the memo filed by the defacto complainant through learned APP, that the other witnesses in this case need not be examined and that the dispute has been settled as per the terms of the compromise entered into by both the parties in the presence of the elders of their respective families, considering the averments of the memo, LWs.1 and 2 were examined as PWs.1 and 2 and the evidence of remaining witnesses/LWs.3 to 7 were given up by the learned APP, in view of the letter/ memo filed by the defacto complainant.

5

5. To prove its case, prosecution had examined Pws.1, 2 and got marked

Exs.P1 to P4. Evidence of LWs.3 to 7 was given up by the learned APP., by making endorsement that the evidence of LWs.3 to 7 was given up by the prosecution, PWs.1 and 2 have turned hostile by admitting in their chief- examination that the disputes between the defacto complainant and the accusedA1 to A4 have been resolved as per the terms of their compromise, and PWs.1 and 2 have negated from the statements made by them earlier in private complaint . Due to the reason that PWs.1 and 2 had not adduced any incriminating evidence against the accused A1 to A4, evidence of Lws.3 to 7 was given up by the learned APP. As no purpose would be served in examining the other list of prosecution witnesses summons were not served to Lws.3 to 7 and their evidence was closed. Thus, after completion of examination of PWs.1 and 2, the evidence of the prosecution was closed. As no incriminating evidence was adduced by the prosecution witnesses against the accused A1 to A4, the examination of accused A1, A2 and A4 under

Section 313 of the Criminal Procedure Code was dispensed with and as accused A3 has not appeared before this court and copies wee not served upon her, she was not examined under Sec.239 of Criminal Procedure Code, and based on the memo filed by the defacto complainant, the examination of the accused A3 under Sec.239 of Cr.P.C was dispensed with as it was mentioned by defacto complainant that all the pending disputes between

both the parties have been resolved as per the terms of their

compromise entered into in the presence of elders on both sides .

Hence upon listening the version of the learned APP for pronouncing the

Judgment, this Court had made the following observation for the purpose of answering the point for determination that is framed in this case.

6. Now the points for determination is:- Whether the prosecution was able to prove the guilt of the accused A1, A2 and A4 for the offences punishable under Section u/s.498-A, 506 r/w Sec.34 of Indian Penal Code and Secs.3 and 4 of 6

Dowry Prohibition Act beyond all reasonable doubt?

7.After completion of the trial proceedings and upon hearing the version of the learned APP and counsel for the accused A1,A2 and A4, this Court had opined that accused A1,A2 and A4 were not found guilty of the offence punishable under Section u/s.498-A, 506 r/w sec.34 of Indian Penal Code and Secs.3 and 4 of Dowry Prohibition Act. For answering the point that was framed against the accused A1, A2 and A4, this Court had taken into consideration the following aspects which had formed the reasonable grounds for the acquittal of the accused A1, A2 and A4, after the appreciation of evidence of the prosecution.

8.Appreciation of evidence of the prosecution:- For answering

Point No.1:- This Court has taken into consideration the depositions of PWs.

1 and 2 which were made by them during their examination-in-chief and cross examination by learned APP and also upon perusal of the averments of the material that was placed before this Court for the purpose of appreciation of evidence.

9.During the examination-in-chief of PW1, she had stated as follows:

“LW2 is my father. LW3 is my mother. LW4 is my brother. I know LW5 and I also know accused A1 is my husband, A2 to A4 are relatives of A1. After getting married A1, we have went to Bangalore. We have resided together for few months and after few months of leading conjugal life with A1, disputes

between have arisen between us and such disputes have resolved

before our respective elders and the matter has been settled out of the

court. Due to minor disputes that have cropped between us, I have

lodged the private complaint before this court and the disputes have

been resolved as per the terms of our compromise. I do not know the

contents of the private complaint that was lodged by me and I have

scribed my signature at the instance of my elders”.

At this stage, the Learned A.P.P., had sought the permission from this

Court, to declare the witness as hostile and when Permission was accordingly 7 granted to her and during cross- examination of PW.1 by learned APP, PW.1 has stated as follows:“It is not true to suggest that accused A1 to A4

have harassed me for bringing additional amount towards dowry and

I am giving deviated version from the statements made by me

earlier before the police. It is also not true to suggest that as the

matter was settled out of the court, I am deposing false”.

b) During the examination-in-chief of PW2, he had stated as follows:- “PW1 is my daughter. LW3 is my wife. LW4 is my son. I know LW5 and I also know the accused A1 to A4. Due to some disputes that have cropped up

between PW1 and the accused A1 to A4, private complaint was filed

against A1 to A4 in this court and the dispute has been resolved as per

the terms of compromise entered into between us in the presence of

our respective elders”.

At this stage, the Learned A.P.P., had sought the permission from this

Court, to declare the witness as hostile and when permission was accordingly granted to her and during cross-examination of PW.2 by learned

APP, PW.2 has stated as follows:- “It is not true to suggest that accused

A1 to A4 have harassed PW1 for bringing additional amount towards

dowry and I am giving deviated version from the statements made

by me earlier before the police. It is also not true to suggest that as

the matter was settled out of the court, I am deposing false”.

10.Thus the case of the prosecution had become doubtful as the version given by the prosecution witnesses i.e., PWs. 1 and 2 in the open Court was different from the statements made by them earlier in their private complaint. As conflict has arisen between the sworn testimony of the witnesses made before the Court and the statements made by them (PWs.1 and 2) in the private complaint filed by them before this court based on which, the case was registered as a case in Cr.no.147/18 and the charge sheet was filed before this court. Hence, superior weight and

preeminence has been given to the evidence adduced by the

witnesses/PWs.1 and 2 in the open Court and the same was

8

considered as substantive evidence for deciding the main issue in

controversy. At this stage as PWs.1 and 2 had turned hostile, the learned

APP after examining PWs.1 and 2 had given up the evidence of LWs.3 to 7.

As no incriminating evidence was adduced by PWs.1 and 2 against the accused A1 to A4 and as no useful purpose would be served in examining the other prosecution witnesses and the evidence of LWs. 3 to 7 was given up and the evidence of prosecution was closed and for the self same reason the examination of the accused A1, A2 and A4 under Sec.313 Cr.P.C was dispensed with by this court.

11.The prosecution had failed to prove all the ingredients of the offences punishable u/s.498-A, 506 r/w sec.34 of Indian Penal Code and Secs.3 and 4 of Dowry Prohibition Act, had failed to link the accused A1, A2 and A4 with the commission of the offence charged against them, by producing relevant evidence, as PWs.1 and 2 had turned hostile by not adducing any incriminating evidence against the accused A1, A2 and A4. Hence, as the prosecution could not establish the guilt of the accused A1, A2 and A4 beyond all reasonable doubt and as the evidence adduced by PWs.1 & 2 had not attributed any role to the accused A1, A2 and A4, Hence, the accused

A1, A2 and A4 were not found guilty of the offence punishable under

Sections 498-A, 506 r/w sec.34 of Indian Penal Code and Secs.3 and 4 of

Dowry Prohibition Act. As the accused A3 has not appeared before this court and copies were not furnished to her under Sec.207 of Cr.P.C, charges under

Sections 498-A, 506 r/w sec.34 of Indian Penal Code and Secs.3 and 4 of

Dowry Prohibition Act, were not framed against accused A3 and the case was split up against accused A3.

12.In the result, the accused A1, A2 and A4 were not found guilty of the offences punishable under Sections 498-A, 506 r/w sec.34 of Indian Penal

Code and Secs.3 and 4 of Dowry Prohibition Act, and accordingly, they were acquitted under Section 248 (1) Cr.P.C. As the accused A1,A2 and A4 has obtained station bail, hence no orders were pronounced in respect of bail bonds of the accused A1, A2 and A4.

Typed to my dictation, corrected and pronounced by me in the open Court, this the 29th day of October, 2018.

Sd/-V.Sri Rama

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

FAC:V ADDL. JUNIOR CIVIL JUDGE, GUNTUR.

9

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE: --NONE-- PW1: K. Nagarani PW.2: K. Rosaiah.

DOCUMENTS MARKED

FOR PROSECUTION: Ex.P1: Signature of PW1 in private complaint filed in CFR.No.479/2018. Ex.P2: Sec.161 Cr.P.C statement of PW.1. Ex.P3: Memo filed by PW.1. Ex.P4:Sec. 161 Cr.P.C statement of PW.2.

FOR DEFENCE:: NIL

MATERIAL OBJECTS: -- NIL –

Sd/-V.Sri Rama

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

FAC:V Addl. Junior Civil Judge, Guntur.

10

CALENDAR AND JUDGMENT

IN THE COURT OF THE SPL. JUDL. MAGISTRATE OF I CLASS FOR PROHIBITION AND EXCISE: GUNTUR.

C.C.No.679 /2018

DATE OF :- Offence: Prior to 24.04.2018 Filing: 23.10.2018 Apprehension of accused: -- Commencement of trial: 26.10.2018 Close of trial: 26.10.2018 Sentence or order: 29.10.2018

Complainant :Sub-Inspector of Police, Woman PS, Guntur Urban.

(Crime No.147/2018)

Name of the accused :

1. Kalisetty Srinivas, S/o. Late Narayanarao, 33 years, R/o. Kotinagaiah Hospital, Ganganammapet, VR Residential, 3rd floor, Tenlai.

2. Kalisetti Sivanagamalleswari, W/o.Narayana(late), 55 years, R/o. Opp. Kotinagaiah Hospital, Ganganammapet, VR Residential, 3rd floor, Tenali.

3. Kalisetty @ Kothamasu Purnima, W/o. Sureshbabu, 35 years, R/o.Murtali, Bangalore.

4. Kalisetty @ Nakka Parimala, W/o. Ramesh, 37 years, R/o. Opp. Kotinagaiah Hospital, Ganganammapet, VR residential, 3rd floor, Tenali.

(Case against Accused A3 was split up and re-numbered as CC.No.707 of 2018

as per docket order on 29.10.2018)

Offence: U/Secs.498-A IPC, 506 r/w. 34 IPC, 3 & 4 of D.P.Act

Plea of accused: Not Guilty

Finding: Found not guilty

Explanation for delay: No delay, the calendar was prepared on the same date of pronouncing the Judgment. Sentence or Order: In the result, the accused A1, A2 and A4 were not found guilty of the offences punishable under Sections 498-A, 506 r/w sec.34 of Indian Penal Code and Secs.3 and 4 of Dowry Prohibition Act, and accordingly, they were acquitted under Section 248 (1) Cr.P.C. As the accused A1,A2 and A4 has obtained station bail, hence no orders were pronounced in respect of bail bonds of the accused A1, A2 and A4.

Sd/-V.Sri Rama

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

FAC:V Addl. Junior Civil Judge, Guntur.

Copy submitted to : The Hon’ble Chief Judicial Magistrate, Guntur. Copy to: The Superintendent of Police, Guntur.

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS

SPECIAL MOBILE COURT GUNTUR.

Present: K.ANUSHA,

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

Monday, this the 1 st day of June, 2020.

C.C.No.2986/2019

Between: State Represented by the Sub-Inspector of Police, Nallapadu Police Station.…Complainant. And:

Jogi Gopichandh, S/o Venkateswara Rao, Age 23 years, Potharlanka village, Kolluru Mandal, Guntur District. …Accused.

This case is coming on 29.05.2020 for final hearing before me in the presence of Learned Assistant Public Prosecutor on behalf of Complainant for State represented by the police and of Sri. S.T Prasad, Advocate for the accused and having stood over for consideration till this day, the court delivered the following:

J U D G M E N T

The Sub-Inspector of Police, P.S Nallapadu filed charge sheet alleging that the accused is the driver of Tata Tipper lorry bearing No.AP16 TX 4266 and that on 27-03-2019 at about 15:30 hours, while the LWs.1, 4 to 7 namely Sayyad Nayab,

Sayyad Nowsar John, Sayyad Habibunnisa, Sayyad Manisha and Shaik Sufiya were proceeding from Pedapouni village to Mangalagiri on Swift Dezire car vide bearing No.

AP 27 BH 331 and when they reached near Eenadu office, the accused drove the said lorry in high speed and in rash and negligent manner and dashed against the car on which the LWs.1, 4 to 7 were proceeding, due to which the LWs.1, 4 to 7 sustained bleeding injuries. It is alleged that on the report lodged by the Complainant/LW1 namely Sayyad Nayab, on 28-03-2019 at 12:00 hours, the Police registered a case in

Cr.No.190/2019 against the accused U/Sec.337 IPC and examined LW.1 and other witnesses and visited the scene of offence and prepared rough sketch and after receiving wound certificates police filed alteration memo to alter section 337 IPC to 338 IPC as the injuries sustained by LW6/Manisha are grievous in nature as per the wound certificate and later the Police filed charge sheet.

2.The case was taken cognizance of offence punishable U/Secs.338 IPC against the accused. On appearance of the accused, copies furnished on the accused

U/Sec.207 Cr.P.C and he is examined U/Sec.251 Cr.P.C and the accusation for the offence U/Secs.338 IPC is read over and explained to him, for which he pleaded not guilty and claimed to be tried.

3. To prove its case, prosecution examined PWs.1 to 6 and got marked Exs.P1 to 2

P4. After closure of prosecution evidence, the accused is examined U/Sec.313 Cr.P.C in respect of incriminating material and he reported no defence. No evidence is adduced on his behalf.

4. Heard the learned Asst. Public Prosecutor and the counsel for accused.

5. Now the point that arises for determination is:

“Whether the prosecution could bring home the guilt of the accused beyond all reasonable doubt for the offence U/Sec. 338 IPC?”

6.The accusation against the accused is for the offence U/Sec.338 of IPC, in order to fasten the liability of the accused for the said offence, the prosecution has to establish that in this fateful accident, PWs. 1 to 4 have received injuries due to the negligent driving of the crime vehicle by the accused herein.

7. The learned Addl. P.P., has submitted that the testimony of PW's 3 and 4 are sufficient for deciding the guilt of the accused and as witnesses clearly identified the accused and deposed that he is the driver of the crime vehicle and that only due to the negligent driving of the accused, the present accident took place.

8. Per contra, the learned counsel for the accused has submitted that initially PW3 deposed that she did not see the driver of the crime vehicle as the driver fled away from the spot, immediately after the occurrence of accident and later she deposed that she can identify the accused and thus he argued that the testimony of PW3 is not creditworthy. He has sought to extend the benefit of doubt to the accused.

9. PW1: Syed Nayab is one of the injured. He deposed that on 27.03.2019, their family have drove to Mangalagiri to attend the convocation ceremony of their daughter at NRI college on Swift Dezire car vide bearing No. AP 27 BH 331 and when they reached near a Punjabi Dhaba, suddenly a tipper lorry which was in front his car taken right turn without giving indication and he failed to control the car and his car hit lorry and he sustained head injury and so also his family members sustained injuries. He deposed that on the very next day, he turned to police station and lodged a report. PW2 is one of the injured and wife of PW1 deposed on the same lines of

PW1.

10. PW3: Habibunnisa one of the injured. She deposed that on 27.03.2019, their family have drove to Mangalagiri to attend the convocation ceremony of their sister 3 at NRI college on Swift Dezire car vide bearing No. AP 27 BH 331 and when they reached near a Punjabi Dhaba, suddenly a tipper lorry which was in front their car has taken right turn without giving indication and her father PW1 failed to control the vehicle and the car hit lorry and she sustained injury on nose and other parts and so also his family member’s sustained injuries. As rightly contended by the Learned counsel for accused initially PW3 deposed that she did not see the driver of the crime vehicle as the driver fled away from the spot immediately after the occurrence of accident and later she deposed that she can identify the driver of the vehicle and identified the accused as driver of the crime vehicle. During the course of cross examination she admitted that no test identification was conducted by the police after the occurrence of accident and after the accident she seeing the accused for the first time before the court. PW4 who is one of the injured deposed on the same lines of PW3 and identified the accused as driver of the crime vehicle.

11.Dr.Y.Sarath Chandra PW5, who is the Medical Officer, stated that on 28.03.2019 at 13:45 hours, he examined PW1/injured and found the injuries as noted in Ex.P.2.

He opined that the injuries are simple in nature.

12.At this juncture, if the evidence of the investigation officer is perused, PW6 has taken up the investigation on the receipt of report of PW1 and registered the FIR and then visited the scene of offence at NH-16 and prepared rough sketch. Further, it is evident from the evidence of PW6 that the PW's 1 to 4 were not shifted GGH but shifted to NRI Hospital. As per the evidence of PW1 the other injured PW's 3 & 4 were on the back seats and the evidence of PW3 reveals that immediately after the accident the driver of crime vehicle fled away from the scene. So if the evidence of

PW's 3 and 4 read together with the evidence of PW1 it looks doubtful about the scope of PW3 and PW4 to see the driver of the crime vehicle. As per the record, the complicity of the accused was come into light for the first time only on affecting his arrest. The record is not disclosing any material to show that the Investigating Officer taken any pain to establish that the accused was the driver of crime vehicle on the date of incident. When the report under Ex.P1 and Sec.161 Cr.P.C., statements of the witnesses are not disclosing the name and identity particulars of the driver of said lorry it is incumbent on the part of the Investigating Officer either to re-examine the material witnesses or to conduct the identification parade of the accused by witnesses to establish that the accused was the driver of the crime vehicle at the 4 time of incident.

13. It is clear from the record that the Investigating officer i.e., PW6 did not conduct the identification parade of the accused after his arrest. It is already observed supra that the version of PWs.3 and 4 that they saw the accused soon after the offence is not believable. In such a case, the holding of test identification parade after arresting of the accused is utmost important in the case on hand. The Hon'ble

High Court of Andhra Pradesh in similar case for the offence U/Sec.304-A

IPC reported in 2009 (2) ALT(Crl.) 128 (AP) between Piginaraji Ramarao

Vs.State of A.P held as follows: According to PW3–Modadugu Srinivasa Rao, after the accident, the lorry was stopped near the place of accident and the driver ran away. PW4–Thatikonda Venkateshwarlu, deposed that after the incident, the lorry covered a small distance and was stopped and the accused ran away. Of course,

PWs.1, 3 and 4 deposed that accused drove the lorry at the time of accident. The circumstances that there was no prior acquaintance between the witnesses and accused and the fact that the lorry was stopped at a distance of 20 or 25 feet from the place of accident and the driver after stopping the lorry, ran away from the place of accident, show that the witnesses had no opportunity to have a good look at the accused. In such circumstances, it is obligatory on the part of the investigating officer to elicit the descriptive particulars of the accused from the witnesses and to hold Test

Identification Parade, which would establish the case of the prosecution beyond all reasonable doubt. When a witness, who had no prior acquaintance with the accused and who had seen the accused for the first time for a few seconds, states to the police that he can identify the accused, the investigating officers should take steps for holding Test Identification Parade, wherein the given case, the witnesses had considerable time and opportunity to observe the offender, the situation would be different. When the witnesses identified the accused in the Test Identification Parade and also before the court then there may not be any doubt to accept the evidences of such witnesses with regard to the identity of the accused and the same establishes the identity of the accused. The primary object of holding a Test Identification Parade is to enable the witnesses to identify the person involved in the offence, who were not previously known to them. This serves the purpose of saying the bona fides of the witnesses and when the same corroborates, the testimony in the court, can be safely accepted. However, each case has to be decided on its own facts and circumstances.

Thus, the important factor is, whether the witnesses had an opportunity to see the 5 accused or not.

14. In view of the above discussion, in the absence of mention either in Ex.P1 or in

Sec.161 Cr.P.C. statements of PWs.3 and 4 about the name and other identity particulars of the accused as the driver of crime vehicle at the time of incident, the identification of the accused by PWs.3 & 4 in the Court hall does not inspire confidence. In view of the principle laid down in above decision, I hold that the failure to conduct the Test Identification Parade by calling PWs.3 & 4, after the arrest of the accused, is fatal to the prosecution case. Therefore, this Court is not inclined to accept the version of PWs.3 and 4 regarding the identity of the accused as the driver of crime vehicle at the time of alleged incident and holds that the prosecution failed to prove that the accused is the driver of crime vehicle i.e., Tipper lorry bearing No AP 16 TX 4266 on the date of accident i.e., on 27.03.2019.

15.Act of rashness or negligence:

To prove the offence U/Sec 338 IPC, the prosecution must establish that the accused had done any act of rashness or negligence. The term 'rashness' means, doing any act without caring or considering the consequences of such act. The word 'negligence' means, doing any act without any proper care and caution, which an ordinary prudent man expected to take. Here the PWs.3 and 4 have stated that the crime vehicle was driven in rash manner and in high speed. Though the Rough Sketch i.e., Ex.P4 is marked through PW6, he did not state any material observations to show that the crime vehicle was driven in rash or negligent manner. The contents of Ex.P4 are showing any material to draw an inference as to the proceeding of crime vehicle in a rash or negligent manner at the time of alleged incident. These documents are not showing the presence of the crime vehicle at the scene of offence at all. Further, the Investigating Officer examined as PW4 clearly admitted in his cross examination that the road at the scene of offence is sufficiently wide. Moreover, when it is found that the identity of accused as the driver of crime vehicle is doubtful, the version of

PWs.3 and 4 to show that the accused drove the crime vehicle in a rash or negligent manner at high speed at the time of alleged incident cannot be accepted. Thus, I hold that there is no legally acceptable evidence to show that the accused drove the crime vehicle in a rash or negligent manner at the time of alleged incident. The evidence of

PW's 1 to 4 are showing that they sustained injuries in the said incident. In view of this, I hold that it is proved that the injuries to PW's 1 to 4 are due to the road traffic accident occurred on 27.03.2019. However, as the identity of the accused as the 6 driver of crime vehicle is not proved beyond all reasonable doubt and when there is no evidence to show his any rash or negligent act resulting into the accident, I hold that the medical evidence and the evidence of Investigating officer also cannot be considered to uphold the prosecution case against the accused.

16.In view of above observations, as it is found that the evidence of PW's 3 and 4 are unworthy of credence to clearly establish the identity of accused as the driver of crime vehicle and as there is no cogent evidence to show any rash or negligent act of the accused resulting into the injuries to injured, I hold that the prosecution miserably failed to establish the guilt of the accused for the offence U/Sec. 338 IPC beyond all reasonable doubt and thus the accused is entitled for acquittal.

17.In the result, the accused is found not guilty for the offence punishable U/Sec.

338 IPC and accordingly, he is acquitted U/Sec 255(1) Cr.P.C. His bail bonds shall be in force for a period of 6 months as contemplated U/s 437-A Cr.P.C. No case property is deposited.

Typed to my dictation, corrected and pronounced by me in the open Court, this the 1st day of June, 2020.

Sd/- K. Anusha,

JUDL. MAGISTRATE OF I CLASS,

SPL., MOBILE COURT, GUNTUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE: PW1: Syed Nayab. Nil. PW2: Syed Nowsar. PW3: Syed Habibunnisa. PW4: Shaik Sufiya. PW5: Dr. Y. Sarath Chandra. PW6: Ch. Subba Rao.

DOCUMENTS MARKED

FOR PROSECUTION: FOR DEFENCE: EX.P1: Report of P.W1. Nil. EX.P2: Wound Certificate of P.W1. Ex.P3: FIR. Ex.P4: Rough sketch.

MATERIAL OBJECTS: Nil.

Sd/- K. Anusha,

JUDL. MAGISTRATE OF I CLASS,

SPL., MOBILE COURT, GUNTUR.

//True copy// 7

JFCM, Spl.M.C, GNT.

CALENDAR AND JUDGMENT

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

SPECIAL MOBILE COURT, GUNTUR.

C.C.No.2986 of 2019

Date of ApprehensionCommence ReleasedClosure of OffenceFilingof thement ofResult on bailtrial accusedtrial 1234567 27.03.1907.10.1906.11.19 --06.02.2027.02.2001.06.20

Complainant: State Represented by the Inspector of Police, Nallapadu Police Station.

Name of the accused: Jogi Gopichandh, S/o Venkateswara Rao, Age 23 years, Potharlanka village, Kolluru Mandal, Guntur District.

Nature of Offence: U/Secs. 337, 338 of IPC 8

Plea of the Accused: Not guilty. Finding of the court: Not guilty.

Sentence or Order: In the result, the accused is found not guilty for the offence punishable U/Sec. 338 IPC and accordingly, he is acquitted U/Sec 255(1) Cr.P.C. His bail bonds shall be in force for a period of 6 months as contemplated U/s 437-A Cr.P.C. No case property is deposited.

Explanation for the delay: This case was taken file on 07.10.2019. In this case, copies of documents were furnished to the accused on 06.11.2019. The accused was examined U/s.251 of Cr.P.C on 07.01.2020. During the course of trial, PWs.1 to P.W6 was examined and got marked Exs.P1 to P4 and the prosecution evidence was closed. On 11.03.2020, the accused was examined U/sec 313 Cr.P.C and on 13.03.2020, heard both sides. On 01.06.2020, Judgment pronounced. Hence, the delay.

Sd/- K. Anusha,

JUDL. MAGISTRATE OF I CLASS,

SPL., MOBILE COURT, GUNTUR.

Copy submitted to : The Hon’ble Chief Judicial Magistrate, Guntur.

//True copy//

JFCM, Spl.M.C, GNT.

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, SPECIAL

MOBILE COURT:: GUNTUR.

PRESENT: Ms. K.ANUSHA,

Judicial Magistrate of First Class,

Special Mobile Court, Guntur.

Tuesday, this 2 nd day of June, 2020.

C.C.NO. 3090 of 2019

Between:- State: Inspector of Police, Kothapet PS (Cr.No of 308/19 Kothapet P.S.)

…..Complainant.

And

1. Nagam Venkata Narayana, S/o Gangaiah, Age 24 years, Yadav, Obaipalle village, Tharlapadu Mandal, Prakasam District.

2. Pathakota Raghavendra Reddy, S/o Venkateswara Reddy, Age 22 years, Gollamudivari Veedhi, Sattenapalli, N/o Namsivaipuram village, Kuruchedu Mandal, Prakasam District.

3. Rudrapati Veeranjaneyulu, S/o Venkata Chennaiah, Age 19 years, Gollamudivari Veedhi, Sattenapalli, N/o Suddinainapalli.

…..Accused.

This case is coming on 01.06.2020 for final hearing before me in the presence of learned Assistant Public Prosecutor for the Complainant and of Sri B. Sagar, G. Srinivasa Rao Advocate for accused No.1 and Ch. Satya Sai Babu Advocate

for the accused No.2 and 3, and having stood over for consideration till this day, this

court delivered the following:

J U D G M E N T

The Inspector of Police, Kothapet PS, Guntur filed charge sheet against the accused No.1 to 3 in Cr.No.308/2019 for the offences punishable U/secs.3, 4 and 5 and 7 of Immoral Traffic (Prevention) Act, 1956.

2. It is the case of the prosecution that on 18.09.2019 at 20:00 hours, on receipt of tangible information about conducting brothel in Welcome lodge, situated opposite to Liberty theatre, Kothapet by PW5/LW7-S.V.Rajasekhar Reddy, Inspector of Police and immediately proceeded to the lodge conducted the raid after securing mediators along with his staff and on seeing them at reception A1 tried to fled away but police apprehended accused/A1. On interrogation A1 disclosed his identity particulars and confessed that he using the lodge for doing illegal activities and conducting prostitution as the lodge is running in loss and he further confessed that he procured Shaheena/Vocse/PW1. Based on the confession of A1 police straight away conducted raid in room No.302 and found A2, A3 and PW1 in compromising position. On interrogation of police, accused No.2 & 3 disclosed their identity particulars and confessed that they are in habit of visiting brothel to satisfy their 2 sexual lust. On enquiry of PW5, vocse PW1 voluntarily stated that to eke her living hood she is indulged in this profession. Then PW5/LW7 seized cash of Rs.800/-,

Samsung mobile from the possession of accused No.1, Gionee mobile and cash of

Rs.610/- from the possession of accused No.2, Honor mobile from the possession of accused No.3, Vivo mobile and cash of Rs.1000/- from the possession of PW1/Vocse under vide mediatornama and arrested accused No.1 to 3. Police returned to station along with accused and vocse and seized property.

Basing on the strength of mediatornama, a case in Cr.No.308/2019 U/Secs. 3, 4, 5 and 7 of Immoral Traffic (Prevention) Act was registered by PW5/LW7 and he visited the scene of offence and prepared rough sketch and secured the presence of witnesses filed charge sheet before the court. Thus, accused No.1 to 3 liable for punishment for the offences U/Secs.3, 4, 5 and 7 of ITP Act.

3. This court taken cognizance for the offences U/Secs. 3, 4, 5 and 7 of Immoral

Traffic (Prevention) Act against the accused No.1 to 3. On appearance of accused

No.1 to 3 before this court, relevant copies of documents were furnished to them.

Accused No.1 to 3 were examined under section 239 Cr.P.C., they denied the allegations in the charge sheet. Charges U/Secs. 3, 4, 5 and 7 of Immoral Traffic (Prevention) Act framed against the accused No.1 to 3 read over and explained to them, to which they pleaded not guilty and claimed to be tried.

4.During the course of trial, on behalf of the prosecution, P.Ws 1 to 5 were examined and Exs.P1 to P7 were marked and M.Os.1 to M.O.7 were also marked.

Ex.P1 is signature of PW1 on the mediatornama, Ex.P2 is the Sec 161 Cr.P.C statement of PW1, Exs.P3 & P4 are signatures of mediators on mediatornama

Dt.18.09.19 at 22:00 hours, Ex.P5 is the mediatornama, Ex.P6 is F.I.R and Ex.P7 is the rough sketch. M.O.1 is the Samsung mobile, M.O.2 is the Gionee mobile, M.O.3 is the Honour Mobile, M.O.4 is the Vivo mobile, M.O.5 is cash of Rs.800/-, M.O.6 is cash of Rs.610/- and M.O.7 is cash of Rs.1,000/-. The evidence of LW's 2 & 3 was given up by Learned APP.

5. After completion of evidence on prosecution side, the accused No.1 to 3 were examined U/s.313 Cr.P.C. The accused denied the incriminating material appearing against them and reported no defence evidence on their behalf.

6.Heard both sides.

3

7. Now, the point that arisen for determination is:

“Whether the prosecution is able to prove the offences U/Secs. 3, 4, 5 and 7 of Immoral Traffic (Prevention) Act beyond all reasonable doubt?

8.POINT:

The prosecution in order to prove its case, got examined the PW1 who said to be the victim and being exploited by accused turned hostile and did not support the case of prosecution. She deposed that she do not know anything about this case. Police did not examine her. When the witnesses confronted with mediatornama she admitted the signature over it but denied the contents and her signature is marked as Ex.P1. At this juncture, the learned A.P.P. treated the witness as hostile and marked her Sec 161 Cr.P.C statement which is marked as

Ex.P2 but did not elicit anything against the accused. PW's 2 and 3 are mediators in whose presence the police raided the lodge and accused confessed about committing the offence turned hostile and did not support the case of prosecution.

When the witnesses confronted with mediatornama they admitted the signatures over it but denied the contents and their signatures are marked as Exs.P3 & P4. At this juncture, the learned A.P.P. treated the witnesses as hostile and resorting permission he cross examined them but did not elicit anything against the accused.

9.Coming to the evidence of PW4 who was one of the constable accompanied

PW5 in the raid reiterated the contents in the charge sheet and deposed about PW5 receiving the information and calling them to accompany in the raid and they conducting the raid in Welcome lodge and accused confessions and about PW5 seizing the case property. The evidence of PW4 is replica of Ex.P4.

10. PW5, Inspector of Police has stated that on 18.09.2019 at 20:00 hours, he received tangible information about conducting brothel in Welcome lodge, situated opposite to Liberty theatre and he immediately proceeded to the lodge after securing mediators along with his staff and on seeing them at reception A1 tried to fled away but at his instructions his staff apprehended accused/A1. On his interrogation A1 disclosed his identity particulars and confessed that he using the lodge for doing illegal activities and conducting prostitution as the lodge is running in loss and he further confessed that he procured Shaheena/Vocse/PW1. Based on the confession of A1, they straight away conducted raid in room No.302 and found

A2, A3 and PW1 in compromising position. He further deposed that on his 4 interrogation accused No.2 & 3 disclosed their identity particulars and confessed that they are in habit of visiting brothel to satisfy their sexual lust. He further deposed that on his enquiry vocse PW1 voluntarily stated that to eke her living hood she is indulged in this profession. He further testified that on confession of accused, he seized case property from accused and vocse under vide mediatornama and arrested accused No.1 to 3. Then, he brought the accused and victims to police station. Basing on the strength of mediatornama, he registered a case and forwarded the accused for remand. On examining the evidence reveals that independent witnesses PW1's 1 to 3 i.e the victim and mediators for Seizure cum confession did not support the case of prosecution and thus there is no support to the evidence of PW's 4 & 5 who are police officials and who is interested witnesses.

Further, admittedly, Investigating Officer has not collected the registers or other documents of lodge where the prostitution was allegedly going on and at least did not seize any document to show that accused No.1 is the lessee of lodge. More so, inhabitants were not examined by the Investigating Officer to prove that prostitution was going on in the lodge in the above address. Further adding to this lacuna the investigating officer and defacto-complainant are one in this case.

11.The Hon’ble A.P High Court held in following decision what will be the effect if defacto-complainant itself is a investigating officer MADDU LAKSHMANA RAO Vs.

STATE OF A.P., held that the complainant himself couldn't act as Investigating Officer and the entire investigation gets vitiated.

In P.P.H.C. Of A.P. vs Mohd. Mansoor And Ors., on 14 March, 2001 held that defacto-complainant could depose with regard to his complaint and arrest of the accused and he could not depose with regard to the confessional statements, and confession-cum-seizure panchanama recorded by him. The learned Judge was of the view that the Apex Court in several decisions decided that the defacto- complainant could not be an investigating officer and, therefore, PW5 could not investigate the offences and could not have given the evidence in regard to the recording of the confessional statement and confession-cum-seizure panchanama and other articles that were seized from the possession of the accused.

12. Further PW5 failed to follow the procedure laid down under Sec.15(2) (6A) of

Immoral Traffic (Prevention) Act while conducting search and seizure. Further on conjoint reading of Section 100 (4) Cr.P.C. In this regard, this court referred a 5 decision of the Hon'ble High Court of A.P. in S. Babu Saheb @ Babu vs. State of

A.P. reported in 2010(1) ALT (Crl.) Page 32 and it was observed at paragraph

No.16: “The excise officials were proceeding on information. When they were proceeding on information, they were right in taking mediators along with them. If in a given case the excise or Police officials have to search a vehicle in a forest area or at a place where there is no possibility of securing any local mediators, then probably they will be justified in conducting seizure proceedings in the presence of mediators brought by them from a different place. But when they are conducting a search in a colony or at a place wherein there is possibility of securing the presence of independent mediators, the excise officials or prohibition officers are bound to take the local respectable independent inhabitants. They must make sincere efforts to secure local respectable mediators. That is the mandate of section 100(4) of

Cr.P.C. As referred to in the above provisions, excise officials are also authorised to issue an order in writing asking them to act as mediators under Sub Section (4) of

Section 100 Cr.P.C. The object of Section 100 Cr.P.C. is to ensure confidence in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted”.

13.Thus in view of aforesaid circumstances, it is held that the testimony of PW's 4 and 5 are not sufficient to bring home the guilt of accused for the above charges.

In these circumstances, the accused are liable to be acquitted.

14. In the result, accused No. 1 to 3 are found not guilty for the offences U/Secs.

3, 4, 5 and 7 of Immoral Traffic (Prevention) Act and accordingly, they are acquitted

U/Sec.248(1) Cr.P.C. M.Os. 1 to 4 are the Samsung mobile, Gionee mobile, Honour mobile and Vivo mobile shall be disposed off accordingly as per procedure after expiry of appeal time. M.O.5 cash of Rs.800/-, M.O.6 cash of Rs.610/- and M.O.7 cash of Rs.1000/- shall be confiscated to State, after expiry of appeal time. The bail bonds of accused No.1 to 3 shall be in force for period of 6 months as contemplated

U/sec.437-A Cr.P.C.

Typed to my dictation, corrected and pronounced by me in the open Court, this the 2nd day of June, 2020.

Sd/- K. Anusha,

JUDL. MAGISTRATE OF I CLASS,

SPL., MOBILE COURT, GUNTUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

6

FOR PROSECUTION FOR DEFENCE: PW1: Pattan Shahida. Nil. PW2: Akula Kalidas. PW3: Kotra Sivanand Kumar. PW4: K. Mahesh. PW5: S.V Raja Sekhara Reddy.

DOCUMENTS MARKED

FOR PROSECUTION: FOR DEFENCE: EX.P1: Signature of P.W1 on mediatornama. Nil. EX.P2: Sec 161 Cr.P.C statement of P.W1. Ex.P3: Signature of P.W2 on mediatornama. Ex.P4: Signature of P.W3 on mediatornama. Ex.P5: Mediatornama. Ex.P6: FIR. Ex.P7: Rough Sketch.

MATERIAL OBJECTS: M.O.1: Samsung mobile. M.O.2: Gionee mobile. M.O.3: Honour Mobile. M.O.4: Vivo mobile. M.O.5: Cash of Rs.800/-. M.O.6: cash of Rs.610/-. M.O.7: cash of Rs.1,000/-.

Sd/- K. Anusha,

JUDL. MAGISTRATE OF I CLASS,

SPL., MOBILE COURT, GUNTUR.

//True copy//

JFCM, Spl.M.C, GNT.

CALENDAR AND JUDGMENT

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

SPECIAL MOBILE COURT, GUNTUR.

C.C.No.3090 of 2019

Date of ApprehensionCommence ReleasedClosure of OffenceFilingof thement ofResult on bailtrial accusedtrial 1234567 18.09.1919.10.1923.12.19 --13.01.2004.03.2002.06.20

Complainant: State: Inspector of Police, Kothapet PS (Cr.No of 308/19 Kothapet P.S.) 7

Name of the accused:

1. Nagam Venkata Narayana, S/o Gangaiah, Age 24 years, Yadav, Obaipalle village, Tharlapadu Mandal, Prakasam District.

2. Pathakota Raghavendra Reddy, S/o Venkateswara Reddy, Age 22 years, Gollamudivari Veedhi, Sattenapalli, N/o Namsivaipuram village, Kuruchedu Mandal, Prakasam District.

3. Rudrapati Veeranjaneyulu, S/o Venkata Chennaiah, Age 19 years, Gollamudivari Veedhi, Sattenapalli, N/o Suddinainapalli.

Nature of Offence: U/Secs. 3, 4, 5 and 7 of ITP Act. Plea of the Accused: Not guilty. Finding of the court: Not guilty.

Sentence or Order: In the result, accused No.1 to 3 are found not guilty for the offences U/Secs. 3, 4, 5 and 7 of Immoral Traffic (Prevention) Act and accordingly, they are acquitted U/Sec.248(1) Cr.P.C. M.Os. 1 to 4 are the Samsung mobile, Gionee mobile, Honour mobile and Vivo mobile shall be disposed off accordingly as per procedure after expiry of appeal time. M.O.5 cash of Rs.800/-, M.O.6 cash of Rs.610/- and M.O.7 cash of Rs.1000/- shall be confiscated to State, after expiry of appeal time. The bail bonds of accused No.1 to 3 shall be in force for period of 6 months as contemplated U/sec.437-A Cr.P.C.

Explanation for the delay: This case was taken file on 19.10.2019. In this case, copies of documents were furnished to the accused No.1 to 3 on 23.12.2019. The accused No.1 to 3 were examined U/s.239 of Cr.P.C on 08.01.2020. During the course of trial, PWs.1 to P.W5 was examined and got marked Exs.P1 to P7 and MOs.1 to 7 and the prosecution evidence was closed. On 05.03.2020, the accused No.1 to 3 were examined U/sec 313 Cr.P.C and on 12.03.2020, heard both sides. On 02.06.2020, Judgment pronounced. Hence, the delay.

Sd/- K. Anusha,

JUDL. MAGISTRATE OF I CLASS,

SPL., MOBILE COURT, GUNTUR.

Copy submitted to : The Hon’ble Chief Judicial Magistrate, Guntur.

//True copy//

JFCM, Spl.M.C, GNT.

JFCM, Spl.M.C, GNT.