Sri K.Bala Koteswara Rao

C.C.No.1198 of 20151SPCL. JMFC (P&E), KURNOOL

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST

CLASS

(for Prohibition & Excise), KURNOOL.

PRESENT:-SRI.K.BALA KOTESWARA RAO Special Judicial Magistrate of I Class for Prohibition and Excise, Kurnool. MONDAY, THE 16 TH DAY OF SEPTEMBER, 2019.

C.C.No.1198/2015

Between: State: Represented by The Sub-Inspector of Police, Kurnool III Town Police Station. … Complainant. -And-

Yadigiri Mallaiah @ Mallesh, 44 years, S/o Y. Pullaiah, R/o H.No.69-7, Joharapauram, Kurnool. … Accused.

This case coming before me on 11.09.2019 for final hearing in the presence of Assistant Public Prosecutor for prosecution and of

Sri. B. Nagaraju, Advocate for the accused and having stood over for consideration till today, this court delivered the following:

J U D G M E N T

1.The Sub-Inspector of Police, Kurnool III Town P.S. laid charge sheet against the accused in Crime no. 174/2015 for the offence U/s.448 and 435 IPC.

2.i.The brief facts of the complaints are as follows: The de facto complainant, Dr. Charles Niranja Paul (LW1) is the resident of Engineers

Colony, Kurnool. Dr. Vadala Shobha Rani (LW2) is the wife of de facto complainant and they had a car bearing No AP 121 AW 2511 Etios Toyota, which they used to park, in their house compound. The de facto complainant (LW1) and his wife (LW2) are residing upstairs portion and the two ground floor portions were let-out on rent.

ii.As usual, on 26.06.2015 night, at about 7.30 PM, they parked their car at compound wall and on the next day i.e., 27.06.2015 in the early hours at about 2.30 hours, while they were sleeping they smelled

C.C.No.1198 of 20152SPCL. JMFC (P&E), KURNOOL something was burning. The de facto complainant (LW1) and LW2 woke up and came out of the house and saw through their window, the Dhobi bunk of Chakali Bhogeswaramma (LW3) which was quiet opposite to their house was burning. The de facto complainant (LW1) and his wife LW2 came down and found their car bearing No. AP 121 AW 2511 which was parked at their compound wall also caught by flames. The de facto complainant (LW1) and his wife LW2 alerted the neighbouring people and also make phone call to fire station and while they were putting off the flames the fire station staff also rushed there and put off the flames with fire engine. The bonnet, front wheels of car was totally burnt and rear parts also partly burnt. The Dhobi bunk of Chakali Bhogeswaramma (LW3) which was situated on the other side of the road also totally burnt.

iii.The accused had worked as driver of their car, and he was not attending the duty properly and hence the de facto complainant (LW1) removed the accused in the month of February, 2014 and appointed another driver by name Chinthapalli Mallikarjuna (LW4) as his car driver in the month of May, 2014. Coming to know the same, the accused approached the de facto complainant (LW1) in the month of April and demanded to take him back as driver or otherwise gave money, for which the de facto complainant did not agreed. The accused also threatened the driver Chinthapalli Mallikarjuna (LW4)to leave the job, otherwise he will damage the car.

iv.Again, during the month of September, 2014 the accused called the de facto complainant (LW1) threatened him that he will damage the car at any cost, at any time, but the complainant did not care his words. The de facto complainant (LW1) alerted his driver Chinthapalli

Mallikarjuna (LW4). Therefore, the de facto complainant (LW1) suspected

C.C.No.1198 of 20153SPCL. JMFC (P&E), KURNOOL that the said accused might have set fire his car and to divert the attention he also set fire to the Dhobi bunk.

v.Basing on the complaint of de facto complainant (LW1), the

Inspector of Police, Kurnool III town P.S (PW8) registered a case and investigated into. During his course of investigation he visited the scene of offence, examined LW1 to LW4 and recorded their detailed statements and arrested the accused on 06.07.2015.

3.The offence was taken cognizance on file against the accused under

Sections 448 and 435 IPC.

4.Accused was examined u/s.239 Cr.P.C. to which he denied the offence. Thereafter, charge u/s. 448 and 435 IPC has been framed, read over and explained to him in Telugu for which he denied the same and pleaded not guilty and claimed to be tried.

5.In order to prove the case of the prosecution, the prosecution has examined PW-1 to PW-8 and got marked Exs.P1 to P8 and MO1 to MO3 were marked. The learned Assistant Public Prosecutor has given up the evidence of LW5/Shaik Basha.

6.The accused was examined under Section 313 Cr.P.C. putting forth the incriminating material that appears against him from the evidence of prosecution witnesses. The accused denied the incriminating evidence. No oral or documentary evidence was adduced on behalf of the defence.

7. Heard both sides and perused the material on record.

8.Now the point for determination is “Whether the prosecution

is able to bring home the guilt against the accused for the

offences U/ss. 448 and 435 IPC beyond reasonable doubt?

POINT:

8.In order to prove its case, the prosecution examined PW1 to

PW8. PW1 is the de facto complainant. PW2 is the driver who is presently working at PW1. PW3 is the wife of the PW1. PW4 is the washer man,

C.C.No.1198 of 20154SPCL. JMFC (P&E), KURNOOL whose bunk is situated opposite to the house of PW1, which also met with fire accident. PW5 is the person in whose presence the scene of observation and seizure of MOs and Ex.P2 panchanama was prepared by the Investigation officer. PW6 and PW7 are the panch witnesses for Scene of Offence-Cum-Seizure Panchanama. PW8 is the investigating officer.

9.PW1 deposed that the accused had worked as driver of his car bearing No. AP 21 AW 2511 Tyota Itios and was irregular to duties and on one occasion the accused stopped working on health grounds and then

PW1 hired another driver then the accused requested him to re-instate to duties, accordingly he appointed the accused again and then the accused borrowed money on many occasion from him and PW1 used to recover the same from the salary of the accused. On 03.01.2014, the accused requested him an amount of Rs.30,000/- and he gave Rs.20,000/- for renovation of the accused house and during the month of February the accused not attended the duties. Later, in March 2014, PW1 appointed

PW2 as his car driver and that the accused again came to him and requested for re-instatement of his service as driver. But he refused the same.

Further, he deposed that on one occasion he received phone call from the accused wherein he stated that he would commit suicide in front of his house, if does not re-instate his service as driver. Then he informed the incident to the C.I of Police, III town P.S, Kurnool but he advised him not to bother as the statement of the accused is oral. In the year 2015, the accused quarreled with PW2 and threatened him that he would damage the car. On 26.06.2015, midnight he saw through window flames outside his house and immediately he came out and noticed that car was burning including tryres. The neighbours called fire services people and they tried to put off the flames. They informed the same to the police and insurance

C.C.No.1198 of 20155SPCL. JMFC (P&E), KURNOOL people and the insurance people told them that the incident took place due to some mischief, but not due to accident. Ex.P1 is the report lodged by him.

PW1 in his cross examination clearly stated that the accused did not informed him directly that he would damage his car and also. Further, he did not know the particular dates on which the accused called him on his mobile and stated that he would commit suicide.

10.PW2 deposed that he has knowledge about the accused used to work as driver of PW1. After one year of his working as driver to PW1, the accused came to him and asked him to drop his services as driver to PW1 and he informed the same to PW1. On 26.06.2015, the Itios car of PW1, which was parked in the house premises of PW1 was burnt and he was working as driver when the alleged accident took place. Further, he deposed that about six months prior to the alleged accident, PW1 has informed him to look after the car well as the accused is threatening to damage the car.

11.PW3, who is none other than the wife of PW1 corroborated the version of PW1 in the same lines. Further, she testified that on 26.06.2015, at about 2.30 AM, when she got up to attend nature call, she saw the lighting of fire from their window and noticed the bunk of PW4 was set fire. Immediately, herself and PW1 went there and noticed their car was also set fire. The front portion of the car was completely burnt and the worth of their car is Rs.9,50,000/-. The bunk of PW4 was totally burn into fire. PW1 lodge report to the police.

12.PW4 deposed that on 26.06.2015, at about 3.00 AM, She received a phone call that her shop was set fire. Then she went to the scene of offence and noticed nine bed sheets and some other clothes were burnt.

C.C.No.1198 of 20156SPCL. JMFC (P&E), KURNOOL

She sustained a loss of Rs.20,000/-. Further she deposed that prior to the incident, she did not go to her shop as her son was undergoing surgery and during the said incident the car of PW1 was also burnt. Later, she came to know that the accused who was the driver of the car set fire to her shop and the car of PW1.

13.PW5, PW6 and PW7 in whose presence the scene of offence observation report and arrest, confession panchanama was prepared they came to court and turned hostile. Though the learned Assistant Public

Prosecutor put the questions in the nature of cross examination to elicit truth, nothing material could be elicited through the witness for his turning hostile. Except admitting their signatures, i.e., Ex.P2 signature dt.27.07.2014 by PW5 on scene of offence observation report and Exs.P3 & Ex.P4 signatures on arrest and confession panchanamas dated 06.07.2015, they did not state anything in support of the case of the prosecution.

14.PW8 deposed that on 27.06.2015 at about 1.00 PM, PW1 came to him and lodge Ex.P1 report, basing on the same he registered a case in

Cr.No.174/2015 with Zero FIR under fire accident under Ex.P5 and he had gone to the scene of offence and secured the presence of PW1 to PW4, examined them and recorded their detailed statements, thereafter, secured the presence of mediators PW5 and LW5/Shaik Basha observed the scene of offence and seized burn pieces of car and rubber tube, which smelled with kerosene and also black colour pant and the same are marked as MO1 to 3 under the cover of Ex.P6 panchanama and drawn

Ex.P7 rough sketch of the scene of offence and later he filed memo altering section of law from fire accident to Sec.448 and 435 IPC before the court.

C.C.No.1198 of 20157SPCL. JMFC (P&E), KURNOOL

Further, on 6.7.2015 at about 11.00 AM on the credible information, he along with PW6 and PW7 went to the house bearing No.69-7,

Joharapuram village, Kurnool and found the accused under suspicious circumstances. On seeing them, the accused tried to skulk away, but they arrested the accused and he confessed the commission of offence under the cover of Ex.P8 panchanama in the presence of PW6 and PW7.

15.In his cross examination the investigation officer deposed that he did not obtain any certificate or report with regard to the fire accident from the concerned fire department personnel, but fire department personnel came and extinguished the fire. Further the investigation officer failed to obtain the report or any document from the concerned fire department with regard to the incident.

16.As seen from the entire record, according to PW1 and PW3, they saw the fire flames through their house window, alerted the neighbours and called fire services. The PW1 and PW2, keeping in view the previous incidents took place between them and accused, they thought that the accused might have burnt the vehicle. If the accused threatened them that if he is not re-instated as driver, he would damage the car and commit suicide, they would have lodge the report before police station and to file the same before the court. But they did not do so. Further, the PW1 testified that he informed the same to the C.I of III town police station and that he advised him not to bother on the statements of the accused, as it is oral. No Station House officer, would state the same. If it is true, who prevented him to examine the said SHO on their behalf. Further, they failed to furnish the call data with regard to the conversation between the accused and PW1, PW3. Therefore, this court cannot consider the version that keeping in view of the previous incidents the accused might set fire the car of PW1.

C.C.No.1198 of 20158SPCL. JMFC (P&E), KURNOOL

17.Further, PW2 who is the present driver testified that PW1 has informed him to look after the car, as the accused threatened him to damage the car. Except the oral statement no piece of paper is produced to prove that the accused threatened the PW1 to damage the car. Further, he is the driver of the PW1, obviously he will depose in favour of PW1 only and interested witness. Further, there is no whisper in his evidence.

Hence, it cannot be considered.

18.PW4 is not an eye witness of the incident she came to know about the incident through PW1 and PW3 only. Hence, her evidence is hearsay evidence. In general, hearsay evidence is not admissible in evidence, but exceptional circumstances.

19.Coming to the evidentiary value of Ex.P8 confession and arrest panchanama recorded by the police in the presence of PW6 and PW7 is concerned; it is settled principle of law U/Sec.25, 26 of Indian Evidence Act that it is inadmissible in evidence and U/Sec.27 of the Indian Evidence Act, part of such confession leading to the discovery or recovery of material evidence is admissible in evidence.

In the present case, nothing was seized from the possession of the accused. Without seizure and discovery of fact the confession recorded by the police is inadmissible as evidence and it is hit by section 25 and 26 of

Indian Evidence Act and the prosecution is entirely depending upon on the confession. But it is inadmissible as evidence. Further, the

PW8/Investigation officer also failed to investigate the case with regard to who set fire to the vehicle and there is no direct evidence to show that accused set fire to the car.

20.In view of my aforesaid discussion, after hearing the rival contentions of both sides, and after analysing the constant, corroborative, cogent evidence of PWs-1 to 8 and reading the same altogether with

C.C.No.1198 of 20159SPCL. JMFC (P&E), KURNOOL portion of Exs.P8 confession panchanama, chain of evidence is not strong and it is quite curtained that, accused trespassed and burnt the car of PW1 and PW2. Therefore, this Court holds that the prosecution failed to bring home the guilt of the accused beyond all reasonable doubt and the accused is entitled for acquittal.

21.IN THE RESULT, the accused is found not guilty for the offence U/ss.

448 and 435 IPC and accordingly, he is acquitted u/s.248 (1) Cr.P.C. The bail bonds of accused shall be in force for a period of 6 months from today as prescribed u/s.437-A Cr.P.C.

Typed to my dictation by Personnel Assistant, corrected, signed and pronounced by me in the open court, this the 16 th day of September, 2019.

Sd/- K. Bala Koteswara Rao

Spl. Judl. Magistrate of First Class For Prohibition & Excise, Kurnool

Appendix of Evidence

Witnesses Examined

For prosecution: For Defence:

PW.1: Dr. Charls Niranjan Paul -None- PW.2: C. Mallikarjuna PW.3: Dr. Shobha Rani PW.4: C. Bhogeswaramma PW.5: Avula Madhu PW.6: S. Mahesh PW.7:V. Maddilety PW.8:G. Chandra Babu Exhibits Marked.

For Prosecution: For Defence:

Ex.P.1: Report given by PW1 - NIL - Ex.P.2: Signature of PW5 on scene observation Report Ex.P.3: Signature of PW6 on arrest panchanama Dt.6.7.2015 Ex.P.4: Signature of PW7 on arrest panchanama Dt.6.7.2015 Ex.P.5: FIR Ex.P.6: Observation panchanama Ex.P.7: Rough sketch Ex.P.8:Arrest and confession panchanama

Sd/- K. Bala

Koteswara Rao Spl. Judl.Magistrate of

First Class

For Prohibition & Excise, Kurnool.

//True copy//

C.C.No.1198 of 201510SPCL. JMFC (P&E), KURNOOL

SPL.JUDL.MAGISTRATE OF I CLASS (P&E),

KURNOOL.

C.C.No.1198 of 201511SPCL. JMFC (P&E), KURNOOL

CALENDAR & JUDGMENT

IN THE COURT OF THE SPL.JUDL.MAGISTRATE OF FIRST CLASS

FOR PROH.& EXCISE, KURNOOL.

CALENDAR CASE No.1198/2015

1. Date of Offence: 27.06.2015

2. Date of Complaint or report: 27.06.2015

3. Date of apprehension of the accused : 06.07.2015

4. Date of release on bail : 06.07.2015

5. Date of commencement of trial: 05.02.2018

6. Date of close of trial: 11.09.2019

7. Date of Sentence or Order: 16.07.2019

8. Explanation of delay if any: --

COMPLAINANT: The Inspector of Police, Kurnool III Town Police station in Cr.No.,174/2015.

Accused Yadigiri Mallaiah @ Mallesh, 44 years, S/o Y. Pullaiah, R/o H.No.69-7, Joharapauram, Kurnool.

Offence : Criminal trespass, voluntarily causing hurt and criminal intimidation.

Section of Law: Under Section U/ss. 448 and 435 IPC.

Finding of Court : Accused found not guilty.

Sentence/ Order : IN THE RESULT, the accused is found not guilty for the offence U/ss. 448 and 435 IPC and he is acquitted u/s.248(1)

Cr.P.C. The bail bonds of accused shall be in force for a period of 6 months from today as prescribed u/s.437-A Cr.P.C.

Sd/- K. Bala Koteswara Rao

SPL.JUDL.MAGISTRATE OF FIRST CLASS

FOR PROH.& EXCISE, KURNOOL.

Copy submitted to the Hon’ble Chief Judicial Magistrate-Cum-Principal Assistant

Sessions Judge, Kurnool.

//True copy//

SPL.JUDL.MAGISTRATE OF I CLASS (P&E),

KURNOOL.

1

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST

CLASS

(for Prohibition & Excise), KURNOOL.

PRESENT:-SRI.K.BALA KOTESWARA RAO Special Judicial Magistrate of I Class for Prohibition and Excise, Kurnool.

FRIDAY, THE 23rd DAY OF NOVEMBER, 2018.

C.C.No.1566/2018

Between:

State: Represented by the Prohibition & Excise Sub-Inspector, Kurnool. … Complainant. -Versus-

Ediga Laxmi Devi, aged 50 years, W/o late E. Thirupal Goud, Resident of Shakunala village, Orvakal mandal. … Accused.

This case coming before me on 23.11.2018 for final hearing in the presence of Assistant Public Prosecutor for the prosecution and Sri. D.

Kumara Swamy, Advocate for the accused and upon perusing the material on record, the Court delivered the following:

JUDGMENT

1.The Prohibition and Excise Sub Inspector, Kurnool filed charge sheet in

Crime No.759/2017 alleging that the accused has committed the offence punishable u/s.34(a) of A.P. Excise Act, 1968.

2.The case of the prosecution, in brief is that: On 14.05.2017 on receiving of credible information M. Chandrababu Naidu, Sub-Inspector of

Police, Orvakal P.S (LW1) along with his staff Ibrahim, P.C.1001, P. Hari

Krishna Goud, Orvakal P.S(LW2) and Women P.C, K. Sharadha, Orvakal P.S (LW3), left police station in their police jeep bearing no. AP 9P 9699 and reached at about 01.00 PM near bus stand of Shakunala village. There they found the accused was keeping in possession of cardboard boxes in front of her. On seeing the police officials the accused tried ran away but they surrounded and detained the accused. On interrogation by M. Chandrababu

Naidu, Sub-Inspector of Police, Orvakal P.S (LW1) the accused revealed her name and address and further stated that as usual she used to purchase liquor bottles at KRR wine shop, Orvakal and selling the same in her village 2 at higher price. Then M. Chandrababu Naidu, Sub-Inspector of Police,

Orvakal P.S (LW1) sent P. Hari Krishna Goud, Orvakal P.S(LW2) to Shakunala village to secure mediators. After 20 minutes he returned to the spot and stated that nobody came forward to act as mediators in the village. The M. Chandrababu Naidu, Sub-Inspector of Police, Orvakal P.S (LW1) verified the contents of the cardboard boxes of accused and found 16

Nips of Aristocrat Premium whisky bottles, 3 Nips of Mc. Dowells Whisky bottles, 29 Nips of Imperial Blue Whisky bottles, 20 Nips of Directors Special

Whisky bottles, 15 King Fisher Beer bottles (each bottle measuring 650 ml.) and 4 Knock out beer bottles (each bottle measuring 650 ml.) totaling 87 liquor bottles.

Later, M. Chandrababu Naidu, Sub-Inspector of Police, Orvakal P.S (LW1) took one bottle from out of the each brand as sample, for the purpose of chemical analysis, arrested the accused informing the grounds of arrest as she was possessing liquor bottles for sale without any valid licence or permit under the cover of police proceedings.

On the basis of police proceedings a case was registered by the M.

Chandrababu Naidu, Sub-Inspector of Police, Orvakal P.S (LW1) in

Cr.No.91/2017 of Orvakal P.S under section 34(a) of A.P. Excise Act, 1968 against the accused and sent him to judicial custody. Later, the case file, sample bottles, property to the Proh. & Excise Station, Kurnool was transferred to Proh. & Excise Station, Kurnool under the point of jurisdiction.

The case was reregistered by M. Shankar, Proh. & Excise Sub-Inspector,

Kurnool (LW4) in Cr.No.759/2017, U/sec.34(a) of A.P.Excise Act, 1968.

The samples were sent to chemical examiner and as per the proceedings of Dy. Commissioner P &E, the chemical examiner gave opinion that the sample is Indian liquor. The remaining property was destroyed as per proceedings of the Deputy Commissioner under panchanama. After completion of investigation, charge sheet was filed against the accused for the offence u/s. section34(a) of A.P. Excise Act, 1968.

3

3.The offence was taken cognizance on file against the accused u/s.34(a) of A.P. Excise Act, 1968.

4. When the accused appeared before the Court, copies of all the documents were furnished to him as contemplated u/s.207 Cr.P.C.

5.Accused was examined u/s.239 Cr.P.C.to which he denied the offence.

Thereafter, charge u/s.34(a) of A.P. Excise Act, 1968 has been framed, read over and explained to him in Telugu for which he denied the same and pleaded not guilty and claimed to be tried.

6. In order to establish its case, the prosecution examined PW1 to PW3 and got marked Exs.P1 to P6. MO-1 to MO-6 is the sample bottles. In view of the evidence of PW1 to 3 the evidence of LW3 is given up to avoid repetition of facts.

7.After closure of prosecution evidence, Accused was examined

U/Sec.313 Cr.P.C. explaining the incriminating evidence appearing against him, for which, he pleaded all such evidence is false and reported no defence.

8.Heard learned counsel for the parties.

9. The point for determination is__ Whether prosecution has brought home the guilt of Accused for the offence U/Sec. 34(a) of A.P. Excise Act, 1968beyond all reasonable doubt?

10.POINT: In order to establish its case, as already noted, prosecution has examined PW1 to PW3 and got marked Ex.P1 to Ex.P6, MO1 to MO6 are sample bottles. PW1, M. Chandrababu Naidu, Sub-Inspector of Police, Orvakal

P.S is the Investigating Officer of the case. Ex. P1 is the police proceedings and Ex.P2 is FIR in Cr.No.91/2017. PW3 is the Police constable, P. Hari Krishna

Goud P.C.1001 who assisted PW1. PW2 is the M. Shankar, Proh. & Excise Sub-

Inspector who filed charge sheet after completion of investigation. Ex. P3 is

FIR in Cr.No.759/2017. Ex.P4 is Analysis report. Ex. P5 is the proceedings of 4 the Dy. Commissioner P & E. and Ex.P6 is the destruction panchanama. MO1 to MO6 are sample bottles.

11.Evidence of PW1 Investigating Officer is replica of his charge sheet.

From his cross-examination, learned counsel for defence elicited that PW1 is the defacto complainant and investigating officer in this case. In this regard, it is well settled principle of law that the investigation shall be done by some other officer if the criminal law is set into motion on the complaint of one of the sub inspector of the police.

12.The entire version of the prosecution is that on 14.05.2017 at about 01.00 PM on credible information PW1 and PW3 reach the scene of offence i.e, at Shakunala village at about 12.30 PM and there they found the accused keeping in possession of card board boxes each in front of her. On seeing

PW1 and PW3 the accused tried to ran away from that place but they detain accused. On enquiry the accused revealed her name and address and further she stated that she purchased the liquor bottle and beer bottles at

KRR wine shop, Orvakal and selling the same at higher price in her village.

Then PW1 sent PW3 to Shakunala village for securing mediators, but PW3 returned after 15 minutes and informed that nobody came forward to act as mediators in the village. Then PW1 verified the cardboard boxes and found totally 87 liquor bottles. PW1 took one bottle from out of each variety from out of the cardboard boxes for sample purpose and the remaining property was sealed and labeled. Later, he handed over the case file along with the accused and property to Excise police, Kurnool i.e., PW2 on the point of jurisdiction.

After receiving the CD filed from PW1 on 31.12.2017, PW2 who is the

Proh. & Excise Sub-inspector of Police, Kurnool reregistered the case and sent the samples for the chemical analysis and after obtaining the opinion of chemical examiner and according to the proceedings of the Dy.

Commissioner Proh.& Excise the remaining case property was destroyed 5 under the cover of panchanama. After completion of investigation he filed charge sheet in this case.

13.In the case of Muthineni Chander and others vs State of Andhra

Pradesh and another-2011(1) ALD (Crl.) 877 (A.P)the Hon’ble High

Court held that under Section 56 and 57 of the Act, it is only the Prohibition and Excise Officer, who is competent to make investigation and to file report/charge-sheet before the Magistrate. In the present case, after conducting the raid, the Investigating officer ie., PW1 seized the property from the possession of the accused, which means PW1 conducted some part of the investigation. Later he handed over the case to PW2 on point of jurisdiction. As discussed supra, the civil police has no authority to investigate the excise case, which is only prerogative power of Excise Police.

Hence, PW-1 did not follow the procedure.

14.Further, whenever the scene of offence is a busy located area the

Investigation officer must examine the neighbours of the scene of offence.

But he did not do so. In the present case, he clearly stated that the scene of offence is busy located area and he did not examine the neighbours of the scene of offence. As per the judgment of Hon’ble High Court of A.P between

Yeduru Sreenivasul Reddy v. State of A.P 2002 (1) ALT (Crl.) 251

(A.P) wherein it is held that Section 100 (4) procedure of Search and Seizure in the Absence of Panch-witnesses and not filing the Written order to be passed that, no one was willing to act as panch-witnes. The entire search without jurisdiction and conviction vitiated.

15.Further PW-1admitted that he did not issue any written summons to

PW-2 for securing the mediators and also PW-2 also did not stated before PW- 1 as to whom he approached for acting as mediators. If really the version of prosecution is believable he would have testified before the court as to whom he approached for acting as mediators, but he did not do so. Hence, the version of prosecution is doubtful with regard to whether PW1 sent the

PW2 to Shankunala village for securing the mediators or not.

6

16.In view of my aforesaid findings, this Court is of the opinion that the prosecution has miserably failed to bring home the guilt of the accused beyond all reasonable doubt for the offence with which they are charged and the accused are entitled for acquittal.

17. IN THE RESULT, the accused is found not guilty for the offence u/s. Section 34(a) of A.P. Excise Act, 1968 and he is acquitted u/s.248(1)

Cr.P.C. The bail bonds of accused shall be in force for a period of 6 months as prescribed u/s.437-A Cr.P.C. MO1 to MO6 sample bottles deposited through

C.P.R. no.66/2018 shall be destroyed after appeal time is over.

Typed to my dictation by the Stenographer, corrected and pronounced by me in open Court on this the 23 rd day of November, 2018.

Spl. Judl.Magistrate of First Class for Prohibition & Excise, Kurnool.

Appendix of Evidence Witnesses Examined For prosecution:For Defence: PW-1:M. Chandra Babu Naidu - Nil– PW-2:M. Shankar PW-3: P. Hari Krishna Goud

Exhibits marked For prosecution For Defence: Ex.P1: Police proceedings - Nil – Ex.P2: F.I.R in Cr.No.91/2017 of Orvakal P.S Ex.P3: F.I.R in Cr.No.759/2017 Ex.P4: Chemical analysis Report. Ex.P5.Proceedings of Deputy Commissioner Ex.P6: Destruction panchanama

MO-1to MO-6: Sample Bottles.

Spl. Judl.Magistrate of First Class for Prohibition & Excise, Kurnool.

CALENDAR & JUDGMENT

IN THE COURT OF THE SPL.JUDL.MAGISTRATE OF FIRST CLASS

FOR PROH.& EXCISE, KURNOOL.

C.C.No.1566/2018

1.Date of Offence:14-05-2018

2.Date of Complaint or report:14-05-2018

3.Date of apprehension of the accused :15-05-2017 7

4.Date of release on bail:19-05-2017 Date of commencement of trial:20-11-2018

5.Date of close of trial:23-11-2018

6.Date of Sentence or Order:23-11-2018

7.Explanation of delay if any:

COMPLAINANT :The Prohibition and Excise Sub- Inspector, Kurnool in Crime No. 759/2017.

Ediga Laxmi Devi, aged 50 years, W/o late E. Thirupal AccusedGoud, Resident of Shakunala village, Orvakal mandal.

Offence : Possession of I.D. Liquor.

Section of Law : Under Section 34(a) of A.P. Excise Act, 1968.

Finding of Court : Accused Nos.1 & 2 are found not guilty.

Sentence/ Order : IN THE RESULT, the accused is found not guilty for the offence u/s. Section 34(a) of A.P. Excise Act, 1968 and he is acquitted u/s.248(1) Cr.P.C. The bail bonds of accused shall be in force for a period of 6 months as prescribed u/s.437-A Cr.P.C. MO1 to MO6 sample bottles deposited through C.P.R. no.66/2018 shall be destroyed after appeal time is over.

SPL.JUDL.MAGISTRATE OF FIRST

CLASS

FOR PROH. & EXCISE, KURNOOL.

Copy submitted to the Hon’ble Chief Judicial Magistrate-Cum-Principal Assistant Sessions

Judge, Kurnool.

8

FORM No. P.18

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

FOR PROHIBITION & EXCISE, KURNOOL.

C.C.No.1566/2018

Between: State, represented by the Prohibition & Excise Sub - Inspector, Kurnool… Complainant.

And

Ediga Laxmi Devi, aged 50 years, W/o late E. Thirupal Goud, Resident of Shakunala village, Orvakal mandal. … Accused.

This case is filed by the Prohibition & Excise Sub-Inspector, Kurnool in

Crime No.759/2017 for the offence u/s. Section 34(a) of A.P. Excise Act, 1968.

Date of Offence:14-05-2017

Date of filing:18-07-2018

Date of Order:23-11-2018

Result of the Case:IN THE RESULT, the accused is found not guilty for the offence u/s. Section 34(a) of A.P. Excise Act, 1968 and he is acquitted u/s.248(1) Cr.P.C. The bail bonds of accused shall be in force for a period of 6 months as prescribed u/s.437-A Cr.P.C. MO1 to MO6 sample bottles deposited through C.P.R. no.66/2018 shall be destroyed after appeal time is over.

Sd/-K.BALA KOTESWARA

RAO

SPL.JUDL.MAGISTRATE OF I CLASS

(P&E),

KURNOOL.

To The Prohibition & Excise Sub-Inspector, Kurnool.

//True copy//

SPL.JUDL.MAGISTRATE OF I CLASS (P&E),

KURNOOL.

1

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST

CLASS

(for Prohibition & Excise), KURNOOL.

PRESENT:-SRI.K.BALA KOTESWARA RAO Special Judicial Magistrate of I Class for Prohibition and Excise, Kurnool.

FRIDAY, THE 23RD DAY OF NOVEMBER, 2018.

C.C.No.1993/2018

Between:

State: Represented by the Prohibition & Excise Sub-Inspector, Kodumur. … Complainant. -Versus-

Boya Dayyalu Madanna, aged 30 years, S/o B.D. Kistanna, Resident of Kothapalli village, Kodumur mandal. … Accused.

This case coming before me on 22.11.2018 for final hearing in the presence of Assistant Public Prosecutor for the prosecution and Sri. K.

Krishna Reddy, Advocate for the accused and upon perusing the material on record, the Court delivered the following:

J U D G M E N T

1. The Prohibition and Excise Sub Inspector, Kodumur filed charge sheet in Crime no.20/2018 alleging that the accused has committed the offence punishable u/s.34(a) of A.P. Excise Act, 1968.

2. The case of the prosecution, in brief is that: On 17.02.2018 at about 8.30 AM during the raids conducted by the Proh. & Excise Sub-Inspector, P.

Vardhan Devi (LW3) along with ESTF staff i.e., Proh. & Excise Inspector, B.

Krishna Kumar (LW4), Proh. & Excise Head Constable, N. Rahamathulla (LW5),

Proh. & Excise Sub-Inspector, Kodumur, E. Janardhan Goud (LW6) and panchayathdars C. Srinivasulu (LW1) and B. Siva Shankar (LW2) to detect excise offences reached at about 10.45 AM near Ramulamma temple situated on the road leading from Kothapalli village to Gorantla village.

There they found the accused was sitting by keeping in possession of one plastic pot and on seeing the Excise officials the accused tried to ran away but on suspicion they surrounded and detained him. On interrogation by the

Proh. & Excise Sub-Inspector, P. Vardhan Devi (LW3) the accused revealed his 2 name and address and further stated that the pot containing toddy for sale.

Then the Proh. & Excise Sub-Inspector, P. Vardhana Devi (LW3) verified the pot in the presence of panchayatdars C. Srinivasulu (LW1) and B. Siva

Shankar (LW2) and found 20 liters of toddy. Then the Proh. & Excise Sub-

Inspector, P. Vardhana Devi (LW3) examined the toddy with the help of mini kit and found that the colour of toddy was changed. On enquiry the accused revealed that the toddy was purchased from one E. Satyanarayana Goud, S/o

E. Venkata Ramudu who is resident of Gorantla village for sale in his village.

The Proh. & Excise Sub-Inspector, E. Janardhan Goud (LW6) poured 500 ml. of toddy in two 650 ml. bottles as sample for the purpose of chemical analysis, sealed and affixed the identity slips on the sample bottles and destroyed the remaining toddy along with the pot on the spot. Then he arrested the accused informing him the grounds of arrest as he was in possession of adulterated toddy for sale and transport the same without any valid licence or permit and the sample bottles under cover of panchanama drafted on the spot. Basing in the said panchanama a case was registered by the Proh. &

Excise Sub-Inspector (LW6) in Cr.No.20/2018 of Proh. & Excise Station,

Kodumur under section 34(a) of A.P. Excise Act,1968 and forwarded the accused to judicial custody.

3. The offence was taken cognizance on file against the accused u/s.

34(a) of A.P. Excise Act, 1968.

4. When the accused appeared before the Court, copies of all the documents were furnished to him as contemplated u/s.207 Cr.P.C.

5. Accused was examined u/s.239 Cr.P.C. to which he denied the offence.

Thereafter, charge u/s. 34(a) of A.P. Excise Act, 1968 of the Act has been framed, read over and explained to him in Telugu for which he denied the same and pleaded not guilty and claimed to be tried.

6. In order to establish its case, the prosecution examined PWs-1 to 4 and got marked Exs.P1 to P5. MO-1 & MO-2 are the sample bottles. In view of 3 the evidence of PW3 & PW4, the learned A.P.P. has given up the evidence of

LW4,

B. Krishna Kumar, Prohibition and Excise Sub-Inspector and LW5, N.

Rahamathulla, Proh & Excise Constable, Kodumur.

7.After closure of prosecution evidence, Accused was examined

U/Sec.313 Cr.P.C. explaining the incriminating evidence appearing against him, for which, he pleaded all such evidence is false and reported no defence.

8.Heard learned counsel for the parties.

9.The point for determination is-

Whether prosecution proved the guilt of the accused beyond

all reasonable doubt for the offence U/Sec. 34(a) of A.P. Excise

Act?

10.POINT: In order to establish its case, as already noted, prosecution has examined PW-1 to PW-4 and got marked Ex.P1 to Ex.P5. MO-1 & MO-2 are sample bottles. PW-1 and PW-2 are the panch witnesses for Scene of

Offence-Cum-Seizure Panchanama. PW-3 is the Proh. & Excise CI of Police and PW-4 is the Investigation officer of this case. Exs.P1& P2 are the signatures of PW-1 and PW-2 on Scene of Offence-Cum-Seizure Panchanama,

Ex.P3 is Arrest and seizure panchanama, Ex.P4 is FIR and Ex.P5 is Analysis report.

11.The entire version of the prosecution is that at the time of raid the accused was selling the toddy to others. Later, PW3 verified the shop and found 20 liters of toddy in a plastic drum and that PW3 examined the said toddy with the help of tool kit and he found that the said toddy was adulterated. He poured the toddy into 2 bottles for sample purpose. The remaining property was destroyed under the cover of Ex.P3 panchanama in the presence of mediators i.e., PW1 and PW2. Whereas, PW1 and PW2 came to court and testified that they do not know anything about the facts of the case and no proceedings took place in their presence. The police obtained 4 their signatures on blank papers and they turned hostile. The learned

Assistant Public Prosecutor failed to establish their presence during the time of arrest, seizing of contraband and scribing of Ex.P3 panchanama.

12.Further, the PW3 testified that at the time of raid the accused selling the contraband to others and that some persons were gathered for purchasing the toddy from the accused. Whereas, PW4 testified that at the time of raid only accused was present at the shop but no one gathered there.

His evidence is contra to the version of the prosecution. If really, the version of the prosecution is believable, PW4 would have testified in the same lines as stated by the PW3 with regard to at the time of the raid the accused selling the toddy to others.

13.Further, they did not seize any money from the possession of the accused which the accused earned after selling the toddy to others. This is clearly shows that the prosecution version is highly doubtful with regard to they went for raid or not.

14.Further, the version of the prosecution is that after seizing the toddy from the possession of the accused, PW4 examined the said toddy with the help of mini kit and he found that the said toddy was adulterated. But the prosecution failed to explain before the court which method the PW4 examined the toddy. Further, they also did not mentioned in Ex.P3 panchanama. Here, the learned counsel for the accused trying to collapse the evidence of PW3 and PW4 with regard to procedure of examination of toddy. On this aspect he succeeded to some part i.e., PW3 testified that

before conducting the examination PW4 clean the mug and dip the mug into

the drum and collected the toddy and the same was used for conducting the examination and then he found the toddy was adulterated. Whereas, PW4 testified that he did not clean the mug.

5

15.At this stage the learned counsel for the accused vehemently argued that when the PW4 conducting the examination of toddy by not cleaning the mug, there is a possibility of mixture of toddy with some other chemicals.

Further, they did not explain the procedure. Hence, he prays that the prosecution version is highly doubtful with regard to examination of toddy.

This court also agrees with the arguments of the learned counsel for the accused and does not believe the version of the prosecution with regard to examination of the toddy.

16.Further, the PW3 testified that there are several shops adjacent to the scene of offence, but they did not examine the neighbours of the scene of offence. In this aspect also the prosecution failed to establish why they did not examine the neighbours of the scene of offence. All the above said aspects clearly show that the prosecution went to the raid, arrested the accused and seized the contraband from the possession of the accused is not believable.

17.As per entire version of the prosecution is that they detained the accused and seized the contraband of 20 liters of toddy they poured 500 ml.

of toddy in two 650 ml. bottles as sample for the purpose of chemical analysis, sealed and labeled, which means 19 liters and 500 ml. of today in two 650 ml. sample bottles. Whereas, the CD file reveals that 20 liters of toddy was destroyed. At this stage, the counsel for the accused vehemently argued that the police officials seized contraband from the possession as per

Ex.P3 and out of that after sending the sample for analysis according to

Ex.P5 and the contraband destroyed are not one and the same. Hence, the prosecution version is highly doubtful and the court agreed the arguments of the accused.

18. In these circumstances, when the seizure of alleged contraband itself is not established by the prosecution, Ex.P5 Analysis report does not help the prosecution. In that view of the matter, this Court opines that prosecution 6 has miserably failed to bring home the guilt of accused for the offence with which he is charged and accordingly entitled to benefit of doubt.

19. IN THE RESULT, the accused is found not guilty for the offence u/s.34(a) of A.P. Excise Act and she is acquitted u/s.248(1) Cr.P.C. The bail bonds of accused shall be in force for a period of 6 months as prescribed u/s.437-A Cr.P.C. MO1 & MO2 sample bottles deposited through C.P.R.

no.96/2018 shall be destroyed after appeal time is over.

Typed to my dictation by the Stenographer, corrected and pronounced by me in open Court on this the 23 rd day of November, 2018.

Sd/- K. Bala Koteswara Rao

Spl. Judl.Magistrate of First Class for Prohibition & Excise, Kurnool.

Appendix of Evidence Witnesses Examined For prosecution:

PW-1:C. Srinivasulu PW-2: B. Siva Shankar PW-3: P. Vardhana Dvei PW-4: E. janardhan Gowd

For Defence: - Nil -

Exhibits marked

For prosecution Ex.P1: Signature on panchanama dt.17.02.2018 PW1 Ex.P2: Signature on panchanama dt.17.02.2018 PW2 Ex.P3: Arrest and seizure panchanama Ex.P4: F.I.R. Ex.P5: Chemical analysis Report.

For Defence: - Nil –

MO-1 & 2: Sample Bottles.

Sd/- K. Bala Koteswara

Rao Spl. Judl.Magistrate of First Class for Prohibition & Excise, Kurnool.

//True copy// 7

SPL.JUDL.MAGISTRATE OF I CLASS (P&E),

KURNOOL.

CALENDAR & JUDGMENT

IN THE COURT OF THE SPL.JUDL.MAGISTRATE OF FIRST CLASS

FOR PROH.& EXCISE, KURNOOL.

C.C.No.1993/2018

1.Date of Offence:17-02-2018

2.Date of Complaint or report:17-02-2018

3.Date of apprehension of the accused :19-02-2018

4.Date of release on bail:21-02-2018

5.Date of commencement of trial:12-11-2018

6.Date of close of trial:22-11-2018

7.Date of Sentence or Order:23-11-2018

8.Explanation of delay if any:

COMPLAINANT :The Prohibition and Excise Sub- Inspector, Kodumur in Crime No. 20/2018.

Boya Dayyalu Madanna, aged 30 years, S/o B.D. AccusedKistanna, Resident of Kothapalli village, Kodumur mandal.

Offence : Possession of I.D. Liquor.

Section of Law : Under Section 34(a) of A.P Excise Act, 1968.

Finding of Court : Accused is found not guilty.

Sentence/ Order IN THE RESULT, the accused is found not guilty for the offence u/s. 34(a) of A.P. Excise Act and she is acquitted u/s.248(1) Cr.P.C.

The bail bonds of accused shall be in force for a period of 6 months as prescribed u/s.437-A Cr.P.C. MO1 & MO2 sample bottles deposited through

C.P.R. no.96/2018 shall be destroyed after appeal time is over.

Sd/- K. Bala Koteswara Rao

SPL.JUDL.MAGISTRATE OF FIRST

CLASS

FOR PROH. & EXCISE, KURNOOL.

Copy submitted to the Hon’ble Chief Judicial Magistrate-Cum-Principal Assistant Sessions

Judge, Kurnool.

//True copy//

SPL.JUDL.MAGISTRATE OF I CLASS (P&E),

8

KURNOOL.

9

FORM No. P.18

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

FOR PROHIBITION & EXCISE, KURNOOL.

C.C.No.1993/2018

Between: State, represented by the Prohibition & Excise Sub - Inspector, Kodumur.… Complainant.

And

Boya Dayyalu Madanna, aged 30 years, S/o B.D. Kistanna, Resident of Kothapalli village, Kodumur mandal. `… Accused.

This case is filed by the Prohibition & Excise Sub-Inspector, Kodumur in

Crime No.20/2018 for the offence u/s.34(a) of A.P. Excise Act, 1968 A.P.

Prohibition Act, 1995.

Date of Offence:17-02-2018

Date of filing:12-10-2018

Date of Order:23-11-2018

Result of the Case:IN THE RESULT, the accused is found not guilty for the offence u/s. 34(a) of A.P. Excise Act and she is acquitted u/s.248(1) Cr.P.C.

The bail bonds of accused shall be in force for a period of 6 months as prescribed u/s.437-A Cr.P.C. MO1 & MO2 sample bottles deposited through

C.P.R. no.96/2018 shall be destroyed after appeal time is over.

Sd/- K.BALA KOTESWARA RAO

SPL.JUDL.MAGISTRATE OF I CLASS

(P&E),

KURNOOL.

To The Prohibition & Excise Sub-Inspector, Kurnool.

//True copy//

SPL.JUDL.MAGISTRATE OF I CLASS (P&E),

KURNOOL.

C.C. No. 1094 of 20191SPCL. JMFC (P&E), KURNOOL

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST

CLASS (for Prohibition & Excise), KURNOOL.

PRESENT:-SRI.K.BALA KOTESWARA RAO Special Judicial Magistrate of I Class for Prohibition and Excise, Kurnool.

TUESDAY, 17 TH DAY OF SEPTEMBER, 2019.

C.C.No.1094/2019

Between: State, represented by Sub-Inspector of Police, Kurnool II Town Police Station. … Complainant.

-And-

Bondu Govind @ Mani, age 24 years, S/o late Narasimha Murthy, R/o H.No.10-20/71, Rangareddy Colony, Chevella village and mandal, Rangareddy District, N/o Block No.10, Seva Nagar Colony, Madhurawada village, A.P. State. … Accused.

-oo0oo-

This case coming before me on 05.09.2019 for final hearing in the presence of Assistant Public Prosecutor for prosecution and of

Sri Narasimhulu, Legal-Aid-Counsel for the accused and having stood over for consideration till today, this court delivered the following:

J U D G M E N T

1.The Sub-Inspector of Police, Kurnool II Town Police Station laid charge sheet against the accused in Crime no.68/2018 for the offence U/s.457 and 380 IPC.

2.The brief facts of the charge sheet are that:

i.The LW1/S.Niyamathulla, de facto complainant is the resident of H.No.44/19, G2-A, Prakash Nagar, Roja Street, Kurnool. On 05.03.2018, at about 0330 hours, the accused picked up keys, placed beside the window of his house by cutting the window mosquito net and entered inside the house with the same key and stolen cash of Rs.30,000/- from beeruva, by opening the beeruva with a key placed above the beeruva.

On hearing, the sound the wife of the de facto complainant (LW1), S.

C.C. No. 1094 of 20192SPCL. JMFC (P&E), KURNOOL

Khamru Bee (LW2) woke-up and made hue and cries. On that the de facto complainant (LW1) also woke-up and tried to catch the accused, but the accused ran away by jumping the wall of his house.

ii.Basing on the report of the de facto complainant (LW1) the

Sub-Inspector of Police, Kurnool II town P.S (LW6) registered a case in

Cr.No.68/2018 u/s.457 and 380 IPC and investigated into.

iii.During the course of investigation, on 19.03.2018 the

Detective Inspector of Police, Pahadi Shareef, P.S, Rachakonda, T.S (LW5) arrested the accused and seized the stolen property and cash of

Rs.28,500/- concerned in this crime. On 01.04.2018, the Sub-Inspector of

Police, Kurnool II town P.S (LW6) received the stolen property of cash of

Rs.28,500/- from LW5. On 14.05.2018, the Sub-Inspector of Police, Kurnool

II town P.S (LW6) produced the accused before this court on PT warrant and he filed charge sheet in this case.

3.The case was taken cognizance on file against the accused for the offence under Sections 457 and 380 IPC.

4.When accused was produced from Chenchalguda Central prison

before the court, copies of all the documents, on which the prosecution

relied, were supplied to her under Section 207 Cr.P.C. The accused was examined under Section 239 Criminal Procedure Code the accused denied having committed any offence. Thereafter, charge under Sections 457 and 380 IPC have been framed, read over and explained to the accused in

Telugu, for which the accused denied the same, pleaded not guilty and claimed to be tried.

5.In order to establish the case of prosecution, PW1 to PW5 were examined and Exs.P1 to P6 were marked. On production of the accused from Cherlapalli Central jail, he was examined under Section 313 Cr.P.C.

C.C. No. 1094 of 20193SPCL. JMFC (P&E), KURNOOL putting forth the incriminating material that appears against her from the evidence of prosecution witnesses PW1 to PW5. The accused denied his guilt. No evidence either oral or documentary was adduced on behalf of the defence.

6.Now the point for determination is “whether the prosecution has

been able to prove the guilt of the accused beyond all reasonable

doubt for the offence under section 457 and 380 IPC”?

POINT:

7.As per the version of the prosecution that on 05.03.2019 at about 03.30 AM, when PW1 and PW2 were sleeping in their house, they heard the sound of iron almirah and on that they woke up and noticed one unknown person in their house. On seeing them the said person fled away.

Later, on search they noticed a cash of Rs.30,000/- was stolen, they searched for thief, here and there, but in vain, On the same PW1 lodged

Ex.P1 report.

On 01.04.2019, the II town police called PW1and handed the recovered stolen cash of Rs.28,500/- under Ex.P2 stamped receipt as acknowledgment.

8.As per the evidence of the PW5, who is the Investigating officer of this case stated that on 05.03.2016 at about 6.00 PM, while he was present in the police station PW1 came to him and lodged Ex.P1 report, basing on the same he registered a case in Cr.No.68/2018 for the offence u/sec.457 and 380 IPC and issued Ex.P5 FIR and submitted the same to all the concerned offices. Later, he examined the PW1 and PW2 at the police station and recorded their detailed statement, visited the scene of offence observed the scene of offence and drawn Ex.P6 rough sketch of the scene of offence.

C.C. No. 1094 of 20194SPCL. JMFC (P&E), KURNOOL

During the course of investigation of PW5, received information that

PW4 along with his staff members on19.03.2019 at about 6.00 AM while conducting vehicle checking at CISF quarters Mamidipalli village, Pahadi

Shareef stopped one white RITZ car bearing No.TS 07 UC 4784, the three persons who were present in the said car tried to escape, but they apprehended them to police station. Then PW4 secured the presence of

PW3 and LW4/Varikuppala Thirupataiah. On enquiry, the accused revealed their identity particulars and confessed about the commission of offence under the cover of Ex.P3 panchanama. During their confession, they came to know the above said accused is also involved in this crime and accordingly they proceeded to H.No.9-45/1, Thimmapur village, Kottur mandal, Ranga Reddy District and seized an amount of Rs.28,500/- from the possession of accused under the cover of Ex.P4 seizure panchanama.

Later, he intimated the arrest of accused and handed over the cash of

Rs.28,500/- to II town police station, Kurnool. Accordingly, PW5 handed over the cash of Rs.28,500/- to PW1 after obtaining Ex.P2 receipt. On 14.05.2018, PW5 produced the accused before this court on PT warrant.

After completion of investigation he filed charge sheet in this case.

9.Whereas, the PW3 who is one of the mediator in this case at the time of arrest of the accused, confession and seizure panchanama (Ex.P3), he came to court and testified that on 19.03.2018, the Pahadi Shariff police, Ranga Reddy District called him to the police to act as mediator.

Accordingly, he went to the II town police station where Varikuppala

Thirupathaiah/LW4 was also present. Then they examined the persons who were present in the police station and on their examination the first personrevealedthenameas

Bondu Govindu and confessed about the commission of offence about the theft of property. Ex.P3 is the said panchanam, wherein he contributed his

C.C. No. 1094 of 20195SPCL. JMFC (P&E), KURNOOL signature. The police also seized one car under the cover of the said panchanama and in the presence himself and Varikuppala

Thirupathaiah/LW4.

10.The counsel for the accused elicited that the PW3 signed on

Ex.P3 panchanama at police station. The counsel for the accused vehemently argued that the PW3 signed on Ex.P3 panchanama at the police station which shows that the Ex.P3 panchanama was scribed at the police station only and not at the scene of offence. Hence, Ex.P3 panchanama was not believable.

11.Coming to the aspect of the commission of such theft by the accused is concerned PW1 is not an eye witness, while the accused committed theft. In this regard, prosecution entirely dependent upon the confession statement of the accused, seizure and arrest panchanama (Ex.P3) in the presence of PW2 and LW4 who are the mediators of the said panchanama.

12.Coming to the evidentiary value of confession recorded by the police is concerned, it is the settled principle of law under section 25, 26 of the

Indian Evidence Act that it is inadmissible in evidence. At the same time

Ex.P3 confession of accused also leads to discovery of stolen articles from her possession. Under section 27 of Indian Evidence Act, part of such confession leading to the discovery or recovery of material evidence is admissibleinevidence.

13.But in the present case, while the seizure of the property from the possession of the accused in the presence of panchayatdars under the cover of Ex.P3 panchanama, investigation officer failed to took the signature or thumb impression of the accused. It seems that in the

C.C. No. 1094 of 20196SPCL. JMFC (P&E), KURNOOL absence of accused they conducted the seizure panchanama. Without the presence of accused, how they seized the property under the cover of

Ex.P3 panchanama, it is quite contra to prosecution case. As per the above said discussion and according to Section 25 and 26 of Indian Evidence of

Act, confession is inadmissible as the piece of evidence. Hence, the confession is inadmissible piece of evidence and it cannot be considered.

14.In the case on hand after hearing rival contentions of both sides and after analyzing the cogent evidence of PW1 to PW4 and reading the same together that portion of Ex.P3 confession cum recovery and seized panchanama is not established. Further, there is no eye witness, while the accused committed theft. The chain of evidence is not so strong and it’s quite curtained that the accused committed theft.

15.In the light of the above discussed facts and circumstances of this case, this court opined that the accused is entitled under benefit of doubt.

The prosecution failed to prove the guilt of the accused beyond all reasonable doubt for the charges framed under section 457 and 380 IPC.

16.In the result the accused is found not guilty for the offence under

Sections 457 and 380 IPC and accordingly he is acquitted under benefit of doubt under Section 248(2) Cr.P.C. The Superintendent, Cherlapally Jail is directed to set the accused at liberty, if he is not required in any other caseof crime. The case property i.e., cash of Rs.28,500/- handed over to the de facto complainant/PW1 towards interim custody under Ex.P2 receipt shall holds good after expiry of appeal time.

C.C. No. 1094 of 20197SPCL. JMFC (P&E), KURNOOL

Typed to my dictation by Personal Assistant, corrected, signed and

pronounced by me in the open court, this the 17 th day of September, 2019.

Spl. Judl.Magistrate of First Class for Prohibition & Excise, Kurnool.

Appendix of Evidence

Witnesses Examined

For Prosecution: For Defence:

P.W.1: Nyamathulla- None – P.W.2: S. Khamrubee P.W.3: A. Kishore P.W.4: K. Murali Mohan P.W.5: P. Mohan Kishore Reddy

Exhibits Marked

For Prosecution : For Defence:

Ex.P.1: Complaint given by PW1. -Nil- Ex.P.2: Receipt of cash of Rs.28,500/- received by PW1 Ex.P.3: Arrest, seizure and confession panchanama Ex.P.4: Panchanama Ex.P.5: FIR Ex.P.6: Rough sketch

Spl. Judl.Magistrate of First Class for Prohibition & Excise, Kurnool.

C.C. No. 1094 of 20198SPCL. JMFC (P&E), KURNOOL

CALENDAR & JUDGMENT

IN THE COURT OF THE SPL.JUDL.MAGISTRATE OF FIRST CLASS

FOR PROH. & EXCISE, KURNOOL.

CALENDAR CASE No.1094/2019

1. Date of Offence: 05.03.2018

2. Date of Complaint or report: 05.03.2018

3. Date of apprehension of the accused: 19.03.2019

4. Date of release on bail : under custody

5. Date of commencement of trial: 09.08.2019

6. Date of close of trial: 03.09.2019

7. Date of Sentence or Order: 17.09.2019

8. Explanation of delay if any: -- COMPLAINANT: The Sub-Inspector of Police, Kurnool II Town Police Station in Crime no., 68/2018.

AccusedBondu Govind @ Mani, age 24 years, S/o late Narasimha Murthy, R/o H.No.10-20/71, Rangareddy Colony, Chevella village and mandal, Rangareddy District, N/o Block No.10, Seva Nagar Colony, Madhurawada village, A.P. State.

Offence : Lurking House trespass or House breaking dur- ing night, Theft in building and dishonestly re- ceiving stolen property, knowing it to be stolen. Section of Law : Under Sections 457 and 380 IPC.

Finding of Court : Accused is found not guilty

Sentence/ Order : In the result the accused is found not guilty for the offence under Sections 457 and 380 IPC and accordingly he is acquitted under benefit of doubt under Section 248(2) Cr.P.C. The Superintendent, Cherlapally Jail is directed to set the accused at liberty, if he is not required in any other case of crime. The case property i.e., cash of Rs.28,500/- handed over to the de facto complainant/PW1 towards interim custody under Ex.P2 receipt shall holds good after expiry of appeal time.

Sd/- K. Bala Koteswara Rao

Spl. Judl.Magistrate of First Class for Prohibition & Excise, Kurnool.

Copy submitted to The Chief Judicial Magistrate - Cum -

Principal Assistant Sessions Judge, Kurnool.

//True copy//

SPL.JUDL.MAGISTRATE OF I CLASS (P&E),

KURNOOL.

1

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST

CLASS

(for Prohibition & Excise), KURNOOL.

PRESENT:-SRI.K.BALA KOTESWARA RAO Special Judicial Magistrate of I Class for Prohibition and Excise, Kurnool.

THURSDAY, THE 22ND DAY OF NOVEMBER, 2018.

C.C.No.1994/2018

Between:

State:Represented by the Prohibition & Excise Sub-Inspector, Kodumur. … Complainant. -Versus-

E. Sudhakar Goud, aged 41 years, S/o E. Venkata Ramudu, TFT Licence Holder, Resident of Gorantla Village, Kodumur mandal. … Accused.

This case coming before me on 22.11.2018 for final hearing in the presence of Assistant Public Prosecutor for the prosecution and Sri. Ramesh

Goud, Advocate for the accused and upon perusing the material on record, the Court delivered the following:

J U D G M E N T

1. The Prohibition and Excise Sub Inspector, Kodumur filed charge sheet in Crime no.22/2018 alleging that the accused has committed the offence punishable u/s.34(a) of A.P. Excise Act, 1968.

2. The case of the prosecution, in brief is that: On 17.2.2018 at about 8.30 AM during the raids conducted by the Proh. & Excise Sub-Inspector, P.

Vardhan Devi (LW3) along with ESTF staff i.e., Proh. & Excise Inspector, B.

Krishna Kumar (LW4), Proh. & Excise Head Constable, N. Rahamathulla (LW5),

Proh. & Excise Sub-Inspector, Kodumur, E. Janardhan Goud (LW6) and panchayathdars V. Sudhakar (LW1) and K. Murali (LW2) to detect excise offences reached at about 02.15 PM near Additional TFT shop, Gorantla village. There they found the accused was sitting by doing toddy business.

The Proh. & Excise Sub-Inspector, Kodumur, E. Janardhan Goud (LW6) asked the accused to produce the TFT shop licence and records and the accused presented the licence and other records and further stated that he is the licence holder of the TFT shop and revealed his name and other particulars.

2

Then the Proh. & Excise Sub-Inspector, E. Janardhan Goud (LW6) verified the stock of the today in the TFT shop and found one plastic drum containing 60 liters of toddy. The Proh. & Excise Sub-Inspector, P. Vardhan Devi (LW3) examined the toddy with the help of mini kit and found the colour of the toddy was changed and he came to conclusion that the toddy was adulterated. The Proh. & Excise Sub-Inspector, E. Janardhan Goud (LW6) poured 500 ml. of toddy in three 650 ml. bottles as sample for the purpose of chemical analysis, sealed and affixed the identity slips on the sample bottles and destroyed the remaining toddy on the spot. Then he arrested the accused informing him the grounds of arrest as he was in possession of adulterated toddy for sale and violation of terms and conditions of the licence and seized the sample bottles under cover of panchanama drafted on the spot. Basing in the said panchanama a case was registered by the Proh.

& Excise Sub-Inspector (LW6) in Cr.No.22/2018 of Proh. & Excise Station,

Kodumur under section 34(a) of A.P. Excise Act,1968 and forwarded the CD file and sample bottles for further investigation to Then the Proh. & Excise

Sub-Inspector, P. Vardhan Devi (LW3).

3. The offence was taken cognizance on file against the accused u/s.

34(a) of A.P. Excise Act, 1968.

4. When the accused appeared before the Court, copies of all the documents were furnished to him as contemplated u/s.207 Cr.P.C.

5. Accused was examined u/s.239 Cr.P.C. to which he denied the offence.

Thereafter, charge u/s. 34(a) of A.P. Excise Act, 1968 of the Act has been framed, read over and explained to him in Telugu for which he denied the same and pleaded not guilty and claimed to be tried.

6. In order to establish its case, the prosecution examined PWs-1 to 4 and got marked Exs.P1 to P5. MO-1 to MO-3 are the sample bottles. In view of the evidence of PW3 & PW4, the learned A.P.P. has given up the evidence of

LW4, 3

B. Krishna Kumar, Prohibition and Excise Sub-Inspector and LW5, N.

Rahamathulla, Proh & Excise Constable, Kodumur.

7.After closure of prosecution evidence, Accused was examined

U/Sec.313 Cr.P.C. explaining the incriminating evidence appearing against him, for which, he pleaded all such evidence is false and reported no defence.

8.Heard learned counsel for the parties.

9.The point for determination is-

Whether prosecution proved the guilt of the accused beyond

all reasonable doubt for the offence U/Sec. 34(a) of A.P. Excise

Act?

10.POINT: In order to establish its case, as already noted, prosecution has examined PW-1 to PW-4 and got marked Ex.P1 to Ex.P5. MO-1 to 3 are sample bottles. PW-1 and PW-2 are the panch witnesses for Scene of

Offence-Cum-Seizure Panchanama. PW-3 is the Proh. & Excise CI of Police and PW-4 is the Investigation officer of this case. Exs.P1& P2 are the signatures of PW-1 and PW-2 on Scene of Offence-Cum-Seizure Panchanama,

Ex.P3 is Arrest and seizure panchanama, Ex.P4 is FIR and Ex.P5 is Analysis report.

11.The entire version of the prosecution is that at the time of raid the accused was selling the toddy to others and that PW3 examined him to produce the licence of the said shop. Accordingly, the accused produced the same. Later, PW3 verified the shop and found 60 liters of toddy in a plastic drum and that PW4 examined the said toddy with the help of tool kit and he found that the said toddy was adulterated. He poured the toddy into 3 bottles for sample purpose. The remaining property was destroyed under the cover of Ex.P3 panchanama in the presence of mediators i.e., PW1 and

PW2. Whereas, PW1 and PW2 came to court and testified that they do not know anything about the facts of the case and no proceedings took place in their presence. The police obtained their signatures on blank papers and they turned hostile. The learned Assistant Public Prosecutor failed to 4 establish their presence during the time of arrest, seizing of contraband and scribing of Ex.P3 panchanama.

12.Further, the PW3 testified that at the time of raid the accused selling the contraband to others and that some persons were gathered for purchasing the toddy from the accused. Whereas, PW4 testified that at the time of raid only accused was present at the shop but no one gathered there.

His evidence is contra to the version of the prosecution. If really, the version of the prosecution is believable, PW4 would have testified in the same lines as stated by the PW3 with regard to at the time of the raid the accused selling the toddy to others.

13.Further, they did not seize any money from the possession of the accused which the accused earned after selling the toddy to others. This is clearly shows that the prosecution version is highly doubtful with regard to they went for raid or not.

14.Further, the version of the prosecution is that after seizing the toddy from the possession of the accused, PW4 examined the said toddy with the help of tool kit and he found that the said toddy was adulterated. But the prosecution failed to explain before the court which method the PW4 examined the toddy. Further, they also did not mentioned in Ex.P3 panchanama. Here, the learned counsel for the accused trying to collapse the evidence of PW3 and PW4 with regard to procedure of examination of toddy. On this aspect he succeeded to some part i.e., PW3 testified that

before conducting the examination PW4 clean the mug and dip the mug into

the drum and collected the toddy and the same was used for conducting the examination and then he found the toddy was adulterated. Whereas, PW4 testified that he did not clean the mug.

15.At this stage the learned counsel for the accused vehemently argued that when the PW4 conducting the examination of toddy by not cleaning the 5 mug, there is a possibility of mixture of toddy with some other chemicals.

Further, they did not explain the procedure. Hence, he prays that the prosecution version is highly doubtful with regard to examination of toddy.

This court also agrees with the arguments of the learned counsel for the accused and does not believe the version of the prosecution with regard to examination of the toddy.

16.Further, the PW3 testified that there are several shops adjacent to the scene of offence, but they did not examine the neighbours of the scene of offence. In this aspect also the prosecution failed to establish why they did not examine the neighbours of the scene of offence. All the above said aspects clearly show that the prosecution went to the raid, arrested the accused and seized the contraband from the possession of the accused is not believable.

17. In these circumstances, when the seizure of alleged contraband itself is not established by the prosecution, Ex.P5 Analysis report does not help the prosecution. In that view of the matter, this Court opines that prosecution has miserably failed to bring home the guilt of accused for the offence with which he is charged and accordingly entitled to benefit of doubt.

18. IN THE RESULT, the accused is found not guilty for the offence u/s.34(a) of A.P. Excise Act and she is acquitted u/s.248(1) Cr.P.C. The bail bonds of accused shall be in force for a period of 6 months as prescribed u/s.437-A Cr.P.C. MO1 to MO3 sample bottles deposited through C.P.R.

no.95/2018 shall be destroyed after appeal time is over.

Typed to my dictation by the Stenographer, corrected and pronounced by me in open Court on this the 22 nd day of November, 2018.

Sd/- K. Bala Koteswara Rao

Spl. Judl.Magistrate of First Class for Prohibition & Excise, Kurnool.

Appendix of Evidence 6

Witnesses Examined For prosecution:

PW-1:V. Sudhakar PW-2: K. Murali PW-3: P. Vardhana Devi PW-4: E. janardhan Gowd

For Defence: - Nil -

Exhibits marked

For prosecution Ex.P1: Signature on panchanama dt.17.02.2018 PW1 Ex.P2: Signature on panchanama dt.17.02.2018 PW2 Ex.P3: Arrest and seizure panchanama Ex.P4: F.I.R. Ex.P5: Chemical analysis Report.

For Defence: - Nil –

MO-1 to 3: Sample Bottles.

Sd/- K. Bala Koteswara Rao

Spl. Judl.Magistrate of First Class for Prohibition & Excise, Kurnool.

//True copy//

SPL.JUDL.MAGISTRATE OF I CLASS (P&E),

KURNOOL.

7

CALENDAR & JUDGMENT

IN THE COURT OF THE SPL.JUDL.MAGISTRATE OF FIRST CLASS

FOR PROH.& EXCISE, KURNOOL.

C.C.No.1994/2018

1.Date of Offence:17-02-2018

2.Date of Complaint or report:17-02-2018

3.Date of apprehension of the accused :19-02-2018

4.Date of release on bail:21-02-2018

5.Date of commencement of trial:13-11-2018

6.Date of close of trial:22-11-2018

7.Date of Sentence or Order:22-11-2018

8.Explanation of delay if any:

COMPLAINANT :The Prohibition and Excise Sub- Inspector, Kodumur in Crime No. 22/2018.

E. Sudhakar Goud, aged 41 years, S/o E. Venkata AccusedRamudu, TFT Licence Holder, Resident of Gorantla Village, Kodumur mandal.

Offence : Possession of I.D. Liquor.

Section of Law : Under Section 34(a) of A.P Excise Act, 1968.

Finding of Court : Accused is found not guilty.

Sentence/ Order IN THE RESULT, the accused is found not guilty for the offence u/s. 34(a) of A.P. Excise Act and she is acquitted u/s.248(1) Cr.P.C.

The bail bonds of accused shall be in force for a period of 6 months as prescribed u/s.437-A Cr.P.C. MO1 to MO3 sample bottles deposited through

C.P.R. no.95/2018 shall be destroyed after appeal time is over.

SPL.JUDL.MAGISTRATE OF FIRST

CLASS

FOR PROH. & EXCISE, KURNOOL.

Copy submitted to the Hon’ble Chief Judicial Magistrate-Cum-Principal Assistant Sessions

Judge, Kurnool.

8

FORM No. P.18

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

FOR PROHIBITION & EXCISE, KURNOOL.

C.C.No.1994/2018

Between: State, represented by the Prohibition & Excise Sub - Inspector, Kodumur.… Complainant.

And

E. Sudhakar Goud, aged 41 years, S/o E. Venkata Ramudu, TFT Licence Holder, Resident of Gorantla Village, Kodumur mandal. `… Accused.

This case is filed by the Prohibition & Excise Sub-Inspector, Kodumur in

Crime No.22/2018 for the offence u/s.34(a) of A.P. Excise Act, 1968 A.P.

Prohibition Act, 1995.

Date of Offence:17-02-2018

Date of filing:11-10-2018

Date of Order:22-11-2018

Result of the Case:IN THE RESULT, the accused is found not guilty for the offence u/s.34(a) of A.P. Excise Act and she is acquitted u/s.248(1) Cr.P.C.

The bail bonds of accused shall be in force for a period of 6 months as prescribed u/s.437-A Cr.P.C. MO1 to MO3 sample bottles deposited through

C.P.R. no.95/2018 shall be destroyed after appeal time is over..

Sd/- K.BALA KOTESWARA RAO

SPL.JUDL.MAGISTRATE OF I CLASS

(P&E),

KURNOOL.

To The Prohibition & Excise Sub-Inspector, Kurnool.

//True copy//

SPL.JUDL.MAGISTRATE OF I CLASS (P&E),

KURNOOL.