Sri K.hari Babu

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS : ARAKU

PRESENT: Sri K.Hari Babu,

Judicial Magistrate of First Class,

Araku. Thrusday, this the 29th day of September, 2016

Calendar Case No.141 of 2016

BETWEEN :

State: represented by the Inspector of Police,

Prohibition & Excise, Araku .. Complainant

AND

Samardhi Thulasa, W/o.Nitya, 45 Years,

Gattaraguda Village, Arakuvalley Mandal.. Accused

This case is coming before me for final hearing on 28.9.2016 in the presence of learned Assistant Public Prosecutor for State and of Sri P.Murali Mohan, Counsel for accused, upon hearing both sides and matter have stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

1. The Inspector, Prohibition and Excise, Araku, filed a charge sheet in

Cr.No.320/2015-16 for the offence punishable under Section 7A read with 8(e) of

A.P.Prohibition Act, 1995 against the accused.

2. The prosecution version in short campus, is as follows: -

On 5.1.16 at 11.35 am, LW.3 K.V.S.S.Kumari along with LW.1

Ch.BalaNarasimha, P&E SI and her staff members conducted raid in the Gattaraguda village, noticed a woman carrying one plastic can and tried to ray away on seeing the excise police. The excise police caught hold the woman and questioned about the contents of plastic can for which she revealed that it contains 5 liters of ID liquor. LW.3 explained the offence to the accused, arrested and seized the contraband from her possession. She took 180 ml., out of seized property into a separate bottle for sample purpose, sealed the said sample bottle and pasted the identity slips on the contraband and on the sample bottle. LW.3 prepared occurrence report and registered a case in

Cr.No.320/2015-16, under Section. 7-A read with 8(e) of A.P. Prohibition Act, 1995 and enlarged her on station bail. LW.3 sent the sample bottle to the Chemical Examiner for analysis and after receipt of the Chemical Analysis report, which opined that the sample bottle contain illicit distilled liquor filed the charge sheet against the accused for the offence punishable Section. 7-A read with 8(e) of A.P. Prohibition Act, 1995

3. On receipt of charge sheet, this case is taken on file against the accused for the offence under Section 7A read with 8(e) of A.P.Prohibition Act, 1995.

4. On appearance of the accused, copies of case documents were furnished to her as contemplated under Section 207 of criminal procedure code, 1973 (herein after referred as 'Cr.P.C.' for the sake of brevity).

5. When examined under Section 239 of Cr.P.C., accused denied the allegations leveled against her. After perusing the entire material on record and on hearing both sides, a charge had been framed against the accused under Section 7A read with 8(e) of

A.P.Prohibition Act, 1995 which was read over and explained to the accused in telugu, for which, she pleaded not guilty and claimed the case to be tried.

6. During the course of trial, on behalf of the prosecution, PW.s 1 and 2 are examined, Exhibits P1 to P5 exhibited and M.O1 marked. The evidence of LW.2

K.Lakshmana Rao, P&EC is given up by the prosecution from the list cited witnesses.

7. On closure of evidence let in by the prosecution, accused is examined under

Section 313 of Cr.P.C., with regard to the incriminating material available against her, for which, her plea is total denial and reported no defence evidence on her behalf.

8. Heard both sides

a) The learned public prosecutor has argued that :

• the evidence of PW.s 1 and 2 is cogent, convincing and there is no reason to discard their testimony. It is also submitted by him that PW.2 has categorically stated that she sealed the seized contraband at the spot and therefore it gives an assurance that the sample collected is the same sample tested by the chemical examiner, visakhapatnam.

• The accused was caught red handed and charge sheeted and hence prays to convict the accused

b) The defence counsel argued that • When independent witnesses are not examined by the prosecution, the prosecution theory of seizing ID liquor from the custody of the accused has to be looked with suspicion.

• There is an abnormal delay in sending the samples to the chemical examiner of Proh&Excise, Regional Proh & Excise Laboratory, VSP and the same was not satisfactorily explained by the prosecution which casts a serious doubt on the prosecution version.

• The entire case is depending upon their proceedings which is an infirmity.

Hence, prays to acquit the accused on the ground of benefit of doubt.

9. Upon hearing the rival contentions of both the prosecution and defence counsel, the point germane for determination is:

“Whether the prosecution is successful in bringing home the guilt of accused for the charge framed against her under Section 7A read with 8(e) of A.P.Prohibition Act, 1995 beyond all reasonable doubt?”

10. POINT

a) In the instant case, the prosecution side has examined Ch.Bala Narsimha, Sub-

Inspector, P&E, Araku and K.V.V.S.Kumari, Inspector, P&E, Araku as PW.s 1 and 2 where as accused adduced no evidence either oral or documentary for her defence.

b) It is the case of the prosecution that the accused was found in possession of a plastic can containing ID liquor on 5.1.16 at 11.35 pm, by the Inspector of Police and others and proceedings were drafted on interrogation. Further she was arrested and ID liquor was seized under the cover of Exhibit P1 occurrence report.

c) PW.1 deposed that on 5.1.16 at 11.35 am, he along with other staff members accompanied PW.2 in conducting raid in Gattaraguda Village of Arakuvalley mandal and found a female person carrying a plastic can. PW.1 further deposed that on enquiry by

PW.2, she disclosed her name as Samardi Thulasa and that she is in possession of 10 liters of ID liquor. PW.1 further deposed that PW.2 seized 10 liters of contraband from the possession of the accused in his presence, took 180 ml ID liquor into a separate bottle for sending the same to Regional Proh & Excise Laboratory, Visakhapatnam and he signed along with PW.2, LW.2 and the accused on the identity slips which were pasted on the sample bottle and also on the seized contraband. PW.1 further deposed that he drafted occurrence report marked as Ex.P1 at the narration of PW.2.

PW.1 denied the suggestion that accused is falsely implicated in this case for statistical purpose.

d) PW.2 deposed that on 5.1.16 at 11.35 am, she along with PW.1, LW.2

K.Lakshamana Rao, P&EC and other excise staff members conducted raid in the

Gattaraguda village limits of arakuvalley mandal and noticed the accused carrying a plastic can. When she tried to skulk away, they surrounded her and questioned about reasons for the escape. Then she stated that, she is in possession of ID liquor and therefore she is trying to escape.

PW.2 further deposed that she sent LW.2 to the village for securing the mediators.

Though LW.2 made attempts, he could not secure any person to act as mediator as the villagers are not willing to come forward and he intimated the same to her.

PW.2 further deposed that she verified the plastic can and found 10 liters of ID liquor and on her enquiry, the accused disclosed her identity and stated that she purchased the said I.D liquor from an unknown person in order to sell the same for her livelihood.

PW.2 further deposed that she explained to the accused about the offence committed, arrested her, took 180 ml., out of seized contraband into a separate bottle for sample purpose, sealed the said sample bottle and pasted the identity slips containing the signature of the accused, PW.1 and excise staff on the sample bottle and also on the seized contraband. M.O1 is the sample bottle containing 180 ml ID liquor.

PW.2 further deposed that based on Ex.P1, she registered a case in

Cr.No.320/2015-16 of Prohibition and Excise Station, Araku under Section 7A read with 8(e) of APP Act, 1995 and issued FIR marked as Ex.P2.

PW.2 further deposed that on 11.1.16, she forwarded MO.1 to the Chemical

Examiner, Visakhapatnam for analysis report under letter of advice marked as Ex.P3. On 19.1.16, she received chemical analysis report marked as Ex.P4 from chemical examiner in which it was opined that the seized sample bottle is ILLICIT DISTILLED LIQUOR unfit for human consumption.

PW.2 further deposed that as per the proceedings issued by the Deputy

Commissioner of Proh & Excise, Visakhapatnam in Rc.No.431/2016/B1 dated:9.9.16 marked as Ex.P5 the Excise Superintendant, Anakapalle destroyed the remaining ID liquor seized from the possession of the accused. PW.2 filed the charge sheet after the completion of investigation.

During cross-examination, she stated that she has not served any written notices to concerned VRO to act as mediators. She stated that the scene of offence is a busy locality. She stated she sealed MO.1 on 5.1.16 where as she sent the same to the

Chemical Examiner, Visakhapatnam for analysis on 11.1.16. She denied the suggestion accused is falsely implicated for statistical purpose.

e) Adverting to the plea of defence counsel about arrest of accused and seizure of contraband in the absence of mediators, it is pertinent to mention that admittedly, the scene of offence is Gattarguda village limits of Arakuvalley mandal which is a busy locality. As per the case of prosecution though they tried to secure the mediators, none came forward to act as mediators for the seizure of contraband. On that Ex.P1 occurrence report was drafted. When the place of offence is a busy locality where there is a movement of the public, there is a possibility for the public to act as mediators.

Therefore, it is highly improbable to believe the version of prosecution that none came forward to act as mediators for the seizure of contraband. Further PW.s 1 and 2 could not say the names of the persons whom they approached to act as mediators and stated that they have not served notices to any person or village officials to act as mediators. In such circumstances, the testimony of PW.s 1 and 2 cannot be relied upon as they are extremely concerned for getting the success to the prosecution case.

On bare reading of Ex.P1 – occurrence report, it discloses that the raid party could not secure the mediators. Immediately after coming to know about the possession of contraband by the accused, they ought to have secure the mediators. All these facts lead to inference that the excise officials have failed to secure two or more independent or respectable inhabitants of locality for seizure of contraband. Consequently, the seizure of contraband as alleged from Ex.P1 – occurrence report stands diminished.

f) Adverting to the plea taken by the defence that the sample collected from the plastic can allegedly containing ID liquor came to be sent for analysis with considerable delay. In the case on hand, the sample was collected on 5.1.16 but it was sent for analysis on 11.1.16. As such there is a delay of six days. Further no evidence was brought on record that the samples were kept safely in the excise police station without giving any scope for meddling. There is no satisfactory explanation from PW.2 for the delay in sending the samples to the chemical examiner, visakhapatnam for analysis report. Therefore, the accused is entitled for the benefit of doubt as rightly contended by the defence.

g) Further more, PW.2 who is the complainant in the case is the investigating officer.

The purpose of investigation is to find out the truth of the allegations of the prosecution version. Therefore, a person who is an eye witness himself can not be investigating officer. If an exicse officer is an eye witness and becomes investigating officer then there is no assurance that what the eye witness have stated was true. In such cases, the accused persons are highly prejudiced. They can not make use of the provisions of section 161 Cr.P.C.

The investigating officer should not associate an eye witness with the recovery memos, because that partakes of an attempt to make the witnesses omnibus. The practice of investigation being conducted by the same officer who happens to be an ocular witness is looked with dis favour when the same officer, who claims to have witnessed the incident, investigates, then his evidence has got to be looked with great caution.

Further if an excise officer who was recovery witness if becomes the investigating officer there is no assurance that truth would be forthcoming.

h) The offence under Section 7A read with 8(e) of A.P.Prohibition Act, 1995 is made cognizable offence and once the excise officials are entrusted with the investigation of cognizable offence, they become police officials and the excise officials can never say that they are not the police officials. When once they become police officials, the confession recorded by them in the proceedings is inadmissible. When the independent witnesses are not examined by the prosecution, the prosecution theory of seizing the contraband from the possession of the accused has to be looked with suspicion. Non-examination of independent mediators is also fateful to the prosecution version. The seizure proceedings drafted also cannot be considered in view of the bar under Sections 25 and 27 of the Indian Evidence Act,1872 and Section 161 of Cr.P.C.

11. In the totality of the evidence on record and assessment thereof; this court landed in decision that the prosecution has failed to prove the case beyond reasonable doubt against the accused. Except the evidence of PW.s 1 and 2 who are excise officials and highly interested in securing the conviction to the accused, there is no other independent evidence available on record to bring home the guilt of the accused.

12. In the result, accused is found not guilty for the offence under Section 7A read with 8(e) of A.P.Prohibition Act, 1995 and accordingly acquitted under Section 248(1) of Cr.P.C. Bail bonds of the accused if any shall stand canceled on lapse of appeal time.

M.O1 (sample bottle containing 180 ml ID liquor) is ordered to be destroyed on lapse of appeal time. Accused is directed to execute a bond under Section 437A Cr.P.C that she shall appear before the appellate court in the event she receive summons with in six months from today.

Typed by me on my personal laptop, corrected and pronounced by me in the open court on this the 29th day of September, 2016.

JUDICIAL MAGISTRATE OF FIRST CLASS,

ARAKU

:APPENDIX OF EVIDENCE:

Witnesses examined for:

Prosecution:

PW.1/.. : Ch.Bala Narsimha, Sub-Inspector, P&E, Araku

PW.2/.. : Smt.K.V.S.S.Kumari, Inspector, P&E, Araku

Defence:

-- None --

No.of documents marked for:

Prosecution:

Ex.P.1/..: Occurence report dated 5.1.16

Ex.P.2/..: FIR

Ex.P.3/..: Attested copy of letter of advice

Ex.P.4/..: Chemical analysis report

Ex.P.5/..: Attested copy of destruction proceedings

Defence:

..NIL..

No.of material objects marked for:

MO.1/.. 180 ml sample bottle containing ID liquor

JUDICIAL MAGISTRATE OF FIRST CLASS,

ARAKU

CALENDAR & JUDGMENT

DISTRICT:: VISAKHAPATNAM

CALENDAR CASE TRIED BY THE COURT OF JUDICIAL MAGISTRATE OF

FIRST CLASS AT ARAKU

Date of Offence : 5.1.16

Date of Report or Complaint : 5.1.16

Date of apprehension of accused (Arrest) : Station bail

Date of accused released on bail : 5.1.16

Date of commencement of Trial : 26.9.16

Date of Closure of trial : 26.9.16

Date of Sentence of Order of Court : 29.9.16

Explanation for delay:

The offence was occurred on 5.1.16 Case was taken on file on 15.9.16. Copies furnished to accused on 20.9.16. Accused is examined under Section 239, Cr.P.C on 21.9.16. PW.s 1 and 2 are examined on 26.9.16 Accused is examined under Section 313, Cr.P.C. On 27.9.16 Heard arguments on 28.9.16. Judgment pronounced on 29.9.16.

Remarks : No witness was detained for more than three days.

Calendar Case No.141/2016 in Cr.No.320/2015-16 of Proh & Excise, Araku

Name and address of Complainant : State represented by the Inspector of Police, Proh & Excise, Araku

Name and address of the accused :

Samardhi Thulasa, W/o.Nitya, 45 Years, Gattaraguda Village, Arakuvalley Mandal

Offence : Under Section 7A read with 8(e) of A.P.Prohibition Act, 1995

Finding of Court : Found not guilty

Sentence of Order of Court : In the result, accused is found not guilty for the offence under Section 7A read with 8(e) of A.P.Prohibition Act, 1995 and accordingly acquitted under Section 248(1) of Cr.P.C.

Bail bonds of the accused if any shall stand canceled on lapse of appeal time. M.O1 (sample bottle containing 180 ml ID liquor) is ordered to be destroyed on lapse of appeal time.

Accused is directed to execute a bond under Section 437A

Cr.P.C that she shall appear before the appellate court in the event she receive summons with in six months from today.

JUDICIAL MAGISTRATE OF FIRST CLASS,

ARAKU

Copy submitted: To The Hon'ble Chief Judicial Magistrate, Visakhapatnam.

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS : ARAKU

PRESENT: Sri K.Hari Babu,

Judicial Magistrate of First Class,

Araku Friday, this the 30th day of September, 2016

Calendar Case No. 52 of 2012

Between :

The State : Represented by The Sub Inspector of police, Ananthagiri Police station. …COMPLAINANT (Cr.No.11 of 2012) AND

Thotapalli Rambabu, S/o.Ramulu, 45 Years, Naibrahmin by Caste, VSPR AR Driver PC.No.831, District Police Head Quarters, Kailasagiri, Visakhapatnam District R/o.Vidhya Nagar, near Old CBI office, AU Second line, Visakhapatnam City [ Driver of Police Hitcher van AP 9 P 5822 ]… ACCUSED

This case is coming before me for final hearing on 28.9.16 in the presence of

Assistant Public Prosecutor for the Complainant and Sri J.K.Rathna Raju, Advocate for the accused, upon hearing both sides and the matter having stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

1.The Sub-Inspector of police, Ananthagiri Police Station filed a charge sheet against the accused in Cr.No.11 of 2012 for the offence punishable under Sections 338 and 337 of Indian Penal Code, 1860 (herein after referred to as 'IPC' for the sake of brevity).

2.The case of the prosecution in nutshell is that :

a) On 29.2.12 at 6.30 pm, the accused being the driver of the crime vehicle van bearing registration number AP 9 P 5822 drove the same in a rash and negligent manner while proceeding towards visakhapatnam from arakuvalley, lost control over the van and dashed against a hill between 1st and 2nd hair pin bend near tyda of ananthagiri mandal resulting it turned turtled. Due to which LW.s 1 to 9 – C.Appala Swamy, A.V.Ramana,

K.Apparao, Y.Anasuya, K.Santhikumari, G.Sukanya, V.Satyanarayana, K.Ramakrishna rao and K.Sanyasi naidu sustained severe injuries.

b) Based on statement of LW.1, LW.14 N.Nageswara rao, Head Constable registered a case in Cr.No.11 of 2012 of A.Giri PS for the offence under Sections 338 and 337, visited the scene of offence, prepared rough sketch, examined the wtinesses, sent a requisition to the motor vehicle inspector for inspection of the offending vehicle and arrested the accused on 20.3.12. LW.15 L.Rama Krishna, SI of Police after receiving the MVI report and wound certificates of the injured filed the charge sheet against the accused on completion of investigation.

3.On the receipt of charge sheet, this case is taken on file for the offence under Sections 338 and 337, IPC against the accused.

4.On appearance of the accused, copies of documents are furnished to the accused as contemplated under Section 207 of Criminal Procedure Code (herein after referred to as 'Cr.P.C' for the sake brevity).

5. When examined under Section 251 Cr.P.C., the accused denied the substance of the accusation. After perusing the entire material on record, accusation under Sections 338 and 337, IPC is orally explained to the accused in telugu language, for which, he pleaded not guilty and claimed the case to be tried.

6.During the course of trial, on behalf of the prosecution, PW.s 1 to 12 examined and Exhibits P10 to P19 exhibited. The evidence of LW.s 10 to 12-S.K.Sattar,

Dr.Deva Prasad and M.Venkateswara Rao, Motor Vehicle Inspector is given up by the prosecution from the list cited witnesses.

7.On closure of the evidence let in by the prosecution, the accused is examined under Section 313 of Cr.P.C. with regard to the incriminating material found against him, for which he denied the same and reported no defence evidence.

8.Heard both sides

a) The learned Assistant Public Prosecutor submitted that PW.s 1 to 10 identified the accused as well as PW.s 7 and 8 established the identity of the offending vehicle. He further contended that the prosecution has successfully established that the accused was driving the offending vehicle at high speed and, therefore, rashly. He submitted that grievous injuries have been proved to have been caused to PW.s 2, 3 ,7, 8 and 10 and simple injuries to PW.s 1, 4, 5 and 6. He urged that the prosecution has accordingly successfully established its case warranting conviction to the accused.

b) The counsel for the accused argued that mere speed can not be deemed to tantamount rashness or negligence. He urged that the prosecution has failed miserably in proving its case against the accused, and deserves to be acquitted.

9.Now the point germane for determination is :

“Whether the prosecution has proved the guilt of the accused for the offence under Sections 338 and 337, IPC beyond all reasonable doubt?”

10. POINT

a) The prosecution led evidence by examining twelve witnesses. PW.1 is the defacto complainant cum injured. PW.s 2 to 10 are the other injured witnesses. PW.s 11 and 12 are the investigating officers who carried out the investigation of the present case. However, no witness was examined and no documents were marked on behalf of the defence.

b) PW.s 1 to 6 commonly deposed that on 29.2.12 at 6.30 pm, while they were proceeding in a police van being driven by the accused T. Rambabu who is their colleague and when the van reached near first hair pin bind, Ananthagiri mandal the van turned turtle. They further deposed that they all received injuries and were sleeping at that time. At this stage the Assistant Public Prosecutor declared the witnesses as hostile as they resiled from their earlier statements. Nothing significant has been elicited from the cross-examination of PW.s 1 to 6 under Section 154 of the Indian Evidence Act, 1872 read with Section 162 proviso of Cr.P.C to substantiate the case of prosecution.

PW.7 deposed that on 29.2.12 at 5.00 pm, he along with Kalabrundam team started at Araku in a police van bearing registration number AP 9P 5822 towards visakhapatnam being driven by the accused T.Rambabu. He further deposed that the vehicle is moving at high speed and due to which it turned turtle near tyda resulting he received injuries over his right hand.

PW.8 deposed that on 29.2.15 at 5.00 pm, she along with Kalabrudam team started at Araku in a police van bearing registration number AP 9 P 5822 to visakhapatnam and when the offending vehicle crossed tyda it turned turtle due to over speed. He further deposed that she received injuries over her left leg, right hand shoulder and the accused

T.Rambabu is driving the offending vehicle on the date of the accident.

PW.9 deposed that on 29.2.12 at 5.00 pm, while he was in return journey to visakhapatnam along with Kalabrudam teem he heard a big sound near tyda, he woke up immediately and found the van turned turtle. He further deposed that all the persons traveling in the van received injuries and were admitted to Govt Hospital, S.Kota and from there to KGH, Visakhapatnam for better treatment.

PW.10 deposed that in the month of february, 2012 at 5.00 pm she along with twelve other colleague officers started at araku to go to visakhapatnam in an eicher vehicle belongs to police department and she sat in the back side of the vehicle and about 9.00 pm, the offending vehicle veered and overturned resulting she sustained injuries on her spinal card. He further deposed that she was admitted in the seven hills hospital, visakhapatnam and was bedridden for nine months. The accused T.Ram babu is the driver of the offending vehicle and is moving in a normal speed at the relevant time.

PW.11 deposed that on 1.3.12 at 6.00 am, he received medical intimation over phone from seven hills hospital, visakhapatnam and recorded the statement of PW.1 marked as Ex.P1. Based on Ex.P1, he registered a case in Cr.No.11/2012 for the offence under Sections 338 and 337 IPC and issued FIR marked as Ex.P8. He further deposed that he visited the scene of offence near 2nd hair pin bend, tyda ghat road, ananthagiri mandal, prepared rough sketch marked as Ex.P9, examined the witnesses and recorded their statements. He further deposed that he shifted the offending vehicle bearing registration number AP 9 P 5822 to the anathagiri police station, sent a requisition to

LW.13 M.Venkateswara rao, motor vehicle inspector for inspection of the crime vehicle and arrested the accused on 20.3.12 and produced him before the court for judicial custody and handed over further investigation to PW.12.

PW.12 deposed that he verified the investigation of PW.11 on proper lines, received wound certificates of PW.s 1 to 8 and 10 marked as Exhibits P10 to P18 issued by LW.12 Dr.Deva Prasad on 25.3.13, MVI report issued by LW.13 M.Venkateswara rao on 26.3.13 and filed the charge sheet after the completion of investigation.

c) In order to establish the identity of the accused qua the accident in question i.e., to establish that it was the accused who was driving offending vehicle van bearing number AP 9P 5822 on the date, time and place of the alleged accident, the prosecution has cited and examined four witnesses i.e., PW.s 7 to 10.

At the outset PW.s 7 to 10 categorically deposed that the accused is driver of the crime vehicle at relevant point of time and identified the accused in open court which is a substantive piece of evidence to strengthen the adaptation of the prosecution. Thus from the above discussion it is clear that 29.2.12 at 6.30 pm, the accused being driver of the offending vehicle van bearing number AP 9P 5822 caused the accident in which

PW.s 1 to 8 and 10 sustained injuries despite the fact that PW.s 1 to 6 turned unfavorable to the prosecution case.

d) In order to establish the offence under Sections 338 and 337, IPC apart from establishing identity of the accused the prosecution has to necessarily prove that the accused has driven the crime vehicle in a rash or negligent manner. Now the question to be determined is whether the prosecution succeeded to prove rash or negligent driving on the part of the accused who was driving the offending vehicle van at the time of the said accident in which PW.s 1 to 8 and 10 received injuries.

e) As seen from the above said evidence adduced on behalf of the prosecution, the direct evidence available for the prosecution is the evidence of PW.s 7 to 10.

Though PW.10 did not make any whisper about rash or negligent driving of the driver of the crime vehicle, during her cross examination she stated that the van is moving in a normal speed at the time of the accident where as PW.s 7 and 8 stated that the accused was driving offending vehicle at high speed and PW.9 during cross- examination stated that the offending vehicle is moving speedily at the time of the accident. Thus there are completely two inconsistent versions of injured eye witnesses.

Though the motor vehicle report marked as Ex.P19 is clear to the fact that the offending vehicle is intact with its brake system at the time of accident. None of the prosecution witnesses spoke about the rashness or negligent driving of the accused being driver of the offending vehicle. Merely for the reason that the accident occurred was not due to any mechanical defects of the crime vehicle, no presumption can be drawn that the accident occurred due to the negligent driving of the accused. In the absence of any material on record, no presumption of rashness or negligence can be drawn by invoking the maxim of res-ipsa-loquitor.

In the instant case, the prosecution has failed to prove the manner in which the accused was allegedly driving his vehicle. Neither the width of the road nor the speed of the vehicle, nor the speed limit on the said road, nor the density of the traffic on the road is established by the prosecution. Beside, the photographs of the spot has also not been placed on record that could have give strength to the case of prosecution.

In view of these circumstances rash or negligent driving can not be inferred on the part of the accused.

f) On appraisal of the material on record, it is abundantly clear that though the prosecution established that the accused is the driver of the crime vehicle van at the time of alleged incident but failed to prove that the alleged incident occurred, as a result of rash or negligent driving on the part of the accused. Therefore the prosecution is not successful in proving its case by leading convincing and cogent evidence and thus has failed to discharge the onus placed upon it. The prosecution has miserably failed to establish the guilt of the accused for the offence under Sections 338 and 337, IPC beyond all reasonable doubt. Point is answered accordingly infavour of the accused and against the prosecution.

11. In the result, accused is found not guilty for the offence under Sections.338 and 337, IPC and accordingly acquitted under Section 255(1) Cr.P.C. Bail bonds of the accused shall stand canceled on lapse of appeal time. Accused is directed to execute a bond under Section 437 A Cr.P.C that he shall appear before the appellate court in the event he receive summons with in six months from today.

Typed by me on my personal laptop, corrected and pronounced by me in the open court, this the 30th day of September, 2016.

JUDICIAL MAGISTRATE OF FIRST CLASS,

ARAKU

:APPENDIX OF EVIDENCE:

:Witnesses examined for:

Prosecution:

PW.1/.. : Ch. Appala Swamy

PW.2/.. : A. Venkata Ramana

PW.3/.. : G. Sukanya

PW.4/.. : V. Satyanarayana

PW.5/.. : K. Rama Krishnarao

PW.6/.. : K. Sanyasi Naidu

PW.7/.. : Kumare Apparao

PW.8/.. : Y. Anasuya

PW.9/.. : A. Narsingarao

PW.10/.. : K. Santhoshi Kumari

PW.11/.. : N. Nageswara Rao

PW.12/.. : L. Rama Krishna, SI of Police

Defence:

-- None --

:No. of documents marked for:

Prosecution:

Ex.P.1/.. : Statement of PW.1 dated: 1.3.12

Ex.P.2/.. : Statement of PW.1 under Section 161, Cr.P.C

Ex.P.3/.. : Statement of PW.2 under Section 161, Cr.P.C

Ex.P4/.. : Statement of PW.3 under Section 161, Cr.P.C

Ex.P5/.. : Statement of PW.4 under Section 161, Cr.P.C

Ex.P6/.. : Statement of PW.5 under Section 161, Cr.P.C

Ex.P7/.. : Statement of PW.6 under Section 161, Cr.P.C

Ex.P8/.. : FIR

Ex.P9/.. : Rough Sketch

Ex.P10/.. : Wound Certificate of PW.1

Ex.P11/.. : Wound Certificate of PW.2

Ex.P12/.. : Wound Certificate of PW.3

Ex.P13/.. : Wound Certificate of PW.4

Ex.P14/.. : Wound Certificate of PW.5

Ex.P15/.. : Wound Certificate of PW.6

Ex.P16/.. : Wound Certificate of PW.7

Ex.P17/.. : Wound Certificate of PW.8

Ex.P18/.. : Wound Certificate of PW.10

Ex.P19/.. : MVI report

Defence:

..NIL..

JUDICIAL MAGISTRATE OF FIRST CLASS,

ARAKU

CC.No. of 2015 Page 10 of 7

CALENDAR & JUDGMENT

DISTRICT:: VISAKHAPATNAM

CALENDAR CASE TRIED BY THE COURT OF JUDICIAL MAGISTRATE

OF FIRST CLASS AT ARAKU

Date of Offence : 29.2.12

Date of Report or Complaint : 1.3.12

Date of apprehension of accused (Arrest) : 20.3.12

Date of accused released on bail : 20.3.12

Date of commencement of Trial : 2.7.14

Date of Closure of trial : 26.9.16

Date of Sentence of Order of Court : 30.9.16

Explanation for delay:

The offence was occurred on 29.2.12. Copies furnished to accused on 23.4.12

Accused is examined under Section 251, Cr.P.C on 1.3.12

PW.s 1 to 6 are examined on 2.7.14. PW.s 7 and 8 is examined on 7.7.14

PW.9 is examined on 4.5.15. PW.10 is examined on 3.8.15.

PW.11 is examined on 10.12.15 and PW.12 is examined on 26.9.16

Accused is examined under Section 313 Cr.P.C on 27.9.16.

Heard arguments on 28.9.16. Judgment pronounced on 30.9.16.

Remarks : No witness was detained for more than three days.

Calendar Case No.52/2012 in Cr.No.11/2012 of Ananthagiri Police Station.

Name and address of Complainant : State represented by the Sub Inspector of Police, Ananthagiri Police Station.

Name and address of the accused :

Offence : Under Sections 338 and 337, IPC

Finding of Court: Found not guilty

Sentence of Order of Court : In the result, accused is found not guilty for the offence under Sections.338 and 337, IPC and accordingly acquitted under Section 255(1) Cr.P.C. Bail bonds of the accused shall stand canceled on lapse of appeal time. Accused is directed to

CC.No. of 2015 Page 11 of 7 execute a bond under Section 437 A Cr.P.C that he shall appear before the appellate court in the event he receive summons with in six months from today.

JUDICIAL MAGISTRATE OF FIRST CLASS,

ARAKU

Copy submitted: To The Hon'ble Chief Judicial Magistrate, Visakhapatnam.

CC.No. of 2015 Page 12 of 7 CC.No. of 2015 Page 13 of 7

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS : ARAKU

PRESENT: Sri K.Hari Babu,

Judicial Magistrate of First Class,

Araku Friday, this the 30th day of September, 2016

Calendar Case No.77 of 2014

BETWEEN :

State: represented by the Sub Inspector of Police,

Ananthagiri Police Station .. Complainant

AND

Pilla Appalanaidu, S/o.Mutyalu, 22 Years, Golla by Caste, Ithannapalem, Kittampalem Panchayath, S.Kota, Vizianagaram District

[Driver of tractor AP 35 V 603 & 604].. Accused

This case is coming before me for final hearing on 29.9.2016 in the presence of

Learned Assistant Public Prosecutor for State and of Sri P.Murali Mohan, Counsel for accused, upon hearing both sides and matter have stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

1. This case arose out of Ananthagiri police station case cr.no.53/2013 under

Sections 447 and 379 of Indian Penal Code, 1860 (herein after referred to as 'IPC' for the sake of brevity) based on the gist of facts stated in the FIR which has set this criminal case into motion against the accused person.

2. The case of the prosecution in brief is that:

a) On 5.10.13 at 4.00 pm, while LW.1 - J.Apparao along with LW.s 2 to 4 -

A.Ganga raju, B.Lakshmana Rao and P.Bheemanna and some others were present at

Chilakalagedda check post, observed the crime vehicle tractor loaded with sand having registration number AP 31 V 603 on the front side and AP 31 V 604 on the back side proceeding towards check post, stopped it and questioned the driver about his identity and the source from which he is transporting the sand. Then the driver disclosed his name as P.Appalanaidu and further stated that he trespassed into the Gostani river near

Jeerugurupadu village of Ananthagiri mandal, committed theft of sand and got it loaded in a tractor by engaging some un-known coolies. LW.1 informed the same to

Ananthagiri PS by way a written report and handed over the crime vehicle lorry to the police on 7.1.13.

b) Based on the report of LW.1, LW.5 - L.Rama Krishna, SI of Police registered a case in Cr.No.53 of 13 for the offence under Sections 379 and 447 of IPC, issued FIR, examined LW.s 1 to 4, recorded their statements, arrested the accused and produced him before the court for judicial custody. He filed the charge sheet after the completion of investigation.

3. Upon consideration of the material placed before the court, the cognizance for the offence punishable under Sections 379 and 447, IPC was taken against the accused.

4. On appearance of the accused, copies of documents were furnished to him under Section 207 of Criminal Procedure Code (herein after referred to as 'Cr.P.C' for the sake brevity).

5. The accused is examined under Section 239 Cr.P.C, after hearing both sides, charge for the offence under Sections 379 and 447, IPC is framed and explained to him in telugu, for which, he pleaded not guilty and claimed the case to be tried.

6. To prove the case of the prosecution, PW.s 1 to 3 were examined as witnesses,

Exhibits P1 to P3 are exhibited. The evidence of B.Lakshmanarao and P.Bheemanna is given up by the prosecution from the list cited witnesses. On behalf of the accused no oral or documentary evidence was adduced.

7. Heard the learned APP and defence counsel.

8. After closure of the prosecution evidence, the accused is examined under

Section 313 Cr.P.C to explain personally the incriminating circumstances appeared in evidence against him, for which he denied and reported no defence evidence.

9. Now the Point for the determination is :- '' Whether the prosecution has proved beyond all reasonable doubt the guilt of the accused for the offence under Sections 379 and 447, IPC? ''

10. POINT

a) To substantiate charges against the accused, prosecution has examined three witnesses out of which PW.1 is the defacto complainant, PW.2 is eye witness and PW.3 is the investigating officer who carried out the investigation of the present case.

b) The case of the prosecution as per Ex.P1 is that on 5.10.13 at 4.00 pm, while

PW.1 along with PW.2, LW.s 3 and 4 – B.Lakshmana Rao and P.Bheemanna and some others were present at Chilakalagedda check post, observed the crime vehicle tractor loaded with sand having registration number AP 31 V 603 on the front side and AP 31 V 604 on the back side proceeding towards check post, stopped it and questioned the driver about his identity and the source from which he is transporting the sand. Then the driver disclosed his name as P.Appalanaidu and further stated that he trespassed into the

Gostani river near Jeerugurupadu village of Ananthagiri mandal, committed theft of sand and got it loaded in a tractor by engaging some un-known coolies. Then they asked the accused to go home, kept the crime vehicle at chilakalagedda panchayath office and handed over the same to the police on 7.1.13.

c) PW.1 deposed that he is the resident of chilakalagedda panchayath and on 5.10.13 at 4.00 pm at chilakalagedda forest check post he along with LW.s 3 and 4 -

B.Lakshmanarao and P.Bheemanna stopped a tractor loaded with sand being driven by the accused J.Apparao. PW.1 further deposed that he questioned the accused about the documents relating to the transportation of sand for which he replied that on the instruction of his owner he is transporting the sand from Jeerugupadu village and therefore he is not having the documents. PW.1 deposed that he gave Ex.P.1 report to the police on 7.10.13 bearing the signature and handed over the crime vehicle tractor with sand load to the police.

During cross examination, PW.1 denied the suggestion that he foisted this false case against the accused.

PW.2 deposed in the lines of PW.1 and corroborated the version of PW.1

d) PW.3 deposed that on 7.10.13, he received a written report from PW.1 marked as

Ex.P1, based on it registered a case in Cr.No.53/2013 for the offence under Sections.447 and 379 of IPC and issued FIR marked as Ex.P2. He examined the witnesses, arrested the accused and produced him before the court for judicial custody. He further deposed that as per orders of the Hon'ble High Court Judicature of Andhra Pradesh at Hyderabad in writ petition No.29260/2013, released the crime vehicle and handed over the same to

P.Gangunaidu after verifying the ownership documents of both the vehicles.

During cross examination he stated that he has not informed about the crime to

Mines and Minerals Department. He denied the suggestion that accused is falsely implicated in this case.

e) The foremost argument of the counsel for the accused is that the offence of mining of sand without permission is punishable under Section 21 of the Mines and Mineral (Development and Regulation) Act, 1957 and therefore the question of said offence being an offence under Section 379 IPC does not arise because the said Act makes illegal mining as an offence only where there is no permit/license for such extraction and a complaint in this regard is filed by an authorized officer. He further contended that the police has to register a case under the provisions of Mines and Mineral (Development and Regulation)

Act, 1957 that too on the basis of complaint to be filed under Section 22 of the Act by an authorized officer but not under Section 379 of IPC.

At this juncture, it is worthwhile to refer the following finding of the Hon'ble Apex

Court

State of NCT of Delhi Vs. Sanjay decided on 4th September,

2014 in CRIMINAL APPEAL No.499 of 2011 at Para 71

''Hence, merely because initiation of proceeding for commission of an offence under Mines and

Mineral (Development and Regulation) Act, 1957 on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such person. In other words, in a case where there is a theft of sand and gravels from the Government land, the police can register a case, investigate the same and submit a final report under Section 173 Cr.P.C before a

Magistrate having jurisdiction for the purpose of

taking cognizance as provided in Section 190(1)

(d) of the Code of Criminal Procedure. ''

In view of the mentioned ratio the plea of the accused does not sustain.

f) The offence of theft defined in Section 378 IPC is committed if a person intends to take any movable property, out of the possession of any person without his consent with a dishonest intent and moves that property in order to such taking.

Even to substantiate the charge under Section 379, IPC the prosecution has examined

PW.s 1 to 3, PW.s 1 and 2 deposed that on suspicion they have stopped the accused who was driving the crime vehicle loaded with sand. From the evidence of PW.3, it is clear that he is the driver of the crime vehicle but not the owner. It is not the case of the prosecution that accused was caught red handedly, he was implicated in this case merely based upon his confession. Ex.P1 report reveals that the accused confessed before PW.1 that he has committed the offence. No attempt has been made by the investigating officer to ascertain whether the version of PW.1 is true or not. For that matter he did not even cause enquiry with the owner of the crime vehicle. It is not even the case that the investigating officer recovered the tractor loaded with sand in the presence of mediators under the cover of mediators report. Thus there is no iota of evidence to establish the guilt of the accused for the charge leveled against him. Point is answered accordingly in favour of the accused and against the prosecution.

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

Sections 379 and 447, IPC and accordingly he is acquitted under Section 248(1) Cr.P.C.

Bail bonds of the accused shall stand canceled on lapse of appeal time. The crime vehicle tractor which is in the interim custody of P.Gangu Naidu shall me made absolute.

Accused is directed to execute a bond under Section 437A Cr.P.C that he shall appear

before the Appellate Court in the event he receive summons with in six months from

today.

Typed by me on my personal laptop and corrected and pronounced by me in the open court on this the 30th day of September, 2016.

JUDICIAL MAGISTRATE OF FIRST CLASS

ARAKU

: APPENDIX OF EVIDENCE :

: Witnesses examined for :

Prosecution:

PW.1/.. : J. Appa Rao

PW.2/.. : A. Ganga Raju

PW.3/.. : L.Rama Krishna, SI of Police

Defence:

-- None --

: No. of documents marked for :

Prosecution:

Ex.P1/..: Report of PW.1, dated 7.10.13

Ex.P2/..: FIR

Ex.P3/.. : Rough Sketch

Defence:

..NIL..

JUDICIAL MAGISTRATE OF FIRST CLASS

ARAKU

CALENDAR & JUDGMENT

DISTRICT:: VISAKHAPATNAM

CALENDAR CASE TRIED BY THE COURT OF JUDICIAL MAGISTRATE OF

FIRST CLASS AT ARAKU

Date of Offence : 5.10.13

Date of Report or Complaint : 7.10.13

Date of apprehension of accused (Arrest) : 7.10.13

Date of accused released on bail : 9.10.13

Date of commencement of Trial : 13.6.16

Date of Closure of trial : 26.9.16

Date of Sentence of Order of Court : 30.9.16

Explanation for delay:

The offence was occurred on 5.10.13 Case was taken on file on 29.12.14. Copies furnished to accused on 5.1.15 Accused is examined under Section 239, Cr.P.C on 12.1.15 P.W's 1 and 2 are examined on 13.6.16 PW.3 is examined on 29.6.16. Accused is examined under section 313 Cr.P.C on 28.9.16 Heard arguments on 29.9.16. Judgment pronounced on 30.9.16. Hence the delay.

Remarks : No witness was detained for more than three days.

Calendar Case No.77/2014 in Cr.No.53/2013 of Ananthagiri Police Station.

Name and address of Complainant : State: represented by the Sub Inspector of Police, Ananthagiri Police Station

Name and address of the accused : Pilla Appalanaidu, S/o.Mutyalu, 22 Years, Golla by Caste, Ithannapalem, Kittampalem Panchayath, S.Kota, Vizianagaram District [Driver of tractor AP 35 V 603 & 604]

Offence : Under Sections 379 and 447 of IPC

Finding of Court : Found not guilty

Sentence of Order of Court : In the result, accused is found not guilty for the offence punishable under Sections 379 and 447, IPC and accordingly he is acquitted under Section 248(1) Cr.P.C. Bail bonds of the accused shall stand canceled on lapse of appeal time. The crime vehicle tractor which is in the interim custody of P.Gangu Naidu shall me made absolute. Accused is directed to execute a bond under Section 437A Cr.P.C that he shall appear before the Appellate Court in the event he receive summons with in six months from today.

JUDICIAL MAGISTRATE OF FIRST CLASS

ARAKU

Copy submitted: To The Hon'ble Chief Judicial Magistrate, Visakhapatnam.

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS : ARAKU

PRESENT: Sri K.Hari Babu,

Judicial Magistrate of First Class,

Araku Thrusday, this the 29th day of September, 2016

C.C.No.139 of 2015

BETWEEN :

State: represented by the Sub-Inspector of Police,

Dumbriguda Police Station .. Complainant

AND A1. A.Chinna Rao, S/o.Late Ganganna, 50 Years, Valmiki by Caste, Cultivation, Sarath Nagar, Nimmagedda Village, Dumbriguda Mandal

A2. A.Ravi Kumar, S/o.Chinna Rao, 23 Years, Valmiki by Caste, Cultivation, Sarath Nagar, Nimmagedda Village, Dumbriguda Mandal

A3. A.Padma, W/o.Chinna Rao, 46 Years, Valmiki by Caste, Cultivation, Sarath Nagar, Nimmagedda Village, Dumbriguda Mandal

A4. V.Divakar, S/o.Sahadev, 28 Years, Valmiki by Caste, Cultivation, Sarath Nagar, Nimmagedda Village, Dumbriguda Mandal

A5. V.Pushpavathi, W/o.Divakar, 22 Years, Valmiki by Caste, Cultivation, Sarath Nagar, Nimmagedda Village, Dumbriguda Mandal

A6. A.Sandhya Rani, D/o.Chinna Rao, 25 Years, Valmiki by Caste, Cultivation, Sarath Nagar,

Nimmagedda Village, Dumbriguda Mandal.. Accused

This case is coming before me for final hearing on 27.9.16 in the presence of

Assistant Public Prosecutor for State and Sri B.Simhachalam, Counsel for accused, upon hearing both sides and matter have stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

1. The Sub-Inspector of Police, Dumbriguda Police Station filed a charge sheet against the accused in Cr.No.34 of 2015 for the offence punishable under Sections 341, 323, 506(ii) and 509 read with 34 of Indian Penal Code, 1860 (herein after referred to as 'IPC' for the sake of brevity).

2. The case of the prosecution in short campus, is that :

a) LW.1 S.Sunitha is the defacto complainant. Both the accused and defacto complainant are residents of the same village.

On 22.05.15 at 4.30 pm, A1 to A6 went to the house of LW.1 S.Sunitha in the absence of her husband and in-laws, abused her in filthy language, armed with knives chased her by threatening to do away her life and due to fear she ray away. Further when

LW.s 2 and 3 - S.Sunitha and S.Sonnu were returning home from sandy, A1 to A6 forcibly took them away to their house, tied hands and legs, assaulted them and also threatened with dire consequences to do away their life. Korra Krishna and

A.Venkatarao belongs to their village rescued them.

b) The police on receipt of the report, swung into action by registering a case, investigating into, recorded the statements of the witnesses under Section 161 of

Criminal Procedure Code (herein after referred to as 'Cr.P.C' for the sake brevity) after vising the place of occurrence and prepared the case diary under Section 172 Cr.P.C.

Having materials in case diary against the accused, charge sheet was filed under

Sections 341, 323, 506(ii) and 509 read with 34 IPC by the SI of Police to face the trial

before the court.

3. On receipt of charge sheet, this case is taken on file for the offence under

Sections 341, 323, 506(ii) and 509 read with 34 IPC against A1 to A6.

4. On appearance of the accused, copies of case documents are furnished to them as contemplated under Section 207 of Criminal Procedure Code (herein after referred to as 'Cr.P.C' for the sake brevity).

5. A1 to A6 are examined under Section 239 Cr.P.C, after hearing both sides,

Charges for the offence under Sections 341, 323, 506(ii) and 509 read with 34 IPC is framed, read over and explained to them in Telugu, for which, they pleaded not guilty and claimed the case to be tried.

6. During the course of trial, on behalf of the prosecution, PW.s 1 to 5 are examined and Exhibits P1 to P3 are exhibited. The evidence of A.Venkatrao is given up by the prosecution from the list cited witnesses.

7. On closure of evidence let in by the prosecution, A1 to A6 are examined under Section 313 of Cr.P.C., with regard to the incriminating material available against them, for which, their plea is total denial and reported no defence evidence on their behalf.

8. Heard both sides

a) The learned Assistant Public Prosecutor strenuously argued that all the accused abused PW.1 in filthy language, voluntarily caused simple hurt to PW.s 2 and 3 and threatened with dire consequences to do away the life of PW.s 1 to 3, hence they may be convicted.

b) Per contra, the learned counsel for the accused strenuously argued that there are in consistencies, omissions and contradictions in between PW.s 1 to 4 be sides delay of FIR hence he prayed to acquit the accused by giving benefit of doubt.

9. Upon hearing the rival contentions of both the prosecution and defence, the point germane for determination is:

“Whether the prosecution is fruitful in bringing home the guilt against the accused for the charges framed under Sections 341, 323, 506(ii) and 509 read with 34 of IPC beyond reasonable doubt?”

10. POINT

a) The prosecution led evidence by examining five witnesses. PW.1 is the defacto complainant. PW.2 and 3 are the injured. PW.4 is the independent eye witness and PW.5 is the investigating officer who carried out the investigation of the present case.

However, no witness was examined and no documents were marked on behalf of the defence.

b) The case of the prosecution is that on 22.05.15 at 4.30 pm, A1 to A6 went to the house of LW.1 S.Sunitha in the absence of her husband and in-laws, abused her in filthy language, armed with knives chased her by threatening to do away her life and due to fear she ray away. Further when PW.s 2 and 3 were returning home from sandy, A1 to

A6 forcibly took them away to their house, tied hands and legs, assaulted them and also threatened with dire consequences to do away their life. Korra Krishna and

A.Venkatarao belongs to their village rescued them.

c) In this mater there is a delay of FIR as rightly contended by the learned counsel

for the accused by five days. The incident took place on 22.5.15 report was given

27.5.15. The reason taken by the prosecution is that the matter was placed before the panchayath and the explanation offered by the prosecution is not satisfactory. Further the prosecution has not cited and examined any of the panchayathdars before whom the matter was placed for amicable settlement.

d) As seen from the evidence of PW.1, she stated that A1 tied PW.s 2 and 3 to grills and assualted them with sticks and hands.

Where as PW.2 stated that A1 to A3 and A6 assaulted her and her husband with sticks and axes.

Where as PW.3 stated that A1 took him to his house, tied to grills and assaulted with sticks and knives.

Where as PW.4 stated that he A1 tied PW.s 1 and 2 to a pole with a thread and assaulted with hands.

Basing on the testimonies of PW.s 1 to 4, it is found that there are contradictions, significant inconsistencies and variations in their evidence in chief and cross examination. In view of the inconsistent versions, even to believe the version of the injured, there is no evidence brought on record to establish that the injured sustained injuries in the incident as alleged. For that matter neither the doctor is cited in the list of witnesses nor any wound certificate is produced.

In cases of hurt, the prosecution has to invariably bring cogent evidence on record, if not possible to examine the doctor at least to produce a medical certificate in order to peep into the version that the victim sustained injuries.

As there is substantial variation in the evidence deposed by PW.s 1 to 4 the testimonies of PW.s 1 to 4 cannot be relied upon.In these circumstances, where there is no clear and cogent evidence inspiring the confidence of the court and none of the witnesses could turn out to be trustworthy and credible, this court cannot accept the case of the prosecution to implicate the complexity of the accused for the charges framed against them and consequently, benefit of doubt extends to the accused. Point is answered accordingly in favour of the accused and against the prosecution.

11. In the result, A1 to A6 are found not guilty for the offence punishable under

Sections 341, 323, 506(ii) and 509 read with 34, IPC and accordingly they are acquitted under Section 248(1) of Cr.P.C. Bail bonds of A1 to A6 if any shall stands canceled on lapse of appeal time. A1 to A6 are directed to execute a bond under Section 437 A Cr.P.C that they shall appear before the appellate court in the event they receive summons with in six months from today.

Typed by me on my personal laptop, corrected and pronounced by me in the open court this the 29th day of September, 2016.

JUDICIAL MAGISTRATE OF FIRST CLASS,

ARAKU

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant :

PW.1/.. : S. Sunitha

PW.2/.. : S. Neelamma

PW.3/.. : S. Sonnu

PW.4/.. : K. Krishna

PW.5/.. : B. Rama Krishna, SI of Police

For Accused :

... None ...

DOCUMENTS MARKED

For Complainant :

Ex.P1/.. : Report of PW.1 dated: 27.5.15

Ex.P2/.. : FIR

Ex.P3/.. : Rough Sketch

For Accused :

... Nil ...

JUDICIAL MAGISTRATE OF FIRST CLASS,

ARAKU

CALENDAR & JUDGMENT

DISTRICT:: VISAKHAPATNAM

CALENDAR CASE TRIED BY THE COURT OF JUDICIAL MAGISTRATE OF

FIRST CLASS AT ARAKU

Date of Offence : 22.5.15

Date of Report or Complaint : 27.5.15

Date of apprehension of accused : Station bail

Date of accused released on bail : 12.6.15

Date of commencement of Trial : 5.8.16

Date of Closure of trial : 30.8.16

Date of Sentence of Order of Court : 29.9.16

Explanation for delay and remarks : Due to non production of witnesses by the prosecution

Calendar Case No. : C.C.139/2015

Name and address of Complainant : State represented by the Sub-Inspector of Police, Dumbriguda PS

Name and address of the accused :

A1. A.Chinna Rao, S/o.Late Ganganna, 50 Years, Valmiki by Caste, Cultivation, Sarath Nagar, Nimmagedda Village, Dumbriguda Mandal

A2. A.Ravi Kumar, S/o.Chinna Rao, 23 Years, Valmiki by Caste, Cultivation, Sarath Nagar, Nimmagedda Village, Dumbriguda Mandal

A3. A.Padma, W/o.Chinna Rao, 46 Years, Valmiki by Caste, Cultivation, Sarath Nagar, Nimmagedda Village, Dumbriguda Mandal

A4. V.Divakar, S/o.Sahadev, 28 Years, Valmiki by Caste, Cultivation, Sarath Nagar, Nimmagedda Village, Dumbriguda Mandal

A5. V.Pushpavathi, W/o.Divakar, 22 Years, Valmiki by Caste, Cultivation, Sarath Nagar, Nimmagedda Village, Dumbriguda Mandal

A6. A.Sandhya Rani, D/o.Chinna Rao, 25 Years, Valmiki by Caste, Cultivation, Sarath Nagar, Nimmagedda Village, Dumbriguda Mandal

Offences : Sections 341, 323, 506(ii) and 509 read with 34, IPC

Finding of Court : Found not guilty

Sentence of Order of Court : In the result, A1 to A6 are found not guilty for the offence punishable under Sections 341, 323, 506(ii) and 509 read with 34, IPC and accordingly they are acquitted under Section 248(1) of Cr.P.C. Bail bonds of A1 to A6 if any shall stands canceled on lapse of appeal time. A1 to A6 are directed to execute a bond under Section 437 A Cr.P.C that they shall appear before the appellate court in the event they receive summons with in six months from today.

JUDICIAL MAGISTRATE OF FIRST CLASS,

ARAKU

To The Hon`ble Chief Judicial Magistrate, Visakhapatnam

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS : ARAKU

PRESENT: Sri K.Hari Babu,

Judicial Magistrate of First Class,

Araku. Friday, this the 30th day of September, 2016

Calendar Case 186 of 201 5

BETWEEN :

State: represented by the Sub-Inspector of Police, Ananthagiri Police Station

(Cr.No.75/2014) .. Complainant

AND A1. Bedda Bala Raju, S/o.Devudu, 25 Years, Valmiki, Cultivation, Peddabidda Village and Panchayath, Ananthagiri Mandal, Visakhapatnam

A2. Bedda Devudu, S/o.Simhachalam, 45 Years, Valmiki, Cultivation, Peddabidda Village and Panchayath, Ananthagiri Mandal, Visakhapatnam

A3. Bedda Rajulamma, W/o.Demudu, 40 Years, Cultivation, Peddabidda Village and Panchayath,

Ananthagiri Mandal, Visakhapatnam.. Accused

This case is coming before me for final hearing on 29.9.16 in the presence of

Assistant Public Prosecutor for State and of Sri J.K.Rathna Raju, Counsel for accused, upon hearing both sides and matter have stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

1. This case arose out of Ananthagiri police station case Cr.No.75/2014 under

Sections 324 and 323 read with 34 of Indian Penal Code, 1860 (herein after referred to as 'IPC' for the sake of brevity) based on the gist of facts stated in the FIR which has set this criminal case into motion against A1 to A3.

2. The prosecution version in short campus, is as follows: -

a) LW.1 S.Simhachalam is the defacto complainant cum injured. Both LW.1 and the accused are relatives and there exists some family disputes between them. On 10.11.14, LW.1 along with his brother LW.2 -S.Murali and mother LW.3-S.Kasulamma went to the house of A1 to fetch back his wife who is residing with them. Then A1 to A3 grew wild, assaulted LW.s 1 to 3 with hands and by pelting stones and caused injuries to

LW.s 1 and 2.

b) The police on receipt of an FIR swung into action by investigating the case, recorded the statements of the witnesses under Section 161, Criminal Procedure Code (herein after referred to as 'Cr.P.C' for the sake brevity) after visiting the place of occurrence and prepared the case diary under Section 172, Cr.P.C. Having materials in case diary against the accused, the charge sheet was filed under Sections 323 and 324 read with 34, IPC by the Sub Inspector of police to face the trial before the court.

3. On receipt of charge sheet, this case is taken on file for the offence under

Sections 323 and 324 read with 34, IPC against A1 to A3.

4. On appearance of A1 to A3, copies of documents were furnished to them as contemplated under Section 207, Cr.P.C.

5. A1 to A3 are examined under Section 239 Cr.P.C, after hearing both sides, charge for the offence under Section 324 is framed against A1, Section 324 is framed against A2 and A3, Section 324 read with 34, IPC is framed against A1 to A3 and explained to them in telugu, for which, they pleaded not guilty and claimed the case to be tried.

6. During the course of trial, on behalf of the prosecution, PW.s 1 and 2 examined,

Exhibits P1 to P3 are exhibited. The evidence of S.Kasulamma, S.Ramu, S.Gowrunaidu,

S.Guruvulu, N.Govinda Rao, Dr.Sri Vidya and P.Damodar Naidu (SI of Police) is given up by the prosecution from the list cited witnesses.

7. On closure of the evidence let in by the prosecution, as there is no incriminating material available against A1 to A3, examination of the accused under Section 313 of

Cr.P.C is dispensed with.

8. Heard both sides

9. The Point germane for determination is :

“Whether the prosecution has proved the guilt of A1 for the offence under Section 324, A2 and A3 for the offence under Section 324 and A1 to A3 for the offence under

Section 324 read with 34, IPC beyond all reasonable doubt?”

10. POINT:

a) In the instant case, the prosecution side has examined the defacto complainant cum injured S.Simhachalam and other injured in the incident S.Murali as PW.s 1 and 2 where as on behalf of the accused no oral or documentary evidence was adduced.

b) PW.1 who gave report to the police turned hostile and did not support the prosecution case. He went to an extent of saying that the accused never beat them at any point of time and was not examined by the police. He further stated that he did not give report to the police and denied the contents of the report by stating that signature on it was appended on a white paper and he does not know the contents of the same.

c) PW.2 is also an unfavorable witness to the prosecution. He stated that he knows the accused but it is not the accused who assaulted them on the date of the incident. As such, PW.2 did not supported the prosecution case.

During the cross examination by the prosecution, PW.s 1 and 2 denied the contents of Exhibits P2 and P3 respectively. Nothing significant has been elicited from the cross-examination of PW.s 1 and 2 under Section 154 of the Indian Evidence Act, 1872 read with Section 162 proviso of Cr.P.C to substantiate the case of prosecution.

d) Counsel for A1 to A3 has submitted that as both the injured departed from the case facts, there is no implication of the accused and thus the prosecution has failed to prove its case beyond reasonable doubt, and there by, A1 to A3 deserve acquittal forthwith.

e) As the material witnesses turned hostile the Assistant Public Prosecutor has rightly given up the evidence of the remaining witnesses.

In as much as, no incriminating material could be culled out from the testimonies of PW.s 1 and 2 to bring home the guilt of the accused for the charges leveled against A1 to A3, it is inevitable to hold that the prosecution has miserably failed to establish the guilt of A1 to A3. Point is answered accordingly in favour of A1 to A3 and against the prosecution.

11. In the result, A1 is found not guilty for the offence under Section 324, IPC; A2 and A3 for the offence under Section 324, IPC; A1 to A3 for the offence under Section 324 read with 34, IPC and accordingly acquitted under Section 248(1) Cr.P.C. Bail bonds of the accused if any shall stand canceled on lapse of appeal time. A1 to A3 are directed to execute a bond under Section 437A Cr.P.C that they shall appear before the appellate court in the event they receive summons with in six months from today.

Typed by me on my personal laptop, corrected and pronounced by me in the open court, this the 30th day of September, 2016.

JUDICIAL MAGISTRATE OF FIRST CLASS,

ARAKU

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution:

PW.1/.. S.Simhachalam

PW.2/.. S.Murali

For Defence:

-- None --

Exhibits Marked

For Prosecution:

Ex.P1/.. Signature of PW.1 on the report dated:19.11.14

Ex.P2/.. Statement of PW.1 under Section 161, Cr.P.C

Ex.P3/.. Statement of PW.2 under Section 161, Cr.P.C

For Defence:

.. Nill ..

JUDICIAL MAGISTRATE OF FIRST CLASS,

ARAKU

CALENDAR & JUDGMENT

DISTRICT:: VISAKHAPATNAM

CALENDAR CASE TRIED BY THE COURT OF JUDICIAL MAGISTRATE

OF FIRST CLASS AT ARAKU

Date of Offence : 10.11.14

Date of Report or Complaint : 19.11.14

Date of apprehension of accused : 22.11.14

Date of accused released on bail : Station Bail

Date of commencement of Trial : 26.8.16

Date of Closure of trial : 28.9.16

Date of Sentence of Order of Court : 30.9.16

Explanation for delay and remarks : Delay to due to non production of prosecution witnesses by the police

Calendar Case No. : C.C.186/2015

Name and address of Complainant : State represented by the Sub-Inspector of Police, Ananthagiri Police Station

Name and address of the accused :

A1. Bedda Bala Raju, S/o.Devudu, 25 Years, Valmiki, Cultivation, Peddabidda Village and Panchayath, Ananthagiri Mandal, Visakhapatnam

A2. Bedda Devudu, S/o.Simhachalam, 45 Years, Valmiki, Cultivation, Peddabidda Village and Panchayath, Ananthagiri Mandal, Visakhapatnam

A3. Bedda Rajulamma, W/o.Demudu, 40 Years, Cultivation, Peddabidda Village and Panchayath, Ananthagiri Mandal, Visakhapatnam

Offence : Under Section 324 read with 34, IPC

Finding of Court : Found not guilty

Sentence of Order of Court : In the result, A1 is found not guilty for the offence under Section 324, IPC; A2 and A3 for the offence under Section 324, IPC; A1 to A3 for the offence under Section 324 read with 34, IPC and accordingly acquitted under

Section 248(1) Cr.P.C. Bail bonds of the accused if any shall stand canceled on lapse of appeal time. A1 to A3 are directed to execute a bond under Section 437A Cr.P.C that they shall appear before the appellate court in the event they receive summons with in six months from today.

JUDICIAL MAGISTRATE OF FIRST CLASS,

ARAKU To

The Hon`ble Chief Judicial Magistrate, Visakhapatnam