Smt. K.jayanthi

1 XVII ACMM C.C. No. 937 OF 2015

IN THE COURT OF THE XVII ADDITIONAL CHIEF METROPOLITAN

MAGISTRATE: NAMPALLY CRIMINAL COURTS, HYDERABAD

Present: Smt. K. Jayanthi, XVII Addl. Chief Metropolitan Magistrate, Nampally Criminal Courts, Hyderabad

C. C. No.937 of 2015

Dated: this the 3rd day of May, 2019

Between:

The State of Telangana, through the Sub-Inspector of police, Jubilee Hills P.S., Hyderabad City, Telangana State. … Complainant

AND

A1) Mamilla Ram Kumar Yadav, S/o. M. Srisailam Yadav Age:29 years, Occupation: Finance Business R/o. H.No.8-1-116/2, Mailardevpally, Shivrampally, Rajendranagar, Ranga Reddy dist.

A2) Bitla Sai Kumar, S/o. Bitla Ramesh Age: 30 years, Occupation: Car Driver Plot No.6, Laxminarayana Colony Near AWHO Colony, Kanajiguda, Alwal Ranga Reddy district …. Accused

This case is coming on this day before me for final disposal in the presence of Asst. Public Prosecutor for the State and of

Smt. N. Sujatha, Legal Aid-counsel and having heard the both sides and upon perusal of the material available on record, this court made the following:

JUDGMENT

1.The Accused Nos. 1 and 2 arraigned before this court for the charge Under Section 392 and 471 IPC.

2 XVII ACMM C.C. No. 937 OF 2015

2.The brief facts of the Prosecution case are as follows:

(a) That on 05-01-2015, at 22:00 Hours, PW1 lodged complaint stating that on the night of 31-12-2014 he alongwith his friends went to Spoil pub, near TV5, Jubilee Hills, Checkpost and had a new year party and on next day i.e. on 1-1-2015 at about 1:00

Hours, when P.W.1 decided to go home by auto, he could not find auto and he started walking towards Krishna Nagar to get auto. When he reached near Journey Junior shop, Road No.5,

Jubilee Hills, in the mean time two unknown persons came near to him on motorcycle and manhandled him and took away his gold chain weighing about 15 grams and his new cell phone “Micro Max Canvas Knight A-350 (Balack Colour)” Nos.

9030861959 and 9885035533 and IMEI Nos. 911357701300370 & 911357701500870 .

(b) Basing on the complaint, PW4 registered a case in Crime

No. 15/2015 for the offence under Section 392 IPC and took up investigation. During the course of investigation, he examined and recorded the statements of P.W.1, visited scene of offence , conducted Scene Observation Panchanama in the presence of

L.W.4 Satish and P.W.2 and did not find any incriminating material at the scene of offence. Thereafter, P.W.4 recorded the statements of L.W.2 M. Saichand and L.W.3 D. Anurag, who are friends of P.W.1. On 12-01-2015 on credible information P.W.4 deputed L.W.10 K. Ramesh, SI of Police alongwith L.W.8 Srikanth

Bidla, L.W.9 Prasad Raju, Police Constable, they rushed to 3 XVII ACMM C.C. No. 937 OF 2015

Jubilee Hills check post at 19:00 hours and apprehended the accused persons and brought them to Police Station. On interrogation by P.W.4, when A1 and A2 about to confess their guilt, P.W.4 secured the presence of P.W.3 and L.W.6 P. Appa Rao and in their presence conducted confession-cum-seizure panchanama of the accused and seized “Micro Max Canvas

Knight A-350 (Black Colour)” one black colour Hero Honda

Karishma Bike bearing No.AP 12N 7117, two cell phones i.e.

Videocon IMEI No.911313850049631 Cell No. 9666299920 and

Kechedda cell phone IMEI No.866689014258316 cell

No.9989231544 from the possession of the accused persons in the presence of the panch witnesses under cover of panchanama. As per the confession of the accused P.W.4 added

Section of Law for the offence under Section 471 IPC as the accused persons committed cheating by forging the registration number on the number plate of the vehicle. P.W.4 gave requisition to the Hon’ble XVI ACMM, Hyderabad to conduct Test

Identification Parade of the accused and the same was conducted on 24-01-2015 and after completion of investigation and after collecting documentary evidence, P.W.4 filed charge sheet against A1 and A2 for the offence under Section 392 and 471 IPC.

3.Considering the material on record, this Court took cognizance for the offence punishable under sections 392 and 471 IPC against the accused.

4 XVII ACMM C.C. No. 937 OF 2015

4.On appearance of the accused, copies of case documents were furnished to them as contemplated under Section 207 of Code of

Criminal Procedure.

5.The Accused Nos. 1 and 2 were examined under Section 239 of

Code of Criminal Procedure and separate charge under Sections 392 and 471 IPC have been framed, readover and explained to the

Accused Nos. 1 and 2 in Telugu, for which they denied the charge, pleaded not guilty and claimed to be tried.

6.To bring to home the guilt of the accused persons, the

Prosecution has examined P.Ws.1 to 5 and exhibited Ex.P1 to P6 and

Mos.1 to 4. P.W.1 is the Defacto-complainant; P.W.2 is one of the panch witnesses to the observation panchanama of the scene; P.W.3 is one of the panch witnesses to the Confession-cum-Seizure-

Panchanama and P.W.4 is the Investigating Officer.

7.After closure of Prosecution evidence, the Accused Nos. 1 and 2 were examined under section 313 of Code of Criminal Procedure by explaining incriminating circumstances, which are appearing in the evidence of prosecution witnesses and the accused persons denied the accusation and reported no defence evidence on their behalf.

8.This court heard the arguments of either side and perused the entire record.

5 XVII ACMM C.C. No. 937 OF 2015

Now the point for determination is whether the

Prosecution has proved the guilt of the accused for the

offence under sections 392 and 471 IPC beyond all

reasonable doubts ?

9. As per the prosecution version, it is the brief case of the prosecution that on 01-01-2015 at about 1:00 AM at Journey

Junior Shop Road No.5, Jubilee Hills accused persons manhandled P.W.1 and robbed away his gold chain weighing about 15 Grams and Micro Max Canvas Knight A-350 (Black

Colour) and fled away on motorcycle. It is further case of the prosecution that the accused persons dishonestly changed bike number plate i.e. from AP 12N 1117 to AP 12N 7117 by forging number plate in order to avoid apprehension by the Police. In order to prove the said allegations, the prosecution has relied upon the evidence given by P.Ws. 1 to 4.

10.P.W.1 is the De facto-complainant. He deposed that on on 31-12-2014, he went to Spoil Pub situated at Jubilee Hills check post along with his cousin and friends at 9.30 pm. They stayed there upto midnight and around 1.00 AM when he decided to go home, he could not get any auto and he started walking towards Krishna Nagar to find an auto. When P.W.1 reached

Road No.5, two known persons came on a two wheeler and told him that they were from police department and thereafter started beating him and snatched away his phone i.e., 6 XVII ACMM C.C. No. 937 OF 2015

Micromax Knight and gold chain wg about 14 grams along with one gold locket and fled away. As P.W.1 was severely injured but still he managed to reach home and on 05-01-2015 he gave complaint to the Police, as he was not able to move due to injuries. Ex.P1 is complaint lodged by P.W.1. He identified the

Accused Nos. 1 and 2 in the open court. Further P.W.1 also identified A2 at the time of Test Identification Parade, by that time A1 was already released on bail. He further deposed that police recovered his phone and returned it to him towards interim custody, which is marked as MO1.

11.P.W.2 is one of the panch witnesses to the Scene

Observation Panchanama. He deposed that about three years ago, the police of Jubilee Hills called him to the scene of offence at Journey Junior Shop, Road No.5, Jubilee Hills along with LW4

Satish and further they have informed him that the offence of robbery took place at the scene of offence and thereafter Police have conducted scene of offence panchanama and drew rough sketch in their presence. P.W.2 could not identify his signature on the Panchanama and also pleaded ignorance about contents of the panchanama.

12.P.W.3 is one of the Panch witness for confession-cum- seizure panchanama . He deposed that on 12-01-2015 at about 7:30 PM he was called by the Police to Jubilee Hills Police Station alongwith LW6 Appa Rao. P.W.3 saw two persons in the custody of police and they revealed their names as Ram Kumar and 7 XVII ACMM C.C. No. 937 OF 2015

Sai Kumar. When he asked about their presence in the Police

Station, they confessed that they have committed theft of one gold chain and one cell phone from a person, who was walking at Road No.5, Jubilee Hills. When police asked them about the gold chain, they did not tell anything regarding gold chain and police seized two cell phones from the possession of A1 and one cell phone from the possession of A2. Thereafter, Police also seized one two wheeler from their possession, accordingly police drafted Confession-cum-Seizure panchanama of the accused perons and obtained signatures of PW3. Ex.P2 is the

Confession-cum-Seizure panchanama of A1 and A2. P.W.3 identified A1 and A2 in the court Hall. MO2 is Videocon cellphone. MO3 is Kechadda Cell phone. MO4 is Karisma Bike marked though P.W.3, and deposited the same vide PI

No.57/2015.

13.P.W.4 is the Investigating Officer, who received the complaint, registered a case, conducted major portion of investigation and filed charge sheet against the accused for the offence under Sections 392 and 471 IPC.

14.The learned APPO argued that in view of evidence of P.Ws.

1 to 4, the prosecution has proved guilt of the accused persons beyond all reasonable doubts and they are liable be to convicted. He further argued that the delay in lodging the complaint is not fatal to the case of the prosecution, as it was sufficiently explained by P.W.1 during his evidence. Even 8 XVII ACMM C.C. No. 937 OF 2015 identification of the accused before the court is a substantial piece of evidence and non-conduct of Test Identification Parade of A1 is not a fatal to the case of the prosecution. He further argued that P.Ws 1 and 3 are material witnesses and their evidence is duly corroborated with the evidence of P.W.4 and charges against the accused persons are proved beyond all reasonable doubts and prayed for conviction of the accused persons for the offences charged.

15.Whereas the learned counsel for Accused submitted that the prosecution has failed to explain the delay of 5 days in lodging the complaint as no reasons were mentioned in the First

Information Report about the said delay. He further contended that confession before the Police Officer is not admissible piece of evidence and basing upon the sole testimony of P.W.3 without any corroborative evidence, the accused cannot be convicted.

He further contended that absolutely there is no evidence to prove the offence under Section 471 IPC against A1 and A2. He further contended that the prosecution has failed to prove the guilt of A1 and A2 and they are entitled for acquittal.

16.As per evidence supra, the main contention raised by the learned counsel for the accused is that there is a five days delay in lodging complaint as such it is fatal to the case of the prosecution. It is seen that in Ex.P1 complaint and as well as at the time of evidence P.W.1 categorically explained that due to injuries received by him in the incident, he was not able to 9 XVII ACMM C.C. No. 937 OF 2015 move and could not approach the Police Station immediately, as such five days delay occurred for lodging complaint. There is no cross-examination on this aspect. Hence there is no ground to discard this piece of evidence. Further, P.W.1 has no personal grudges against the accused persons as he had no acquaintance with them, as such it cannot be say that accused persons are falsely implicated in this case. Hence, this court hold that delay of five days in lodging the complaint is not fatal to the case of the prosecution.

17.Now, coming to the identification of the accused, it is vehemently argued that during the Test Identification Parade proceedings, A2 was not identified by P.W.1 as he was released on bail by that time and the alleged identification of A2 is a weak piece of evidence, which cannot be reliable. In this context, P.W.1 as well as P.W.3 have categorically identified A2 in the row and P.W.1 informed to P.W.5 that another accused was not present there, since A1 was already released on bail. P.W.5 further categorically deposed that A2 had reported no objections for the arrangements made for his Test Identification

Parade. It is not the case of A2 that he was already shown to the witness by the Police or his photographs might have shown to the witness. No such evidence was brought on record during the course of Test Identification Parade or during the cross of P.W.5.

A simple bald suggestion was given to PW5 that he never conducted Test Identification Parade proceedings and that 10 XVII ACMM C.C. No. 937 OF 2015 accused persons were never identified before him, which is denied by P.W.5. It is not the case of the accused that that they are identified by P.W.1 for the first time in the court. As can be seen from the evidence of P.W.1, the suggestion was put to him that since it was dark time as such there was no chance of seeing faces of accused persons, which was denied by him. It is not the case of the prosecution that the accused merely came on motorcycle and snatched away gold chain and cell phone of

P.W.1. As can be seen from the evidence of P.W.1 there was a scuffle in between the accused and P.W.1 for a certain period and even the accused beat P.W.1 and snatched away his belongings. Thus, it can be presumed that P.W.1 had a chance to see the faces of accused persons, even it was dark time and in that situation even if he had no prior acquaintance, he would be able to identify the offenders even after lapse of long time.

Thus the evidence of P.W.1 cannot be doubted to prove the identification of the accused persons. Further, his evidence is corroborated with the evidence of PWs 3 to 5. Hence, this court holds that the identification of accused is duly proved by the prosecution.

18.For the sake of convenience it is to be seen the ingredients for the offence under section 390 IPC as follows:

Robbery – In all robbery there is either theft or

extortion.

When theft if robbery – Theft is “robbery” if, in order to

the committing of the theft, or in committing the theft,

11 XVII ACMM C.C. No. 937 OF 2015

or in carrying away or attempting to carry away property

obtained by the theft, the offender, for that end,

voluntarily causes or attempts to cause to any person

death or hurt or wrongful restrain, or fear of instant

death or of instant hurt, or of instant wrongful restraint.

When extortion is robbery - Extortion is “robbery” if the

offender, at the time of committing the extortion, is in

the presence of the person put in fear, and commits the

extortion by putting that person in fear of instant death,

of instant hurt, or of instant wrongful restraint to that

persons or to some other person, and by so putting in

fear, induces the person so put in fear then and there to

deliver up the thing extorted.

Section 471 read as follows:

“Whoever fraudulently or dishonestly uses as genuine

any [document or electronic record] which he knows or

has reason to to believe to be a forged [document or

electronic record], shall be punished in the same manner

as if he had forged such [document or electronic record].

19. As can be seen from from the evidence of P.W.1, he deposed “two unknown persons came on two wheeler and told that they were from Police Department and thereafter started beating him and snatched away his phone and gold chain weighing 14 grams alongwith one gold locket and fled away.”

The prosecution has not produced any medical certificate of

P.W.1 Even they did not refer P.W.1 to the hospital after receiving the complaint. Thus it is clear that there are no ingredients of offence of robbery are made out through the evidence of P.W.1. P.W.3 in his evidence stated that accused persons confessed that they committed theft of cell phone and gold chain of P.W.1. Thus the evidence of P.Ws. 1 and 3 corroborated by the evidence of P.W.4, at the most the 12 XVII ACMM C.C. No. 937 OF 2015 prosecution has proved the ingredients for the offence punishable under Section 379 IPC, but not the offence punishable under section 392 IPC. Hence in view of section 222

Code of Criminal of Procedure, this court holds that the accused is found guilty for the offence under section 379 IPC.

20.Having coming to the Section 471 IPC, absolutely there is no evidence on record. None of the prosecution witnesses have deposed that the accused persons have dishonestly forged bike number i.e. AP 12 N 7117 with AP 12N 1117 by forging the number plate and used the same as genuine in order to avoid apprehension by the Police. P.W.4 being the Investigating Office did not collect any documentary evidence from the RTO

Authorities to establish the guilt of the accused for the offence under section 471 IPC. Thus, the prosecution has failed to prove the guilt of the accused for the offence under Section 471 IPC beyond all reasonable doubts and they are entitled for acquittal.

21.In view of my above discussion, this court holds that the prosecution has failed to prove the guilt of the accused for the offence punishable under Sections 392 and 471 IPC and they are entitled for acquittal. However, they found guilty for the offence punishable under Section 379 IPC.

13 XVII ACMM C.C. No. 937 OF 2015

22.In the result, A1 and A2 are found not guilty for the offence under Sections 392 and 471 IPC and they are entitled for acquittal, but in view of Section 222 of Code of Criminal

Procedure the Accused Nos. 1 and 2 are found guilty for the offence under Section 379 IPC.

( Dictated to the Stenographer transcribed and typed by her, corrected and

pronounced be me in the Open Court on this the 3rd day of May, 2019.)

XVII ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

Heard the Accused No.1 and 2 on quantum of sentence (On a separate sheet), wherein the accused pleaded mercy and stated that they are having large family to support and to take lenient view.

Having regard to the facts and circumstances of the case and the manner of proving the case against the accused, this Court is not inclined to take a lenient view and I am not invoking the provisions of

Probation of Offenders Act. The accused A1 and A2 are convicted under Section 222 of Code of Criminal Procedure and sentenced to undergo Simple Imprisonment for a period of One Year and to pay

Fine of Rs.500/- (Rs. Five Hundred only) each for the offence punishable under Section 379 IPC. In default of payment of fine, the accused shall undergo Simple Imprisonment for a period of Two

Months each.

14 XVII ACMM C.C. No. 937 OF 2015

The Accused Nos. A1 and A2 are acquitted under Section 248(1) of Code of Criminal Procedure for the Offences punishable under

Section 392 and 471 IPC.

The Accused No.1 is in judicial custody from dt.13.1.2015 to 23.1.2015 and Accused No.2 is in judicial cusody from dt.13.1.2015 to 28.1.2015 and the said period of detention undergone by them shall be set-off under section 428 of Code of Criminal Procedure.

The accused are appraised of their right to prefer an appeal against this Judgment. On enquiry, they stated that they have means to engage an Advocate to prefer appeal against this Judgment.

Material Objects (deposited vide P.I.No.57 of 2015) i.e., MO.1,

Micro Max Canvas Knight A-350 Dues (Black Colour) already returned to PW.1 on interim custody is hereby made absolute after lapse of appeal time. Mos.2 to 4 (i..e. Video Cell phone, Kechadda Cell phone,

Karishma Bike) shall be returned to it's owners after expiry of appeal period on proper verification, identification and acknowledgement.

( Dictated to the Stenographer transcribed and typed by her, corrected and

pronounced be me in the Open Court on this the 3rd day of May, 2019.)

XVII ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION

PW.1: S. Nishanth, Defacto-complainant 15 XVII ACMM C.C. No. 937 OF 2015

P.W.2: Jagdish, Panch witness for Scene observation Panchanama

P.W.3 Satyanarayanji, Panch witness for confession-cum-seizure panchanam

P.W.4 K. Muthu, Investigating Officer

P.W.5 M.V. Bhaskar Rao, Retd. Judicial Officer

FOR DEFFENCE : NIL

EXHIBITS MARKED

FOR PROSECUTION

Ex..P1: Complaint

EX.P2: Confession-cum-seizure panchanama of A1

EX.P3: FIR

EX.P4: Scene of offence Observation panchanama

Ex.P5: Rough Sketch

Ex.P6: Requisition for TIP Proceedings

FOR DEFENCE: NIL

MATERIAL OBJECTS MARKED

FOR PROSECUTION:

MO1 Cell Phone

MO2 Video Cell phone

MO3 Kechadda Cell phone

MO4 Karishma Bike

FOR DEFFENCE : NIL

XVII ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

16 XVII ACMM C.C. No. 937 OF 2015 17 XVII ACMM C.C. No. 937 OF 2015

(Hearing of accused on quantum of sentence)

IN THE COURT OF THE XVII ADDL. CHIEF METROPOLITAN MAGISTRATE,

NAMPALLY, HYDERABAD

(Dated on this the 3rd day of May, 2019)

C.C.No. 937 of 2015

Accused No.1: Mamilla Ram Kumar Yadav S/o. M. Srisailam Yadav Age: 29 years, Occupation: Finance Business

Q.1You are found guilty for the offence punishable under section 379 IPC. What do you say about the quantum of sentence?

Ans.

Q.2Do you know that you have got a right to prefer an appeal?

Ans.

Q.3Have you got means to engage a counsel for preferring an appeal?

Ans.

18 XVII ACMM C.C. No. 937 OF 2015 19 XVII ACMM C.C. No. 937 OF 2015

(Hearing of accused on quantum of sentence)

IN THE COURT OF THE XVII ADDL. CHIEF METROPOLITAN MAGISTRATE,

NAMPALLY, HYDERABAD

(Dated on this the 3rd day of May, 2019)

C.C.No. 937 of 2015

Accused No.1: Bitla Sai Kuamar, S/o. Bitla Sai Kumar

Age: 30 years, Occupation: Car Driver

Q.1You are found guilty for the offence punishable under section 379 IPC. What do you say about the quantum of sentence?

Ans.

Q.2Do you know that you have got a right to prefer an appeal?

Ans.

Q.3Have you got means to engage a counsel for preferring an appeal?

Ans.

20 XVII ACMM C.C. No. 937 OF 2015 21 XVII ACMM C.C. No. 533 OF 2018

CC 5593 of 2019

IN THE COURT OF THE XVII ADDL. CHIEF METROPOLITAN MAGISTRATE

NAMPALLY CRIMINAL COURTS: AT HYDERABAD

PRESENT: Smt. K. JAYANTHI, XVII ADDL.CMM., Hyderabad.

(Dated on this the 30th day of August, 2019)

C.C.No. 5593 of 2019

BETWEEN:

The State of Telangana represented through the Sub-Inspector of Police, Musheerabad Police Station, Hyderabad, Telangana State.….Complainant

A N D

Sri. Gumsar Narzary @ Nepal Raju @ Raju @ Hameed, S/o Donaram Narzary, age 25 years, Occ:Labour/ Auto driver, r/o H.No.14-216, Shaheeb nagar, Balapur, Saroornagar, RR District, Native of Panisheeli (V), Bashergaon Tq., Udalguri District, Assam State.…Accused

This case having come before me for final hearing on dt.28.8.2019 in the presence of Sri. D.Chandu, the learned Asst. Public Prosecutor on behalf of prosecution, Smt. Lalitha Kumari, legal aid Counsel on behalf of accused, upon hearing the arguments on either side, perusing the entire material on record and after having stood over for consideration till this day, this court made the following:-

J U D G M E N T

1. The accused arraigned before this court for a charge under Section 379 and/or 411 IPC.

2. The Sub-Inspector of Police, Musheerabad Police Station filed Report under Section 173 Code of Criminal Procedure with the following averments, in brief:-

(a) On dt.06.03.2019, at 14.00 hours, PW.1 lodged report stating that on dt.03.03.2019, at about 21.00 hours, he parked his vehicle, i.e.,

1 of 10 XVII ADDL. CMM., HYDERABAD

CC 5593 of 2019

Honda Activa bearing No.TS 09 FA 9828 in front of his house and

on the next day morning at about 10.00 hours, PW.1 found that his parked vehicle was missing. He searched for the same in the surrounding areas, but in vain. The said vehicle was registered on the name of his son, Mohd. Abdul Kabeer.

(b)Basing upon the above Complaint, LW.9/S.Venkanna, Additional

Inspector of Police registered a case as in Crime No.74 of 2019 for the offence under Section 379 IPC and issued First Information

Report to all concerned and handed over the file to PW.5 for further investigation. During the course of investigation, PW.5 recorded the statement of PW.1, visited the scene of offence and conducted scene of offence Observation panchanama proceedings and drew rough sketch in the presence of mediators. On dated 15.03.2019, at 05.30 hours, PW.5 and staff while conducting patrolling duty at about 6.00 hours, near Metro Cafe Cross roads, Musheerabad, they apprehended the accused who was coming under suspicious circumstances on silver colour Honda Activa vehicle bearing No.TS 09 FA 9828 from

RTC Cross roads towards Musheerabad and by seeing the police, he tried to escape, but the police chased and caught hold him at some distance and on interrogation, the accused confessed guilt that he has committed theft of said two wheeler and also involved in several property offences. Apart from this case, the accused voluntarily confessed that he is involved in Crime No.95 of 2018 for the offence under Section 457, 380 IPC of PS Musheerabad; Crime No.72 of 2018 for the offence under Section 380 IPC of PS Kalwakurthy;

Crime No.162 of 2018 for the offence under Section 457, 380, 511

IPC of PS Musheerabad; Crime NO.195 of 2018 for the offence under Section 379 IPC of PS Shadnagar; Crime No.52 of 2018 for the offence under Section 379 IPC of PS Kadthal; and Crime

No.105 of 2018 for the offence under Section 457, 380 IPC of PS

Adibatla. Accordingly, PW.5 conducted Confession-cum-Seizure

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CC 5593 of 2019

Panchanama and seized Honda Activa vehicle bearing No.TS 09 FA 9828 (pertaining to this case) and net cash of Rs.2000/- (Rs.Two thousand only) pertaining to Crime No.95 of 2018 for the offence under Section 457, 380 IPC of PS Musheerabad, under cover of panchanama from the possession of accused in the presence of mediators.

(c) It is further case of the Prosecution that after completion of

Confession-cum-Seizure Panchanama, on 15.3.2019, at 08.45 hours,

PW.1 along with mediators, accused and crime staff proceeded to the house of LW.6/Mohd. Mehraj, situated at H.No.1-4-307/33, Siddique nagar, Bholakpur, Musheerabad, (who received the stolen property from the accused) and seized (1) Gold Pusthelathadu two tulas (2)

One gold chain – one tula (3) Two gold small bracelets – 2 tulas (4) one pair of ear studs – 1½ gram (5) Two small gold rings – 2 grams and (5) one gold ring 1 ½ gram from the house of LW.6/Mohd.

Mehraj at the instance of accused in the presence of mediators under cover of Seizure panchanama and then PW.5 recorded the statement of LW.6/Mohd. Mehraj. Thereafter, PW.5 brought the accused to

Police Station, effected his arrest and got him remanded to judicial custody. Further, the accused was previously involved in (1) Crime

No.50 of 2017 for the offence under Section 457, 380 IPC of PS

Papannapet – Convicted for Rigorous Imprisonment for six months (2) Crime No.51/17 for the offence under Section 457, 380 IPC of

PS Papannapet – Convicted for Rigorous Imprisonment for six months (3) Crime NO.82 of 2017 for the offence under Section 457, 380 IPC of PS Medak Rural – Convicted and fined for Rs.400/-. On completion of investigation, PW.5 filed charge sheet against the accussed for the offence punishable under Section 379 IPC.

3. Considering the material on record, this court took cognizance of the offence punishable under Section 379 IPC.

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CC 5593 of 2019

4. On appearance of the accused, copies of case documents were furnished to him as contemplated under Section 207 Code of Criminal Procedure.

5. The accused was examined under Section 239 of the Code of Criminal

Procedure. A charge under section 379 and/or 411 IPC has been framed, read over and explained to the accused in Telugu, for which the accused denied the charge, pleaded not guilty and claimed to be tried.

6. To bring home the guilt of the accused, the prosecution has examined

PWs.1 to 5 and exhibited Ex.P.1 to P.6 among MO.1. PW.1 is the De facto complainant; PW.3 is one of the panch witnesses to the Scene of offence Observation Panchanama; PW.2 is one of the panch witnesses to the Confession-cum-Seizure panchanama; Pws.4 and 5 are the

Investigating Officers.

7. After closure of prosecution evidence, the accused was examined on the incriminating circumstances that are appearing in the evidence of PWs as envisaged under section 313(1)(b) Code of Criminal Procedure and the accused denied the accusation and reported no defence evidence on his behalf.

8. This court heard the arguments on either side and perused the entire record.

NOW THE POINT FOR DETERMINATION IS WHETHER THE

PROSECUTION HAS PROVED THE GUILT OF THE ACCUSED

FOR THE OFFENCE PUNISHABLE U/S 379 and/or 411 IPC

BEYOND ALL REASONABLE DOUBTS?

9. It is the brief case of the prosecution that on dt.3.3.2019, after 21.00 hours onwards, in front of the house of PW.1, some unknown offenders have committed theft of his Honda Activa bike bearing No. TS 09 FA 9828, Chassis No.ME4JF50CAJT161895, Engine No.JF50ET9162052,

Model 2018, Colour Silver, registered on the name of Mohd. Abdul

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CC 5593 of 2019

Kabeer, S/o Mohd. Abdul Kalam and the same was recovered from the possession of accused under cover of Confession and Seizure panchanama. To prove the guilt of the accused, the Prosecution has relied on the evidence of PWs.1 to 5.

10.PW.1 is the De facto complainant, who deposed in similar lines as per prosecution case. He deposed that around four months ago, at 9.00 p.m., he parked his Honda Activa bearing No.TS 09 FA 9828 in front of his house and on the next day, he found that his vehicle was missing form the parking place. He searched for his vehicle, but in vain as such he gave report to the Police. His report is marked as Ex.P.1. MO.1 is

Honda Activa bearing No. TS 09 FA 9828.

11.PW.2 is one of the panch witnesses to the Confession-cum-

Seizure Panchanama. He deposed that on dated 15.03.2019, at 6.30 a.m., the Police of Musheerabad called him and Naveen to Metro Cafe,

Raja Delux, Musheerabad, Hyderabad, there the Police have apprehended one person, namely Nazar Nepal Raju and in their presence, the accused confessed his guilt stating that he committed theft of Honda Activa bike bearing No. TS 09 FA 9828 at Gandhinagar,

Hyderrabad. He further confessed that he committed thefts of bikes, gold chains and cash along with five other offenders at several places such as Nalgonda, Kalwakurthi, Bholakpur etc. and at the spot the

Police seized one Honda Activa bike bearing No. TS 09 FA 9828 from the possession of accused and from there the accused led them to

Siddique nagar, Bholakpur and there at one house as shown by the accused, the police seizzed one gold chain, one gold pusthelathadu, one gold children bracelet, one child gold ring and gold finger ring. PW.2 furtherr deposed that accordingly, the police drafted confession-cum- seizure panchanama and seizure report and obtained their signatures.

Ex.P2 is relevant portion of Confession-cum-Seizure Panchanama of

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CC 5593 of 2019

accused and Ex.P.3 is Seizure Report. PW.2 identified the accused in the open court hall.

12.PW.3 is one of the Panch Witnesses to the Scene of offence panchanama. He deposed that on dated 6.3.2019, at 3.00 p.m., the

Police called him and LW.3/Abdul Qadeer to the house of PW.1 and he came to know that his bike was committed to theft of Honda Activa bike, when it was parked in front of his house. Accordingly, the Police conducted Scene of offence panchanama and drew rough sketch and obtained their signatures. Ex.P.4 is Scene of offence panchanama and

Ex.P.5 is rough sketch.

13.PW.4 is the Police Constable, who accompanied the Investigating

Officer. He deposed that on dated 15.3.2019, at 5.30 a.m., he along with Sub-Inspector of Police and LW.8/Vikram were performing Crime

Patrolling duty at Metro Cafe Cross roads, around 6.00 a.m., the accused persons were proceeding from RTC Cross roads towards

Musheerabad on silver colour Honda Activa bearing No.TS 09 FA 9828 in suspicious circumstances and when they about to stop his vehicle, on seeing them, the accused tried to abscond, thereupon they caught hold the accused and on interrogation by the Sub-Inspector of Police, the accused revealed his name as Nepal Raju and failed to produce documents of the vehicle and confessed that in the first week of March, 2019, he committed theft of the said bike from back side of Badi

Masjid, Musheerabad.

14.PW.5 is the Investigating Officer, who did the entire investigation and filed charge sheet against the accused.

15.The evidence of PW.1 is clear that the offence has been committed by unknown offenders. Accordingly, report was lodged against the unknown offenders. The evidence of PW.1 remained

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CC 5593 of 2019

unchallenged and unrebutted. The accused did not deny about the ownership of PW.1 over MO.1 and commission of theft of the said bike as stated by the PW.1. PW.3 being one of the Panch Witnesses to the

Scene of offence panchanama categorically deposed that in his presence

PW.5 drafted Scene of offence panchanama and drew rough sketch in connection with theft of a motorbike. Further, the Investigating Officer has deposited the case property before this Court vide PI.No.81 of 2019 and the same was released to son of PW.1 on interim custody vide

Orders in Crl.M.P.No.864/2019, dated 26.3.2019. The evidence of

PWs.1 and 3 is corroborating with each other with regard to ownership of MO.1 and the commission of theft as alleged by the prosecution.

16.Admittedly, nobody witnessed at the time of commission of offence. PW.2 and PW.4 are the material witnesses of the Prosecution.

It is their specific evidence that the accused voluntarily confessed his guilt and the stolen property was recovered from his possession. This piece of evidence is supported by the evidence of PW.5. PW.2 categorically deposed that on their enquiry, the accused have confessed their guilt. It is settled law that the confession of the accused must be voluntary, but not under force and coercion and confession made before the Police is not admissible in law. In view of the unrebutted evidence of PW.2, it can be said that the Accused has confessed his guilt voluntarily without any force and coercion. Even no such suggestions were made during cross-examination of PW.2. Nothing has been elicited during cross-examination of Pws.2 and 4 to discredit their testimony. Further, their evidence is duly corroborated with the evidence of PW.5. Hence, there is no ground to disbelieve the evidence of Pws.2 and 4. Further, PW.2 and 4 have categorically identified the accused in the open Court. As per record confession panchanama-cum- seizure panchanama was conducted on 15.03.2019 and the PW.2 gave evidence on 18.06.2019, i.e., within three months as such there is every possibility to identify the accused and the said fact cannot be doubted

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with. Further, on that day at Metro Cafe cross roads, confession-cum- seizure panchanama of Accused was recorded and from there they proceeded to Siddique nagar, Bholakpur, Musheerabad and there

Seizure panchanama was conducted. Thus, the PW.2 spent much time along with accused as such even he does not have any prior acquaintance with accused, by spending such a long period, one can easily identify the person. Hence, the identification of accused in the court hall for the first time by PW.2 cannot be doubted with. Further, the accused has not adduced any rebuttal evidence nor given proper explanation about the dishonest possession of MO.1 in their custody to disprove the prosecution case. Further, the evidence of Pws.1 to 4 is duly corroborated by the evidence of PW.5.

17.As can be seen from the record that in view of unrebutted evidence of PW.2, the Prosecution has proved beyond all reasonable doubt that the stolen property was recovered from the possession of accused. In view of Section 114(a) of the Indian Evidence Act, the

Court may presume that a man who is in possession of stolen goods

soon after the theft is either the thief or has received the goods

knowing them to be stolen, unless he can account for his possession.

In the case on hand, the prosecution has proved that stolen property, i.e.,

MO.1 was recovered from the Accused. Now it is upon the accused to rebut the said fact, but they did not explain under what circumstances, the stolen property came into their possession. Hence, in view of

Presumption under Section 114(a), this Court presumes that the accused who are in possession of stolen property is a thief and committed the offence of theft, punishable under Section 379 IPC.

18.In view of my above discussion, the Prosecution has proved the guilt of accused for the offence punishable under Section 379 IPC beyond all reasonable doubts and the accused is entitled for conviction.

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19.IN THE RESULT, the accused is found guilty for the offence punishable under Section 379 IPC and he is hereby convicted under

Section 248(2) of Code of Criminal Procedure.

Typed in personal laptop, corrected and pronounced by me in the open court,

on this the 30 th day of August, 2019.

XVII ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

Heard the accused on quantum of sentence (On a separate sheet), wherein he pleaded mercy and stated that he is having large family to support as he is the only persons to support their family and to take lenient view.

Having regard to the facts and circumstances of the case as the accused involved in several cases of theft of two wheeler motorbikes and other property offences, this Court is not inclined to take a lenient view and I am not invoking the provisions of Probation of Offenders Act. The Accused is hereby sentenced to undergo rigorous imprisonment for one year and pay fine of

Rs.1000/- (Rs.One thousand only) for the offence punishable under Section 379 IPC. In default of payment of fine, the accused shall undergo simple imprisonment for two months.

The accused is in judicial custody from 15.3.2019 till date and the said period of detention undergone shall be set-off under Section 428 of Code of

Criminal Procedure.

The accused is hereby appraised of his right to prefer an appeal against this judgment. On enquiry, he stated that he has no means to engage a counsel for preferring an appeal and this Court also intimated about the services of free legal aid of District Legal Services Authority to prefer an appeal against this judgment.

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Material Object, i.e., Honda Activa bike bearing No.TS 09 FA 9828 (vide PI.No.81 of 2019) already returned to it’s registered owner on interim custody is hereby made absolute after expiry of appeal period.

XVII ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED-

(On behalf of Prosecution)

PW.1Sri. Abdul Kalaam (De facto Complainant) PW.2Sri.Raj Deen Dayal Reddy (Panch Confession-cum-Seizure) PW.3 Sri. Syed Sajid (Panch witness for Scene of offence) PW.4 Sri. P.Krishna (Police Constable) PW.5 Sri. R.Balraju (IO) (On behalf of Defence) -NIL-

EXHIBITS MARKED:- (On behalf of Prosecution)(On behalf of defence)

Ex.P.1 Complaint Ex.P.2 Relevant portion of Confession-cum-Seizure Panchanama Ex.P.3 Seizure Report Ex.P.4Scene of offence Panchanama-NIL- Ex.P.5Rough Sketch Ex.P.6First Information Report

MATERIAL OBJECTS MARKED:-

MO.1 Honda Activa bike bearing No.TS 09 FA 9828

XVII ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

10 of 10 XVII ADDL. CMM., HYDERABAD

CC 4390 of 2019

IN THE COURT OF THE XVII ADDL. CHIEF METROPOLITAN MAGISTRATE

AT: NAMPALLY CRIMINAL COURTS: AT HYDERABAD

PRESENT: Smt. K. JAYANTHI, XVII ADDL.CMM., Hyderabad.

(Dated on this the 30th day of August, 2019)

C.C.No. 4390 of 2019

BETWEEN:

The State of Telangana represented through the Sub-Inspector of Police, Golconda Police Station, Hyderabad, Telangana State. ….Complainant

A N D

1.Sri. Mohd. Ismail, S/o Syed Mahmood Shah, age 27 years, Occ:Auto driver, R/o Opposite Limra hotel street, Sikh Chowni, Kishanbagh, Hyderabad. N/o Chalki (V), Niyalkal (M) Zaheerabad. (Case against A1 is split up vide CC.No.6457/2019)

2.Sri.Mohd. Matheen Hamed @ Totla, S/o Hamed Shakeel, age 22 years, r/o Chotimasjid, Murad nagar, Mehdipatnam, Hyderabad.

3.Sri. Mohd. Siraj, S/o Mohd. Sarwar, age 25 years, Occ:Cloth Merchant, r/o near Raheem function hall, Golconda, Hyderabad. Permanent address H.No. 12-2-342/3/1, Opp. Khaleel Hotel, Sabernagar, Jirra, Hyderabad.…Accused

This case having come before me on dated 28.08.2019 for final hearing in the presence of Sri. D.Chandu, the learned Assistant Public Prosecutor on behalf of prosecution, Smt. Lalitha Kumari, Legal Aid Counsel on behalf of Accused No.2, Sri. D.Raji Reddy, Advocate on behalf of A3, upon hearing the arguments on either side, upon perusing the entire material on record and after having stood over for consideration, this court made the following:-

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J U D G M E N T

1. The Accused No.2 and 3 arraigned before this Court for the Charge under Section 392 r/w 34 IPC.

2. The Sub-Inspector of Police, Golconda Police Station filed Report under Section 173 of Code of Criminal Procedure with the following averments in brief:-

(a) On dated 26.08.2018, at 02.00 hours, PW.1 lodged Complaint stating that he is working as Civil Engineer in Jayabheri properties at

Kokapet circle and on dated 25.08.2018, at 10.30 p.m., he engaged a sharing auto from Narsingi Circle to Langer house. There are two other persons along with auto driver in the said auto. When they reached near Neknampur, the driver stopped auto saying that Gas extinguished and requested PW.1 to give his cell phone to call his friend. When PW.1 refused to give his cell phone, all the three persons started beating him and snatched away his two cell phones,

Aadhar card, Pan card, SBI ATM Card from his pocket and hit him on the face and ran away from the spot.

(b)Basing upon the above Complaint, PW.6 registered a case as in

Crime No.305 of 2018 for the offence under Section 392 r/w 34 IPC and referred PW.1 to Area hospital, Golconda for treatment. As the case is grave in nature, PW.6 handed over the case file to PW.4 for further investigation. During investigation, PW.4 examined and recorded the statement of PW.1, basing on his statement noted down auto number, visited the scene of offence, situated at Nekhnampur,

Golconda, Hyderabad, conducted Observation Panchanama of the

Scene and drew rough sketch in the presence of mediators.

Thereafter, PW.4 took out the address of auto number with the help

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CC 4390 of 2019

of TS Cop and deputed staff and instructed them to trace out real culprits basing upon the auto address.

(c) It is further case of the Prosecution that basing on the auto number,

Crime Staff summoned PW.5 (who is the auto owner) and produced him before PW.4, who recorded the statement of PW.5. On dated 27.8.2018, at about 17.30 hours, on credible information, PW.4 deputed PW.6 and staff to apprehend the suspected persons.

Immediately, PW.6 along with staff reached near Amba theatre,

Mehdipatnam, Hyderabad at about 18.00 hours and apprehended the accused along with auto bearing No.TS 12 US 9512 and produced them before PW.4. On interrogation, A1 to A3 have disclosed their details and voluntarily confessed their guilt stating that they robbed two mobile phones and some documents from PW.1 by beating with hands. Accordingly, PW.4 recorded Confession-cum-seizure

Panchanama of A1 to A3 in the presence of mediators and seized two mobile phones and one auto bearing No.TS 12 UA 9512 from the possession of A1 and A2. On enquiry, A1 confessed that he thrown away documents nearby Langer house. On completion of

Panchanama, PW.4 effected the arrest of accused and got them remanded to judicial custody. Further, on requisition, PW.4 took the

Accused into Police custody vide Dis.No.1595/XVII

ACMM/HYD/2018, dated 4.9.2018 Orders passed in

Crl.M.P.No.2288/2018,dated 4.9.2018. A1 to A3 were interrogated

during Police custody on 5.9.2018 to find out about the documents of PW.1, but in vain. Even PW.4 along with Crime staff visited the scene to reconstruct the scene to find out the documents of PW.1, but in vain. Further, PW.4 got conducted Test Identification Parade

Proceedings on 3.11.2018 in Central Prison, Chanchalguda,

Hyderabad. On completion of investigation, PW.4 filed charge sheet against the accused for the offence punishable under Section 392 r/w 34 IPC.

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3. Considering the material on record, this court took cognizance of the offence punishable under Section 392 r/w 34 IPC against A1 to A3.

4. It is pertinent to mention here that as Non-bailable Warrant is pending, case against Accused No.1 is split up vide separate CC.No.6457 of 2019 and it is pending.

5. On appearance of Accused 2 and 3, copies of case documents were furnished to them as contemplated under Section 207 of Code of

Criminal Procedure.

6. The Accused 2 and 3 were examined under Section 239 of the Code of

Criminal Procedure. A charge under Section 392 r/w 34 IPC framed, read over and explained to the Accused 2 and 3, for which they denied the charge, pleaded not guilty and claimed to be tried.

7. To bring home the guilt of the Accused 2 and 3, the Prosecution has examined PWs.1 to 6 and exhibited Ex.P.1 to P.9 among Mos.1 and 2.

PW.1 is the Complainant; PW.2 is Panch Witness to the Scene of offence Panchanama; PW.3 is Panch witness to the Confession-cum-

Seizure Panchanama of A1 to A3; PW.5 is Auto owner; and Pws.4 and 6 are the Investigating Officers.

8. After closure of Prosecution evidence, the Accused 2 and 3 were examined on the incriminating circumstances that are appearing in the evidence of PWs as envisaged under section 313(1)(b) of Code of

Criminal Procedure and they denied the accusation and reported no defence evidence on their behalf.

9. This Court heard the arguments on either side and perused the entire record.

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NOW THE POINT FOR DETERMINATION IS WHETHER THE

PROSECUTION HAS PROVED THE GUILT OF THE A2 and A3

FOR THE OFFENCE PUNISHABLE U/S 392 r/w 34 IPC

BEYOND ALL REASONABLE DOUBTS?

10.It is the brief case of the Prosecution that on dated 25.08.2018, at about 10.30 p.m., at Neknampur, Golconda, the accused persons robbed two cell phones, Aadhar card, Pan Card, SBI ATM Card of PW.1 from his pocket and hit him on his face and sped away from the Scene. In order to prove the said allegations, the Prosecution has relied upon the evidence of Pws.1 to 6.

11.PW.1 is the De facto Complainant. He deposed that on 25.8.2018 at about 10.30 p.m., he hired one auto to go to his house at

Hussainialam and in the said auto two other passengers were also present. PW.1 further deposed that after two kilometers from Naarsing, when auto reached near Neknampur bus stop as it was dark and auto was stopped and driver told that gas is extinguished and asked PW.1 to give his cell phone to call his friend. When PW.1 refused to give his cell phone, all three persons started beating him, snatched away his two cell phones, i.e., (1) Red me note 3 and small keypad cell phone micromax and also snatched away all his papers, ID cards, ATM Card,

Pan Card from his shirt pocket and fled away along with auto. Ex.P.1 is the Complaint lodged by PW.1. PW.1 deposed that he identified the accused persons during Test Identification Parade proceedings before the Magistrate at Central Prison, Chanchalguda, Hyderabad. Further,

PW.1 also identified A2 and A3 in the open Court. PW.1 further deposed that the Police recovered his stolen two cell phones, i.e., Red me note 3 and small keypad cell phone micromax which were taken by him on interim custody under Mos.1 and 2.

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12.PW.2 is the Panch witness to the Crime Details Form. He deposed that on dated 26.8.2018, at 11.00 a.m., near Neknakguda, the

Police of Golconda conducted Crime Details Form in connection with a theft case and obtained their signatures. Ex.P.2 is Crime Details Form.

13.PW.3 is one of the Panch witnesses to the Confession-cum-

Seizure Panchanama. He deposed that on dated 27.8.2018 at 7.00 p.m., he was called to Golconda Police Station, there three persons were in the custody of Police and on enquiry, the accused persons voluntarily confessed their guilt and the Police have seized two cell phones and one auto from the possession of A1 to A3 under cover of confession-cum- seizure panchanama.

14.PW.5 is the auto owner. He deposed that in the year 2016, he purchased a passenger auto bearing No.TS 12 UA 9512 from one of his friend Mohd. Akber for an amount of Rs.40,000/- (Rs.Forty thousand only). Thereafter, he gave the said auto to Ismail on rental basis. PW.5 further deposed that on dated 27.5.2018, he received a call from

Golconda Police stating that his auto was seized by them and the said

Ismail was apprehended in a theft case. PW.5 further deposed that he took his auto on interim custody.

15.PW.6 is the first investigating officer. He deposed that on dated 26.8.2018, at 02.00 a.m., he received complaint from PW.1 and registered the same as in Crime No.305 of 2018 for the offence under

Section 392 r/w 34 IPC and issued First Information Report. PW.4 is the investigating officer, who did the entire investigation and filed charge sheet against the accused.

16.As per the evidence supra, the alleged incident took place on

dated 25.8.2018 at 10.30 p.m. and the complaint was lodged on dated

26.8.2018 at 02.00 a.m. without any delay. PW.1 is the material witness

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in this case. He has almost reiterated the averments of his complaint in his chief-examination. PW.1 categorically identified the accused persons during Test Identification Parade Proceedings before the

Magistrate, so also he identified them in the open court during his

evidence. But during cross-examination, PW.1 admitted that he had no prior acquaintance with the accused persons and the incident took place during night hours. He further admitted that he had seen the accused in the Police Station on the very next day of the alleged incident. PW.1 further admitted that at the instance of Police, he identified the accused

before the Magistrate. Even as per Test Identification Parade

Proceedings, the Accused A2 and A3 stated before the Magistrate that the police have shown them to the witnesses in Police Station when they were arrested. Hence, the Prosecution has failed to prove the identification of A2 and A3 beyond all reasonable doubts.

17.PW.3 is the material witness of the Prosecution, in whose presence the Police conducted Confession-cum-Seizure Panchanamas of A1 to A3. In view of unrebutted evidence of PW.3 coupled with the evidence of PW.4, the Prosecution has proved beyond all reasonable doubt that the stolen property was recovered from the possession of

Accused. However, the Prosecution has failed to prove that the

Accused 1 to 3 robbed away cell phones and other documents from

PW.1. Thus, the Prosecution has failed to prove the ingredients for the offence punishable under Section 392 r/w 34 IPC, but made out for the offence under Section 411 IPC.

18.In view of my above discussion, this Court holds that the

Prosecution has failed to prove the guilt of the Accused 2 and 3 for the offence punishable under Section 392 r/w 34 IPC, but the Prosecution has proved the guilt of the Accused 2 and 3 for the offence under

Section 411 IPC and they are entitled for conviction under Section 222 of Code of Criminal Procedure.

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19.IN THE RESULT, the Accused No.2 and 3 are found not guilty for the offence punishable under Section 392 r/w 34 IPC and they are hereby acquitted for the said offence under Section 248(1) of Code of

Criminal Procedure. But, however, the Accused 2 and 3 are found guilty for the offence punishable under Section 411 IPC and they are hereby convicted for the said offence under Section 222 of Code of

Criminal Procedure.

Typed in personal laptop, corrected and pronounced by me in the open court,

on this the 30 th day of August, 2019.

XVII ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

Heard the Accused 2 and 3 on quantum of sentence (On a separate sheet), wherein he pleaded mercy and stated that they are having large family to support as they are the only persons to support their family and to take lenient view. Having regard to the facts and circumstances of the case as the accused involved in grave offence of robbery by snatching cell phones, this

Court is not inclined to take a lenient view and I am not invoking the provisions of Probation of Offenders Act. The Accused 2 and 3 are hereby sentenced to undergo rigorous imprisonment for six months and pay fine of

Rs.500/- (Rs.Five hundred only) each for the offence punishable under Section 411 IPC. In default of payment of fine, the Accused 2 and 3 shall undergo simple imprisonment for one month.

The Accused No.2 is in judicial custody from 28.08.2018 till date and

Accused No.3 is in judicial custody from 28.08.2018 to dated 10.9.2018 and the said period of detention undergone shall be set-off under Section 428 of

Code of Criminal Procedure.

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The Accused No.2 and 3 are hereby appraised of their right to prefer an appeal against this Judgment. On enquiry, they stated that they have means to engage a counsel for preferring an appeal and this Court intimated about the services of free legal aid of District Legal Services Authority to prefer an appeal against this Judgment.

Material Objects, i.e., MOs.1 and 2 cell phones and MO.3 Auto bearing

No.TS 12 UA 9512 (vide PI.No.186 of 2018) already returned to it’s respective owners, i.e., PW.1 and PW.5 on interim custody shall continue the same until further orders since split up case against A1 vide CC.No.6457 of 2019 is pending.

XVII ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED-

(On behalf of Prosecution)

PW.1Sri. Sanjay Kumar (De facto Complainant) PW.2Mohd. Layeeq (Panch witness for Crime Details Form) PW.3Sri. Mohd. Chand (Panch witness for Confession and Seizure) PW.4 Sri. N. Anand (Investigating Officer) PW.5Sri. Mohd. Mazharuddin (Auto owner) PW.6Sri. M. Mallaiah (1st Investigating Officer) (On behalf of Defence) -NIL-

EXHIBITS MARKED:- (On behalf of Prosecution)(On behalf of defence)

Ex.P.1 Complaint Ex.P.2 Crime Details Form Ex.P.3 Relevant portion of Confession- -cum-Seizure Panchanama of A1-NIL- Ex.P.4Relevant portion of Confession-cum- Seizure Panchanama of A2

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Ex.P.5Relevant portion of Confession-cum- Seizure Panchanama of A3 Ex.P.6First Information Report Ex.P7Requisition for Police Custody of A1 to A3 Ex.P.8Requisition for Test Identification Parade Ex.P.9Test Identification Parade Proceedings

MATERIAL OBJECTS MARKED:-

MOs.1 and 2 Cell Phones

MO.3Auto bearing No.TS 12 UA 9512

XVII ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

10 of 10 XVII ADDL. CMM., HYDERABAD

CC 6657 of 2019

IN THE COURT OF THE XVII ADDL. CHIEF METROPOLITAN MAGISTRATE

NAMPALLY CRIMINAL COURTS: AT HYDERABAD

PRESENT: Smt. K. JAYANTHI,

XVII ADDL.CMM., Hyderabad.

(Dated on this the 30th day of August, 2019)

C.C.No. 6657of 2019

BETWEEN:

The State of Telangana represented through the Sub-Inspector of Police, Musheerabad Police Station, Hyderabad, Telangana State.….Complainant

A N D

Sri. Matcha Narsing Rao @ Narasing, S/o M.Yadagiri, age 43 years, Occ:Labour R/o H.No.1-9-209/4/C, Ramnagar,

Opposite Baptist Church, Hyderabad....Accused

This case having come before me for final hearing on dt.28.8.2019 in the

presence of Sri. D.Chandu , the learned Assistant Public Prosecutor on behalf of

prosecution, Smt. Lalitha Kumari, Counsel on behalf of accused, upon hearing

the arguments on either side, upon perusing the entire material on record and

after having stood over for consideration till this day, this court made the

following:-

J U D G M E N T

1. The Accused arraigned before this Court for the Charge under Section 354A, 506 IPC.

2. The Sub-Inspector of Police, Musheerabad Police Station filed Report under Section 173 of Code of Criminal Procedure with the following averments in brief:-

(a) On dated 25.03.2019, at 20.00 hours, PW.1 lodged Complaint stating that the accused being her husband’s maternal uncle came to their house on 17.3.2019 and informed that he was released from jail

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CC 6657 of 2019

and requested them to allow him to stay in their house for two days for obtaining Aadhar Card and believing his words, PW.1 and family allowed him to stay in their house. But, the accused used to come daily in drunken condition and created nuisance. On that PW.1 and her family requested him to leave their house and on that keeping in mind the said grudge, on dated 24.03.2019, at about 19.00 hours, the accused came to their house in drunken condition and created nuisance, abused PW.1 and misbehaved with her by pulling her hands with an intention to outrage her modesty and threatened her and her husband with dire consequences by showing a blade and also created nuisance with her Co-sister, by name Rajitha. The accused threatened them with dire consequences by saying that he is a rowdy-sheeter and that he recently released from jail.

(b)Basing upon the above complaint, LW.4/Sri.M.Gangadhar, Inspector of Police registered a case as in Crime No.110 of 2019 for the offence under Section 354A, 354, 506 IPC and issued First

Information Report to all concerned and handed over the file of

PW.3 for further investigation. During investigation, PW.3 examined PW.1, visited the Scene of offence, situated near

Brahmmamgari kaman, Ramnagar, Musheerabad, Hyderabad and made inquiries about the incident with the locality people, examined

LW.2/Sri. J.Shankar and PW.2. Thereafter, PW.3 served Notice to accused under Section 41(A)(1) CrPC, but he did not submit any explanation. While the investigation is under progress, on dated 26.03.2019, during morning hours, on credible information, PW.3 rushed to in front of Parsigutta grave yard, Parsigutta, Musheerabad,

Hyderabad and effected the arrest of accused on 26.3.2019 at 08.00 hours by following due procedure and remanded to judicial custody.

Further, the accused is a notorious criminal and Ex-convict in Crime

No.124 of 2016 for the offence under Section 307 IPC and Crime

No.220 of 2006 for the offence under Section 302 IPC. The accused

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CC 6657 of 2019

was sentenced to undergo life imprisonment in Crime No220 of 2006 and after completion of ten years imprisonment, he was released on 28.03.2016 on good behaviour. After released from jail, the accused was involved in Crime No.124 of 2016 for the offence punishable under Section 307 IPC of Musheerabad Police Station. A rowdy sheet is also opened in PS Musheerabad for keeping surveillance about his movements. In Crime No.124 of 2016, the accused was sentenced to undergo Rigorous Imprisonment for five years and he was released from jail on bail on dated 17.3.2019. On completion of investigation, PW.3 filed charge sheet against the accused for the offences punishable under Section 354A, 354, 506

IPC.

3. Considering the material on record, this Court took cognizance of the offence punishable under Section 354A, 506 IPC against Accused.

4. On appearance of Accused, copies of case documents were furnished to him as contemplated under Section 207 of Code of Criminal Procedure.

5. The Accused was examined under Section 239 of the Code of Criminal

Procedure. A charge under Section 354A, 506 IPC framed, read over and explained to the accused, for which the accused denied the charge, pleaded not guilty and claimed to be tried.

6. To bring home the guilt of the Accused, the Prosecution has examined

PWs.1 to 3 and exhibited Ex.P.1 and P.2. PW.1 is the De facto

Complainant-cum-Victim; PW.2 is an Eyewitness; and PW.3 is an

Investigating Officer.

7. After closure of Prosecution evidence, the Accused was examined on the incriminating circumstances that are appearing in the evidence of

PWs as envisaged under section 313(1)(b) of Code of Criminal

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Procedure and the accused denied the accusation and reported no defence evidence on his behalf.

8. This Court heard the arguments on either side and perused the entire record.

NOW THE POINT FOR DETERMINATION IS WHETHER THE

PROSECUTION HAS PROVED THE GUILT OF THE ACCUSED

FOR THE OFFENCE PUNISHABLE U/S 354A, 506 IPC BEYOND

ALL REASONABLE DOUBTS?

9. It is the brief case of the Prosecution that the Accused is the rowdy sheeter of Musheerabad Police Station and previously he was sentenced to undergo life imprisonment in Crime No.220 of 2006 for the offence punishable under Section 302 IPC and after completion of ten years imprisonment, he was released on 28.03.2016 on good behaviour. After releasing from jail, the accused was involved in Crime No.124 of 2016 for the offence punishable under Section 307 IPC of Musheerabad

Police Station and was sentenced to undergo Rigorous Imprisonment for five years and he was released from jail on bail on dated 17.3.2019.

After releasing from jail, the accused approached the husband of PW.1 and requested to allow him in their house to get Aadhar card and accordingly, they allowed the accused to stay in their house. But the accused did not change his behaviour and he used to come home in a drunken condition and created nuisance. On that PW.1 and her family requested him to leave their house and by keeping in mind the said grudges, on dated 24.03.2019, at about 19.00 hours, the accused came to their house in drunken condition and created nuisance, abused PW.1 and misbehaved with her by pulling her hands with an intention to outrage her modesty and threatened her and her husband with dire consequences by showing a blade. In order to prove the said allegations, the Prosecution has relied on the evidence of Pws.1 to 3.

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10.PW.1 is the De facto Complainant-cum-Victim. She deposed that the accused is the uncle of her husband and previously the accused was in jail for certain period. PW.1 further deposed that on dated 17.3.2019, at evening hours, the accused came to their house and told them that he came to get his Aadhar card and talked nicely and believing his words,

PW.1 and family thought the accused might have changed from his criminal back ground and allowed him to stay in their house. She further deposed that from fourth day onwards, the accused used to come their house in a drunken condition and quarreled with them. PW.1 further deposed that on dated 24.3.2019, at night hours, the accused came to their house in drunken condition, broken their window by throwing chappals inside the house, abused the husband of PW.1 in most filthy language and created nuisance. PW.1 further deposed that they called patrolling police, who came there and by seeing the police, the accused absconded from the scene. She further deposed that immediately on the next day morning, the accused again came to their house in drunken condition when PW.1 was alone in the house, picked up a quarrel with her, abused her, dragged her hand and threatened her and her family members with dire consequences. Thereafter, PW.1 lodged complaint with the Police, which is marked as Ex.P.1.

11.PW.2 is the Co-sister of PW.1. She deposed that previously accused was in jail for certain period. PW.2 further deposed that on

dated 17.3.2019, at evening hours, the accused came to their house and

told that he came to get his Aadhar card and talked nicely, believing his words, they allowed him to stay in their hour. After two to three days, the accussed started to come home in a drunken condition and quarrelled with them and threatened them with dire consequences.

PW.2 further deposed that unable to bear the torture, the family of PW.2 shifted to their friend’s house and stayed there. Thereupon, the accused started quarrelling with PW.1 in drunken condition and broken their window by throwing chappals inside the house, abused them in most

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filthy language and created nuisance. PW.2 further deposed that they called Patrolling Police, who apprehended the accused and gave strong warning to him. PW.2 further stated that immediately on the next day morning, the accused again came to the house of PW.1 in drunken condition and quarreled with her, abused her, dragged her hand and threatened her and her family members with dire consequences.

12.PW.3 is the investigating officer, who did the entire investigation and filed charge sheet against the accused. He deposed that on dated 25.3.2019, at about 20.00 hours, LW.4/N.Gangadhar, Inspector of Police received Ex.P.1 from PW.1 and registered the case in Crime No.110 of 2019 for the offence punishable under Section 354A, 354, 506 IPC and issued First Information Report to all concerned. Threafter, PW.3 took up the charge and examined and recorded the statements of Pws.1, 2 and LW.2 J.Shankar, visited the scene of offence, situated near

Brahmamgari Kaman, Ramnagar, Hyderabad, caused inquiries. It is the evidence of PW.3 that during investigation, he came to know that the accused was involved in Crime No.124 of 2016 for the offence under

Section 307 IPC and Crime No.220 of 2006 for the offence under

Section 302 IPC of PS Musheerabad and in he was sentenced to undergo life imprisonment and after ten years of imprisonment, the accused was released in the month of March, 2016. PW.3 further deposed that on 26.3.2019, he apprheended the accused, effected his arrest and remanded to judicial custody. On completion of investigation, PW.3 filed charge sheet against the accused.

13.As per the evidence supra, the alleged incident took place on

dated 24.03.2019 at 19.00 hours and the Complaint was lodged on dated

25.03.2019 at 20.00 hours. But, however, no question was put to PW.1 with regard to the said delay in lodging the Complaint. Obviously, as the alleged offence is against woman as such the said delay is not fatal to the case of Prosecution. Now coming to the evidence of Pws.1 and 2,

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their evidence is corroborating with each other. Nothing has been brought on record during cross-examination to disbelieve the evidence of Pws.1 and 2. Admittedly, there is no enmity or previous grudges between the parties. Further, there is no reason to believe that the accused has been falsely implicated or a false case is foisted against him. Nothing has been put to Pws.1 and 2 as to why the accused has been falsely implicated. The evidence of Pws.1 and 2 is corroborating with each other. Merely because no independent witness is examined, the evidence of Pws.1 and 2 cannot be brushed aside. Further, the evidence of PW.3 is duly corroborated the evidence given by Pws.1 and

2. In view of the evidence of PW.3, it is established that the accused is a rowdy sheeter and he had criminal back ground. Merely because, no documents to that effect are filed, the evidence of PW.3 cannot be thrown away. In view of all these reasons, the evidence given by Pws.1 and 2 corroborated by the evidence of PW.3 is cogent, believable and trustworthy to connect the accused for the charged offence. But, the evidence of Pws.1 and 2 is not believable to the extent that the accused dragged the hand of PW.1 with an intention to outrage her modesty.

Such an ingredient is not established through the evidence of Pws.1 and

2. It is established that the accused in a drunken condition created nuisance and threatened them with dire consequences. The Prosecution has failed to prove the ingredients for the offence punishable under

Section 354A IPC. But, however, the charge under Section 506 IPC is proved.

14.In view of my above discussion, this Court holds that the

Prosecution has failed to prove the guilt of the accused for the offence punishable under Section 354A IPC, but however, the guilt of accused for the offence punishable under Section 506 IPC is proved and he is entitled for conviction for the said offence.

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15.IN THE RESULT, the Accused is found not guilty for the offence punishable under Section 354A IPC and he is hereby acquitted under

Section 248(1) of Code of Criminal Procedure. The accused is found guilty for the offence punishable under Section 506 IPC and he is hereby convicted for the said offence under Section 248(2) of Code of

Criminal Procedure.

Typed in personal laptop, corrected and pronounced by me in the open court,

on this the 30 th day of August, 2019.

XVII ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

Heard the accused on quantum of sentence (On a separate sheet), wherein he pleaded mercy and stated that he is old aged suffering with ailments and to take lenient view. Having regard to the facts and circumstances of the case as the accused involved with criminal background as a rowdy-sheeter and as the offence is against woman, this Court is not inclined to take a lenient view and I am not invoking the provisions of

Probation of Offenders Act. The Accused is hereby sentenced to undergo rigorous imprisonment for six months for the offence punishable under

Section 506 IPC.

The accused is in judicial custody from dated 26.03.2019 till date and the said period of detention undergone shall be set-off under Section 428 of

Code of Criminal Procedure.

The Accused is hereby appraised of his right to prefer an appeal against this judgment. On enquiry, he stated that he has no means to engage a counsel for preferring an appeal and this Court also intimated about the services of

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free legal aid of District Legal Services Authority to prefer an appeal against this judgment.

XVII ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED-

(On behalf of Prosecution) (On behalf of defence)

PW.1Smt. Rajini (De facto Complainant-cum-Victim) PW.2Smt. Rajitha (Eyewitness) PW.3Sri. K.Rama Rao (Investigating officer)-NIL-

EXHIBITS MARKED:- (On behalf of Prosecution)(On behalf of defence)

Ex.P.1 Complaint Ex.P.2First Information Report-NIL-

MATERIAL OBJECTS MARKED:- -NIL-

XVII ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

9 of 9 XVII ADDL. CMM., HYDERABAD

1 XVII ACMM C.C. No. 3098 OF 2019

IN THE COURT OF THE XVII ADDITIONAL CHIEF METROPOLITAN

MAGISTRATE: NAMPALLY CRIMINAL COURTS, HYDERABAD

Present: Smt. K. Jayanthi, XVII Addl. Chief Metropolitan Magistrate, Nampally Criminal Courts, Hyderabad

C. C. No.3098 of 2019

Dated: this the 29th day of April, 2019

Between:

The State of Telangana, through the Sub-Inspector of police, Jubilee Hills P.S., Hyderabad City, Telangana State. … Complainant

AND

Yalla Vijay Kumar @ Nani @ Vijay, S/o. Late Jayanth Rao Age: 30 years, Occupation: Security Guard R/o. H.No.8-2-684/112/2, Near Nalla Pochamma Temple NBT Nagar, Road No.12, Banjara Hills Hyderabad N/o. Pedda Peta Eurupadu Village Kalla Mandal, West Godavari District

.... Accused

This case is coming on this day before me for final disposal in the presence of Asst. Public Prosecutor for the state and of

Smt. Ch.Padma, Legal Aid-counsel and having heard the both sides and upon perusal of the material available on record, this court made the following:

JUDGMENT

1.The accused arraigned before this court for the charge Under

Section 380 IPC.

2 XVII ACMM C.C. No. 3098 OF 2019

2.The brief facts of the Prosecution case are as follows:

(a) That on 16-11-2018, at 12:00 Hours, PW1 lodged complaint stating that on 12-11-2018 he had completed his work and returned to his home around 10:30 PM, parked his car i.e. Volks Wagon Bearing

No.TS 09 TR 7947 in the parking area of their apartment building. On the next day morning i.e. on 13-11-2018 around 11:30 AM, he noticed that somebody broken his car left side door glass and stolen the cash from the dash board of the car. As he was busy on that day with his business activity and as he was out of station, he could not lodge the complaint immediately.

(b) Basing on the complaint, PW4 registered a case in Crime

No. 817/2018 for the offence under Section 380 IPC and during the course of investigation, he examined and recorded the statements of P.W.1 and L.W.2 G. Raju. He visited the scene of offence situated at Cellar of Swach Apartment, Road No.45,

Jubilee Hills, Hyderabad, observed the scene and conducted observation panchanama of the scene and drew Rough Sketch in the presence of P.W.2 and L.W.3 P. Shekar. On 18-12-2018,

P.W.4 served Notice under Section 41(A) Cr.P.C. to the accused, but he did not turn up to the Police Station and absconded.

That on 22-12-2018, on credible information, P.W.4 alongwith his staff proceeded to the house No.8-2-684/112/2, NBT Nagar,

Banjara Hills, Hyderabad and apprehended the accused alongwith cash of Rs.5,000/-, when the accused about to confess his guilt, P.W.4 conducted Confession-cum-Seizure 3 XVII ACMM C.C. No. 3098 OF 2019

Panchanma in the presence of P.W.3 and L.W.5 G. Vinesh Kumar and seized net cash of Rs.5000/- under cover of panchanama.

Thereafter, P.W.4 affected the arrest of the accused and got him remanded to judicial custody, on completion of investigation and after collecting the documentary evidence, P.W.4 filed charge sheet against the accused for the offence under section 380 IPC.

2. Considering the material on record, this Court took cognizance for the offence punishable under section 380 IPC against the accused.

3. On appearance of the accused, copies of case documents were furnished to him as contemplated under Section 207 of Code of

Criminal Procedure.

4.The Accused was examined under Section 239 of Code of

Criminal Procedure and separate charge under Section 380 IPC has been framed, readover and explained to the accused in Telugu, for which the accused denied the charge, pleaded not guilty and claimed to be tried.

5.To bring to home the guilt of the accused, the Prosecution has examined P.Ws.1 to 4 and exhibited Ex.P1 to P5 and MO1. P.W.1 is the Defacto-complainant; P.W.2 is one of the panch witnesses to the observation panchanama of the scene; P.W.3 is one of the panch witnesses to the Confession-cum-Seizure-Panchanama and P.W.4 is the Investigating Officer.

4 XVII ACMM C.C. No. 3098 OF 2019

6.After closure of Prosecution evidence, the accused was examined under section 313 of Code of Criminal Procedure by explaining incriminating circumstances, which are appearing in the evidence of prosecution witnesses and the accused denied the accusation and reported no defence evidence on his behalf.

7. This court heard the arguments of either side and perused the entire record.

Now the point for determination is whether the

Prosecution has proved the guilt of the accused for the

offence under section 380 IPC beyond all reasonable

doubts ?

8. As per the prosecution version, it is the brief case that in the intervening night of 12-11-2018 some unknown offenders have committed theft of net cash of Rs.45,000/- by breaking the glass of left side door of car Volks Wagon Bearing No.TS 09 TR 7947 of P.W.1, which was parked in the cellar of Swach Apartment, Road No.45,

Jubilee Hills, Hyderabad. It is further case of the prosecution that part of stolen property of Rs.5000/- was recovered from the possession of the accused under cover of Confession-cum-Seizure

Panchanama in the presence of P.W.3 and L.W5 G. Vinesh Kumar. To prove the guilt of the accused, the prosecution has relied on the evidence of P.Ws. 1 to 4.

5 XVII ACMM C.C. No. 3098 OF 2019

9. P.W.1 is the De facto-complainant. he deposed that on 12-11- 2018 at about 22:30 hours, he parked his vehicle i.e. Volks Wagon

Bearing No.TS 09 TR 7947 in the parking area of his apartment building. He further deposed that usually he used to keep the cash in the dash board of the car and on that day he kept cash of

Rs.45,000/- and on the next day morning i.e. on 13-11-2018 at 11:30

AM, he found that his car left side door glass was broken and cash was missing from dash board of the car, on that day as he was busy in his business circle and he was out of station, on 16-12-2018 complaint was lodged with the Police which is marked under Ex.P1.

10.P.W.2 is one of the witnesses to the Scene of Offene Observation

Panchanama. He deposed that on 16-12-2018, at 2:00 PM, he alngwith L.W.3 P. Shekar were called to Swach Apartment at Road

No.45, Jubilee Hills, Hyderabad and there they observed that in the parking area door glass of the car was broken condition and the

Police opened the car door and did not find anything. Accordingly, the Police drafted scene observation panchanama and drew Rough

Sketch under Exs.P2 and P3.

11. P.W.3 is one of the panch witnesses to the Confession-cum-

Seizure Panchanama. He deposed that on 22-12-2018, at 10:00 AM he was called to Jubilee Hills Police Station alongwith L.W.5 Vinesh

Kumar. There they saw one person in the custody of Police, who disclosed his name as Vijay Kumar and confessed that he committed theft cash of Rs.45,000/- from dash board of Volks Wagon car, which 6 XVII ACMM C.C. No. 3098 OF 2019 was parked in the cellar of Swach Apartment and further he confessed that next day 8:00 AM, when his Reliever came to the apartment to relieve him from his duty and did not ask anything about the incident and he left the place alongwith cash and went to his native place and later on the police recovered cash of Rs.5000/- from the possession of the accused. P.W.3 further deposed that the accused further confessed that the rest of the amount was spent lavishly for his personal needs. Accordingly, the police conducted confession-cum-seizure panchanama and seized Rs.5000/- from the possession of the accused under Ex.P4.

12.P.W.4 is the Investigating Officer, who registered the case did the entire investigation and filed charge sheet against the accused.

13.As per the evidence supra, admittedly the complaint was lodged against the unknown offenders. As per the record the alleged offence took place in the intervening night of 12-11-2018 and complaint was lodged on 16-12-2018 at 12:00 hours. In column No.8 of First

Information Report the reasons for delay are mentioned as the complainant was busy in his business activities and as he was out of station, as such the complaint could not be filed immediately. Even during the evidence, P.W.1 deposed accordingly. There is no cross- examination on this point. In fact, cross-examination of P.W.1 reported as NIL. The entire evidence deposed by PW1 remained unchallenged and unrebutted. Thus, the delay in lodging the complaint is not fatal to the prosecution case.

7 XVII ACMM C.C. No. 3098 OF 2019

14. The learned counsel for accused not at all disputed about the occurrence of alleged offence. In view of the evidence of P.W.2 it is proved that the observation of scene of offence panchanama was conducted in the presence of P.W.2. Nothing has been elicited during the cross of P.W.2 to disbelieve his evidence. P.W.3 is the material witness, who has given evidence that the accused voluntarily gave confession that he committed theft of cash of Rs.45,000/- from the dash board of car of P.W.1.

15. P.W.3 categorically deposed that the accused voluntarily confessed that the rest of the amount spent by him lavishly for his personal needs. Nothing has been elicited during the cross- examination of P.W.3 to didbelieve his evidence. Simply bald suggestions were given to P.W.3, which were denied by him.

16. The evidence P.W.4 is corroborated with the evidence P.Ws. 1 to 3. Even the seized property under MO1 was marked through

P.W.1. In view of the evidence of P.W.3 the identification of accused is also proved. The accused has not adduced any rebuttal evidence and also not given proper explanation about dishonest possession of

MO1 under his custody to disprove the prosecution case.

17. As can be seen from the record that in view of unrebutted evidence of PW.3, the Prosecution has proved beyond all reasonable doubt that the stolen property was recovered from the possession of accused. In view of Section 114(a) of the Indian Evidence Act, the 8 XVII ACMM C.C. No. 3098 OF 2019

Court may presume that a man who is in possession of stolen

goods soon after the theft is either the thief or has received

the goods knowing them to be stolen, unless he can account

for his possession. In the case on hand, the prosecution has proved that part of stolen property, i.e., MO.1 (Net cash of Rs.5000/- (Rs.Five thousand only) was recovered from the Accused. Now it is upon the accused to rebut the said fact, but he did not explain under what circumstances, the stolen property came into his possession.

Hence, in view of Presumption under Section 114(a), this Court presumes that the accused who is in possession of stolen property is a thief and committed the offence of theft in dwelling house etc., punishable under Section 380 IPC. Thus the prosecution has proved the guilt of the accused for the offence punishable under Section 380

IPC beyond all reasonable doubts.

18. In the result, the accused is found guilty for the offence under section 380 IPC.

( Dictated to the Stenographer transcribed and typed by her, corrected and pronounced be me in the Open Court on this the 29th day of April, 2019.)

XVII ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

Heard the accused on quantum of sentence (On a separate sheet), wherein the accused pleaded mercy and stated that he is having large family to support and to take lenient view. Having regard to the facts and circumstances of the case and the manner of proving the 9 XVII ACMM C.C. No. 3098 OF 2019 case against the accused, as part of stolen property was recovered from his possession, this Court is not inclined to take a lenient view and I am not invoking the provisions of Probation of Offenders Act.

The accused is convicted under Section 248(2) of Code of Criminal

Procedure and sentenced to undergo rigorous imprisonment for one year and fine of Rs.1000/- (Rs.One thousnad only) for the offence punishable under section 380 IPC. In default of payment of fine, the accused shall undergo simple imprisonment for two months.

The accused is in judicial custody from dt.22-12-2018 till today and the said period of detention undergone shall be set-off under section 428 of Code of Criminal Procedure.

The accused is appraised of his right to prefer an appeal against this Judgment. On enquiry, he stated he has no means to engage a counsel for preferring an appeal as such intimated about the services of District Legal Services Authority to prefer an appeal against this

Judgment.

Material Object (deposited vide P.I.No. of 20) i.e., MO.1, Net cash of Rs.5000/- (Rs.Five thousand only) shall be returned to the PW.1 after expiry of appeal period on proper verification, identification and acknowledgement.

( Dictated to the Stenographer transcribed and typed by her, corrected and pronounced be me in the Open Court on this the 29th day of April, 2019.)

XVII ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

10 XVII ACMM C.C. No. 3098 OF 2019

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION

PW.1: Mohd. Rafi, Defacto-complainant

P.W.2: M. Shiva Prasad, Panch witness for Scene observation

Panchanama

P.W.3 Mohd. Ayaz, Panch witness for confession cum seizure panchanam

PW4 P. Yadagiri, Investigating Officer

FOR DEFFENCE : NIL

EXHIBITS MARKED

FOR PROSECUTION

Ex..P1: Complaint

EX.P2: Scene Observation Panchanama

EX.P3: Rough Sketch

EX.P4: Confession-cum-seizure Panchanama

FOR DEFENCE: NIL

MATERIAL OBJECTS MARKED

FOR PROSECUTION:

MO1 Cash of Rs.5000/-

FOR DEFFENCE : NIL

XVII ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

11 XVII ACMM C.C. No. 3098 OF 2019 12 XVII ACMM C.C. No. 3098 OF 2019

(Hearing of accused on quantum of sentence)

IN THE COURT OF THE XVII ADDL. CHIEF METROPOLITAN

MAGISTRATE, NAMPALLY, HYDERABAD

(Dated on this the 29th day of April, 2019)

C.C.No. 3098 of 2019

Accused:Yalla Vijay Kumar @ Nani @ Vijay,

S/o. Late Jayanth Rao

Q.1You are found guilty for the offence punishable under section 380 IPC.

What do you say about the quantum of sentence?

Ans.

Q.2Do you know that you have got a right to prefer an appeal?

Ans.

Q.3Have you got means to engage a counsel for preferring an appeal?

Ans.

13 XVII ACMM C.C. No. 3098 OF 2019 14 XVII ACMM C.C. No. 533 OF 2018