K.Madhavi Devi, B.Sc., B.Ed., B.L.

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IN THE COURT OF ADDL., JUNIOR CIVIL JUDGE :: REPALLE

Present :- Smt K.Madhavi Devi, B.Sc., B.Ed., B.L.,

Addl., Junior Civil Judge, Repalle

TUESDAY, THE 24 th DAY OF APRIL, 2018

C.C.No.172/2018

BETWEEN: The State : Rep. by Sub-Inspector of Police, Tsodayapalem Police Station.. . . COMPLAINANT AND

1. Padavala Srikanth, S/o.Prasad, 29 Yrs., Kunchanapalli Village, Tadepalli Mandal.

2. Katragadda Rajesh, S/o.Nageswara Rao, 31 Yrs., Kamma, Nalluripalem Village, Repalle Mandal.

3. Cherukuri Kondaiah, S/o.Malakondaiah, 53 Yrs., Kamma, 2/10, Brodipeta, Manoj Residency, Guntur.

4. Oleti Gangadhar, S/o.Satyam @ Nallasatyam, 45 Yrs., Pallekari, Lakshmipuram Village, Repalle Mandal.. . . ACCUSED This case is coming on 23­04­2018 for final hearing before me in the presence of learned Assistant Public Prosecutor for the State and of Sri D.Rambabu, Advocate

for Accused. Having stood over for consideration till this day, this court delivers the

following:­

J U D G M E N T

1.The state represented by the Sub-Inspector of Police, Tsodayapalem Police

Station filed charge sheet in Cr.No.17/2018 against the accused for the offence under

Sec.34(a) of A.P.Excise Act.

2.Brief facts of the Prosecution case are as follows:- A.1/P.Srikanth is resident of Kunchanapalli Village, A.2/K.Rajesh is auto driver who deliberately transporting liquor, A.3/Ch.Kondaiah is resident of Guntur is owner of Meghana wines, A.4/O.Gangadhar is running a belt shop at Lakshmipuram Village. A.1 to A.4 with common intention in order to get illegal gain, A.3 leased out Meghana Wines to

A.1/Srikanth without any legal transaction about 2 months ago. In course of their works A.4/O.Gangadhar required liquor, A.1/P.Srikanth engaged the auto of

A.2/K.Rajesh for an amount of Rs.500/- as hire amount and loaded 18 cartons liquor contained (1) 2 Knockout cartons each box contains 12 beers total 24 bottles each bottle contains 650 M.L., (2) 3 Budweiser cartons each box contains 12 beers total 36 bottles each bottle contains 650 M.L., (3) 2 Cartons Kingfisher beer each box contains 12 beers total 24 bottles each bottle contains 650 ML, (4) 2 Cartons Officer

Choice each box contains 96 bottles total 192 bottles each bottle contains 90 M.L.,

Whisky, (5) 4 cartons Old Tavern quarter bottles each carton contains 48 bottles total 192 bottles and each bottle contains 180 M.L., Whisky, (6) one carton Imperial Blue

Liquor bottle contains 48 bottles and each bottle contains 180 M.L., Whisky, (7) 2 cartons officers choice liquor bottles each carton contains 48 bottles total 96 bottles and each bottle contains 180 M.L., (8) 6 Imperial Blue Liquor full bottles, (9) 2

Mc.Whisky full bottles, (10) 2 full bottles Aristocrat Premium and the above said full 2 bottles packed in a carton, (11) 1 carton contain 48 bottles of 180 M.L.,

Mc Whisky bottles after tearing its batch numbers to avoid identity and transporting the liquor to Lakshmipuram, meanwhile A.1 and A.2/P.Srikanth, K.Rajesh were caught hold when L.Ws.3 and 5/N.Srinivasa Rao, K.Ch.Sambaiah conducted joint operation at

Gangadaipalem T Road Junction with the assistance of L.Ws.1, 2 and 4/G.I.Raju,

Sk.Md.Arif, J.Vijay Kumar. As nobody came forward to act as mediators L.W.5 constrained to prepare police proceedings, then basing on the police proceedings registered a case in Cr.No.17/18 for the offence punishable under Sec.34(a) of

A.P.Excise Act, 1968. During the course of investigation L.W.5 examined L.Ws.1 to 4, recorded their statements, also visited the scene of offence, prepared the rough sketch. Further, during the course of investigation L.W.5 submitted a requisition to

APBCL, IML Depot, Tenali with the bar code mentioned on the cartons including the material, in turn they verified the cartons including its bar code with their records and issued a certificate that the stocks were supplied to Meghana Wines, Repalle.

After completion of investigation L.W.5 filed charge sheet against the accused for the offence under Sec.34(a) of A.P.Excise Act.

3.The case was taken into cognizance for the offence under Sec.34(a) of

A.P.Excise Act against the accused.

4.After appearance of accused case copies were furnished to them as required under Sec.207 Cr.P.C., and thereafter accused were examined under

Sec.239 Cr.P.C., for which they denied the offence. Hence a charge under Sec.34(a) of

A.P.Excise Act has been framed against accused, read over and explained the charge to accused in Telugu for which they pleaded not guilty and claimed to be tried.

5.During the course of trial the Prosecution examined P.Ws.1 to 4 and got marked Exs.P.1 to P.4 and M.Os.1 to 13.

6.After closure of entire Prosecution evidence the accused was examined under

Sec.313 Cr.P.C., and I explained the incriminating evidence appearing against him in

Telugu, for which the accused denied the evidence of prosecution witnesses and stated that he has no defence witnesses to be examined on his behalf.

7.I heard arguments from both the sides. Now the following point arise for determination in this case Whether prosecution proved guilt of the accused for

the offence under Sec.34(a) of A.P.Excise Act beyond all reasonable doubt?

8. Point:- The learned Assistant Public Prosecutor argued that the evidence of

P.Ws.1 to 4 coupled with Exs.P.1 to P.4 and M.Os.1 to 13 goes to show that the accused has committed the offence and the prosecution proved the case beyond all reasonable doubt against the accused.

3 The defence counsel argued that no independent witnesses examined by the prosecution, no local mediators secured at the time of seizure of contraband, the entire case is depending upon the case proceedings which is infirmities. Hence, prays to acquit the accused on the ground of benefit of doubt.

9.P.Ws.1 to 4/N.Srinivasa Rao, J.Vijay Kumar, G.I.Raju, K.Ch.Sambaiah, deposed in their evidence that 17-02-2018 as per the information received by P.W.4 about the illegal transport of liquor, they along with L.W.2/Sk.Md.Arif, went to the

Gangadipalem Village, T Road Junction and conducting vehicle checking along with the P.Ws.1 and 2, at about 11.30 P.M., there they noticed one auto bearing No.AP07TE 6850 came opposite to them, on that P.W.4 stopped the auto and checked the auto and enquired the auto driver, the auto driver further stated that the auto contains the liquor bottles and the owner of the liquor bottles is sitting besides to him. The auto driver disclosed his name Katragadda Rajesh/A.2. Then, P.W.4 enquired the another person who is in the auto, then he disclosed his identity particulars as Padavala

Srikanth/A.1, S/o.Prasad and also admitted that prior to months of this offence they sub-leased the shop belongs to Accused No.3/Ch.Kondaiah who is resident of Guntur and has taken D.Ds and Challans in the name of Accused No.3 for the purpose of securing liquor. But A.3 sustained loss after sub-lease, then he decided to distribute the liquor bottles to the belt shops to gain and in that process on the date of offence for the purpose of distribute the liquor bottles to Accused No.4/O.Gangadhar they proceeded in the said auto and also he stated that he supplied the bottles on MRP rates and he in turn selling the said bottles of Rs.20/- of MRP and also in this connection called A.2 to transport the liquor who is the owner of the auto for an amount of Rs.500/- as transport charges. Then, P.W.4 and P.W.1 verified the auto and found (1) 2 Knockout cartons each box contains 12 beers total 24 bottles each bottle contains 650 M.L., (2) 3 Budweiser Cartons each box contains 12 beers total 36 bottles each bottle contains 650 M.L., (3) 2 Cartons Kingfisher beer each box contains 12 beers total 24 bottles each bottle contains 650 M.L., (4) 2 Cartons

Officers Choice each box contains 96 bottles total 192 bottles each bottle contains 90

M.L., Whisky (5) 4 Cartons Old Tavern Quarter bottles each carton contains 48 bottles total 192 bottles and each bottle contains 180 M.L., Whisky, (6) 1 carton

Imperial Blue Liquor bottle contains 48 bottles and each bottle contains 180 M.L.,

Whisky, (7) 2 Cartons Officers Choice Liquor bottles each carton contains 48 bottles; total 96 bottles and each bottle contains 180 M.L., (8) 6 Imperial Blue Liquor full bottles (9) 2 Mc.Whisky full bottles, (10) 2 full bottles Aristocrat Premium and the above said full bottles packed in a carton, (11) 1 carton contain 48 bottles of 180

M.L., Mc.Whisky bottles after tearing its batch numbers. On further, enquiry accused

No.1 failed to produce any valid licence to transport the liquor bottles and also there are no Heal Numbers, Batch Numbers on the caps and they also admitted that they removed the Heal numbers and Batch numbers. Then, P.W.4 also examined the auto 4 driver/Accused No.2, and then P.W.4 disclosed that Accused No.1 asked him to transport the said bottles for an amount of Rs.500/- and meanwhile the police caught hold him and Accused No.1. A.2 further stated that he has to go to the house of

Accused No.4. Further, A.2 failed to produce any valid documents pertained to auto.

Then, with the assistance of P.W.1, P.W.4 took one bottle from each brand i.e., 11 bottles under M.Os.1 to 11, under cover of police proceedings/Ex.P.1 and P.W.4 signed on it. P.W.4 also seized the auto bearing No.No.AP07TE 6850 under M.O.12 and remaining case property under M.O.13. Then, P.W.4 informed the grounds of arrest and brought accused Nos.1 and 2 along with auto containing property, to the

Tsodayapalem Police Station for necessary action. Then, basing on the police proceedings, P.W.4 registered a case in Cr.No.17/18 under Sec.34(a) of A.P.Excise Act, and issued FIR under Ex.P.2, investigated into. Then, P.W.4 also examined and recorded the statements of P.Ws.1 to 3 and L.W.2. Again P.W.4 went to the scene of offence, prepared rough sketch under Ex.P.3. Then, P.W.4 issued Sec.41(A) Cr.P.C notices to Accused Nos.1 and 2. On 26-02-2018 Accused Nos.3 and 4 voluntarily came to the Police Station and admitted their guilty of offence, then P.W.4 issued Sec.41(A)

Cr.P.C notices to Accused Nos.3 and 4. Then, P.W.4 send the samples for Chemical

Analysis under letter of advise and after receipt of analysis report under Ex.4. P.W.4 addressed a letter to the Excise Superintendent Office to know the batch numbers relating to wine shop, they disclosed that the said liquor was distributed to Meghana

Wines, Aravapalli and after completion of investigation P.W.4 filed charge sheet against you for the said offence. P.Ws.1 to 4 have denied the suggestion that they never conducted raid, arrested the accused in possession of liquor bottles and that they foisted a case against the accused.

10. Having gone through the record, P.Ws.1 to 4 are the official witnesses. It is a fact that the Prosecution has failed to examine any independent witness in support of it's case, therefore the evidence of P.Ws.1 to 4 are alone available on record to prove guilt of the accused.

11.Sec.23 of A.P.Prohibition Act, 1995 emerges that while arrest, search and seizure in prohibition offence the police should follow the procedure as stated in the code of Cr.P.C. “Sec.100(4) of Cr.P.C enumerates that before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do”.

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12.As per Sec.100(4) of Cr.P.C the Investigating Officer is required to secure at least two local inhabitants as mediators to witness the search and seizure. It is revealed from the evidence of P.W.4 that he did not try to secure mediators from the scene of offence or from any village. Further, P.W.4 has not issued any written summons to anybody to act as mediators. Thus alleged contraband was seized in the absence of local inhabitants.

In “Yedduru Sreenivasul Reddy Vs State of A.P” held at Para 13 that:- “Sec.55 of the Act contains valuable safeguards for the liberty of

citizen in order to protect them from ill founded or frivolous prosecution or

harassment, of course the petitioner did not raise such pleas before the

Court below, but it is for the prosecution to bring on record while charging.

The accused is that they have followed the procedure contemplated under

Sec.55 of the Act and Sec.100(4) of the code. For these reasons, I am

satisfied that the prosecution has filed to prove that P.Ws.1 to 3 have followed

such procedure. Consequently for these lacuna that search and seizure is

vitiated and the conviction is wholly unsustainable. Accordingly, the Criminal

Revision Petition is allowed and the conviction and sentence are set aside”.

13.The above authority made very clear that search and seizure shall be conducted in the presence of local inhabitants of that locality and searching officer shall made sincere efforts to secure mediators by the time of search and seizure of contraband. In the instant case P.W.4 did not follow the procedure laid down in

Sec.100(4) of Cr.P.C. It is fatal to the case of prosecution. Hence it is held that P.W.4 has not made any efforts to secure mediators while seizing alleged liquor bottles, thereby he violated the mandatory procedure under Sec.23 of the Act. In view of circumstances, the above authority is squarely applicable to the present case.

14.Further, the learned counsel for accused argued that the confession before the

Police Officials shall not be proved against the accused, hence alleged confession of accused shall not be considered.

In Mudavath Mothia Vs State of A.P, their Lordship held that “the offence

under Sec.4 of the AP Excise Act 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 beg never say that they

are not the police officials, the confession recorded by these officers in the

proceedings is inadmissible. Moreover, Ex.P.5 panchanama is hit by Sec.25,27

of the Indian Evidence Act and under Sec.161 Cr.P.C. The benefit if any arises

due to the invalidity of the Investigation only goes to the accused and once

Ex.P.5 is hit by Sec.25 and 27 of Indian Evidence Act and Sec.161 Cr.P.C and

when the independent witnesses are not examined by the prosecution, the

prosecution theory of seizing the sachets from the custody of the accused has

to be looked with suspicion. The non-examination of independent mediators

is fatal to the prosecution version. The seizure proceedings drafted also

cannot be considered in view of the bar under Secs.25 and 27 of the Indian

Evidence Act and Sec.161 Cr.P.C. It is not a case where the property was

seized by virtue of confession made. When it is also not admissible in view of

the legal bar and invalid proceedings, it is a fit case where the accused be

given the benefit of doubt. Both the Courts have not looked into the evidence

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from proper angle. The conviction and sentence awarded is, therefore, liable

to set aside due to the illegality of the proceedings drafted. As such, it is

unsafe to rely upon the evidence of Excise officials to convict the accused,

which is not corroborating by independent witness”.

15.The above authority is very much relevant to the present case in hand. The alleged confession of accused before Police is not proved beyond all reasonable doubt. The said confession to Police is hit by Secs.25 and 27 of Indian Evidence Act.

Hence alleged confession not be used against the accused. As such the Ex.P.1/Special

Report cannot be relied upon.

16.The learned counsel for accused further submitted that, it is settled law that the person who is a complainant in a case should not be allowed as an Investigating

Officer in such case the investigation certainly prejudice the accused and impartial investigation is doubtful. Further he submitted that, in the instant case, as per prosecution, P.W.4 detected the offence, registered the case and conducted entire investigation and therefore, the evidence of P.W.4 is doubtful.

In support of his contentions, he relied on ''Gurazala Ramesh and others Vs. State of Andhra Pradesh1''. Wherein their lordship held that “........ same police officer who detected and found the offence gave FIR and also investigated. Hence, it is manifest illegality is committed by the same officer who detected the offence or crime also gave FIR and investigating in to the crime and filed charge sheet. Hence, impugned convictions and sentences as conformed by the Applet Court or unsustainable at law, Hence have to be set a side”. In this case Hon'ble High Court of Andhra Pradesh referred judgment of supreme court reported in Bhagavan Singh Vs. Stage of Rajasthan2. Wherein it is held in Para No. 5 that: ''it is postulated that infirmity arisen out of the investigation by the Head Constable who lodged the FIR as complainant, will be an infirmity which is bound to reflect on the credibility of the case of the prosecution. ''

17.The above authority makes clear that the complainant cannot be acted as

Investigating Officer and it is not safe to rely upon the investigation done by the complainant as there is every possibility of prejudice to the accused and impartial investigation is doubtful.

18.In the case on hand, P.W.4 who is complainant himself investigated the case. It clear from the record that entire proceedings in this case were taken up by P.W.4 alone. Here P.W.4, detected the offence, seized the contraband, drawn the sample, prepared the special report, arrested the accused, registered the police proceedings and sent the sample to analysis. In view of circumstances, the above authorities are very much relevant to the present case in hand. In view of above authorities, impartial investigation by the complainant is doubtful. Further, the Accused Nos.3 and 4 were implicated basing on the oral statement of Accused Nos.1 and 2.

12003 (2) ALD (Crl.) 13 (A.P.) 2AIR 1976 SC 985 7

19.Under the above facts and circumstances and aforesaid discussion, it is held that there were several material lacunas and clouds in the prosecution's case that there were several procedural irregularities during the alleged search and seizure.

Hence it is held that, the prosecution has failed to bring home guilt of the accused and the accused are entitled for acquittal.

20.In the result the Accused Nos.1 to 4 are found not guilty for the offence under

Sec.34(a) of A.P.Excise Act, hence they are acquitted under Sec.248(1) Cr.P.C., for the said offence. Bail bonds of the accused shall stand cancelled after lapse of appeal time. M.Os.1 to 11 shall be destroyed after expiry of appeal time. M.O.12 Auto bearing No.No.AP07TE 6850, which was returned to Accused No.2 for Interim custody shall be made absolute after lapse of appeal time. M.O.13 shall be auctioned and the sale proceedings shall be confiscated to the state after lapse of appeal time.

Typed to my dictation by the Personal Assistant, corrected and pronounced by me in the open Court on this the 24th day of April, 2018.

Sd/- K.Madhavi Devi,

ADDL., JUNIOR CIVIL JUDGE

REPALLE

Appendix of Evidence

Witnesses Examined

For Prosecution : For Defence :: NIL. P.W.1: N.Srinivasa Rao P.W.2: J.Vijay Kumar P.W.3: G.I.Raju P.W.4: K.Ch.Sambaiah

Documents Marked

For Prosecution : Ex.P.1 : Police Proceedings Ex.P.2 : FIR Ex.P.3 : Rough Sketch Ex.P.4 : Analysis Report For Defence : NIL

Material Objects Marked : M.Os.1 to 11 Sample bottles M.O.12: Auto bearing No.No.AP07TE 6850

M.O.13: (1) 23-650 M.L., Knockout Beer bottles(2) 35-650 M.L., Budweiser beer bottles (3) 23-650 M.L., Kingfisher beer bottles (4) 191-90 M.L., Officers Choice Whisky bottles, (5) 191-180 M.L., Old Tavern Whisky bottles, (6) 47-180 M.L., Imperial Blue Whisky bottles, (7) 95-180 M.L., Officers Choice Liquor bottles (8) 5 Imperial Blue Liquor full bottles (9) 1 Mc.Whisky full bottles, (10) 1 full bottle Aristocrat Premium, (11) 47-180 M.L., Mc.Whisky bottles

Sd/- K.Madhavi Devi,

ADDL., JUNIOR CIVIL JUDGE

REPALLE

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CALENDAR AND JUDGMENT

IN THE COURT OF ADDL., JUNIOR CIVIL JUDGE :: REPALLE

C.C.No.172/2018

Date of:

Report orApprehensionCommence-Close of OffenceRelease on bailSentence of Order Complaintof accusedment of trialTrial 17-02-1818-02-1818-02-1818-02-1819-04-1820-04-1824-04-18 BETWEEN: The State : Rep. by Sub-Inspector of Police, Tsodayapalem Police Station.. . . COMPLAINANT AND

1. Padavala Srikanth, S/o.Prasad, 29 Yrs., Kunchanapalli Village, Tadepalli Mandal.

2. Katragadda Rajesh, S/o.Nageswara Rao, 31 Yrs., Kamma, Nalluripalem Village, Repalle Mandal.

3. Cherukuri Kondaiah, S/o.Malakondaiah, 53 Yrs., Kamma, 2/10, Brodipeta, Manoj Residency, Guntur.

4. Oleti Gangadhar, S/o.Satyam @ Nallasatyam, 45 Yrs., Pallekari, Lakshmipuram Village, Repalle Mandal.. . . ACCUSED

Crime Number17/18 of Tsodayapalem P.S., OffenceUnder Sec.34(a) of A.P.Excise Act Plea of AccusedNot guilty Finding of the CourtFound not guilty Judgment:- In the result the Accused Nos.1 to 4 are found not guilty for the offence under Sec.34(a) of A.P.Excise Act, hence they are acquitted under Sec.248(1) Cr.P.C., for the said offence. Bail bonds of the accused shall stand cancelled after lapse of appeal time. M.Os.1 to 11 shall be destroyed after expiry of appeal time. M.O.12 Auto bearing No.No.AP07TE 6850, which was returned to Accused No.2 for Interim custody shall be made absolute after lapse of appeal time. M.O.13 shall be auctioned and the sale proceedings shall be confiscated to the state after lapse of appeal time.

Sentence : --

Explanation of delay and remarks:- - - -

Sd/- K.Madhavi Devi,

ADDL., JUNIOR CIVIL JUDGE

REPALLE

Copy submitted to: 1.The Hon’ble Chief Judicial Magistrate, Guntur. 2.The Superintendent of Police (Rural), Guntur. // True Copy //

AJCJ, Repalle.

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IN THE COURT OF ADDL., JUNIOR CIVIL JUDGE :: REPALLE

Present :- Smt. K.Madhavi Devi, B.Sc., B.Ed., B.L.,

Addl., Junior Civil Judge, Repalle

TUESDAY, THE 24 th DAY OF APRIL, 2018.

C.C.No.423/2013

BETWEEN: The State : Rep. by Sub-Inspector of Police, Nizampatnam Police Station.. . . COMPLAINANT AND

1. Koppati Ramesh, S/o.Somaiah, 25 Yrs.,

2. Peetha Venkata Krishna Rao @ Chinnabbai, S/o.Jaya Ramaiah, 27 Yrs., Both are Pallekari, R/o.Nizampatnam Village.. . . ACCUSED This case coming on 13-04-2018 for final hearing before me in presence of learned Assistant Public Prosecutor for the State and of Sri S.Srinivasa Rao, Advocate

for accused. Having stood over for consideration till this day, this court delivers the

following:-

J U D G M E N T

1.The state represented by the Sub-Inspector of Police, Nizampatnam Police

Station filed charge sheet in Cr.No.71/13 against the accused for the offence under

Sec.324 r/w.34 of IPC.

2.Brief facts of the Prosecution case are as follows:- On 25-08-2013 at 11 P.M., while L.Ws.1, 3 and 4/K.Nagarajuna, Sunnampudi Gopi and Vallabhaneni

Srinu were proceeding to their house, Accused Nos.1 and 2 and P.Venkata Krishna

Rao and tried to beat L.W.3/S.Gopi, but L.W.3 fled away. When L.W.1/K.Nagarjuna asked the accused about misbehavior towards L.W.3/S.Gopi, the accused beat L.W.1 with a knife on his left hand wrist and on abdomen and caused injuries. Basing on the statement of L.W.1, L.W.9/S.I of Police, Nizampatnam Police Station registered a case in Cr.No.71/13 for the offence under Sec.324 r/w.34 of IPC, investigated into and after completion of investigation he filed charge sheet against the accused for the said offence.

3.The case was taken into cognizance for the offence under Sec.324 r/w.34 of IPC against the accused.

4.On appearance of accused case copies were supplied to them as required under Sec.207 Cr.P.C., and thereafter the accused were examined under

Sec.239 Cr.P.C. Charge framed for the offence under Sec.324 r/w.34 of IPC against

Accused, and the same were read over and explained to accused in Telugu, for which they pleaded not guilty and claimed to be tried.

5.During the course of trial the Prosecution examined P.Ws.1 to 7, C.W.1 and got marked Exs.P.1 to P.6 and Exs.C.1 and C.2.

6.After closure of entire Prosecution evidence the accused were examined under

Sec.313 Cr.P.C., and I explained the incriminating evidence appearing against them in

Telugu, for which the accused denied the evidence of prosecution witnesses and stated they have no defence witnesses to be examined on their behalf.

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7.I heard arguments from both the sides and now the following points arise for determination in this case:- Whether the prosecution proved guilt of the

Accused Nos.1 and 2 for the offence under Sec.324 r/w.34 of IPC beyond all

reasonable doubt?

The prosecution alleged that on 25-08-2013 at 11 P.M., while P.Ws.1 to 3 were proceeding to their house, Accused Nos.1 and 2 and P.Venkata Krishna Roa and tried to beat P.W.2, but P.W.2 fled away. When P.W.1 asked the accused about misbehavior towards P.W.2, the accused beat P.W.1 with a knife on his left hand wrist and on abdomen and caused injuries.

In support of the same, the prosecution examined P.Ws.1 to 7, C.W.1 and got marked Exs.P.1 to P.6 and Exs.C.1 and C.2.

8.Point:- To prove the guilt of the accused for the offence under Sec.324 of

IPC, the prosecution has to establish the ingredients of Sec.324 of IPC i.e., (1) Whether P.W.1 sustained simple injuries and (2) Whether the accused caused simple injury to P.W.1.

9.P.W.1 testifies in his evidence that on 25-08-2013 at around 10.30 P.M., there was a quarrel took place between his friend/P.W.2-S.Gopi and Accused No.1 at the house of Munemma. Thereafter, the quarrel was subside, then himself and his friend/P.W.2 went away. On the same day at about 11 P.M., himself, P.Ws.2 and 3 coming to their respective houses, when they reached to the house of P.W.5, Accused

No.1 armed with a knife and stopped them and tried to hack P.W.2. P.W.2 defended and ran away from the scene of offence. When, he questioned Accused No.1 about his attack, Accused No.1 in turn replied that why he is interfering and asked Accused

No.2 to hack him. Accuse No.2 hacked him on his left side of the stomach and when

Accused No.2 tried to hack him on his neck and he tried to defend, resulting which he sustained injury to his left hand. Accused No.1 kicked him with leg.

10.P.W.2 who is friend of P.W.1 testifies in his evidence that on 25-08-2013 at around 10 P.M., himself, P.Ws.1 and 3 were standing in front of one Munemma’s house, Accused Nos.1 and 2, P.Venkata Krishna Rao came near to them and Accused

No.2 asked him for match box, in turn he told that there was no match box with him.

With hearing their words Accused No.1 and 2 came against him, P.Ws.1 and 3.

Thereafter they subside and left the place. Again Accused Nos.1 and 2 came to them, when they are standing in front of Anjamma’s house, Accused No.2 came with a knife and gave a blow with a knife. Resulting which he sustained injury on his right side ribs. Accused No.2 hacked P.W.1 on left side below to the ribs and also hacked P.W.3 on his left hand 3 rd finger and on his head.

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11.P.W.3 who is also friend of P.Ws.1 and 2 and direct eye witness to the incident stated in his evidence that on 25-08-2013 at about 10 P.M., while he along with P.Ws.1 and 2 were present at the house of Munemma, at that time Accused Nos.1 and 2 came and disputed with them. Even though, they proceeded from the house of Munemma and when they reached at some distance, and at about 11 P.M., when they reached to the house of one Anjamma/P.W.5 at that time Accused Nos.1 and 2 came to them at the house of P.W.5 and asked them about the previous disputes at about 10 P.M., and also disputed with them. Accused No.1 hacked with a knife on P.W.2’s left shoulder, on that he escaped from A.1 and went away, then P.W.1 questioned Accused No.1, on that

Accused No.2 stabbed with a knife on the left side stomach of P.W.1, when P.W.1 put his left hand to rescue, on that the knife attacked on the left hand, then P.W.1 sustained bleeding injury and he fell down, then accused Nos.1 and 2 beat P.W.1 with hands and legs on P.W.1.Further, Accused Nos.1 and 2 beat him also with hands and legs. P.W.1 went away from that place and went to the house of his sister. L.W.2 and

P.W.4 shifted P.W.1 to the Government Hospital, Repalle.

12.P.W.4 who is said to be witnessed the offence deposed in his evidence that at about 4 years ago at about 11 P.M., while he was returning from natural calls and he found P.Ws.1 to 3 proceeding in front of him and while they reached to the house of

P.W.5/K.Anjamma Accused Nos.1 and 2 disputed with P.Ws.1 to 3 and Accused No.2 stated to P.Ws.1 to 3 that who came to rescue them if he hacked P.Ws.1 to 3 with knife and then Accused No.2 took the knife in the hands of Accused No.1 and hacked P.W.2 on the left shoulder and also on left hand of P.W.3 and also hacked P.W.1 on the left side of the lower abdomen and P.W.1 tried to rescue himself and put his left hand in order to avoid the knife, on that P.W.1 sustained injury to his left hand and P.W.1 fell down on the ground and then Accused Nos.1 and 2 kicked P.W.1 with legs, then P.W.1 pushed Accused Nos.1 and 2, fled away into the house of his elder sister. Then, he called 108 ambulance and shifted P.W.1 to the Government Hospital, Nizampatnam and further P.W.1 shifted to Government Hospital, Repalle, then P.W.1 was shifted to

Government Hospital, Tenali and Government General Hospital, Guntur as per the advise of the doctors.

The learned defence counsel cross-examined P.Ws.1 to 4 elaborately, but nothing is elicited contrary to the case of prosecution. In their cross-examination

P.Ws.1 to 4 have denied the suggestion put by the learned defence counsel that they have filed a false case against the accused.

13.The prosecution examined the independent witness as P.W.5. But P.W.5 did not support the case of prosecution. In her evidence she stated that she does not know anything about this case and police not examined her. The learned APP cross- examined P.W.5, but nothing was elicited in favour of the case of prosecution. Ex.P.2 is

Sec.161 Cr.P.C statement of P.W.5.

4

14. P.W.6 deposed in his evidence that on 26-08-2013 he received hospital intimation under Ex.P.3, then he visited to the Government Hospital, Guntur and recorded the statement of P.W.1, then he forwarded the same to the P.W.7 on point of jurisdiction. The Investigation Officer/P.W.7 stated in his evidence that on 29-08-2013 at 4 P.M., he received hospital intimation along with statement of P.W.1, basing on that he registered a case in Cr.No.71/13 for the offence under Sec.324 r/w.34 of IPC, issued FIR under Ex.P.5 and then he visited to the Hospital, examined and recorded the statement of L.W.2/K.Nagendramma, P.Ws.2 to 5, then he visited to the scene of offence, drafted rough sketch under Ex.P.6. On 26-09-2013 at about 11 A.M., he arrested Accused Nos.1 and 2 and sent them for remand, after completion of investigation he filed charge sheet against the accused for the said offence.

15.C.W.1/Dr.K.R.S.S.Chowdary testifies in his evidence that he came before this

Court on receipt of summons from the Court to certify the signature of the

Dr.U.B.Reddy who worked during the period from 15-11-2012 to 2014. After that the said Dr.U.B.Reddy resigned from his job and at present the whereabouts of

Dr.U.B.Reddy is not known. As per the Attendance register, as per joining and on perusal of the signature in the wound certificate of P.W.1/K.Nagarjuna, he certifies that the signature in the Wound Certificate of P.W.1 is belongs to Dr.U.B.Reddy.

16.According to the evidence of P.Ws.1 to 3, on the date of offence while they were proceeding to their house, Accused Nos.1 and 2 tried to beat P.W.2. When P.W.1 asked the accused about misbehavior towards P.W.2, the accused beat P.W.1 with a knife on his left hand wrist and on abdomen and caused injuries, the accused were also beat

P.Ws.1 and 3. Further, P.W.4 who is eye witness to the incident clearly supported the version of P.Ws.1 to 4 on each aspects. The main contention of the learned counsel for the accused is that the evidence of prosecution witness is an improved version, the allegation against the accused were not made, hence the same can not b e relied upon. But on scrupulous perusal of the evidence of prosecution disclosed that, the witness including the Investigating Officer supported the version of P.W.1 in one way or other way and their evidence is consistent with the evidence of PW.1. Even though, the learned counsel for the accused cross-examined P.Ws.1 to 4 at length, he failed to discredit their evidence on any material aspect except giving suggestions.

17.Further, in this case the counsel for the accused submitted in his argument that the independent witness/P.W.5 not supported the case of prosecution to prove that the accused caused simple injuries to P.W.1. Generally for each offence, the independent witnesses may not supported to the case of prosecution and in this case P.Ws.1 to 3 who are injured and P.W.4 direct eye witness to the incident clearly supported the version of prosecution. For the only reason the independent witness not supported to the injured witness, the evidence of P.Ws.1 to 4 cannot be discarded.

5

18.The evidence of P.Ws.1 to 4 clearly supported the contents of Ex.P.1 and established that the Accused Nos.1 and 2 involved in the commission of offence against the P.W.1 who sustained simple injuries. Further, on perusal of the wound certificate of P.W.1 under Ex.P.4, and the evidence of P.Ws.1 to 4 clearly supported to the injuries sustained by P.W.1 in the hands of accused. The evidence of prosecution witnesses and the circumstances are very much consistent in nature. In the present case, the evidence of P.Ws.1 to 4 and Wound Certificate/Ex.P.4 clearly goes to show that their evidence is conclusive in nature and there is a complete chain of evidence which is not leaving any ground for drawing the innocence of Accused Nos.1 and 2.

19.Further, the defence counsel argued that the Investigation Officer/P.W.5 failed to seize the blood stained clothes of P.W.1.

In this regard, this Court relied upon decision reported in 2009(2) ALD (Crl.) 250 (SC) Held that: The Authorities held in the above decision­Non­Seizure of blood stained clothes of witness merely an error on part of Investigation Officer and it must be viewed as a minor error on the part of the Investigation Officer.

The above decision given by the authorities are applicable to the present case. In this case non-seizure of blood stained clothes of P.W.1 is not fatal to the case of prosecution and it is only an error on the part of the Investigation Officer. Because of that lacuna the accused cannot be escaped from the criminal liability.

20.Further, this Court relied upon decision reported in 2009(2) ALD (Crl.) 121

(AP), wherein it was held that: It is settled law that merely because there are

disputes between the parties of that the prosecution witnesses are an inimical terms

with the accused their evidence need not be discarded, there will be minor

contradictions and omissions in the evidence of natural witnesses and therefore no importance need be given to such minor contradictions and omission.

Thus the above decision given by the authorities are applicable to the present case facts and circumstances. Even though there are minor contradictions in the evidence of prosecution witnesses, it is not considerable point to discard the evidence of P.Ws.1 to 4 because of lapse of several years the witness may forgot their previous statements.

21.In view of the overall consideration of the available oral and documentary evidence and above observation, this court hold that the prosecution successfully established the guilt of Accused Nos.1 and 2 beyond all reasonable doubt as to the injuries made by him upon P.W.1, which attracts the offence punishable under Sec.324 r/w.34 of IPC.

6

22.In the result the Accused Nos.1 and 2 are found guilty for the offence under

Sec.324 r/w.34 of IPC, hence they are convicted under Sec.248(2) of Cr.P.C for the said offence.

Dictated to the Personal Assistant directly on Computer System, corrected and

pronounced by me in the open Court on this the 24th day of April, 2018.

Sd/- K.Madhavi Devi,

ADDL., JUNIOR CIVIL JUDGE

REPALLE

23.On questioning about the quantum of sentence to be imposed against the

Accused under Sec.324 r/w.34 of IPC, the Accused No.1 stated that his mother is no more and his father is old aged and he has to look after the welfare of his father and he is the sole bread winner of his family. The Accused No.2 stated that he is having children, wife and he is sole bread winner of his family. The Accused Nos.1 and 2 have pleaded mercy of this court. Having considering the mercy pleaded by the accused, having observing facts and circumstances of this case, this court take lenient view and accordingly the Accused Nos.1 and 2 are sentenced to pay a fine of Rs.500/- each for the offence under Sec.324 r/w.34 of IPC, in default of payment of fine of

Rs.500/- the Accused Nos.1 and 2 shall undergo Simple Imprisonment for a period of one week. Sd/- K.Madhavi Devi,

ADDL., JUNIOR CIVIL JUDGE

REPALLE

Appendix of Evidence

Witnesses Examined

For Prosecution : For Defence :: NIL. P.W.1: K.Nagarjuna P.W.2: S.Gopi P.W.3: V.Srinu P.W.4: B.Koteswara Rao P.W.5: K.Anjamma P.W.6: D.Venkateswara Rao P.W.7: V.Babu Rao C.W.1: K.R.S.S.Chowdary

Documents Marked

For Prosecution : Ex.P.1 : Statement of P.W.1 Ex.P.2 : Sec.161 Cr.P.C statement of P.W.5 Ex.P.3 : Hospital Intimation Ex.P.4 : Signature of Dr.U.B.Reddy on the wound certificate of P.W.1 Ex.P.5 : FIR Ex.P.6 : Rough Sketch

Exs.C.1 and C.2 are Attested photo copy of Attendance Register and Joining Orders of Dr.U.BN.Reddy.

For Defence:NIL

Material Objects Marked : NIL

Sd/- K.Madhavi Devi,

ADDL., JUNIOR CIVIL JUDGE

REPALLE

7

CALENDAR AND JUDGMENT

IN THE COURT OF ADDL., JUNIOR CIVIL JUDGE :: REPALLE

C.C.No.423/2013

Date of: Report orApprehensionCommence-Close ofSentence of OffenceRelease on bail Complaintof accusedment of trialTrialOrder 25-08-1329-08-1326-09-1326-09-1327-01-1626-10-1724-04-18 BETWEEN: The State : Rep. by Sub-Inspector of Police, Nizampatnam Police Station.. . . COMPLAINANT AND

1. Koppati Ramesh, S/o.Somaiah, 25 Yrs.,

2. Peetha Venkata Krishna Rao @ Chinnabbai, S/o.Jaya Ramaiah, 27 Yrs., Both are Pallekari, R/o.Nizampatnam Village.. . . ACCUSED Crime Number71/13 of Nizampatnam P.S., OffenceSec.324 r/w.34 of IPC Plea of AccusedNot guilty Finding of the CourtFound Guilty for the under Sec.324 r/w.34 of IPC

Judgment:- In the result the Accused Nos.1 and 2 are found guilty for the offence under Sec.324 r/w.34 of IPC, hence they are convicted under Sec.248(2) of Cr.P.C for the said offence.

Sentence:- The Accused Nos.1 and 2 are sentenced to pay a fine of Rs.500/- each for the offence under Sec.324 r/w.34 of IPC, in default of payment of fine of Rs.500/- the Accused Nos.1 and 2 shall undergo Simple Imprisonment for a period of one week.

Explanation of delay and remarks:- On 05-10-13 the case is taken on file under Sec.324 r/w.34 of IPC. On 31-10-2013 appearance of accused copies of documents are furnished, on 04-08-15 the accused were examined under Sec.239 Cr.P.C, charge framed for the offence under Sec.324 r/w.34 of IPC for which they pleaded not of guilty and claimed to be tried. In this case on 27-01-16 trial was commenced and 26-10-2017 the trail was concluded. Heard. On 24-04-2018 Judgment pronounced. Hence the delay.

Sd/- K.Madhavi Devi,

ADDL., JUNIOR CIVIL JUDGE

REPALLE

Copy submitted to the Hon’ble Chief Judicial Magistrate-cum-Prl., Asst., Sessions

Judge, Guntur

Copy to the Superintendent of Police (Rural), Guntur.

Note: The Accused Nos.1 and 2 paid the fine amount of Rs.500/- each.

// True Copy //

AJCJ, Repalle

1

IN THE COURT OF ADDL., JUNIOR CIVIL JUDGE :: REPALLE

Present :- Smt K.Madhavi Devi, B.Sc., B.Ed., B.L.,

Addl., Junior Civil Judge, Repalle

WEDNESDAY, THE 25 th DAY OF APRIL, 2018

C.C.No.160/2018

BETWEEN: The State : Rep. by Prohibition and Excise Inspector, Nagaram.. . . COMPLAINANT AND Shaik Karimulla, S/o.Mastan, 37 Yrs., Muslim, R/o.Chinamatlapudi Village, Nagaram Mandal.. . . ACCUSED This case is coming on 23­04­2018 for final hearing before me in the presence of learned Assistant Public Prosecutor for the State and of Sri A.Srinivasa Murthy, Advocate for Accused. Having stood over for consideration till this day, this court delivers the following:­

J U D G M E N T

1.The state represented by the Prohibition and Excise Inspector, Nagaram filed charge sheet in P.R.No.103/2017 of P & E Station, Nagaram against the accused for the offence under Sec.34(a) of A.P.Excise Act.

2.Brief facts of the Prosecution case are as follows:- On 31-10-2017 L.Ws.1 to 5/B.Venkateswara Rao, K.Rajani, V.Hanuma, B.Krupanandam, N.Ragamai along with other staff while conducting patrolling for Prohibition and Excise Offences, at about 7.00 A.M., when they reached on the left side margin of the cross road in

Chinamatlapudi Village, noticed the accused standing there by holding a white plastic gunny bag in his right hand and on seeing Excise Officials in uniform, the accused got perturbed and tried to skulk away. Having observed the same, L.W.5 on suspicion got detained him with the help of staff and on enquiry about his trying to escape and about the contents of the said white plastic bag in his possession, for which the accused admitted possession of liquor bottles. In order to very the bag in the presence of mediators, L.W.5 sent L.W.1 to bring mediators. After some time L.W.1 returned from Chinamatlapudi Village and reported that VRO, VRA and Sarpanch were not available in the village and that none came forward to act as mediators.

L.W.5 decided to proceed under special report and on verification of the bag, in possession of the accused, found it contains 9-180 M.L., Mc.Dowells No.1 Celebration

Luxury XXX Rum Bottles. On enquiry the accused confessed that he purchased the liquor bottles from an unknown person at lower price and selling them for profit and eking out his livelihood and he was not possessed any valid receipt, or permit or license, pertaining to the liquor bottles. On further enquiry, the accused furnished his name and other identity particulars. L.W.5 took one bottle from the said bag as a sample for analysis, kept the remaining bottles in the same bag, tied the same, seized the same and arrested the accused after explaining the reasons for his arrest and got incorporated all the observations that took place at the place of offence as in Special 2 Report. L.W.5 registered the special report as a case in P.R.No.103/17 for the offence under Sec.34(a) A.P.Excise Act, 1968 and then the samples were sent to the Chemical examination for analysis and the analyst after analysis opined that the sample is

Indian Liquor. The Deputy Commissioner, Prohibition and Excise, Guntur was addressed for issuing confiscation and destruction orders with regard to the remaining case property. After completion of investigation L.W.5/P & E Inspector,

Nagaram filed charge sheet against the accused for the said offence.

3.The case was taken into cognizance for the offence under Sec.34(a) of

A.P.Excise Act against the accused.

4.After appearance of accused case copies were furnished to him as required under Sec.207 Cr.P.C., and thereafter accused was examined under

Sec.239 Cr.P.C., for which he denied the offence. Hence a charge under Sec.34(a) of

A.P.Excise Act has been framed against accused, read over and explained the charge to accused in Telugu for which he pleaded not guilty and claimed to be tried.

5.During the course of trial the Prosecution examined P.Ws.1 to 4 and got marked Exs.P.1 to P.4 and M.O.1.

6.After closure of entire Prosecution evidence the accused was examined under

Sec.313 Cr.P.C., and I explained the incriminating evidence appearing against him in

Telugu, for which the accused denied the evidence of prosecution witnesses and stated that he has no defence witnesses to be examined on his behalf.

7.I heard arguments from both the sides. Now the following point arise for determination in this case Whether prosecution proved guilt of the accused for

the offence under Sec.34(a) of A.P.Excise Act beyond all reasonable doubt?

8. Point:- The learned Assistant Public Prosecutor argued that the evidence of

P.Ws.1 to 4 coupled with Exs.P.1 to P.4 and M.O.1 goes to show that the accused has committed the offence and the prosecution proved the case beyond all reasonable doubt against the accused.

The defence counsel argued that no independent witnesses examined by the prosecution, no local mediators secured at the time of seizure of contraband, the entire case is depending upon the case proceedings which is infirmities. Hence, prays to acquit the accused on the ground of benefit of doubt.

9.P.Ws.1 to 4/B.Venkateswara Rao, K.Rajani, V.Hanuma, B.Krupanandam,

N.Ragamai, who are excise staff of P & E Station, Nagaram deposed in their evidence that on 31-10-2017 receipt of information, they along with their staff went for conducting patrolling for excise offences and at about 7.00 A.M., when they reached to the place of offence i.e., left side margin of the cross road in Chinamatlapudi

Village noticed one male person/accused standing by holding a white plastic gunny bag in his right hand. On seeing them in uniform the accused tried to skulk away. On 3 suspicion, P.W.4 stopped the accused and enquired him about the contents in the bag.

The accused admitted that the bag contains liquor bottles. P.W.4 deputed P.W.1 to secure mediators from Chinamatlapudi Village. After some time P.W.1 returned and reported the same to P.W.4 that the village officials were not present and no villagers came forward to act as mediators. Then, P.W.4 proceeded under the cover of special report, enquired the said person/accused, the accused disclosed his name as Shaik

Karimulla and admitted the guilty of offence, then P.W.4 verified the bag and found 9-180 M.L., Mc.Dowells’s No.1 Celebration Luxury XXX Rum bottles. Then P.W.4 took one bottle from the said bag as a sample for analysis under M.O.1 and affixed identity slips on the sample and also informed the reasons for arrest of accused, arrested the accused under cover of special report under Ex.P.1. Then, they returned to the P & E station, Repalle along with accused and case property, basing on Ex.P.1, P.W.4 registered a case in P.R.No.103/17 for the offence under Sec.34(a) of APE Act and issued FIR under Ex.P.2, P.W.4 sent the sample to the chemical analysis under letter of advise under Ex.P.3 and after receipt of chemical analysis report under Ex.P.4, after completion of investigation P.W.4 filed charge sheet against accused. P.Ws.1 to 4 have denied the suggestion that they never conducted raid, arrested the accused in possession of liquor bottles and that they foisted a case against the accused.

10. Having gone through the record, P.Ws.1 to 4 are the official witnesses. It is a fact that the Prosecution has failed to examine any independent witness in support of it's case, therefore the evidence of P.Ws.1 to 4 are alone available on record to prove guilt of the accused.

11.Sec.23 of A.P.Prohibition Act, 1995 emerges that while arrest, search and seizure in prohibition offence the police should follow the procedure as stated in the code of Cr.P.C. “Sec.100(4) of Cr.P.C enumerates that before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do”.

12.As per Sec.100(4) of Cr.P.C the Investigating Officer is required to secure at least two local inhabitants as mediators to witness the search and seizure. It is revealed from the evidence of P.W.4 that he deputed P.W.1 to secure mediators, but there is no material to show that P.W.4 was deputed for securing mediators. Except that, P.W.3 has not issued any written summons to anybody to act as mediators. Thus alleged contraband was seized in the absence of local inhabitants.

4 In “Yedduru Sreenivasul Reddy Vs State of A.P” held at Para 13 that:- “Sec.55 of the Act contains valuable safeguards for the liberty of

citizen in order to protect them from ill founded or frivolous prosecution or

harassment, of course the petitioner did not raise such pleas before the

Court below, but it is for the prosecution to bring on record while charging.

The accused is that they have followed the procedure contemplated under

Sec.55 of the Act and Sec.100(4) of the code. For these reasons, I am

satisfied that the prosecution has filed to prove that P.Ws.1 to 3 have followed

such procedure. Consequently for these lacuna that search and seizure is

vitiated and the conviction is wholly unsustainable. Accordingly, the Criminal

Revision Petition is allowed and the conviction and sentence are set aside”.

13.The above authority made very clear that search and seizure shall be conducted in the presence of local inhabitants of that locality and searching officer shall made sincere efforts to secure mediators by the time of search and seizure of contraband. In the instant case P.W.4 did not follow the procedure laid down in

Sec.100(4) of Cr.P.C. It is fatal to the case of prosecution. Hence it is held that P.W.4 has not made any efforts to secure mediators while seizing alleged liquor bottles, thereby he violated the mandatory procedure under Sec.23 of the Act. In view of circumstances, the above authority is squarely applicable to the present case.

14.Further, the learned counsel for accused argued that the confession before the

Excise Officials shall not be proved against the accused, hence alleged confession of accused shall not be considered.

In Mudavath Mothia Vs State of A.P, their Lordship held that “the offence

under Sec.4 of the AP Excise Act 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 beg never say that they

are not the police officials, the confession recorded by these officers in the

proceedings is inadmissible. Moreover, Ex.P.5 panchanama is hit by Sec.25,27

of the Indian Evidence Act and under Sec.161 Cr.P.C. The benefit if any arises

due to the invalidity of the Investigation only goes to the accused and once

Ex.P.5 is hit by Sec.25 and 27 of Indian Evidence Act and Sec.161 Cr.P.C and

when the independent witnesses are not examined by the prosecution, the

prosecution theory of seizing the sachets from the custody of the accused has

to be looked with suspicion. The non-examination of independent mediators

is fatal to the prosecution version. The seizure proceedings drafted also

cannot be considered in view of the bar under Secs.25 and 27 of the Indian

Evidence Act and Sec.161 Cr.P.C. It is not a case where the property was

seized by virtue of confession made. When it is also not admissible in view of

the legal bar and invalid proceedings, it is a fit case where the accused be

given the benefit of doubt. Both the Courts have not looked into the evidence

from proper angle. The conviction and sentence awarded is, therefore, liable

to set aside due to the illegality of the proceedings drafted. As such, it is

unsafe to rely upon the evidence of Excise officials to convict the accused,

which is not corroborating by independent witness”.

5

15.The above authority is very much relevant to the present case in hand. The alleged confession of accused before Excise Police is not proved beyond all reasonable doubt. The said confession to Excise Police is hit by Secs.25 and 27 of

Indian Evidence Act. Hence alleged confession not be used against the accused. As such the Ex.P.1/Special Report cannot be relied upon.

16.The learned counsel for accused further submitted that, it is settled law that the person who is a complainant in a case should not be allowed as an Investigating

Officer in such case the investigation certainly prejudice the accused and impartial investigation is doubtful. Further he submitted that, in the instant case, as per prosecution, P.W.4 detected the offence, registered the case and conducted entire investigation and therefore, the evidence of P.W.4 is doubtful.

In support of his contentions, he relied on ''Gurazala Ramesh and others Vs. State of Andhra Pradesh1''. Wherein their lordship held that “........ same police officer who detected and found the offence gave FIR and also investigated. Hence, it is manifest illegality is committed by the same officer who detected the offence or crime also gave FIR and investigating in to the crime and filed charge sheet. Hence, impugned convictions and sentences as conformed by the Applet Court or unsustainable at law, Hence have to be set a side”. In this case Hon'ble High Court of Andhra Pradesh referred judgment of supreme court reported in Bhagavan Singh Vs. Stage of Rajasthan2. Wherein it is held in Para No. 5 that: ''it is postulated that infirmity arisen out of the investigation by the Head Constable who lodged the FIR as complainant, will be an infirmity which is bound to reflect on the credibility of the case of the prosecution. ''

17.The above authority makes clear that the complainant cannot be acted as

Investigating Officer and it is not safe to rely upon the investigation done by the complainant as there is every possibility of prejudice to the accused and impartial investigation is doubtful.

18.In the case on hand, P.W.4 who is complainant herself investigated the case. It clear from the record that entire proceedings in this case were taken up by P.W.4 alone. Here P.W.4, detected the offence, seized the contraband, drawn the sample, prepared the special report, arrested the accused, registered the Mediator Nama and sent the sample to analysis. In view of circumstances, the above authorities are very much relevant to the present case in hand. In view of above authorities, impartial investigation by the complainant is doubtful.

19.Under the above facts and circumstances and aforesaid discussion, it is held that there were several material lacunas and clouds in the prosecution's case that there were several procedural irregularities during the alleged search and seizure.

Hence it is held that, the prosecution has failed to bring home guilt of the accused and the accused is entitled for acquittal.

12003 (2) ALD (Crl.) 13 (A.P.) 2AIR 1976 SC 985 6

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

Sec.34(a) of A.P.Excise Act, hence he is acquitted under Sec.248(1) Cr.P.C., for the said offence. Bail bonds of the accused shall stand cancelled after lapse of appeal time. M.O.1 shall be destroyed after expiry of appeal time.

Typed to my dictation by the Personal Assistant, corrected and pronounced by me in the open Court on this the 25th day of April, 2018.

Sd/- K.Madhavi Devi,

ADDL., JUNIOR CIVIL JUDGE

REPALLE

Appendix of Evidence

Witnesses Examined

For Prosecution : For Defence :: NIL. P.W.1: B.Venkateswara Rao P.W.2: V.Hanuma P.W.3: B.Krupanandam P.W.4: N.Ragamai

Documents Marked

For Prosecution : Ex.P.1 : Special Report Ex.P.2 : FIR Ex.P.3 : Letter of Advise Ex.P.4 : Analysis Report For Defence : NIL

Material Objects Marked : M.O.1 Sample bottle

Sd/- K.Madhavi Devi,

ADDL., JUNIOR CIVIL JUDGE

REPALLE

7

CALENDAR AND JUDGMENT

IN THE COURT OF ADDL., JUNIOR CIVIL JUDGE :: REPALLE

C.C.No.160/2018

Date of:

Report orApprehensionCommence-Close of OffenceRelease on bailSentence of Order Complaintof accusedment of trialTrial 31-10-1731-10-1731-10-1731-10-1717-04-1820-04-1825-04-18 BETWEEN: The State : Rep. by Prohibition and Excise Inspector, Nagaram.. . . COMPLAINANT AND Shaik Karimulla, S/o.Mastan, 37 Yrs., Muslim, R/o.Chinamatlapudi Village, Nagaram Mandal.. . . ACCUSED

P.R. Number103/17 of P & E Station, Nagaram OffenceUnder Sec.34(a) of A.P.Excise Act Plea of AccusedNot guilty Finding of the CourtFound not guilty Judgment:- In the result the accused is found not guilty for the offence under Sec.34(a) of A.P.Excise Act, hence he is acquitted under Sec.248(1) Cr.P.C., for the said offence. Bail bonds of the accused shall stand cancelled after lapse of appeal time. M.O.1 shall be destroyed after expiry of appeal time.

Sentence : --

Explanation of delay and remarks:-

On 06-03-18 the case is taken on file under Sec.34(a) of A.P.Excise Act. On 02-04-18 appearance of accused copies of documents are furnished, examined under Sec.239 Cr.P.C, charge framed, for which he pleaded not guilty and claimed to be tried. On 17-04-18 P.Ws.1 and 2 examined, Ex.P.1 marked. On 20-04-18 P.Ws.3 and 4 examined, Exs.P.2 to P.4 and M.O.1 marked, on 23-04-2018 the accused was examined under Sec.313 Cr.P.C., for which he denied as false and reported no defence, heard the prosecution and defence. On 25-04-2018 Judgment pronounced. Hence the delay.

Sd/- K.Madhavi Devi,

ADDL., JUNIOR CIVIL JUDGE

REPALLE

Copy submitted to: 1.The Hon’ble Chief Judicial Magistrate, Guntur. 2.The Superintendent of Police (Rural), Guntur. // True Copy //

AJCJ, Repalle.

1

IN THE COURT OF ADDL., JUNIOR CIVIL JUDGE :: REPALLE

Present :- Smt.K.Madhavi Devi, B.Sc., B.Ed., B.L.,

Addl., Junior Civil Judge, Repalle.

THURSDAY, THE 26 th DAY OF APRIL, 2018

C.C.No.238/2018

BETWEEN: The State : Rep. by Sub-Inspector of Police, Cherukupalli Police Station. . .COMPLAINANT AND Nakkala Srinivasa Rao, S/o.Purnachandra Rao, 31 Yrs., Yadava, R/o.Pedapalligollapalem Village, Nagaram Mandal, Rider of bike bearing No.AP07AA 2146.. . . ACCUSED

This case is coming on 25-04-2018 for final hearing before me in presence of learned Assistant Public Prosecutor for the State and of Sri D.Rambabu, Advocate for Accused. Having stood over for consideration till this day, this court delivers the following:-

J U D G M E N T

1.The state represented by the Sub-Inspector of Police, Cherukupalli Police

Station filed charge sheet in Cr.No.93/18 against the accused for the offence under

Sec.337 of IPC.

2.Brief facts of the Prosecution case are as follows:- On 19-02-2018 at 9 P.M., while L.W.2/P.Gopala Rao talking with L.W.4/B.Chukkamma on Cherukupalli-Nagaram black topped road near her house, the accused being the rider of motor cycle bearing

No.AP07AA 2146 rode the bike in a rash and negligent manner at high speed without blowing horn and rammed against him in opposite direction, resulting which he sustained internal injuries i.e., sustained simple injuries. Basing on the statement of

L.W.1/P.Sankara Rao, L.W.8/S.I of Police, Cherukupalli Police Station registered a case in Cr.No.93/18 for the offence under Sec.337 of IPC, investigated into and after completion of investigation he filed charge sheet against the accused for the said offence.

3.The case was taken into cognizance for the offences under Sec.337 of IPC.

4.After appearance of accused case copies were supplied to him as required under Sec.207 Cr.P.C., and thereafter he was examined under Sec.251 Cr.P.C., for the offences under Sec.337 of IPC, for which he denied the offence, pleaded not guilty and claimed to be tried.

5.During the course of trial the Prosecution examined P.Ws.1 to 3 and got marked

Exs.P.1 to P.7.

6.After closure of entire Prosecution evidence the accused was examined under

Sec.313 Cr.P.C., and I explained the incriminating evidence appearing against him in

Telugu, for which the accused denied the evidence of prosecution witnesses and stated that he has no defence witnesses to be examined on his behalf.

2

7.I heard arguments from both the sides and now the following point arise for determination in this case:- Whether the prosecution proved guilt of the accused for the offence under Sec.337 of IPC beyond all reasonable doubt?

8.Point:- The prosecution alleged that on 19-02-2018 at 9 P.M., while

L.W.2/P.Gopala Rao talking with L.W.4/B.Chukkamma on Cherukupalli-Nagaram black topped road near her house, the accused being the rider of motor cycle bearing

No.AP07AA 2146 rode the bike in a rash and negligent manner at high speed without blowing horn and rammed against him in opposite direction, resulting which he sustained internal injuries i.e., sustained simple injuries

9.This being an offence of road accident punishable under Sec.337 of IPC, the following are the essential requirements to be satisfied by the prosecution:-

a) there should be rash or negligent driving of the accused at the time of accident,

b) there should be simple injury(s) to person, and such injuries must have been caused due to rash or negligent driving of the accused to attract the offence under Sec.337 of

IPC.

In order to bring home guilt of the accused the prosecution examined P.Ws.1 to 3 and got marked Exs.P.1 to P.7.

10.The defacto-complainant deposed in his evidence that in the month of

February, 2018 on one day at night hours he received phone call from some unknown person that his father was met with an accident. Then, immediately he rushed to the scene of offence and shifted his father to the hospital for treatment. He does not know how the accident took place and he does not know the rider of the motor cycle. When his father was in hospital, police came and recorded his statement, but he does not know the contents of the same. Ex.P.1 is signature of P.W.1 on the statement. Further,

P.W.1 stated in his evidence that due to ill health his father/L.W.2-P.Gopala Rao was died.

11.P.W.2 who is said to be direct eye witness to the offence did not support the case of prosecution. In his evidence P.W.2 stated that he does not know anything about this case and he is not witnessed any accident. Police not examined him.

12.The prosecution examined P.W.3 i.e., Investigating Officer. In his evidence

P.W.3 deposed about the investigation done by him i.e., registration of this case, recording of witnesses, visiting the scene of offence and after completion of investigation he filed charge sheet against the accused.

13.Having gone through the evidence of P.Ws.1 and 2, nothing was elicited against the accused. Though the prosecution cited P.W.2 as direct eye witness to the accident, no where he deposed that the accused rode the motor cycle at the time of accident. Further, the defacto-complainant/P.W.1 clearly deposed that while he was taking treatment in hospital, the police obtained his signature on statement, but he do not know it's contents. Therefore, the evidence of P.W.1 is no way helpful to the prosecution.

3

14.A conjoint reading of the entire evidence of prosecution goes to speak that no prosecution witness deposed that the accused rode the motor cycle at the time of accident either in rash and negligent manner and hit L.W.2, due to which

L.W.2/P.Gopala Rao sustained injuries.

15.Considering all these facts and circumstances it can be safely concluded that the prosecution has filed to prove the essential ingredients of Sec.337 of IPC beyond all reasonable doubt, therefore the accused cannot be punished for the said offences.

Accordingly, the Point is answered.

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

Sec.337 of IPC, hence he is acquitted under Sec.255(1) Cr.P.C., for the said offence.

Bail bonds of accused shall stand cancelled after lapse of appeal time. The unmarked property if any shall be destroyed after lapse of appeal time.

Typed to my dictation by the Personal Assistant, corrected and pronounced by me in the open Court on this the 26th day of April, 2018.

Sd/- K.Madhavi Devi,

ADDL., JUNIOR CIVIL JUDGE

REPALLE

Appendix of Evidence

Witnesses Examined

For Prosecution : For Defence :: NIL. P.W.1: P.Sankara Rao P.W.2: G.Prasad P.W.3: G.Rajeswara Rao

Documents Marked

For Prosecution : Ex.P.1 : Signature of P.W.1 on statement Ex.P.2 : Sec.161 Cr.P.C statement of P.W.1 Ex.P.3 : Sec.161 Cr.P.C statement of P.W.2 Ex.P.4 : Statement of P.W.1 Ex.P.5 : FIR Ex.P.6 : Rough Sketch Ex.P.7 : Wound Certificate

For Defence : NIL

Material Objects Marked : NIL

Sd/- K.Madhavi Devi,

ADDL., JUNIOR CIVIL JUDGE

REPALLE

4

CALENDAR AND JUDGMENT

IN THE COURT OF ADDL., JUNIOR CIVIL JUDGE :: REPALLE

C.C No.238/2018

Date of: Report orApprehensionCommence-Close ofSentence of OffenceRelease on bail Complaintof accusedment of trialTrialOrder 03-03-1803-03-1826-03-1826-03-1824-04-1824-04-1826-04-18 BETWEEN: The State : Rep. by Sub-Inspector of Police, Cherukupalli Police Station. . .COMPLAINANT AND Nakkala Srinivasa Rao, S/o.Purnachandra Rao, 31 Yrs., Yadava, R/o.Pedapalligollapalem Village, Nagaram Mandal, Rider of bike bearing No.AP07AA 2146.. . . ACCUSED

Crime Number93/18 of Cherukupalli P.S OffenceSec.337 of IPC Plea of AccusedNot guilty Finding of the CourtFound not guilty

Judgment:- In the result the accused is found not guilty for the offence under Sec.337 of IPC, hence he is acquitted under Sec.255(1) Cr.P.C., for the said offence. Bail bonds of accused shall stand cancelled after lapse of appeal time. The unmarked property if any shall be destroyed after lapse of appeal time.

Sentence : - -

Explanation of delay and remarks:- - - -

Sd/- K.Madhavi Devi,

ADDL., JUNIOR CIVIL JUDGE

REPALLE

Copy submitted to the Hon’ble Chief Judicial Magistrate-cum-Prl., Asst., Sessions

Judge, Guntur for favour of information.

Copy to the Superintendent of Police (Rural), Guntur.

// True Copy //

AJCJ, Repalle.

1

IN THE COURT OF ADDL., JUNIOR CIVIL JUDGE :: REPALLE

Present :- Smt. K.Madhavi Devi, B.Sc., B.Ed., B.L., Addl., Junior Civil Judge, Repalle

FRIDAY, THE 27 th DAY OF APRIL, 2018

C.C.No.281/2012

BETWEEN: The State : Rep. by Sub-Inspector of Police, Repalle Police Station.. . . COMPLAINANT AND Sardar Qursheed Anwar Pasha, S/o.Mohammad Jilani, 47 Yrs., Muslim, AE, AP State Housing Corporation, Repalle Municipality, Repalle.. . . ACCUSED This case coming on this day for final hearing before me in presence of learned Assistant Public Prosecutor for the State and of Sri A.Srinivasa Rao, Advocate for accused. Having stood over for consideration till this day, this court delivers the following:-

J U D G M E N T

1.The state represented by the Sub-Inspector of Police, Repalle Police Station filed charge sheet in Cr.No.113/12 against the accused for the offence under Sec.324 of IPC.

2.Brief facts of the Prosecution case are as follows:- On 18-05-2012 at 9 P.M., on hearing the galata in the house of accused, L.W.4/Shaik Majar Unnisha came to the spot, later L.W.3/L.Vijaya came to the house of accused. L.Ws.1 and 2/Shaik Nurzahan, Shaik Johnibasha rested on the sofa in the house of accused and the wife of accused lay on the floor. L.Ws.1 and 2 came to the house of accused to get the borrowed money given to the accused and frequently there are disputes going on in between accused and l.Ws.1 and 2 for money matters. The accused came to the house from Bazar and saw that the wife of accused laid on the floor of the house and L.Ws.1 and 2 present on the sofa and on seeing the situation the accused grew angry against L.Ws.1 and 2, and the accused bring a knife from a bag near by sofa, attempted to stab L.W.2, when L.W.1 tried to rescue of L.W.2, the knife hit against L.W.1’s left hand and left side of head and caused bleeding injuries. Basing on the statement of L.W.1, L.W.11/S.I of Police, Repalle P.S., registered a case in Cr.No.113/12 for the offence under Sec.324 of IPC, investigated into and after completion of investigation he filed charge sheet against the accused for the said offence.

3.The case was taken into cognizance for the offence under Sec.324 of IPC against the accused.

4.After appearance of accused case copies were supplied to him as required under Sec.207 Cr.P.C., and thereafter the Accused was examined under Sec.239 Cr.P.C. Charge framed for the offence under Sec.324 of IPC against Accused, and the same was read over and explained to accused in Telugu, for which he pleaded not guilty and claimed to be tried.

5.During the course of trial the Prosecution examined P.Ws.1 and 2 and got marked Exs.P.1 to P.3.

2

6.As the defacto-complainant herself did not support the case of prosecution, remaining witnesses closed by this Court and examination of accused under Sec.313 of Cr.P.C., is dispensed with. Accused reported no evidence on their behalf.

7.I heard arguments from both the sides and now the following point arise for determination in this case:- Whether prosecution proved guilt of the Accused for the offence under Sec.324 of IPC beyond all reasonable doubt?

8. Point:-The prosecution alleged that on 18-05-2012 at 9 P.M., the accused beat P.Ws.1 and 2 with a knife and caused bleeding injuries.

9.The defacto-complainant/P.W.1 and P.W.2 have stated in their evidence that in the month of May, 2012 during night time they were in the house, they heard some galata in front of their house, then they went outside to see the said galata. From the said galata, some unknown persons pushed them and beat them with a stick, due to which they were sustained injuries. Then, immediately some persons shifted them to the hospital. P.W.1 further stated that when, they were in hospital police obtained her signature on some written papers, but she does not know the contents therein. Ex.P.1 is signature of P.W.1 on the statement. The accused never commit any offence against me. P.Ws.1 and 2 have further stated that police not examined them.

10.In this case P.Ws.1 and 2 did not state anything against the accused and they did not support the prosecution's version. In their cross-examination P.Ws.1 and 2 have clearly admitted that they have compromised the case with accused. Further, P.Ws.1 and 2 have filed a memo stating that they are compromised in this case with the accused and not to examine other witnesses. Hence, this court closed the evidence of L.Ws.3 to 11.

11.Having gone through the entire evidence of P.Ws.1 and 2, nothing is elicited against the accused and further it reveals that P.Ws.1 and 2 and Accused are compromised in this case. Therefore, it can be safely concluded that the prosecution has failed to bring home guilt of the accused for the offence under Sec.324 of IPC beyond all reasonable doubt. Accordingly, the point is answered.

12.In the result the Accused is found not guilty for the offence under Sec.324 of IPC, hence he is acquitted under Sec.248(1) Cr.P.C for the said offences. Bail bonds of the accused shall stand canceled after lapse of appeal time. The unmarked property, if any, shall be destroyed after expiry of appeal time.

Dictated to the Personal Assistant directly on Computer System, corrected

and pronounced by me in the open Court on this the 27th day of April, 2018.

Sd/- K.Madhavi Devi,

ADDL., JUNIOR CIVIL JUDGE

REPALLE

3

Appendix of Evidence

Witnesses Examined

For Prosecution : For Defence :: NIL. P.W.1: Shaik Nurzahan P.W.2: Shaik Johni Basha

Documents Marked

For Prosecution : Ex.P.1 : Signature of P.W.1 on the statement Ex.P.2 : Sec.161 Cr.P.C statement of P.W.1 Ex.P.3 : Sec.161 Cr.P.C statement of P.W.2

For Defence: NIL

Material Objects Marked : NIL

Sd/- K.Madhavi Devi,

ADDL., JUNIOR CIVIL JUDGE

REPALLE

4

CALENDAR AND JUDGMENT

IN THE COURT OF ADDL., JUNIOR CIVIL JUDGE :: REPALLE

C.C No.281/2012

Date of: Report orApprehensionCommence-Close ofSentence of OffenceRelease on bail Complaintof accusedment of trialTrialOrder 18-05-1219-05-1229-05-1229-05-1227-04-1827-04-1827-04-18 BETWEEN: The State : Rep. by Sub-Inspector of Police, Repalle Police Station.. . . COMPLAINANT AND Sardar Qursheed Anwar Pasha, S/o.Mohammad Jilani, 47 Yrs., Muslim, AE, AP State Housing Corporation, Repalle Municipality, Repalle.. . . ACCUSED

Crime Number113/12 of Repalle P.S., OffenceSec.324 of IPC Plea of AccusedNot guilty Finding of the CourtFound not guilty

Judgment:- In the result the Accused is found not guilty for the offence under Sec.324 of IPC, hence he is acquitted under Sec.248(1) Cr.P.C for the said offences. Bail bonds of the accused shall stand canceled after lapse of appeal time. The unmarked property, if any, shall be destroyed after expiry of appeal time.

Sentence : - -

Explanation of delay and remarks:- On 30-07-12 the case is taken on file under Sec.324 of IPC. On 15-06-17 appearance of accused copies of documents are furnished, examined under Sec.239 Cr.P.C, charge framed for the offence under Sec.324 of IPC for which he pleaded not guilty and claimed to be tried. On 27-04-18 P.Ws.1 and 2 examined, Exs.P.1 to P.3 marked, examination of accused under Sec.313 Cr.P.C is dispensed with as there is no incriminating material against the accused, heard on both sides and on 27-04-2018 Judgment pronounced. Hence the delay.

Sd/- K.Madhavi Devi,

ADDL., JUNIOR CIVIL JUDGE

REPALLE

Copy submitted to the Hon’ble Chief Judicial Magistrate-cum-Prl., Asst., Sessions

Judge, Guntur

Copy to the Superintendent of Police (Rural), Guntur. // True Copy //

AJCJ, Repalle.