K.Motilal

1

CALENDAR AND JUDGMENT

District of West Godavari

Calendar of cases tried by the Judicial Magistrate of I Class:Palakol

Date of offence Report of Complaint Apprehension of accused Released on bail (1) (2) (3) (4) ------------------------------------------------------------------------------------- 20-04-2018 16-05-2018 24-05-2018 ---- 02-04-2018 17-05-2018 24-05-2018 ----- ------------------------------------------------------------------------------------- Commencement of trial close of trial Sentence of order Explanation for delay (5) (6) (7) (8) ------------------------------------------------------------------------------------- 07-09-2018 15-03-2019 22-03-2019 NIL ------------------------------------------------------------------------------------- Judgment of Calendar Case No.201/2018 on the file of Judicial Magistrate of I class: Palakol.

Complainant:-State: Sub Inspector of Police, Plakol Town Police Station. ( Cr.Nos.17/2018 & 118/2018 of Palakol Town Police Station )

Name of the Accused Father Name Age Caste/Religion Calling Village 1.Kuppala Rangarao @ Ranga, S/o (late) Suranna, aged 45 years, Caste:Kapu, R/o Dr.No.20-131, Ramalayam Street, Satyawada Village, Undrajavaram Mandal.

(The Case agaisnt A.1 separated from C.C.201/2018 and numbered as 3/2019and he was aready admitted in C.C.No.3/2019, dt.17-01-2019.).

2. Veeramallu Nageswara Rao, S/o Venkata Rao, aged 42 years, Caste:Gowda, R/o near Water Tank Kanuru Village, Peravali Mandal. …. A.1 and A.2. -------------------------------------------------------------------------------------

OFFENCE : Punishable under sections U/Sec.379 or 411 of IPC

Finding:Found not guilty.

RESULT :RESULT: Accused No.2 is found not guilty for the offence punishable under Sections 379 or 411 of IPC and accused is acquitted for the same under Sec.248 (1) of Cr.P.C.The bail bonds of accused No.2 shall stand cancelled after expiry of appeal time. The M.O.1-T.V.S. XL Moped Self Motor Cycle bearing No.AP. 37 BW 8598 with Engine No.0D1CE1452503 which was already given to petitioner/Defacto complainant by name Tadi naga Mani, W/o late Narasimha Rao, aged 60 years, R/o Kaza Village, Elamnchili Mandal in Crl.M.P.No.4761/2018 in C.C.No.201/2018, dt.27-11- 2018 shall be made absolute after the expiry appeal time. The M.O.2-HF Delux Motor Cycle bearing No.AP. 07 CF 2790 in Engine No.Ha11EJE9K39961 which was already given to petitioner/Defacto complainant by name Pachigolla Srinivasa Rao, S/o Narasimha Murthy,R/o Doddipatla, Daikaluru Mandal in Crl.M.P.No.4796/2018 in C.C.No.201/2018, dt.18-12-2018 shall be made absolute after the expiry appeal time. The accused No.1 was already admitted in C.C.No.3/2019, dt.17-01-2019.

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PRINCIPAL JUNIOR CIVIL JUDGE,

FAC/JUDL. MAGISTRATE OF I CLASS,

PALAKOL.

Copy Submitted to:

1. The 1st Addl. District & Sessions Judge, W.G.Eluru

2. The Superintendent of Police, West Godavari, Eluru, through A.P.P., Palakol.

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS COURT::

PALAKOL

Present : - Sri K. Mothilal 3

Principal Junior Civil Judge, Palakol

FAC/Judicial Magistrate of I Class Court, Palakol

Friday, the 22nd day of March, 2019

C.C.No.201/2018

Between:

State: The Sub-Inspector of Police, Palakol Town Police Station. …. Complainant AND 1.Kuppala Rangarao @ Ranga, S/o (late) Suranna, aged 45 years, Caste:Kapu, R/o Dr.No.20-131, Ramalayam Street, Satyawada Village, Undrajavaram Mandal.

(The Case agaisnt A.1 separated from C.C.201/2018 and numbered as 3/2019and he was aready admitted in C.C.No.3/2019, dt.17-01-2019.).

2. Veeramallu Nageswara Rao, S/o Venkata Rao, aged 42 years, Caste:Gowda, R/o near Water Tank Kanuru Village, Peravali Mandal. …. A.1 and A.2.

This case is coming on 19-03-2019 hearing before me in the presence of Learned APP for the prosecution and Sri P.Srinivas Advocate for the Accused No.2 and upon hearing and having stood over the matter for consideration to this day, this Court delivered the following:

J U D G M E N T

The Sub-Inspector of Police, Palakol Town P.S filed a charge sheet against the Accused No.1 and 2 for the offence punishable under sections 379 or 411 of IPC in Cr. Nos.117 & 118/2018.

2. The brief averments of the Charge-Sheet are

The L.W.1- Tadi Srinu is resident of Kaza Village, Elamanchili Mandal, he is doing agricultural Labour works, on 20-04-2018 at about 10-30 A.M. he and his mother by name Nagamani had been to State Bank of India, Palakol on his T.V.S. XL bearing No.AP. 37 BW 8598 and kept it in front of the main gate and after sometime he came out of the unknown offenders committed theft of it and escaped with the stolen property. Basing on the report given by

L.W.1-Tadi Srinu, the L.W.10-H.Rahaman, Sub-Inspector of Police, Palakol Town

P.S. registered a case. During the course of Investigation L.W.9-Kolusu 4

Viswanadha Babu, Sub-Inspector of Police, I Town L & O PS

Rajamahendravaram, East Godavari District arrested the A.1 and A.2 on 24- 05-2018 in the presence of mediators and he recovered the stolen property from them. Later, L.W.10-H.Rahaman, Sub-Inspector of Police, Palakol Town

P.S. received the record from L.W.9- Kolusu Viswanadha Babu, Sub-Inspector of Police, I Town L & O PS Rajamahendravaram, East Godavari District and after completion of investigation he filed charge sheet.

3. This case was taken cognizance against the accused for the offence under Sections U/Sec.379 or 411 of IPC against the A.1 and A.2.

4. After appearance of the accused No.1 and 2 case copies are furnished to accused as required u/s 207 of Cr.P.C accused are examined u/sec. 239 Cr.P.C explaining accusation under Sections U/Sec.379 or 411 of IPC to the accused

No.1 and 2, they pleaded not guilty and claimed to be tried.

5.During the course of trial, prosecution has examined P.Ws.1 to 4 and got marked Exs.P-1 to P.6 and M.Os.1 and 2 marked.

6.After closure of the prosecution evidence, the accused is examined under Sec.313 Cr.P.C. She reported no defence evidence.

7.Thereafter heard the arguments of Learned APP and counsel for the accused.

8. The point for Consideration is :

“Whether the Prosecution has established the guilt of Accused

for the offence punishable under Sections U/Sec.379 or 411 of

IPC beyond all reasonable doubts”?

9. L.W.2- Tadi Nagamani examined as P.W.1 deposed that she is resident of Elamanchali Village. She is house wife. L.W.1 Tadi Srinu is her son, who is in Gulf Country, she do not know Lw3, she illiterate. Her husband name is

Tadi Narasimha Rao, S/o. Venkanna, she husband is no more. Her husband owned a Motor cycle i.e., TVS XL Super AP 37 BW 8598. About 5 months ago himself and Lw1 went to SBI Main Branch, Palakol, on their motor cycle. The motor cycle was parked out side the said bank, they went in side. After 5 completion of their work they came out side of the bank and found missing of their motor cycle, they searched for the motor cycle but in the vain. Some unknown culprits may have stolen away their motor cycle, later, the L.W.1 gave a report to the police. Later, the police informed them about the recovery of our stolen motor cycle. She can identify the motor cycle. She took the motor cycle for interim custody from the police station.To day she produced the motor cycle bearing registration Number AP 37 BW 8598

before the Hon’ble Court, M.O.1 is the TVS XL Super AP37 BW 8598, police

examined her and recorded her statement.

10.L.W.4- Pachigolla Srinivasa Rao examined as P.W.2 deposed that he is resident of Doddipatla Villagek of Krishna District. He is a mason. He owned a motor cycle HF deluxe bearing registration number AP 07 CF 2790, which is red in colour. On 02-04-2018 he came to Dr. Undi Appa Rao Hospital, Palakol on the said motor cycle he parked the motor cycle out side the hospital and front in side the hospital. After completion his work he came out of the hospital and found missing of his motor cycle AP 01 CF 2790. He searched for the motor cycle but in vain. Later he gave report to the police, which is marked as Ex.P.1. Subsequently the police informed me about the recovery of his motor cycle, he took his motor cycle from the Palakol Town police station for interim custody. He produced the motor cycle before this Hon’ble court on this day. He can identify his motor cycle, which is marked as M.O.2,

M.O.2 is the motor cycle bearing registration number AP 01 CF 2790 which is red in colour. Police examined and recorded his statement.

11.L.W.7- Ch.M.Venkataeswarlu examined as P.W.3 deposed that on 24- 05-2018 himself and L.W.8 and police personnel accompanied I Town Law and order S.I. Rajamhendravaram, they are all went to Gowthami Jeeva

Karunya Sangam sitauted at Rajahmundry Godavari bund, they went there at 3-30 A.M. At that time they noticed two persons are coming from Kotipalli

Bus stand on a motor cycle towards Gowthami Jeeva Karunya Sangam,

Pushkaragat on seeing the police the two persons tried to escape by taking turn towards back on suspicion the S.I. got apprehended them with the help of the staff.The S.I of Police questioned the said two persons as to why they are trying to escape on seeing them. The S.I. asked two persons about there identity particulars they revealed their name as Kuppala Ranga Rao and

Veramallu Nageswara Rao. He can identify Kuppala Ranga Rao and Veramallu 6

Nageswara Rao who are none other than case and who are standing in dock.

At the first instance the S.I. interrogated the A.1 on questioning the accused revealed that the motor cycle in their possession is a stolen motor cycle, which was stolen by them from the parking place center at Somalamma

Temple, Rajahmundry and with a view to sell the same they are taking the motor cycle to Rajahmundry. In the mean time police caught them, the stolen motor cycle bearing registration No.AP. 05 BX 9032 Hero CD Deluxe, the said motor cycle is identified the A.1 about the committing of theft in any other places, on that the A.1 informed that he committed thefts of bicycles at

Tanuku, Attili, Undrajavaram areas, Undrajavaram police arrested him and seized the bicycles. Thereafter, the A.1 was convicted for the offence of theft.

The S.I. identified the A.1 is a habitual offender. On questioning the A.1 revealed that while he was undergoing sentence at Rajahmundry Central Jail, he himself though and decided to commit theft of motor cycle for earning of more money. Accordingly, he committed theft of motor cycle at

Rajahmundry, Tadepalligudem, Palakol, Eluru, Bhiamvaram, Nuziveedu etc., areas in toto he committed 100 motor cycles. He was also convicted for the offences of theft and served sentences, thereafter he was released from the jail, thereafter,he resided at his native place at Satyavada for some time, later he went to Pasivedala and took a house for rent and made believe the people of Pasivedala that he is doing old bikes selling and purchasing business, the A.1 further informed that in the month March, 2018 first week he committed theft of Hero Honda Motor cycle which was parked at Degree college behind Gokavaram Bus stand while he was proceeding on the said motor cycle towards Pasivedala on the way he saw the A.2 who is son-in-law of his village and both of them chitchatting with each other, at that time the

A.1 informed to the A.2 that the motor cycle in his possession is a stolen one and asked the A.2 that this motor cycle to be hired at the place and further stated to A.2 taht after committing theft of more motor cycles all will sold away for earning. The A.1 asked the A.2 to say the place for concealing the said property on that the A.2 informed that there is a hut near his house at

Kanuru Village, it is safe for that, accordingly A.1 and A.2 went there and concealed the motor cycle there. The A.1 also informed to A.2 that if anybody ask about the motor cycle he has to inform that he is doing motor cycle purchased and selling business for which only the concealed the property there during the confession the A-1 confessed that he along with A- 2 have committed several theft of two wheelers out of which they have committed theft of a two wheeler i.e. TVS XL at Main gate of SBI Palakol branch and also committed a theft of two wheeler of HF Deluxe motor cycle 7 at U. Apparao Hospital, Palakol Town and the A-1 further confessed that he along with A-2 also committed a theft of two wheeler at Chaitanya children

Hospital i.e. TVSXL which was concealed at Pasivedala and also they committed theft of another vehicle at Vegetable sandy of Palakol town i.e.

Splendor which was concealed at Kanuru, basing on the confession given by the accused A-1 that the stolen property i.e. TVS XL was concealed at a shed of Pasivedala and the another motor cycle i.e. XF Deluxe motor cycle was concealed in a thatched house of Kanuru, on 24-05-2018 at about 3.30 Am, they drafted a mediators report cum confessional statement of A-1 at

Godavarigattu of Rajamahendravaram, the said mediators report cum confessional statement was marked as Ex.P-2. The Police again enquired the

A-2 separating from A-1 and the A-2 also confessed as if stated by A-1, basing on the confession himself, accused along with police officials went to

Pasivedala where the TVS XL was concealed and where found 12 two wheelers in a shed out of which the property stolen at SBI Branch Palakol is one of the vehicle. Immediately the police seized the TVSXL in our presence followed by a mediator report cum seizure nama. The said report cum seizure nama was marked as Ex.P-3. He can identify the TVSXL (M.O.1)which was seized under Ex.P-3 proceedings, thereafter, they proceeded towards

Kanuru and they found 17 two wheelers in a thatched house at Kanuru out of which the vehicle which was subject to theft i.e. HF Deluxe motor cycle and

Police seized the same followed by a mediators report cum seizure nama and the said report cum seizure nama was marked as Ex.P-4.

12. P.W.4 deposed that on 24-05-2018 at about 3-30 A.M. himself and his staff along with mediators and proceeded towards Godavari Bund road at

Gowthami Jeevakarunya Sangham and they found a two wheeler coming from Kotipalli Bus stand and the accused tried to scalp away by taking U turn of their vehicle and finally he caught hold them with the help of his staff and on enquiry the both accused reveled their I.D. particulars and also confessed that they committed theft of two wheeler which is in thier possession and they brought the same for sale. He can identify accused immediately they found the said vehicle is a subjected matter in Cr.No.175/2018 of I Town

Rajahmundry. The accused further confessed that they have committed the total vehicles of 30 out of which some vehicles were placed at Pasivedala and some of the vehicles were placed at Kanuru. Immediately, he arrested the accused and seized the two wheeler which is in their possession under a cover of mediators report (Ex.P.2), later, himself and his staff along with accused proceeded towards Pasivedala at about 6-00 A.M. and as per the direction of the accused they found 12 vehicles out of which two vehicles are 8 involved of offences relating to Palakol Town P.S. Immediately he seized the all vehicles pertaining to different crimes of different police stations under a cover of mediator report (Ex.P.3). Later they again proceeded towards Kanuru at about 8-00 A.M. and as per the direction of accused they found 17 two wheelers out of which two wheelers are subject matter of crimes of Palakol

P.S. and the remaining are pertaining to different crimes of different police stations and also he seized 17 two wheelers under a cover of mediators report (Ex.P.4). Immediately, he arrested the accused and brought him to the police station and sent him for judicial remand. L.W.10, already registered this case in Cr.No.117 & 118/2018 in respect of the above four two wheelers which was seized at pasivedala and Kanuru and he also issued F.I.R. to that effect. The F.I.R. is marked as Ex.P.5 in Cr.No.117/2018 and the F.I.R. is marked as Ex.P.6 in Cr.No.118/2018.

13.The defacto complainant in Cr.No.117/2018 examined as P.W.1 and she deposed that herself and her son went to S.B.I. branch by parking her

T.V.S.XL Super AP.37 BW 8598 and the said vehicle was subjected to theft by some unknown offenders and as such she is not an eye witness of the offence while committing the theft and also she cannot identify the accused and the same way the defacto complainant in Cr.No.118/2018 also deposed that he parked his vehicle A.P. 01 CF 2790 and the same was also subjected to theft by some unknown offenders and they both could identify their vehicles which were marked as M.Os. 1 and 2.

14.The prosecution examined one V.R.O. and according to his evidence

P.W.4 have conducted an investigation in a crime pertaining to Rajahmundry on 25-04-2018 at Rajahmundry Godavari bund at about 3-30 A.M. and by that time they caught hold the A.1 and A.2 of this case by having a possession of a vehicle pertaining to crime of Rajahmundry and they both were arrested and on enquiry the A.1 confessed that himself and A.2 committed thefts of several two wheelers and according to their confession they went to Kanuru and Pasivedala and where they have found several two wheelers and the said two wheelers were seized under the cover of mediators report at Rajahmundry, Pasivedala and Kanuru under Exs. P.2 to

P.4 and during the confession of A.1, he also confessed that he committed a theft of two wheelers in the presence cases at Palakol and the said vehicles were involved in the above said mediators report. But during the cross examination he deposed as "It is true the confession statement does not contain the signature of A.2 who is the accused herein." If really the confession was given by A.1 and A.2 separately, it is bounded duty of the 9 mediators as well as the concerned Investigation Officer. to secure the signatures of accused who gave that particulars confessional statements.

But, as there is no signature of A.2 in the Exs. P.2 to P.3 it creates a doubt whether the A.2 was present at the time of confessional statement along with A.1 or not.

15.According to P.Ws. 1 and 2 after some time of registering the F.I.R. the police produced the vehicles before this court basing on which, this court gave an interim custody. The Investigation Officer did not conduct any Test

Identification Parade of the property with a view to know the actual vehicle involved or subjected to theft and the non conducting of Test Identification

Parade of property also creates a doubt whether the vehicles were seized in a due procedure aspect or not.

16.The entire case is depend upon the prosecution witnesses like P.W.3 and P.W.4 who are the V.R.O. and Sub Inspector of Police, Rajahmundry who participated in Ex.P.2 to P.4 mediators report. The entire case was constructed by the concerned police only basing on the confessional statement given by A.1 by involving A.2 and the confessional statement was given by the A.1 to the P.W.1 who is Sub Inspector of Police, Rajahmundry and the said confessional statement cannot be admissible in evidence as the said confessional statement was given to the police and the said statements were hit by Section 25 of Indian Evidence Act.

17.There are no any eye witnesses or evidence adduced by the prosecution to prove that the M.Os. 1 and 2 were committed theft by the A.2 and also there is no evidence showing the possession of M.Os. 1 and 2 with

A.2 except the confessional statement given by A.1 there is no any material evidence adduced by the prosecution.

18.In the present case the prosecution did not examined the L.W.10 who is

Investigation Officer of this case and also who registered in the crimes even though he handed over the M.Os 1 and 2 to P.Ws. 1 and 2 for interim custody.

Though, the non examination of Investigation Officer is not fatal to the prosecution but, in the present case the Investigation of Officer is necessary to prove the Identification of M.Os 1 and 2 and also to prove the involvement of A.2 towards the Commission of offence. The prosecution neither proved the theft committed by the A.2 nor proved the possession of M.Os 1 and 2 with him.

19.Therefore, the prosecution failed to prove the guilt of the accused No.2 for the offence punishable U.sec. 379 or 411 of IPC beyond all reasonable 10 doubt and the benefit of doubt shall goes to accused and accused are entitled for acquittal. The above point is answered accordingly.

20.RESULT: Accused No.2 is found not guilty for the offence punishable under Sections 379 or 411 of IPC and accused is acquitted for the same under Sec.248 (1) of Cr.P.C.The bail bonds of accused No.2 shall stand cancelled after expiry of appeal time. The M.O.1-T.V.S. XL Moped Self Motor

Cycle bearing No.AP. 37 BW 8598 with Engine No.0D1CE1452503 which was already given to petitioner/Defacto complainant by name Tadi Naga Mani,

W/o late Narasimha Rao, aged 60 years, R/o Kaza Village, Elamanchili Mandal in Crl.M.P.No.4761/2018 in C.C.No.201/2018, dt.27-11-2018 shall be made absolute after the expiry of appeal time. The M.O.2-HF Delux Motor Cycle bearing No.AP. 07 CF 2790 in Engine No.Ha11EJE9K39961 which was already given to petitioner/Defacto complainant by name Pachigolla Srinivasa Rao,

S/o Narasimha Murthy,R/o Doddipatla, Daikaluru Mandal in

Crl.M.P.No.4796/2018 in C.C.No.201/2018, dt.18-12-2018 shall be made

absolute after the expiry appeal time. The accused No.1 was already admitted in C.C.No.3/2019, dt.17-01-2019.

Dictated to the Jr. Assistant, directly on the computer, corrected and

pronounced by me in open Court, this the 22nd day of March, 2019.

PRINCIPAL JUNIOR CIVIL JUDGE,

FAC/JUDL. MAGISTRATE OF I CLASS,

PALAKOL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

P.W.1 : Gadi Nagamani -None- P.W.2 : Pachigolla Srinivasa Rao P.W.3 : Ch.M.Venkateswara Rao P.W.4 : K.Viswanadha Babu.

DOCUMENTS MARKED:

FOR PROSECUTION: Ex.P-1 : Report of P.W.1 Ex.P-2 : Mediator Report at about 3-30 A.M. Ex.P-3 : Mediator Report at about 6-00 A.M. Ex.P-4 : Mediator Report at about 8-00 A.M. Ex.P-5 : Original F.I.R in Cr.No.117/2018 Ex.P-6 : Original F.I.R in Cr.No.118/2018.

FOR DEFENCE : NIL 11

MATERIAL OBJECTS :-

M.O.1-T.V.S. XL Moped Self Motor Cycle bearing No.AP. 37 BW 8598

M.O.2- HF Delux Motor Cycle bearing No.AP. 07 CF 2790.

P.J.C.J. FAC/ J.F.C.M

PALAKOL.

1

CALENDAR AND JUDGMENT

District of West Godavari

Calendar of cases tried by the Judicial Magistrate of I Class:Palakol

Date of offence Report of Complaint Apprehension of accused Released on bail (1) (2) (3) (4) ------------------------------------------------------------------------------------- 14-04-2018 17-05-2018 24-05-2018 ---- ------------------------------------------------------------------------------------- Commencement of trial close of trial Sentence of order Explanation for delay (5) (6) (7) (8) ------------------------------------------------------------------------------------- 30-08-2018 15-03-2019 22-03-2019 NIL ------------------------------------------------------------------------------------- Judgment of Calendar Case No.210/2018 on the file of Judicial Magistrate of I class: Palakol.

Complainant:-State: Sub Inspector of Police, Plakol Town Police Station. ( Cr.Nos.119/2018 of Palakol Town Police Station )

Name of the Accused Father Name Age Caste/Religion Calling Village 1.Kuppala Rangarao @ Ranga, S/o (late) Suranna, aged 45 years, Caste:Kapu, R/o Dr.No.20-131, Ramalayam Street, Satyawada Village, Undrajavaram Mandal.

(The Case agaisnt A.1 separated from C.C.210/2018 and numbered as 4/2019and he was aready admitted in C.C.No.4/2019, dt.17-01-2019.).

2. Veeramallu Nageswara Rao, S/o Venkata Rao, aged 42 years, Caste:Gowda, R/o near Water Tank Kanuru Village, Peravali Mandal. …. A.1 and A.2. -------------------------------------------------------------------------------------

OFFENCE : Punishable under sections U/Sec.379 or 411 of IPC

Finding:Found not guilty.

RESULT :Accused No.2 is found not guilty for the offence punishable under Sections 379 or 411 of IPC and accused is acquitted for the same under Sec.248 (1) of Cr.P.C.The bail bonds of accused No.2 shall stand cancelled after expiry of appeal time. The M.O.1-Splendor Plus Motor Cycle bearing No.AP. 31 AD 6394 which was already given to petitioner/Defacto complainant by the Station House Officer, Palakol Town P.S shall be made absolute. The accused No.1 was already admitted in C.C.No.4/2019, dt.17-01-2019.

PRINCIPAL JUNIOR CIVIL JUDGE,

FAC/JUDL. MAGISTRATE OF I CLASS,

PALAKOL.

Copy Submitted to:

1. The 1st Addl. District & Sessions Judge, W.G.Eluru

2. The Superintendent of Police, West Godavari, Eluru, through A.P.P., Palakol.

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IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS COURT::

PALAKOL

Present : - Sri K. Mothilal

Principal Junior Civil Judge, Palakol

FAC/Judicial Magistrate of I Class Court, Palakol

Friday, the 22nd day of March, 2019

C.C.No.210/2018

Between:

State: The Sub-Inspector of Police, Palakol Town Police Station. …. Complainant AND 1.Kuppala Rangarao @ Ranga, S/o (late) Suranna, aged 45 years, Caste:Kapu, R/o Dr.No.20-131, Ramalayam Street, Satyawada Village, Undrajavaram Mandal.

(The Case agaisnt A.1 separated from C.C.210/2018 and numbered as 4/2019and he was aready admitted in C.C.No.4/2019, dt.17-01-2019.).

2. Veeramallu Nageswara Rao, S/o Venkata Rao, aged 42 years, Caste:Gowda, R/o near Water Tank Kanuru Village, Peravali Mandal. …. A.1 and A.2.

This case is coming on 19-03-2019 hearing before me in the presence of Learned APP for the prosecution and Sri P.Srinivas Advocate for the Accused No.2 and upon hearing and having stood over the matter for consideration to this day, this Court delivered the following:

J U D G M E N T

The Sub-Inspector of Police, Palakol Town P.S filed a charge sheet against the Accused No.1 and 2 for the offence punishable under sections 379 or 411 of IPC in Cr. No.119/2018.

2. The brief averments of the Charge-Sheet are

The L.W.1-yenugupalli John Milanthon is resident of Sambhunipeta Peta,

Village, Palakol Mandal, he is working in Sukhibhava Hospital, Palakol. On 14- 04-2018 at about 5-30 P.M. he went to the sandy Market, Palakol on Splendor

Plus Motor Cycle bearing No.AP. 31 AD 6394 of his brother-in-law by name

Gummuadi jayaraju and kept his bike in front of Kirana Merchants Association and after sometime he came out of the building and noticed his bike not 3 there, he enquired for it till today btu in vain. Unknown offenders committed theft of it and escaped with the stolen property. Basing on the report given by L.W.1-Yenujgupalli John Milanthon, the L.W.7-B.Krishna Kumar, Inspector of

Police, Palakol Town P.S. registered a case. During the course of Investigation

L.W.6-Kolusu Viswanadha Babu, Sub-Inspector of Police, I Town L & O PS

Rajamahendravaram, East Godavari District arrested the A.1 and A.2 on 24- 05-2018 in the presence of mediators and he recovered the stolen property from them. Later, L.W.10-B.Krishna Kumar, Inspector of Police, Palakol Town

P.S. received the record from L.W.6- Kolusu Viswanadha Babu, Sub-Inspector of Police, I Town L & O PS Rajamahendravaram, East Godavari District and after completion of investigation he filed charge sheet.

3. This case was taken cognizance against the accused for the offence under Sections U/Sec.379 or 411 of IPC against the A.1 and A.2.

4. After appearance of the accused No.1 and 2 case copies are furnished to accused as required u/s 207 of Cr.P.C accused are examined u/sec. 239 Cr.P.C explaining accusation under Sections U/Sec.379 or 411 of IPC to the accused

No.1 and 2, they pleaded not guilty and claimed to be tried.

5.During the course of trial, prosecution has examined P.Ws.1 to 3 and got marked Exs.P-1 to P.4 and Ex.D.1 is marked on behalf of the defense side and M.O.1 is marked.

6.After closure of the prosecution evidence, the accused is examined under Sec.313 Cr.P.C. She reported no defence evidence.

7.Thereafter heard the arguments of Learned APP and counsel for the accused.

8. The point for Consideration is :

“Whether the Prosecution has established the guilt of Accused

for the offence punishable under Sections U/Sec.379 or 411 of

IPC beyond all reasonable doubts”?

9. L.W.1-Yenugupalli John Milanton examined as P.W.1 deposed that on 14-04-2018 he went to Vegetable shandy at 5-00 PM, on the motor cycle of 4 his brother-in-law by name Gummadi Jayaraju, bearing registration No. AP 31

AD 6394. He parked the motor cycle out side the shandy and went in side, after compliance he return back and found missing of Splender Plus Motor cycle. Some unknown culprits stolen away his motor cycle, he searched for the same but in vain, later, he gave report on the same day of the theft.

Ex.P1 is his report. Later, the police informed him about the recovery of his motor cycle. After recovery the police handed over the motor cycle to him and obtained acknowledgement from him on 06-06-2018. He produced the motor cycle to day before the Hon’ble Court, he can identify the motor cycles, which is marked as M.O.1. Police examined him and recorded his statement.

10.Ch.M.Venkataeswarlu examined as P.W.2 deposed that on 24-05-2018 himself and L.W.8 and police personnel accompanied I Town Law and order

S.I. Rajamhendravaram, they are all went to Gowthami Jeeva Karunya

Sangam sitauted at Rajahmundry Godavari bund, they went there at 3-30

A.M. At that time they noticed two persons are coming from Kotipalli Bus stand on a motor cycle towards Gowthami Jeeva Karunya Sangam,

Pushkaragat on seeing the police the two persons tried to escape by taking turn towards back on suspicion the S.I. got apprehended them with the help of the staff. The S.I of Police questioned the said two persons as to why they are trying to escape on seeing them. The S.I. asked two persons about there identity particulars they revealed their name as Kuppala Ranga Rao and

Veramallu Nageswara Rao. He can identify Kuppala Ranga Rao and Veramallu

Nageswara Rao who are none other than case and who are standing in dock.

At the first instance the S.I. interrogated the A.1 on questioning the accused revealed that the motor cycle in their possession is a stolen motor cycle, which was stolen by them from the parking place center at Somalamma

Temple, Rajahmundry and with a view to sell the same they are taking the motor cycle to Rajahmundry. In the mean time police caught them, the stolen motor cycle bearing registration No.AP. 05 BX 9032 Hero CD Deluxe, the said motor cycle is identified the A.1 about the committing of theft in any other places, on that the A.1 informed that he committed thefts of bicycles at

Tanuku, Attili, Undrajavaram areas, Undrajavaram police arrested him and seized the bicycles. Thereafter, the A.1 was convicted for the offence of theft.

The S.I. identified the A.1 is a habitual offender. On questioning the A.1 5 revealed that while he was undergoing sentence at Rajahmundry Central Jail, he himself though and decided to commit theft of motor cycle for earning of more money. Accordingly, he committed theft of motor cycle at

Rajahmundry, Tadepalligudem, Palakol, Eluru, Bhiamvaram, Nuziveedu etc., areas in toto he committed 100 motor cycles. He was also convicted for the offences of theft and served sentences, thereafter he was released from the jail, thereafter,he resided at his native place at Satyavada for some time, later he went to Pasivedala and took a house for rent and made believe the people of Pasivedala that he is doing old bikes selling and purchasing business, the A.1 further informed that in the month March, 2018 first week he committed theft of Hero Honda Motor cycle which was parked at Degree college behind Gokavaram Bus stand while he was proceeding on the said motor cycle towards Pasivedala on the way he saw the A.2 who is son-in-law of his village and both of them chitchatting with each other, at that time the

A.1 informed to the A.2 that the motor cycle in his possession is a stolen one and asked the A.2 that this motor cycle to be hired at the place and further stated to A.2 taht after committing theft of more motor cycles all will sold away for earning. The A.1 asked the A.2 to say the place for concealing the said property on that the A.2 informed that there is a hut near his house at

Kanuru Village, it is safe for that, accordingly A.1 and A.2 went there and concealed the motor cycle there. The A.1 also informed to A.2 that if anybody ask about the motor cycle he has to inform that he is doing motor cycle purchased and selling business for which only the concealed the property there during the confession the A-1 confessed that he along with A- 2 have committed several theft of two wheelers out of which they have committed theft of a two wheeler i.e. TVS XL at Main gate of SBI Palakol branch and also committed a theft of two wheeler of HF Deluxe motor cycle at U. Apparao Hospital, Palakol Town and the A-1 further confessed that he along with A-2 also committed a theft of two wheeler at Chaitanya children

Hospital i.e. TVSXL which was concealed at Pasivedala and also they committed theft of another vehicle at Vegetable sandy of Palakol town i.e.

Splendor which was concealed at Kanuru, basing on the confession given by the accused A-1 that the stolen property i.e. TVS XL was concealed at a shed of Pasivedala and the another motor cycle i.e. XF Deluxe motor cycle was concealed in a thatched house of Kanuru, on 24-05-2018 at about 3.30 Am, they drafted a mediators report cum confessional statement of A-1 at

Godavarigattu of Rajamahendravaram. The said mediators report cum confessional statement was marked as Ex.P-2. The Police again enquired the

A-2 separating from A-1 and the A-2 also confessed as if stated by A-1.

6

Basing on the confession himself, accused along with police officials went to

Kanuru where the Splendor was concealed and where found 17 two wheelers in a shed out of which the proeprty stolen at Vegetable Sandy Market Palakol is one of the Vehicle. Immediately the police seized the Splendor in their presence follwoed by a mediator report cum seizure nama. The said report cum seizure nama was marked as Ex.P.3. He can identiy the Splendor (M.O.1) which was seized under Ex.P.3 proceedings.

11. K.Veswanadam Babu examined as P.W.3 deposed that on 24-05-2018 at about 3-30 A.M. himself and his staff along with mediators and proceeded towards Godavari Bund road at Gowthami Jeevakarunya Sangham and they found a two wheeler coming from Kotipalli Bus stand and the accused tried to scalp away by taking U turn of their vehicle and finally he caught hold them with the help of his staff and on enquiry the both accused reveled their

I.D. particulars and also confessed that they committed theft of two wheeler which is in thier possession and they brought the same for sale. He can identify accused (A.2). Immediately they found the said vehicle is a subjected matter in Cr.No.175/2018 of I Town Rajahmundry. The accused further confessed that they have committed the total vehicles of 30 out of which some vehicles were placed at Pasivedala and some of the vehicles were placed at Kanuru. Immediately, he arrested the accused and seized the two wheeler which is in their possession under a cover of mediators report (Ex.P.2). Later, himself and his staff along with accused proceeded towards

Pasivedala at about 6-00 A.M. and as per the direction of the accused they found 12 vehicles out of which two vehicles are involved of offences relating to Palakol Town P.S. Immediately he seized the all vehicles pertaining to different crimes of different police stations under a cover of mediator report (Ex.P.3). Later they again proceeded towards Kanuru at about 8-00 A.M. and as per the direction of accused they found 17 two wheelers out of which two wheelers are subject matter of crimes of Palakol P.S. and the remaining are pertaining to different crimes of different police stations and also he seized 17 two wheelers under a cover of mediators report (Ex.P.4). Immediately, he arrested the accused and brought him to the police station and sent him for judicial remand. L.W.10, already registered this case in Cr.No.117 & 118/2018 in respect of the above four two wheelers which was seized at pasivedala and Kanuru and he also issued F.I.R. to that effect. The F.I.R. is marked as

Ex.P.4 in Cr.No.119/2018.

13.The defacto complainant in Cr.No.119/2018 examined as P.W.1 and he deposed that he went to Vegetable Sandy market on 14-04-2018 at about 5- 7 00 P.M. and he parked his vehicle outside the Sandy market and the said vehicle is bearing No.AP. 31 AD 6394 and the said vehicle was subjected to theft by some unknown offenders and as such he is not an eye witness of the offence while committing the theft and also she cannot identify the accused.

The defacto complainant-cum-P.W.1 could identify his vehicle which is marked as M.O.1

14.The prosecution examined one V.R.O. and according to his evidence

P.W.4 have conducted an investigation in a crime pertaining to Rajahmundry on 25-04-2018 at Rajahmundry Godavari bund at about 3-30 A.M. and by that time they caught hold the A.1 and A.2 of this case by having a possession of a vehicle pertaining to crime of Rajahmundry and they both were arrested and on enquiry the A.1 confessed that himself and A.2 committed thefts of several two wheelers and according to their confession they went to Kanuru and Pasivedala and where they have found several two wheelers and the said two wheelers were seized under the cover of mediators report at Rajahmundry, Pasivedala and Kanuru under Exs. P.2 to

P.4 and during the confession of A.1, he also confessed that he committed a theft of two wheelers in the presence cases at Palakol and the said vehicles were involved in the above said mediators report. But during the cross examination he deposed as "It is true the confession statement does not contain the signature of A.2 who is the accused herein." If really the confession was given by A.1 and A.2 separately, it is bounded duty of the mediators as well as the concerned Investigation Officer. to secure the signatures of accused who gave that particulars confessional statements.

But, as there is no signature of A.2 in the Exs. P.2 to P.3 it creates a doubt whether the A.2 was present at the time of confessional statement along with A.1 or not.

15.According to P.Ws. 1 and 2 after some time of registering the F.I.R. the police produced the vehicles before this court basing on which, this court gave an interim custody. The Investigation Officer did not conduct any Test

Identification Parade of the property with a view to know the actual vehicle involved or subjected to theft and the non conducting of Test Identification

Parade of property also creates a doubt whether the vehicles were seized in a due procedure aspect or not.

16.The entire case is depend upon the prosecution witnesses like P.W.2 and P.W.3 who are the V.R.O. and Sub Inspector of Police, Rajahmundry who participated in Ex.P.2 to P.4 mediators report. The entire case was constructed by the concerned police only basing on the confessional 8 statement given by A.1 by involving A.2 and the confessional statement was given by the A.1 to the P.W.1 who is Sub Inspector of Police, Rajahmundry and the said confessional statement cannot be admissible in evidence as the said confessional statement was given to the police and the said statements were hit by Section 25 of Indian Evidence Act.

17.There are no any eye witnesses or evidence adduced by the prosecution to prove that the M.O.1 was committed theft by the A.2 and also there is no evidence showing the possession of M.O.1 with A.2 except the confessional statement given by A.1 there is no any material evidence adduced by the prosecution.

18.In the present case the prosecution did not examined the L.W.10 who is

Investigation Officer of this case and also who registered in the crimes even though he handed over the M.O.1 to P.W.1 for interim custody. Though, the non examination of Investigation Officer is not fatal to the prosecution but, in the present case the Investigation of Officer is necessary to prove the

Identification of M.O.1 and also to prove the involvement of A.2 towards the

Commission of offence. The prosecution neither proved the theft committed by the A.2 nor proved the possession of M.O.1 with him.

19Therefore, the prosecution failed to prove the guilt of the accused No.2 for the offence punishable U.sec. 379 or 411 of IPC beyond all reasonable doubt and the benefit of doubt shall goes to accused and accused are entitled for acquittal. The above point is answered accordingly.

20RESULT: Accused No.2 is found not guilty for the offence punishable under Sections 379 or 411 of IPC and accused is acquitted for the same under Sec.248 (1) of Cr.P.C.The bail bonds of accused No.2 shall stand cancelled after expiry of appeal time. The M.O.1-Splendor Plus Motor Cycle bearing No.AP. 31 AD 6394 which was already given to petitioner/Defacto complainant by the Station House Officer, Palakol Town P.S. shall be made absolute. The accused No.1 was already admitted in C.C.No.4/2019, dt.17- 01-2019.

Dictated to the Jr. Assistant, directly on the computer, corrected and

pronounced by me in open Court, this the 22nd day of March, 2019.

PRINCIPAL JUNIOR CIVIL JUDGE,

FAC/JUDL. MAGISTRATE OF I CLASS,

PALAKOL.

9

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

P.W.1 : Yenugupalli John Melonchthon -None- P.W.2 : Ch.M.Venkateswara Rao P.W.3 : K.Viswanadha Babu.

DOCUMENTS MARKED:

FOR PROSECUTION: Ex.P-1 : Report of P.W.1 Ex.P-2 : Mediator Report at about 3-30 A.M. Ex.P-3 : Mediator Report at about 6-00 A.M. Ex.P-4 : Original F.I.R in Cr.No.119/2018.

FOR DEFENCE :

Ex.D.1: 161 Cr.P.S. statement.

MATERIAL OBJECTS :-

M.O.1-Splendor Plus Motor Cycle bearing No.AP. 31 AD 6394.

P.J.C.J. FAC/ J.F.C.M

PALAKOL.

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CALENDAR AND JUDGMENT

District of West Godavari

Calendar of cases tried by the Judicial Magistrate of I class, Palakol Date of offence Report of Complaint Apprehension of accused Released on Bail (1) (2) (3) (4) 10-04-2018 10-04-2018 10-04-2018 10-04-2018 ------------------------------------------------------------------------------------------------------- Commencement of trial close of trial Sentence of order Explanation for delay (5) (6) (7) (8) 15-03-2019 15-03-2019 22-03-2019 Due to non production of Witnesses Judgment of Calendar Case No: 9/2019 on the file of Judicial Magistrate of

I class, Palakol.

Complainant:- State: Inspector of Police, Proh.& Excise Station Palakol (Cr.No.43/2018)

Name of the Accused Father name Age Caste/Religion Calling Village

Gudala Nageswara Rao, S/o Venkanna, aged 60 years, Caste:Settibalija, R/o Ayodya Lanka Village, Achanta Mandal. …Accused -----------------------------------------------------------------------------------

OFFENCE: Punishable under section 34 (a) of AP Excise Act.

FINDING: Found not guilty.

RESULT : In the result, accused is found not guilty for the offence punishable under section 34 (a) of AP Excise Act and accused is acquitted of the same under section 248 (1) of Cr.P.C. The bail bonds of accused shall remain in force for a period of six months from the date of Judgment.

M.O.1 shall be destroyed after expiry of appeal time.

PRINCIPAL JUNIOR CIVIL JUDGE,

JUDL. MAGISTRATE OF THE I CLASS,

PALAKOL.

Copy Submitted to:

1.Copy submitted to the Hon’ble I ADJ, WG, Eluru for favour of information.

2. The Superintendent of Police, West Godavari, Eluru.

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IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS COURT::

PALAKOL.

Present : - Sri K. Mothilal

Principal Junior Civil Judge, Palakol

FAC/Judicial Magistrate of I Class Court, Palakol Friday, the 22nd day of March, 2019

C.C.No.9/2019

Between:

State:Prohibition and Excise Inspector Prohibition and Excise Police Station, Palakol.

..Complainant

AND

Gudala Nageswara Rao, S/o Venkanna, aged 60 years, Caste:Settibalija, R/o Ayodya Lanka Village, Achanta Mandal.

.. Accused

This case is coming on 19-03-2019 for final hearing before me in the presence of Learned APP for the prosecution and Sri R.D.R, Advocate for accused, and having stood over this day for consideration, this court delivered the following:

J U D G M E N T

The Prohibition and Excise Sub-Inspector of Police, Prohibition and

Excise Station, Palakol filed a charge sheet against the accused for the offence punishable under section 34 (a) of A.P Excise Act in

Cr. No.43/2018.

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

On 10-04-2018 at about 02-00 P.M., L.W.3-M.Srinivasa Rao, Proh &

Excise Inspector, Palakol and staff proceeded to Palakol Town and found the accused in possession of 7 IML bottles of Mens Club Classic Whisky 180 ml size bottles and seized 7 IML bottles of Mens Club Classic Whisky 180 ml size bottles by drawing samples under the cover of mediator report and P.W.2 registered the mediator report as the case in Cr.No.43/2018 u/sec. 34 (a) of A.P. Excise Act 1968 and sent the samples for chemical analysis report vide C.E.No.609/2018,dt.02-05-2018, after completion of investigation he filed the charge sheet.

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3.This case was taken cognizance against the accused for the offence under Section 34 (a) of AP Excise Act against the accused.

4. After appearance of the accused case copies are furnished to accused as required u/s 207 of Cr.P.C accused is examined u/s 239 Cr.P.C explaining accusation u/s. 34 (a) of AP Excise Act to the accused, he pleaded not guilty and claimed to be tried.

5.During the course of trial, prosecution has examined P.Ws.1 and 2 and got marked Exs.P.1 to P.4 and M.O.1. After closure of the prosecution side the accused is examined U/s. 313 Cr.P.C he reported no defence evidence.

6.Thereafter heard the arguments of Learned APP and counsel for the accused.

7.The point for Consideration is:

“Whether the Prosecution has proved the guilt of the accused for the offence punishable under sec. 34 (a) of AP Excise Act beyond all reasonable doubt?” 8.POINT:

9. The accused is tried for the charge of under section 34 (a) of A.P

Excise Act.

10. According to the case of prosecution the accused is in possession of Indian Made Liquor bottles without any license and he selling the said bottles for higher price.

11. The P.W.1 is the V.R.O.who is resident of Beemalapuram Village, and P.W.2 is the Inspector of Police, Excise P.S, Palakol.

12. According the evidence of P.W.1 who is V.R.O. deposed that on 10-04-2018 at about 2-00 P.M. when he was in Beemalapuram, he received a phone call from Excise Officials who requested him to participate in a raiding and accordingly himself proceeded with Excise Officials to Ayodya

Lanka where they found an accused under suspicious circumstances with a bag and they further found the said bag contain 7 bottles of Mens Club

Classic whisky and immediately the Excise Officials arrested the accused - 4 and seized the above said 7 bottles under the cover of mediator report.

The said mediator report is marked as Ex.P.1. The police also drawn samples from one bottle duly affixed with I.D. slips. The said one sample is marked as M.O.1. The police taken the accused along with alleged bottles to the P.S.

13. The P.W.2 is the Prohibition and Excise Inspector, Palakol who deposed that on 10-04-2018 at about 2-00 P.M. himself and his staff along with P.W.1 proceeded towards Ayodyalanka village near Ramalayam and where they found the accused with a white bag and on having suspicion they caught hold the accused and on enquiry the accused reveled his I.D.

particulars and they noticed 7 nibs of bottles of Mens club classic whisky 180 ml each and he failed to show any permission or license. He issued 41-A Cr.P.C. notice and the accused availed the same. He arrested the accused and seized 7 bottles under the cover of mediators report. He has drawn one sample from one bottle under M.O.1 duly affixed with I.D. slips.

Basing on the Ex.P.4 he registered in a case in Cr.No.43/2018 U/sec. 34 (a) of A.P. Excise Act and issued F.I.R. Ex.P.2 is F.I.R. he forwarded the one sample for Chemical Examination, Kakinada through letter dt.30-04-2018.

He received the Chemical analysis report from C.E., Kakinada vide

C.E.No.609/2018, dt.02-05-2018. The said letter is marked as Ex.P.3 and report is marked Ex.P.4. After completion of Investigation he filed charge sheet.

14.According the case of prosecution on 10-04-2018 at about 2-00 P.M. he search and seizure was conducted at the Ayodya Lanka

Village of Achanta Mandal. But, the P.W.2 failed to secure any local inhabitant of the place where search and seizure was conducted.

15.The Investigation Officer who is conducting search and seizure has to follow the procedure prescribed under section 100 of Cr.P.C. According to Section 100(4) of Cr.P.C. The P.W.2 has to follow certain procedure while conducting the search. The P.W.2 has to secure to local inhabitants Ayodya - 5

Lanka Village of Achanta Mandal and if the local inhabitants are not willing to act as mediators then the P.W.2 has to secure the persons from other locality. The P.W.2 has to issue a written notice to the local inhabitants by calling them to act as witnesses or mediators. But, in the present case the

P.W.2 not followed the mandatory procedure prescribed under section 100 (4) of Cr.P.C, even through the prosecution witness admitted as there are several shops and houses in and around scene of offence.

16. According to Section 100 (7) of Cr.P.C. The P.W.2 has to prepare a list of seized articles and shall hand it over to the accused. But, in the present case, the P.W.2 has not followed that procedure, which is mandatory.

17.In a Judgment reported in Babu Saheb @ Babu, S. v. State of

A.P.2010 (1) ALT (Crl.) 32 (A.P). It was decided that it is necessary to take independent respectable local mediators. The ratio in this Judgment is that the investigation officer has to secure independent respectable local mediators.

18. In the present case also there are no independent mediators and the facts in the present case and the above cited Judgment are in similar nature and as such the ratio of the said Judgment is applicable to the present case.

19. Under the aforesaid reasons this Court is of opinion that the non securing of local mediators and no efforts were made by the P.W.2 is raising a reasonable doubt. The benefit of doubt is always available to the accused and as such the evidence of prosecution witnesses raising a reasonable doubt about the seizure of intoxicants from the possession of accused.

20. In the result, accused is found not guilty for the offence punishable under section 34 (a) of AP Excise Act and accused is acquitted of the same under section 248 (1) of Cr.P.C. The bail bonds of accused shall remain in force for a period of six months from the date of Judgment. M.O.1 shall be destroyed after expiry of appeal time.

- 6

Dictated to the Typist, directly on the computer, corrected and

pronounced by me in open Court, this the 22nd day of March, 2019.

PRINCIPAL JUNIOR CIVIL JUDGE,

JUDL. MAGISTRATE OF THE I CLASS,

PALAKOL.

APPENDIX OFEVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

P.W.1 : G.Apparao-None-

P.W.2 : M.Srinivasa Rao.

DOCUMENTS MARKED

FOR PROSECUTION:

Ex.P-1 : Mediator report

Ex.P-2 : Original F.I.R.

Ex.P-3 : Letter of Advise.

Ex.P-4 : Analysis Report.

FOR DEFENCE : NIL

MATERIAL OBJECTS

M.O.1: Sample bottle.

P.J.C.J. FAC/JFCM PKL.

- 7

- 1

CALENDAR AND JUDGMENT

District of West Godavari

Calendar of cases tried by the Judicial Magistrate of I class, Palakol Date of offence Report of Complaint Apprehension of accused Released on Bail (1) (2) (3) (4) 18-11-2017 18-11-2017 18-11-2017 18-11-2017 ------------------------------------------------------------------------------------------------------- Commencement of trial close of trial Sentence of order Explanation for delay (5) (6) (7) (8) 25-02-2019 14-03-2019 22-03-2019 Due to non production of Witnesses Judgment of Calendar Case No: 23/2019 on the file of Judicial Magistrate of I class, Palakol. Complainant:- State: Inspector of Police, Proh.& Excise Station Palakol (Cr.No.165/2017)

Name of the Accused Father name Age Caste/Religion Calling Village

Ballavarapu Premanandam, S/o Bala Sundara Rao, aged 42 years, Caste:S.C.Mala, R/o Gorintada, Palakol Mandal. …Accused --------------------------------------------------------------------------------------------------------

OFFENCE: Punishable under section 34 (a) of AP Excise Act.

FINDING: Found not guilty.

RESULT : In the result, accused is found not guilty for the offence punishable under section 34 (a) of AP Excise Act and accused is acquitted of the same under section 248 (1) of Cr.P.C. The bail bonds of accused shall remain in force for a period of six months from the date of Judgment.

M.Os.1 to 6 shall be destroyed after expiry of appeal time.

PRINCIPAL JUNIOR CIVIL JUDGE,

JUDL. MAGISTRATE OF THE I CLASS,

PALAKOL.

Copy Submitted to:

1.Copy submitted to the Hon’ble I ADJ, WG, Eluru for favour of information.

2. The Superintendent of Police, West Godavari, Eluru.

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IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS COURT::

PALAKOL.

Present : - Sri K. Mothilal

Principal Junior Civil Judge, Palakol

FAC/Judicial Magistrate of I Class Court, Palakol Friday, the 22nd day of March, 2019

C.C.No.23/2019

Between:

State:Prohibition and Excise Inspector Prohibition and Excise Police Station, Palakol.

..Complainant

AND

Ballavarapu Premanandam, S/o Bala Sundara Rao, aged 42 years, Caste:S.C.Mala, R/o Gorintada, Palakol Mandal.

.. Accused

This case is coming on 20-03-2019 for final hearing before me in the presence of Learned APP for the prosecution and Sri R.D.R, Advocate for accused, and having stood over this day for consideration, this court delivered the following:

J U D G M E N T

The Prohibition and Excise Sub-Inspector of Police, Prohibition and

Excise Station, Palakol filed a charge sheet against the accused for the offence punishable under section 34 (a) of A.P Excise Act in

Cr. No.165/2017.

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

On 18-11-2017 at about 06-00 P.M., L.W.2-M.Srinivasa Rao, Proh &

Excise Inspector, Palakol and staff proceeded to Palakol Town and found the accused in possession of 6 Nips of Heaven's Door Whisky 180 ml size bottles and seized 6 Nips of Heaven's Door Whisky 180 ml size bottles by drawing samples under the cover of mediator report and P.W.2 registered the mediator report as the case in Cr.No.165/2017 u/sec. 34 (a) of A.P.

Excise Act 1968 and sent the samples for chemical analysis report vide

C.E.No.1748/2017,dt.08-12-2017, after completion of investigation he filed the charge sheet.

- 3

3.This case was taken cognizance against the accused for the offence under Section 34 (a) of AP Excise Act against the accused.

4. After appearance of the accused case copies are furnished to accused as required u/s 207 of Cr.P.C accused is examined u/s 239 Cr.P.C explaining accusation u/s. 34 (a) of AP Excise Act to the accused, he pleaded not guilty and claimed to be tried.

5.During the course of trial, prosecution has examined P.Ws.1 and 2 and got marked Exs.P.1 to P.5 and M.Os 1 to 6. After closure of the prosecution side the accused is examined U/s. 313 Cr.P.C he reported no defence evidence.

6.Thereafter heard the arguments of Learned APP and counsel for the accused.

7.The point for Consideration is:

“Whether the Prosecution has proved the guilt of the accused for the offence punishable under sec. 34 (a) of AP Excise Act beyond all reasonable doubt?” 8.POINT:

9. The accused is tried for the charge of under section 34 (a) of A.P

Excise Act.

10. According to the case of prosecution the accused is in possession of Indian Made Liquor bottles without any license and he selling the said bottles for higher price.

11. The P.W.1 is the mediator who is resident of Adavaipalem Village, and P.W.2 is the Inspector of Police, Excise P.S, Palakol.

12. According the evidence of P.W.1 who is mediator deposed that he is resident of Adavipalem Village and he is a Car Driver. He do not know the accused. He do not know anything about the facts of the case, but the

Excise police obtained his signature in the police station. No arrest and seizure was taken place in his presence. The signature of witness is marked as Ex.P.1.

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13. The P.W.2 is the Prohibition and Excise Inspector, Palakol who deposed that on 18-11-2017 at about 6-00 P.M. himself and his staff along with P.W.1 proceeded towards Palakol Town Limits near Ayyappa Swamy temple bye pass road and where they found the accused with a white bag and on having suspicion they caught hold the accused and on enquiry the accused reveled his I.D. particulars and they noticed 6 nips of bottles of

Heavens door whisky 180 ml each and he failed to show any permission or license. He issued 41-A Cr.P.C. notice and the accused availed the same.

He arrested the accused and seized 6 bottles under the cover of mediators report. The said report is marked as Ex.P.2. He has drawn 6 samples from each bottle and the same is marked as M.Os. 1 to 6 duly affixed with I.D.

slips. Basing on the Ex.P.2. He registered in a case in Cr.No.165/2017

U/sec. 34 (a) of A.P. Excise Act and issued F.I.R. Ex.P.3 is F.I.R. He forwarded the one sample for Chemical examination, Kakinada through letter dt.30- 11-2017. He received the Chemical analysis report from C.E., Kakinda vide

C.E.No.1748/2017, dt.08-12-2017. The said letter is marked as Ex.P.4 and report is marked Ex.P.5. After completion of Investigation he filed charge sheet.

14.According the case of prosecution on 18-11-2017 at about 6-00 P.M. he search and seizure was conducted at the Palakol Town. But, the P.W.2 failed to secure any local inhabitant of the place where search and seizure was conducted.

15.The Investigation Officer who is conducting search and seizure has to follow the procedure prescribed under section 100 of Cr.P.C. According to Section 100(4) of Cr.P.C. The P.W.2 has to follow certain procedure while conducting the search. The P.W.2 has to secure to local inhabitants Palakol

Town and if the local inhabitants are not willing to act as mediators then the P.W.2 has to secure the persons from other locality. The P.W.2 has to issue a written notice to the local inhabitants by calling them to act as witnesses or mediators. But, in the present case the P.W.2 not followed the - 5 mandatory procedure prescribed under section 100 (4) of Cr.P.C, even through the prosecution witness admitted as there are several shops and houses in and around scene of offence.

16. According to Section 100 (7) of Cr.P.C. The P.W.2 has to prepare a list of seized articles and shall hand it over to the accused. But, in the present case, the P.W.2 has not followed that procedure, which is mandatory.

17.In a Judgment reported in Babu Saheb @ Babu, S. v. State of

A.P.2010 (1) ALT (Crl.) 32 (A.P). It was decided that it is necessary to take independent respectable local mediators. The ratio in this Judgment is that the investigation officer has to secure independent respectable local mediators.

18. In the present case also there are no independent mediators and the facts in the present case and the above cited Judgment are in similar nature and as such the ratio of the said Judgment is applicable to the present case.

19. Under the aforesaid reasons this Court is of opinion that the non securing of local mediators and no efforts were made by the P.W.2 is raising a reasonable doubt. The benefit of doubt is always available to the accused and as such the evidence of prosecution witnesses raising a reasonable doubt about the seizure of intoxicants from the possession of accused.

20. In the result, accused is found not guilty for the offence punishable under section 34 (a) of AP Excise Act and accused is acquitted of the same under section 248 (1) of Cr.P.C. The bail bonds of accused shall remain in force for a period of six months from the date of Judgment. M.Os.1 to 6 shall be destroyed after expiry of appeal time.

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Dictated to the Typist, directly on the computer, corrected and

pronounced by me in open Court, this the 22nd day of March, 2019.

PRINCIPAL JUNIOR CIVIL JUDGE,

JUDL. MAGISTRATE OF THE I CLASS,

PALAKOL.

APPENDIX OFEVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

P.W.1 : V.Karuna-None-

P.W.2 : M.Srinivasa Rao.

DOCUMENTS MARKED

FOR PROSECUTION:

Ex.P-1 : Signature of P.W.1 on mediators report

Ex.P-2 : Mediator report

Ex.P-3 : Original F.I.R.

Ex.P-4 : Letter of Advise.

Ex.P-5 : Analysis Report.

FOR DEFENCE : NIL

MATERIAL OBJECTS

M.Os .1 to 6: Sample bottles.

P.J.C.J. FAC/JFCM PKL.

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- 1

CALENDAR AND JUDGMENT

District of West Godavari

Calendar of cases tried by the Judicial Magistrate of I class, Palakol Date of offence Report of Complaint Apprehension of accused Released on Bail (1) (2) (3) (4) 31-07-2017 31-07-2017 31-07-2017 31-07-2017 ------------------------------------------------------------------------------------------------------- Commencement of trial close of trial Sentence of order Explanation for delay (5) (6) (7) (8) 13-03-2019 14-03-2019 22-03-2019 Due to non production of Witnesses Judgment of Calendar Case No: 17/2019 on the file of Judicial Magistrate of I class, Palakol. Complainant:- State: Inspector of Police, Proh.& Excise Station Palakol (Cr.No.136/2018)

Name of the Accused Father name Age Caste/Religion Calling Village

Gudala Venkateswara Rao, S/o Satyanarayana, aged 35 years, Caste:Settibalija,R/o Bhimavalapuram, Achanta Mandal. …Accused -----------------------------------------------------------------------------------

OFFENCE: Punishable under section 34 (a) of AP Excise Act.

FINDING: Found not guilty.

RESULT : In the result, accused is found not guilty for the offence punishable under section 34 (a) of AP Excise Act and accused is acquitted of the same under section 248 (1) of Cr.P.C. The bail bonds of accused shall remain in force for a period of six months from the date of Judgment.

M.Os.1 to 15 shall be destroyed after expiry of appeal time.

PRINCIPAL JUNIOR CIVIL JUDGE,

JUDL. MAGISTRATE OF THE I CLASS,

PALAKOL.

Copy Submitted to:

1.Copy submitted to the Hon’ble I ADJ, WG, Eluru for favour of information.

2. The Superintendent of Police, West Godavari, Eluru.

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IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS COURT::

PALAKOL.

Present : - Sri K. Mothilal

Principal Junior Civil Judge, Palakol

FAC/Judicial Magistrate of I Class Court, Palakol Friday, the 22nd day of March, 2019

C.C.No.17/2019

Between:

State:Prohibition and Excise Inspector Prohibition and Excise Police Station, Palakol.

..Complainant

AND

Gudala Venkateswara Rao, S/o Satyanarayana, aged 35 years, Caste:Settibalija,R/o Bhimavalapuram, Achanta Mandal.

.. Accused

This case is coming on 18-03-2019 for final hearing before me in the presence of Learned APP for the prosecution and Sri B.Srinivasa Rao,

Advocate for accused, and having stood over this day for consideration, this court delivered the following:

J U D G M E N T

The Prohibition and Excise Sub-Inspector of Police, Prohibition and

Excise Station, Palakol filed a charge sheet against the accused for the offence punishable under section 34 (a) of A.P Excise Act in

Cr. No.136/2017.

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

On 31-07-2017 at about 09-00 P.M., L.Ws 1 and 2-M.Srinivasa Rao,

Proh & Excise Inspector, Palakol and B.Tata Raju, Prohibition & Excise

Constable, Palakol and found the accused in possession of 15 nips of

Director Special Fine Whisky of 180 ml size bottles and seized 15 nips of

Director Special Fine Whisky of 180 ml size bottles by drawing samples under the cover of mediator report and P.W.1 registered the mediator report as the case in Cr.No.136/2017 u/sec. 34 (a) of A.P. Excise Act 1968 and sent the samples for chemical analysis report vide

C.E.No.1143/2017,dt.18-08-2017, after completion of investigation he filed the charge sheet.

- 3

3.This case was taken cognizance against the accused for the offence under Section 34 (a) of AP Excise Act against the accused.

4. After appearance of the accused case copies are furnished to accused as required u/s 207 of Cr.P.C accused is examined u/s 239 Cr.P.C explaining accusation u/s. 34 (a) of AP Excise Act to the accused, he pleaded not guilty and claimed to be tried.

5.During the course of trial, prosecution has examined P.W.1 and got marked Exs.P.1 to P.4 and M.Os.1 to 15. After closure of the prosecution side the accused is examined U/s. 313 Cr.P.C he reported no defence evidence.

6.Thereafter heard the arguments of Learned APP and counsel for the accused.

7.The point for Consideration is:

“Whether the Prosecution has proved the guilt of the accused for the offence punishable under sec. 34 (a) of AP Excise Act beyond all reasonable doubt?” 8.POINT:

9. The accused is tried for the charge of under section 34 (a) of A.P

Excise Act.

10. According to the case of prosecution the accused is in possession of Indian Made Liquor bottles without any license and he selling the said bottles for higher price.

11. The P.W.1 is the Inspector of Police, Excise P.S, Palakol.

12. The P.W.1 is the Prohibition and Excise Inspector, Palakol who deposed that on 31-07-2017 at about 9-00 P.M. himself and his staff proceeded towards Valluru Village near Grama Panchayat Office and where they found the accused with a transportation of Auto Rickshaw and on having suspicion they caught hold the accused and on enquiry the accused reveled his I.D. particulars and they noticed 15 nibs of bottles

Director Special Fine Whisky 180 ml each and he failed to show any permission or license. He issued 41-A Cr.P.C. notice and the accused did - 4 not avail the same. He arrested the accused and seized 15 bottles from 15 bottles and the said samples are marked as M.Os 1 to 15 duly affixed with

I.D. slips. Basing on the Ex.P.1 he registered in a case in Cr.No.136/2017

U/sec. 34 (a) of A.P. Excise Act and issued F.I.R. Ex.P.2 is F.I.R. he forwarded the 1t samples for Chemical examination, Kakinada on 16-08-2017. He received the Chemical analysis report from C.E., Kakinada vide

C.E.No.1143/2017, dt.18-08-2017. The said letter is marked as Ex.P.3 and report is marked Ex.P.4. After completion of Investigation he filed charge sheet.

13.According the case of prosecution on 31-07-2017 at about 9-00 P.M. he search and seizure was conducted at the Valluru Village. But, the P.W.1 failed to secure any local inhabitant of the place where search and seizure was conducted.

14.The Investigation Officer who is conducting search and seizure has to follow the procedure prescribed under section 100 of Cr.P.C.

According to Section 100(4) of Cr.P.C. The P.W.1 has to follow certain procedure while conducting the search. The P.W.1 has to secure to local inhabitants Valluru Village and if the local inhabitants are not willing to act as mediators then the P.W.1 has to secure the persons from other locality.

The P.W.1 has to issue a written notice to the local inhabitants by calling them to act as witnesses or mediators. But, in the present case the P.W.1 not followed the mandatory procedure prescribed under section 100 (4) of

Cr.P.C, even through the prosecution witness admitted as there are several shops and houses in and around scene of offence.

15. According to Section 100 (7) of Cr.P.C. The P.W.1 has to prepare a list of seized articles and shall hand it over to the accused. But, in the present case, the P.W.1 has not followed that procedure, which is mandatory.

16.In a Judgment reported in Babu Saheb @ Babu, S. v. State of

A.P.2010 (1) ALT (Crl.) 32 (A.P). It was decided that it is necessary to take - 5 independent respectable local mediators. The ratio in this Judgment is that the investigation officer has to secure independent respectable local mediators.

17. In the present case also there are no independent mediators and the facts in the present case and the above cited Judgment are in similar nature and as such the ratio of the said Judgment is applicable to the present case.

18. Under the aforesaid reasons this Court is of opinion that the non securing of local mediators and no efforts were made by the P.W.1 is raising a reasonable doubt. The benefit of doubt is always available to the accused and as such the evidence of prosecution witnesses raising a reasonable doubt about the seizure of intoxicants from the possession of accused.

19. In the result, accused is found not guilty for the offence punishable under section 34 (a) of AP Excise Act and accused is acquitted of the same under section 248 (1) of Cr.P.C. The bail bonds of accused shall remain in force for a period of six months from the date of Judgment.

M.Os.1 to 15 shall be destroyed after expiry of appeal time.

Dictated to the Typist, directly on the computer, corrected and

pronounced by me in open Court, this the 22nd day of March, 2019.

PRINCIPAL JUNIOR CIVIL JUDGE,

JUDL. MAGISTRATE OF THE I CLASS,

PALAKOL.

APPENDIX OFEVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

P.W.1 : M.Srinivasa Rao. -None-

DOCUMENTS MARKED

FOR PROSECUTION:

Ex.P-1 : Special report

Ex.P-2 : Original F.I.R.

Ex.P-3 : Letter of Advise.

Ex.P-4 : Analysis Report.

- 6

FOR DEFENCE : NIL

MATERIAL OBJECTS

M.Os.1 to 15: Sample bottles.

P.J.C.J. FAC/JFCM PKL.