Sri K. Murali Mohan

IV Additional Judicial Magistrate of I Class Nellore

Principal District and Sessions Court, Nellore · Nellore · Andhra Pradesh

Sri K. Murali Mohan, IV Additional Judicial Magistrate of I Class Nellore, is posted at Principal District and Sessions Court, Nellore, Nellore, Andhra Pradesh, India. 21 court orders on record since 2018. 5 judgments with full text available. Primarily handles CC, MC cases.

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CC/900022/2015 Acquitted

T.P Gudur PS vs Aluru Mallikarjuna

30 Aug 2018

IN THE COURT OF IV ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS, NELLORE

Present: Sri. K.Murali Mohan, IV Additional Judicial Magistrate of First Class, Nellore.

Thursday, this the 30th day of August, 2018

Calendar Case No.22/2015

State: Sub-Inspector of Police, TP Gudur Police station.

..... Complainant.

Vs.

Aluru Mallikarjuna @ Malli, S/o Sivarao, aged about 28 years, R/o Arundathiyawada, Macharlavaripalem Village, TP Gudur Mandal.

..... Accused

This case coming on 27.08.2018 for final hearing before me in the presence of Asst. Public Prosecutor for the State and of Sri Ch. Vamseedhar Reddy, Advocate for the accused and the matter having been stood over for consideration till this day, this court delivered the following:

J U D G M E N T

The Sub-Inspector of Police, T.P. Gudur Police Station laid charge sheet against the above named Accused in Crime No.172/2014 for the offence punishable U/Sections 324 of IPC.

2.The brief averments of the charge sheet are as follows:

On 11.12.2014 at about 20.00 hours at SC colony,

Macharlavaripalem village, TP Gudur Mandal while LW.3/Thupakula

Sriramulu was returning home to Ananthavaram village on cycle mistakenly hit PW.2 Muttembaka Chandramohan in dark while he was present on the road with motor cycle. PW.2/ Muttembaka Chandramohan kept the cycle of LW.3/Thupakula Sriramulu near the house of

PW.3/M.Ragamma and went home. Meanwhile, accused Aluru

Mallikarjuna hidden the cycle in some other place. Later, PW.2/

Muttembaka Chandramohan traced the cycle and returned the same to 2

LW.3/Thupakula Sriramulu. The accused came there, picked up altercation with PW.2 Muttembaka Chandramohan and drew a sickle from his waist and voluntarily inflicted a bleeding injury over chest of PW.2

Muttembaka Chandramohan. PW.1/M. Suva, LW.4/ Vemula Ravi kumar,

PW.3/M. Ragamma, PW.4/T. Narayanamma witnessed the occurrence.

PW.1 Siva intervened the same and he also sustained injury to his fingers and shifted PW.2 Muttembaka Chandramohan to Nellore and admitted him to Simhapuri hospital for treatment. PW.5 Dr G. Suneel rendered treatment to PW.2 M. Chandramohan and gave intimation to police. LW.8

Yakoob Basha, Head constable of Nellore Rural PS recorded the statement of PW.1 Siva. Basing on the hospital intimation PW.6/J.

Nagaraju, SI of Police, TP Gudur PS, registered the same as a case in Cr.

No.172/2014 U/Section 326 of IPC and investigated into. During the course of investigation PW.6 visited the scene of offence, examined the witnesses and recorded their statements and prepared rough sketch.

PW.5/Dr. J. Suneel, CMO, Simhapuri hospital rendering treatment to PW.2 and opined that the injury is grievous in nature. After completion of investigation, PW.6 filed the charge sheet.

3.This case was taken on file for the offence punishable

U/Section 326 of IPC against Accused.

4. On the appearance of accused, copies of the case documents are furnished to the accused as required U/sec. 207 Code of

Criminal Procedure (Cr.P.C. in brevity).

5.Accused was examined under Section 239 of Cr.P.C., and charge for the offence U/Section 326 of IPC is framed against the accused and charge is read over and explained to accused. Accused pleaded not guilty and claim to be tried.

6. During the course of trial, the prosecution examined P.Ws 1 to 6 and Exs.P.1 to P.5 are marked. No oral or documentary evidence is adduced on behalf of accused.

PW.1 M. Siva is son of injured and defacto complainant-cum-eye witness to the incident. PW.2/M. Chandramohan is injured, PW.3 M

Ragamma is neighbour of scene of offence and eye witness to the incident. PW.4 T. Narayanamma is also eye witness to the incident. PW.5

Dr. G. Suneel Kumar is Casuality Medical Officer at Simhapuri Hospital,

Nellore who examined PW.2 on 11.12.2014 and issued Ex.P2 wound certificate, stating that injury received by PW.2 is grievous in nature.

PW.6 J. Nagaraju, Sub Inspector of Police who received hospital intimation along with Ex.P1 statement of PW.1 and registered the case in crime no.172/2014 under section 324 of IPC and took up the investigation.

The rest of evidence of LW.3 Thupakula Sriramulu, LW.4

Vemula Ravikumar, LW.8 SK Yakub Basha is closed by this court as prosecution failed to produce them in spite of giving sufficient time.

Ex.P1 is the statement of PW.1, Ex.P2 is the wound certificate, Ex.P3 is the hospital intimation dt.12.12.2014 at 12.00 pm, Ex.P4 is the original

First Information Report in crime no.172/2014, Ex.P5 is the rough sketch of scene of offence.

7.After completion of the prosecution evidence, Accused was examined U/Sec.313 of Cr.P.C., and the incriminating circumstances found in the evidence of the prosecution witnesses is explained to the accused. The accused denied the same and did not urge any defence evidence.

8. Heard the arguments of both sides. Perused the material on record.

9.Now, the point for determination is:

Whether prosecution proved the guilt of the accused for the offence punishable U/Sec.326 of IPC beyond all reasonable doubt?

10.P O I N T:

The charge leveled against the accused is for the offence punishable under section 326 IPC. In order to prove the charge the prosecution is required to prove that

i. Accused voluntarily caused grievous hurt to PW.2 M.

Chandramohan.

ii. Accused used dangerous weapon/sickle to cause the injury to

PW.2.

iii. Such injury is caused by accused otherwise than undergone and

sudden provocation.

If all above ingredients are proved, the accused will be liable for the charge under section 326 of IPC.

11.In order to prove its case, the prosecution has examined

Pws.1 to 6. PW.2/M. Chandramohan is injured. PW.1 M. Siva is son of

P.W-02/injured and defacto complainant-cum-eye witness to the incident.

PW.3 M Ragamma and PW.4 T. Narayanamma are eye witnesses to the incident. PW.5 Dr. G. Suneel Kumar is Casuality Medical Officer at

Simhapuri Hospital, Nellore who examined PW.2 on 11.12.2014 and issued Ex.P2 wound certificate, stating that injury received by PW.2 is grievous in nature. P.W-06 is the investigating officer who registered the case visited the scene of offence and examined the witnesses, prepared

Ex.P5 rough sketch of scene of offence and after completion of investigation altered the section of law under section 324 IPC from 326

IPC basing on the wound certificate and filing of the charge sheet. I have carefully examining the evidence of Pws.1 to 6.

12. The learned Asst. P.P., argued that prosecution proved its case from the evidence of P.Ws-01 to 06 and it is proved beyond all reasonable doubt that accused caused grievous hurt to P.W-02 with deadly weapon sickle and liable for conviction for the charge under sec.326 of IPC. On the other hand the case of defence is that of total denial. The learned counsel for the accused argued that P.W-02 fell down from the bi-cycle and sustained injuries and in view of enmity with the accused P.Ws-01 and 02 foisted this false case against the accused and there are several discrepancies in the evidence of prosecution witnesses and accused is entitled for benefit of doubt.

I have carefully examined the entire oral and documentary evidence on record. The case of prosecution as unfolded from the evidences of Pws.1 to 4 is that on the date of incident i.e., four years ago on one day one cycle dashed the PW.2. Then PW.2 took the bicycle and kept it in the house of PW.3 Ragamma. Later PW.2 found the said cycle was missing and he came to know through PW.3 that the bi-cycle was taken away by the accused Mallikarjuna. Meanwhile, his son PW.1 and his friend brought back the cycle to the house of PW.3. Meanwhile accused who found it grew wild on PW.2 at the house of PW.3 Ragamma and attacked on PW.2 with sickle and caused bleeding injury on the right side of his chest. PW.2 became unconscious. PW.2 do not know what was happened subsequently. He was shifted to hospital. PW.2 gained conscious on the next day morning at Simhapuri Hospital.

13.P.Ws-01, P.W-03 and P.W-04 stated to present at the time of the incident and witnessed the same. PW.1/M. Siva who is son of PW.2 deposed that the accused grew wild on PW.2 and brought a knife (Muchu

Katti) and hacked PW.2 on his right side chest and caused incised 6 bleeding injury. PW.1 shifted his father to Ramachandra hospital immediately after the incident and from there to Simhapuri hospital and police came to Simhapuri hospital and enquired him.

14.PW.3 Ragamma deposed that on enquiry by PW.2 she informed that the bicycle was taken away by the accused. After some time she heard a quarrel near to her house in the centre and noticed the quarrel between the accused and PW.2 and others. Wherein the accused hacked PW.2 with a sickle and caused bleeding injury on his chest on right side.

15.PW.4 P. Narayanamma deposed that he heard a quarrel and went there and she found that accused hacked PW.2 with sickle and caused injury on the chest. Later PW.1 and others came there and shifted

PW.2 to the hospital for treatment.

16.PW.1 to 4 were cross examined by the learned counsel for the defence. Some discrepancies were found in the evidence of PW.1.

however, the credibility of PW.2 to 4 was not impeached during the cross examination.

17.On perusal of evidence on record it is clear that PW.2 to 4 in one voice deposed that accused hacked the PW.2 with sickle on the right side of the chest and caused bleeding injury. Their evidence is corroborated with each other in all material aspects. The injury is corroborated with Ex.P2 wound certificate and also with the evidence of

PW.5 Medical officer.

18.The learned counsel for the accused draw the attention of this Court with regard to the discrepancies and inconsistency in the 7 evidence of P.W-01 and contended that presence of P.W-01 during the incident is highly doubtful. I found some force in the contention of the learned counsel for the accused.It is pertinent to note that as per the version of prosecution case and as per the averments of Ex.P1 statement though PW.1 alleged to sustain injuries on his fingers during the incident, surprisingly PW.1 failed to depose the same in his evidence. It is pertinent to note that none of the prosecution witnesses deposed about the alleged injuries of PW.1 during the incident. No medical evidence is produced through the evidence of P.W-01. His father/P.W-02 also did not speak anything in his evidence that his son/P.W-01 sustained injuries on his finger. Therefore absolutely there is no corroboration to the averments of P.W-01 from the evidence of prosecution cases and it is creating doubt.

19.The learned counsel for the accused rightly pointed out that from the evidence of PW.1 and from his inconsistent version with regard to the weapon said to be used by the accused it is clear that PW.1 is not the eye witness to the incident. According to prosecution case and as per the evidence of Pws.2 to 4 accused hacked PW.2 with sickle whereas in his evidence PW.1 deposed that accused hacked PW.2 with knife (Mochu kathi). PW.1 and 2 admitted in their cross examination that there is a difference between Machu kathi and knife. If PW.1 was really present at the time of incident and witnessed the same, such discrepancy with regard to the weapon may not be occurred. If accused used the sickle as deposed by P.W-02 and as mentioned in Ex. P-01/statement what made

P.W-01 to depose that accused beat his father with knife.

Apart from the above , PW.3 and PW.4 did not depose that PW.1 was present at the time of incident. PW.4 categorically deposed that after the incident PW.1 and LW.4 Ravi Kumar and others came there and 8 shifted PW.2 to the hospital. P.W-02 also deposed that P.W-01 was not present at that time. From this it is clear that PW.1 reached the scene subsequently but he was not present during the incident. For all the above reasons the presence of P.W-01 during the incident is highly doubt.

20.Keeping the evidence of P.W-01 aside for awhile, on careful scrutiny of evidences of PW.2 to PW4 it clearly shows that accused taken away the bi cycle from the house of PW.3 Ragamma, which was kept by

P.W-02 and when P.W-02 took objection for the same, accused grew wild on PW.2 and hacked him on the right side of the chest with a sickle and caused bleeding injury. P.Ws-02 to 04 deposed the same in one voice and their evidence is fully corroborated with each other. The evidence of

Pws.2 to 4 stood for the test of cross examination. The evidence of PW.2 to 4 is corroborated in all material aspects and also corroborated with medical evidence of PW.5 and with Ex.P2 wound certificate.

21.I have carefully examined the cross examination of P.Ws-02 to 04. In their cross-examination nothing improbable is elicited by the defence to doubt their testimony. The entire cross examination of PW.2 is with regard to the topography and with regard to the facts about concealing of cycle by the accused etc. The said facts will not have much bearing, in proving the charges against the accused. Even otherwise I found no reason to disbelieve the version of PW.2 that accused concealed the cycle which was kept in the house of PW.3 Ragamma by

PW.2 due to which the present incident was taken place. This aspect was fully corroborated by P.Ws-02, 03 and 04 so also with Ex. P-01/reports.

22.Coming to the cross examination of PW.3, she deposed that she do not know where the bicycle kept in their village. The said fact do not have any relevance to the fact in issue. PW.3 denied the suggestion 9 that PW.3 himself fell down from the bicycle and foisted a false case against the accused.

23.in her cross examination PW.4 Narayanamma deposed that she do not know the descriptive particulars of police who recorded her statement and she do not know earlier incident that was taken place prior to the quarrel between PW.2 and accused. She do not know from where accused brought the sickle. According to PW.4 on hearing the sounds of the quarrel she went there and noticed the incident hence, It is very natural that she may not notice from where the accused picked up the sickle. The other part of cross-examination of P.Ws-02 to 04 did not serve any purpose in dis-proving the case. Mere suggestions which were denied by the witnesses will not serve anyone. The evidence of P.Ws-02 to 04 corroborated with each other and stood for the test of cross- examination and inspires the confidence of this Court.

24.The learned defence counsel tried to elicit some omissions from PW.6 Sub Inspector of Police. PW.1 stated that accused stabbed

PW.2 with sickle by taking from his waist but he omitted the same in

Ex.P1 and also during the examination under section 161 Cr.P.C.

however, PW.1 stated to him that accused attacked PW.2 with the sickle available with him. PW.1 did not mention in Ex.P1 statement that the injury was caused to his father when he made an attempt to escape the sickle blow. According to PW.6, PW.1 stated that when accused tried to beat PW.2 with sickle he tried to escape and sickle touched the chest of

PW.2 and caused injury. PW.1 did not state specifically that his mother and other family members also shifted him to the hospital. PW.1 further omitted to state that first they shifted the PW.2 to Ramachandra hospital 10 from there to Simhapuri hospital, Nellore. PW.6 categorically deposed that during the incident PW.1 and LW.4 Ravi Kumar were not present.

PW.6 did not seize the crime weapon in this case.

25.As discussed above and from the evidence of PW.1 to 6 and when there is no corroboration with regard to the presence of PW.1 during the incident and from the discrepancies discussed in above para

Nos.18 and 19 the presence of PW.1 during the incident is doubtful.

Even If PW.1 deposed falsehood with regard to the weapon used by the accused and his presence during the incident is doubtful, it will not effect the evidentiary value of the other prosecution witnesses. The evidence of each witness to be examined on its own veracity and the reliability of such witnesses. If PW.1 found to be not reliable and trust- worthy the evidence of other prosecution witnesses also can not be branded as not reliable or not trust-worthy. When the falsity is mixed with the truth in the evidence of prosecution witnesses and in prosecution version, It is the duty of the court to separate the falsehood from the truth.

No doubt some inconsistency found in the evidence of P.w.1 pointing

out that some falsity is mixed in the prosecution version. I am of the opinion

that if any false hood is spoken by P.w.1 or by any oather prosecution witness

for that sole reason it is not proper to brush a side the remaining reliable

evidence by branding it as false hood in spite of the fact that it is cogent and

reliable. It is needless to say that the maxim “Falsus in uno falsus in

omnibus” has no application in India and the witnesses cannot be branded as

liars, even if any falsity is found in their evidence. It has to be appreciated by the courts separately and not proper to mix up both of them and discard it in to

to.

At this stage I feel it is proper to refer the authority reported as

Bur Sing and another Vs. State of Punjab 2009 (1) ALD (Crl.) 45

(S.C)

In this case the Hon'ble Apex court held that “ it is the duty of Court to

11 separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim “falsus in uno falsus in omnibus” has no application in India and the witnesses cannot be branded as liars. The maxim “ falsus in uno falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of a rule of law.”.........

“ The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment.”........

In the above authority the Hon'ble Apex Court cautioned the courts to separate the grain from chaff where ever it is possible. I feel it is profitable to go through the relevant para.......

“An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against the which they are made, the only available course to be made is to discard the evidence in toto.”....... (Emphasis is mine)

In the light of the above authority here in the present case also, the evidence

of P.w.1 cannot be branded as completely foisted and false hood and on that

ground Ex. P-01/statement of P.W-01 which set the Criminal Law into motion

cannot be thrown away. In this case it is not a hard task or difficult to separate

the grain from the chaff. Here the evidence on record can be separated.

Hence, it is not proper on the part of this court to discard the evidence in

toto. Even excluding the evidence of inconsistent portion in the evidence of

P.W.1 to P.W.04, if any it will not effect the truthfulness of the prosecution

case in any manner.

The testimony ofP.Ws-02 to 04 is found to be reliable and convincing to

the extent of offence under charge. I am not agreeing with the contention of

the defence that P.ws-01 and 02 concocted the false story against the accused

in view of their disputes with accused. More over there is no necessity to

P.Ws-03 and 04 who are independent witnesses to depose falsehood against the

accused if no such incident was occurred.

From the above discussion now it has to be seen whether the acts of accused are

proved or not. The word 'Proved' is interpretated in Sec. 3 of Indian Evidence Act.

Sec. 3 of Indian Evidence Act reads as follows :

Interpretation clause: In this act the following words and expressions are used

12 in the following senses, unless a contrary intention appears from the context:- “Proved” :- A fact is said to be proved when, after considering the matter before, it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

From the above reading it is clear that on considering the matter

before this court, if the court believes its existence and or the existence

of the same is so probable the facts is said to be proved. The yard stick of 'such belief' is of a ordinary prudent man. On careful perusal of evidence of P.ws-02 to 06 and Ex.P1 report coupled together gives rise to a strong belief, even to a ordinary prudent man that accused hacked

P.W-02 with sickle and caused injury. I earnestly feel that occurrence of the said incident is so probable in the circumstances narrated by the

P.ws-02 to 04 1. Thus the technicalities if any raised by the defence will not go to the roots of the prosecution case and they will not come in the way in between the said proof and not sufficient to discard the proof of the prosecution case.

26.Hence even by excluding all the evidence of PW.1 and rest of the evidence of prosecution witnesses hold good and sufficiently proved that accused voluntarily caused injury to PW.2.

27.Coming to the delay in registering of the FIR the medical evidence clearly shows that there is no time gap between the incident and admission of PW.2 in the hospital. As such the delay if any in registering the case is only due to admitting the injured in the hospital immediately after the incident hence the delay can not be attributed for embellishments or for deliberations. The delay is due to taking treatment in the hospital and explained sufficiently. Therefore, the delay in the present case is not fatal to the case of prosecution.

28.Coming to the aspect of danagerous weapons which is required in the case under sec.326 of IPC, PW.6 admitted in his cross examination that he did not seize crime weapon sickle. None of the prosecution witnesses described the size of sickle. The crime weapon sickle is not produced by the prosecution for the inspection of the court. In order to prove the using deadly weapon alleged to be used by the accused, prosecution is required to produce the same for the inspection of the court or to describe the nature, size of the same. Here the weapon is neither produced nor described by any of the prosecution witnesses. In prosecution of criminal case it is the duty of the prosecution to prove each and every element beyond all reasonable doubt. Without any such evidence, this Court cannot draw any inference that the weapon used is deadly weapon. Hence benefit of doubt shall be given to the accused with regard to the using of deadly weapon.

Thus the prosecution failed to prove using of deadly weapon beyond all reasonable doubt.

29.Coming to the proof of dangerous weapon, though PW.5

Medical officer is examined and produced Ex.P2 wound certificate, there is no sufficient evidence to prove the grievous injury of P.W-02. The prosecution failed to prove how the injury of PW.2 on his chest is considered as grievous in nature. There is no evidence as to in which category the injury of P.W-02 falls under grievous injury . The vague evidence of PW.5 can not be accepted to conclude that the injury received by PW.2 is grievous in nature when P.W-05 failed to explain the basis on which he concluded the same. As such the evidence produced by the prosecution is not sufficient to conclude that PW.2 sustained grievous injury.

30. From the over all evidence of prosecution evidence it is clear that the prosecution proved beyond all reasonable doubt that accused caused injury to PW.2. The evidence adduced by the prosecution is not sufficient to conclude that the accused used the deadly weapon and caused grievous injury to P.W-02. When prosecution failed to prove the using of deadly weapon and causing of grievous hurt, the case will not fall under section 326 IPC. However, accused voluntarily causing hurt to PW.2 which is sufficient to prove the offence under section 323 IPC.

31.As per 222 Cr.P.C even without separate charge the accused can be convicted for the complete minor offence. All the necessary ingredients for the offence under section 326 IPC are not proved.

However, the ingredients which are proved by the prosecution constitute the complete minor offence i.e., under section 323 IPC. Hence, as per the section 222 Cr.P.C accused can be converted for the offence under section 323 IPC even without any charge since he is already charged for the major offence under sec.326 of IPC.

32.For all the above reasons this court is of the opinion that prosecution failed to prove the guilt of the accused for the offence under section 326 IPC, however prosecution proved the case against the accused for the offence under section 323 IPC beyond all reasonable doubt and point is answered accordingly.

33.In the result, accused is found not guilty for the offence punishable U/Sections 326 of IPC. and he is acquitted U/Sec.248 (1) of

Cr.P.C. for the offence punishable U/Sections 326 of IPC. However, the accused is found guilty for the offence under section 323 IPC accordingly 15 he is convicted under Section 248(2) Cr.P.C., No property order is passed since no property was deposited in this case.

The accused is required to be heard on the quantum of sentence to be imposed against him

Part of the judgment dictated to the Personal Assistant transcribed by her and part of the judgment Directly typed to my dictation corrected and pronounced by me in the open court, this the 30th day of August,2018.

IV Addl.Judl. Magistrate of First Class, Nellore.

I heard the accused on the quantum of sentence to be imposed against him.

The accused submitted that “ I am having old aged parents who are dependents on me. I am married and having wife and three daughters who are aged about 03 years and twin daughters of six months. and all my family members are dependents on me. I am doing cultivation to maintain my family. if I am in jail nobody is there to look after my old aged parents, wife and my children hence requesting to show mercy.”

During the questioning accused not stated any special reasons except the general reasons.

34.Heard the learned counsel and the learned Assistant Public Prosecutor on the quantum of sentence. On considering the circumstances and nature of offence and the manner of the offence the provision of Probation of Offenders Act cannot be invoked in favour of the accused.

However bearing the representation of the accused in mind and considering the fact that the accused is having three daughters and old aged parents and all his family members are dependents on him and considering the fact that this is his first offence, hence I feel accused is entitle for some lenient 16 view. If accused is sentenced to long incarceration his old aged parents, wife and children will be on the scrap heap of the society and that except the accused nobody is there to look after them. In view of the submissions made by the accused and on considering all other circumstances, I feel the following sentence would serve the purpose.

35. In the result, I convicted the accused under Section 248(2) Cr.P.C. I sentenced the accused to pay a fine of Rs. 1,000/- ( Rupees one thousand only) for the offence U/sec. 323 IPC. In default of payment of fine the accused is directed to undergo simple imprisonment for a period of one month. The accused is not detained earlier for judicial custody in this case. Since this Court imposed fine the question of set off under sec.428 of Cr.P.C., does not arise. The accused is explained about his right of appeal to the Hon'ble Sessions Court and free Legal Aid through District legal service authority, Nellore if he has no means.

Office is directed to serve the copy of this judgment and calendar on accused forthwith. Office is further directed to prepare conviction warrant accordingly, if the accused failed to pay the fine.

Directly typed to my dictation corrected and pronounced by me in the open court, this the 30th day of August,2018.

IV Addl.Judl. Magistrate of First Class, Nellore.

APPENDIX OF EVIDENCE.

No. of WITNESSES EXAMINED.

For Prosecution: For Defence: Nil PW.1 : M. Siva

PW.2: M. Chandramohan,

PW.3: M. Ragamma,

PW.4: P. Narayanamma,

PW.5: Dr. G. Sunil Kumar,

PW.6: J. Nagaraju, the then SI of Police, TP Gudur.

No. of EXHIBITS MARKED.

For Prosecution : For Defence: Nil

Ex.P1 : is the statement of PW.1,

Ex.P2 : is the wound certificate,

Ex.P3 : is the hospital intimation dt.12.12.2014 at 12.00 pm,

Ex.P4: is the original First Information Report in crime no.172/2014,

Ex.P5 : is the rough sketch of scene of offence.

MATERIAL OBJECTS MARKED:

- NIL -

IV Addl.Judl. Magistrate of First Class, Nellore.

CC/900081/2017 Acquitted

Sate Inspector of police Nellore Rural PS vs YALLASIRI NAGARAJU

17 Sep 2018

IN THE COURT OF IV ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS, NELLORE

Present: Sri. K.Murali Mohan, IV Additional Judicial Magistrate of First Class, Nellore.

Monday, this the 17th day of September, 2018

Calendar Case No.81/2017

State: Sub-Inspector of Police, Nellore Rural Police Station

..... Complainant.

Vs.

Yallasiri Nagaraju, S/o Late Subbaiah, Aged 35 years,

ST Yanadi by caste, Porlukatta, Nellore. ... Accused

This case is coming on 12.09.2018 for final hearing before me in the presence of learned A.P.P., for Prosecution and of Sri K.M.Krishna, Advocate for the Accused and the matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

The Sub-Inspector of Police, Nellore Rural Police Station laid charge sheet against the above named accused in Crime No.425/2016 of

Nellore Rural Police Station for the offence punishable U/Sec.9 (b)(1)(A) of Explosive Act, 1984.

2.The case of the prosecution in nut shell is that on 24.10.2016 at about 2.00 p.m., PW.4/G.Subba Rao, the then S.I of Police, Nellore

Rural P.S., received credible information about illegal manufacturing of crackers at Naidu Venku Reddy shed situated on Porlukatta

Pottempalem, Nellore, PW.5 secured the mediators/ PW.3/Putta Ruben and LW.4/Jana Ravindra Babu along with his staff proceeded to Naidu

Venku Reddy shed at Porlukatta Pottempalem, Nellore and found the accused was standing at the shed and on seeing them, the accused tried 2 to ran away but police caught hold the accused and on enquiry, the accused confessed about the manufacturing crackers under one

Sudhakar and the accused is only used to collect raw material from

Nellore town, manufacture crackers like Aakasuvvalu, Chuchibuddilu,

Thoranalu and Nellore Bombs. It is further alleged that in connection with Deepavali festival on 30.10.2016, the accused secured explosive material for manufacturing of crackers, kept the same in a shed. Then

Pw.4 verified the stock and found 1) a white gunny bag containing paper boards using for manufacturing of Nellore bombs, 2) a bundle of Bamboo sticks using for making Aaksuvvalu 3) Two packets of black colour explosive material for manufacturing of Chuchibuddilu, 4) White colour lime powder ½ kg using for manufacturing of Suchibuddilu 5) black colour powder ½ kg using for manufacturing of Suchibuddilu 6) Tow big bundles of Nellore bombs each bundle containing 10 7) Small size

Nellore guns 8) Red ppers using for Nellore guns for designing 9) Wicks (vathulu)-5 10) Iron tubes-30 using for Aakasuvvalu 11) Thread Roles-10

12) A bundle of baboo sticks using for Aakasuvvalu 13) Iron Sieves-2 without having any licence. Then Pw.4 arrested the accused and seized the said material in the presence of mediators under cover of mahazarnama and then the said mazarnama was registered as Crime

No.425/2016 under Section 286 IPC and Section 9(b)(a) (A) Explosive Act 1884 and served Section 41-A Cr.P.C., notice to the accused. Later PW.4 sent samples of seized material to FSL for analysis, who examined the same and opined that they are common constituents of fireworks composition low explosive in nature and after completion of entire investigation, LW.6/N.Ram Murthy, the then S.I of Police, Nellore Rural

P.S., filed charge sheet against the accused.

3.This case was taken on file for the offence punishable Under

Section 286 IPC and Section 9(b)(a) (A) Explosive Act 1884. On appearance of the accused, copies of the case documents are furnished to the accused as required U/sec. 207 Code of Criminal Procedure (Cr.P.C. in brevity). Accused was examined under Section 251 of Cr.P.C., and the substances of accusation for the offence under Section 286 IPC and Section 9(b)(a) (A) Explosive Act 1884 explained to the accused in

Telugu for which he pleaded not guilty and claimed to be tried.

4. During the course of trial, the prosecution examined P.Ws 1 to 4 and got marked Exs.P1 to P.6 and Mos.1 to 12. P.W.1/Shaik Sharif and PW.2/Shaik Slama are circumstantial mediators, who are neighbours of the scene of offence, PW.3/Putta Rabin is stated to the mediator for the arrest of the accused and Seizure of fire crackers along with Pws.1 and 2 and PW.4/G.Subba Rao, the then Sub-Inspector of Police, Nellore

Rural PS is the Investigating Officer. The prosecution given up the evidence of LW.4/Jana Ravindra Babu, another mediator and LW.6/N.Ram

Murthy, S.I of police, who field the charge sheet.

Exs.P1 and P2 are the 161 Cr.P.C., statements of Pws.1 and 2 respectively, Ex.P3 is the Mahzarnama dt.24.10.2016, Ex.P4 is the First

Information Report and Ex.P5 is the rough sketch, Ex.P6 is the analyst report dt.20.12.2016 issued by Assistant Director, TSFSL, Hyderabad.

MO.1 is the one plastic bag contains white paper boards for making

Nellore Bombs, MO.2 is the Heap of bamboo sticks for preparation of

Akasasuvvalu, MO.3 is the black colour powder in round shape for preparation of ground pots and flowers, MO.4 is the ½ kg white lime for 4 preparation of ground pots, MO.5 is the ½ kg black colour powder for preparation of ground pots, MO.6 is the Tow packets of Nellore bombs big size each packet containing 10, MO.7 is the Red paper for preparation of

Nellore guns, MO.8 is the white threads five in number, MO.9 is the iron pipes for preparation of Akasa Suvvalu-30 in number, MO.10 is the thread rolls 10 in number, MO.11 is the prepared Akasa Suvvalu for tying with bamboo sticks and MO.12 is the iron Jalledalu-2 in number.

5.No oral or documentary evidence adduced for defence. After completion of the prosecution evidence, the accused was examined

U/Sec.313 Cr.P.C. and the incriminating circumstances found in the evidence of the prosecution witnesses is read over and explained to the accused and the accused denied the same and did not adduce any defence evidence.

6.Heard the arguments of both sides. Perused the material on record.

7. Now the Point for determination of this court is:

Whether prosecution has proved the guilt of the accused for the offences under Section 286 IPC and Section 9(b)(a) (A) Explosive Act 1884 beyond all reasonable doubt?

8.P O I N T :-

Gist of the prosecution case is that the PW.4/G.Subba Rao, the then Sub-Inspector, Nellore Rural PS while riding the shed situated at

Porlakutta village, Nellore on 24.10.2016 at about 3.30 p.m., in the presence of PW.3 and LW4/Jana Ravindra Babu and found various crackers and raw materials for manufacturing of crackers by accused 5 illegally for the purpose of manufacturing and selling them. PW.4 seized the said fire crackers along with raw materials in the presence of PW.3 and LW.4/mediators under the cover of mediators report/Ex.P3. To prove this case, prosecution examined P.Ws.1 to 4. I have carefully perused the evidence on record.

9.The brief evidence of PW.4/G.Subba Rao, Sub-Inspector of

Police is that on 24.10.2016 at about 2.00 p.m., he along with PW.3,

LW.4/Jana Ravindra Babu and his staff raided the shed at Pottepalem village fields where they found one person in suspicious manner and on enquiry he revealed his identity particulars, who is accused herein and basing on the confession of the accused, the accused is preparing crackers in the said shed by taking raw material of explosives without having any licence for his livelihood Then he arrested Accused seized the

Deepavali fire crackers i.e., 1) one plastic bag contains white paper boards for making Nellore Bombs, 2) Heap of bamboo sticks for preparation of Akasasuvvalu, 3) black colour powder in round shape for preparation of ground pots and flowers, 4) ½ kg white lime for preparation of ground pots, 5) ½ kg black colour powder for preparation of ground pots, 6) Two packets of Nellore bombs big size each packet containing 10, 7) Red paper for preparation of Nellore guns, 8) white threads five in number, 9) Iron pipes for preparation of Akasa Suvvalu-30 in number, 10) Thread rolls 10 in number 11) Prepared Akasa Suvvalu for tying with bamboo sticks , 12) iron Jalledalu-2 in number in the presence of PW.3 and LW.4 under the cover of Ex-P.3 mediators report. Later,

P.W.4 brought the accused along with the seized property and registered a case in Cr. No. 425/2016 U/Sec.286 of IPC and Section 9 (b) (1)(a) of 6

Explosive Act, 1984 against the Accused and released him on bail by serving Section 41-A Cr.P.C., notice.

During cross examination, P.W.4 admitted that the scene of offence is 20km away from the scene of offence and there are residential houses about ½ km away from the scene of offence. He did not mention his name as scribe in Ex-P.3 mediators report. No written summons served on Pw.3 and other mediator. He also admitted that he did not mention from where the seized raw material were brought to the scene of offence. P.W.4 denied that they did not follow the procedure and they foisted this false case against the accused for statistical purpose, nothing was recovered from the possession of accused and that the accused are no way concerned with the case.

10.PW.1/Sk.Shareef and PW.2/Sk.Salma are eye witnesses and neighbours of the scene of offence. The prosecution cited Pws.1 and 2 as eye witnesses for arrest of the accused and seizure of Mos.1 to 12 but Pws.1 and 2 denied the prosecution case and stated that they do not know the facts of this case. PW.3/mediator also did not speak about the presence of Pws.1 and 2 at the time of arrest and seizure of Mos.1 to 12.

It is pertinent to note that Pws.1 and 2 not supported the case of the prosecution and denied their presence during the arrest of the accused and seizure of the fire crackers along with PW.3. Pws.1 and 2 deposed in one voice that they do not know the accused so also facts of this case.

They did not witness the incident of this case and they were not examined by the police. The learned Asst., Public Prosecutor treated

Pws.1 and 2 as hostile and sought permission of the Court to cross- examine these witnesses. During the cross-examination by the learned 7

Asst., Public Prosecutor, nothing favour is elicited from Pws 1 and 2 and they denied their statements before the police under Ex.P1 and Ex.P2.

11.The only independent evidence available on record is

PW.3/Putta Ruben, who is independent mediator for arrest of the accused and seizure of Mos.1 to 12. He deposed that on 24.10.2016 at about 10.00 a.m., as per the request of PW.4/S.I of Police, Nellore Rural P.S,.

himself and LW.4/J.Ravindra Babu proceeded to one Asbestos sheeted shed at Porlukatta area, where PW.4 caught hold the accused, who confessed that he is preparing crackers in the shed and then PW.4 arrest the accused and seized the crackers in their presence under cover of mediators report/Ex.P3.

During his cross-examination, PW.3 admitted that he is the V.R.O of

Pottepalem village but the scene of offence is within limits of Porlukatta village and there is another VRO for Porlukatta. PW.3 further admitted that he is resident of “Chinna Cherukuru, which is 20 km away from the place of arrest and seizure”. No written summons were served on him to act as a mediator. He further admitted that residential houses are near the scene of offence at a distance of ½ k.m., but PW.4 did not try to secure the local mediators. He further admitted that he did not notice that who scribe Ex.P3/Mediators Report. He did not verify any documents to find out to whom the scene of offence shed belongs to so also not mention the full particulars of one Sudhakar, under whom the accused was working. He further admitted that the seized items were not weighed by the police in his presence and did not mention the particulars on the labels of seized crackers.

12.The learned counsel for the accused mainly relied on two contentions. First one is that though the prosecution examined PW.3 independent mediator, there is no corroboration to support the same and several discrepancies are found between the evidence of

Pw.3/mediator and PW.4/Investigating Officer. The other contention is that Pw4 who is the complainant in this case himself investigated the same and it would cause prejudice to accused.

13. It is another contention of the defence that PW.4 S.I of police failed to secure the independent local mediators during the search and seizure. Though the prosecution examined PW.3 as independent mediator, it appears from the record that he no way concerned to the scene of offence since he is the VRO of Pottepalem but the place of search and seizure is within the limits of Porlukatta village. PW.3 admitted that there is another VRO for Porlukatta village. The said VRO was not called as mediator. It is pertinent to note that Pw.3 is resident of

Chinnacherukur of T.P.Gudur Mandal, which is 20 km away from the place of search locality. PW.4 failed to secure two local mediators during the search and seizure which is contrary to the spirit of Sec. 100 (4) of

Cr.P.C., Except the evidence of PW.3, there is no other independent evidence available on record.

14.As seen from the evidence on record, Pws. 1 and 2 who alleged to be acted as circumstantial evidence and witnessed the search and seizure under Ex-P.1 and Ex.P-2 has turned hostile and did not support the case of prosecution. Hence, there is no corroborating evidence to the testimony of PW.3. Except the PW.3 no other witness is 9 examined to prove the search and seizure and the alleged manufacturing of fire crackers by the accused. From the above evidence of Pws.3 and 4, it is evident that PW.4 failed to secure the local inhabitants to act as mediators for search and seizure of the fire crackers

Even otherwise Pws.1 and 2 who stated to present during the search and seizure did not choose to support the prosecution case and they specifically denied their presence during the search and seizure.

15.Except the evidence of PW.3, who is VRO of different village i.e., Pottepalem, no other witness is examined to prove the search and seizure and the alleged manufacturing of fire crackers by the accused.

The learned counsel for the accused rightly pointed out that PW.4 failed to establish the reasonable grounds for not securing the local mediators in the busy locality where public were readily available or from the scene of offence village. When the search was alleged to taken place at 3.30 p.m., in residential locality, it is unbelievable that the police could not secure at least two independent local inhabitants to witness the search.

16.As per Sec 100 (4) of Cr.P.C. the search shall be conducted in the presence of two independent local inhabitants. When the independent mediators in that locality are not available, the Police

Officials has to record the same and issue an order in writing as prescribed above. It is clear from the record that no such procedure was adopted by the Police Officials though the scene of offence is located is within the vicinity of Porlukatta village. It is not the case of the prosecution that scene of offence is isolated area and nobody were present there. PW.4, S.I of Police admitted in his cross-examination that 10 the residential houses are located ½ k.m., away from the scene of offence. PW.4 failed to explain any reason for not securing any mediator from the said residential houses. It is settled law that in absence of independent local mediators the entire procedure vitiates the case. I feel it is just and proper to go through the relevant case law in this regard. The Hon'ble High court of A.P in the case of 'Yeduru

sreenivasul reddy Vs State of A.P' reported in '2002(1) A.L.D

(Crl) 347 (A.P)' held that:

Therefore, in the absence of any such written order, the evidence of police officials that no one came forward to act as mediators can not be believed and relied upon. Therefore, the entire search conducted by the prosecution is vitiated. Held, the search and seizure as well as conviction can not be sustained.”

The analogy in the above case squarely applicable to the present set of case facts.In view of the above Judgment, it is clear that the search and seizure conducted by the police in the absence of independent local mediators vitiates the prosecution case. Without assigning any reason , PW.4 secured the VRO of another village and brought the PW.3,who is resident of Chinna Cherukuru village, which is 20 k.m, away from the scene of offence.

17.Admittedly, the scene of offence is in the village limits of

Porlukatta and residential houses are near to the scene of offence. But, here, in the present case, the Investigating Officer has not made any 11 serious efforts to secure the mediators at the scene though he secured

PW.3 from 20 km away from the scene of offence as a mediator. This aspect is certainly creates a doubt in the mind of the court.

18.Moreover on perusal of the evidence of PW.3/mediator, he deposed that he do not know who scribed Ex.P3/mediators report and police never weighed the seized materials in his presence but whereas the evidence of PW.4 is that before seizing the materials, he weighted the same in the presence of PW.3 and LW.4/Ravindra Babu, who acted as mediators. It is quite contra to the evidence of PW.3. When the Police officials failed to follow the prescribed procedure as contemplated and non securing of independent local mediators by the police officials is creating doubt on the entire prosecution case. There are no special circumstances to proceed under Ex.P3 Mediators report, as the scene of offence is not an isolated area and the time of arrest is not an odd hours.

It is surprise to note that when PW.4 did not choose to call VRO, VRA or

Sarpanch of the Porlukatta village. Moreover on perusal of the record,PW.4/Investigating Officer utterly failed to collect the documents of the scene of offence to show to whom the land actually belongs to and as well as the particulars of one Sudhakar, under whom the accused was working.

19.It is further contended that PW.4 who is complainant in this case himself acted as investigating officer and it will prejudice the investigation. As seen from the evidence of PW.4, it is specifically reveals that he is the complainant and he conducted the entire investigation except filing of charge sheet. It is clear from the evidence 12 of PW.4 that it is the PW.4, who detected the offence, seized the illegal fire crackers and its raw material and arrested the accused under cover of mediator report and sent the samples to the analyst, drafted rough sketch, registered the FIR and completed the entire investigation.

LW.6/N.Rama murthy, the then S.I of Police, Nellore Rural P.S., simply received the FSL Report and filed the charge sheet. It is the contention of the learned counsel for the accused that the complainant i.e. P.W.4 Sub-

Inspector, himself investigated the case as such it will cause prejudice to accused. When the complainant took up the investigation of the case, impartial investigation is doubtful. It is an admitted fact that the entire proceedings in this case except filing of charge sheet were taken up by

PW.4 alone and entire investigation was completed by PW.4 who also acted as complainant in this case. It is an established principal of law that the person who is a complainant in a case shall not be allowed as an

Investigating Officer, in such case the investigation certainly prejudice the accused and impartial investigation is doubtful.

For this aspect, I feel it is profitable to refer the Gurazala

Ramesh and others Vs. State of Andhra Pradesh reported in

2003 (2) ALD (Crl.) 13 (A.P.,) and AIR 1976 Supreme Court 985

(Bhagavan Singh Vs. State of Rajasthan. In this case the

Hon’ble high Court of Andhra Pradesh and Hon’ble Apex court

held that the infirmity arises and create doubt on the investigation done by the police officer who lodged the FIR and it is Manifest illegality as the same officer who detected the offence and lodged the FIR and investigated into the crime.

In the present case also the the investigation was done by the complainant and the above judgment is very much applicable to the case of the prosecution. Since PW.4 failed to secure the independent local mediators and brought the PW.3 from different village without 13 assigning any reason and considering the fact that PW.4 being complainant, investigated the same case, it is one of the doubtful circumstance on the prosecution case and this court is of the opinion that impartial investigation is doubtful.

20.In view of the above circumstances of this case and in the light of the above authority, I feel the investigation done by the complainant i.e. PW.4 certainly would prejudice the accused.

Therefore, it is not safe to rely upon the evidence of PW.4 and benefit of doubt shall goes to the accused.

21.Apart from the above lacuna's, there is no consistency in between the evidence of Pws.3/mediator and 4/Investigating Officer.

According to PW.3, he do not know the scribe of Ex.P3/mediator report, surprisingly PW.4/Investigating Officer deposed that he scribed the same. If PW.3 is really present during drafting of Ex.P3/mediator report, certainly PW.3 will reveal the name of the PW.4 as scribe of the same.

Admittedly, Ex.P3 was drafted in four pages, hence it will take considerable time to draft four pages, as such if PW.3 was really present along with PW.4 during the search and seizure, he will certainly depose the name of the PW.4 as scribe of mediator report but here PW.3 failed to notice who drafted Ex.P3 mediator report and he stated the same in his cross-examination, it clearly shows that PW.3 was not present at the time of drafting Ex.P3/mediator report. PW.3 further failed to state the descriptive particulars of the crackers seized under Ex.P3. It is pertinent to note that the name of PW.4 was not referred in Ex.P3/mediator report as scribe of the same and the said fact was admitted by PW.4 in his 14 cross-examination also. These circumstances are creating doubt with regard to the presence of PW.3 during the search and seizure.

22.One more doubtful circumstance is that though

Ex.P3/mediator report was drafted in four pages, the signatures of Pws.3 and 4 and accused are found only at the end of the page of

Ex.P3/mediator report and their signatures were not found place in each page of Ex.P3. The learned counsel for the accused rightly argued that in such circumstances, the genunity of Ex.P3 is doubtful.

23.According to PW.4 they weighted the raw material under

Mos.1 to 12 by using weighing machine at the scene of offence, the said fact was not mentioned in Ex.P3/mediator report and PW.3 failed to depose the same. The evidence of PW.3 is silent with regard to the weighing of Mos.1 to 12 during the search and seizure. PW.3 admitted that they did not enquire about the shed belongs to whom. Mere proving

Ex.P6/analyst report that the samples are common constitutes of fireworks composition low explosive in nature is not sufficient to prove the case against the accused. The prosecution is required to prove beyond all reasonable doubt, the accused dealt with the Mos.1 to 12 for manufacturing the crackers. Admittedly there is no reliable evidence in this regard. Moreover as discussed above, the Investigating Officer himself registered the case, took up investigation and conducted entire investigation which caused prejudice to the accused.

24.Though, neighbouring persons and alleged eye witnesses were examined as Pws.1 and 2 to prove the prosecution case, they did 15 not support the case of prosecution. Except, the evidence of Pw.3, there is no other material to corroborate the testimony of PW.4. In view of the above discussion it is not safe to rely upon the testimony of Pws 3 and 4.

Hence, the search and seizure of fire crackers from the possession of the accused is not proved. There is no basis to prove that accused was manufacturing the fire crackers and he possessed raw material of the same for the purpose of manufacturing and thereafter selling them.

There is no reliable evidence to prove that the crackers and raw material described in Ex-P.3 which were seized from the accused. Prosecution failed to connect the Mos.1 to 12 with accused. The alleged confession of accused before police is hit by Section 25, 26 and 27 of Indian Evidence

Act.

25.Therefore, there is no cogent and corroborating evidence to implicate the complicity of the accused in commission of the offence.

Thus, the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt and thus the accused are entitled for benefit of doubt. The point is answered accordingly in favour of the accused and against the prosecution.

26. In the result, accused is found not guilty for the offence under Section 286 IPC and Section 9 (b)(1)(A) of Explosive Act and they are acquitted U/Sec. 255 (1) of Cr.P.C., for the said offence Under Section 286 IPC and Section 9 (b)(1)(A) of Explosive Act. The accused is set at liberty. The bail bonds of the accused shall be in force for a period of six months as per Sec. 437-A of Cr.P.C. Mos.1 to 12 i.e., seized fire crackers and raw materials shall be destroyed after expiry of appeal time. The 16

Sub-Inspector of Police, Nellore Rural P.S., is directed to take photographs of the Mos.1 to 12 and destroy the same under cover of mahzarnama under the supervision of experienced staff by taking precautions and submit the report into the court to that effect.

Typed to my dictation by the Stenographer (GR-III), corrected and

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

September,2018.

IV Addl.Judl. Magistrate of First Class, Nellore.

APPENDIX OF EVIDENCE.

No. of WITNESSES EXAMINED.

For Prosecution: For Defence: Nil PW.1 : Shaik Sharif

PW.2 : Shaik Salma,

PW.3: Putta Ruben,

PW.4 : G.Subba Rao, the then S.I of Police, Nellore Rural P.S.,

No. of EXHIBITS MARKED.

For Prosecution : For Defence: Nil

Exs.P1: 161 Cr.P.C., statements of Pw.1

Ex.P2: 161 Cr.P.C., statement of PW.2

Ex.P3: Mahzarnama dt.24.10.2016,

Ex.P4: First Information Report

Ex.P5: Rough sketch,

Ex.P6: Analyst report dt.20.12.2016 issued by Assistant Director, TSFSL,

Hyderabad.

MATERIAL OBJECTS MARKED: -

MO.1: One plastic bag contains white paper boards for making Nellore

Bombs,

MO.2: Heap of bamboo sticks for preparation of Akasasuvvalu, 17

MO.3: Black colour powder in round shape for preparation of ground pots and flowers,

MO.4: ½ kg white lime for preparation of ground pots,

MO.5: ½ kg black colour powder for preparation of ground pots,

MO.6: Two packets of Nellore bombs big size each packet containing 10,

MO.7: Red paper for preparation of Nellore guns,

MO.8: white threads five in number,

MO.9: Iron pipes for preparation of Akasa Suvvalu-30 in number,

MO.10: Thread rolls 10 in number

MO.11: Prepared Akasa Suvvalu for tying with bamboo sticks ,

MO.12: Iron Jalledalu-2 in number.

IV Addl.Judl. Magistrate of First Class, Nellore.

CC/900082/2017 Acquitted

STATE SUB INSPECTOR OF POLICE RURAL PS vs YALLASIRI MUNEIAH

17 Sep 2018

IN THE COURT OF IV ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS, NELLORE

Present: Sri. K.Murali Mohan, IV Additional Judicial Magistrate of First Class, Nellore.

Monday, this the 17th day of September, 2018

Calendar Case No.82/2017

State: Sub-Inspector of Police, Nellore Rural Police Station

..... Complainant.

Vs.

Yallasiri Muneiah, S/o Late Subbaiah, Aged 45 years,

ST Yanadi by caste, Porlukatta, Nellore. ... Accused

This case is coming on 12.09.2018 for final hearing before me in the presence of learned A.P.P., for Prosecution and of Sri O.Abbai

Reddy, Advocate for the Accused and the matter having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

The Sub-Inspector of Police, Nellore Rural Police Station laid charge sheet against the above named accused in Crime No.424/2016 of

Nellore Rural Police Station for the offence punishable U/Sec.9 (b)(1)(A) of Explosive Act, 1984.

2.The brief case of the prosecution is as follows: On 24.10.2016 at about 10.00 a.m., PW.4/G.Subba Rao, the then S.I of

Police, Nellore Rural P.S., received credible information about illegal manufacturing of crackers at Naidu Venku Reddy shed situated on

Porlukatta Pottempalem, Nellore, PW.5 secured the mediators/

PW.3/Putta Ruben and LW.4/Jana Ravindra Babjh along with his staff 2 proceeded to Naidu Venku Reddy shed at Porlukatta Pottempalem,

Nellore and found the accused was standing at the shed and on seeing them, the accused tried to ran away but police caught hold the accused and on enquiry, the accused confessed about the manufacturing crackers under one Jana Sekhar and the accused is only used to collect raw material from Nellore town, manufacture crackers like Aakasuvvalu and Nellore Bombs. It is further alleged that in connection with

Deepavali festival on 30.10.2016, the accused secured explosive material for manufacturing of crackers, kept the same in a shed. Then

Pw.4 verified the stock and found 1) a white gunny bag containing paper boards using for manufacturing of Nellore bombs, 2) a bundle of Bamboo sticks using for making Aaksuvvalu 3) Two packets of black colour explosive material for manufacturing of Chuchibuddilu, 4) 8 bundles of bamboo sticks for manufacturing of Aakasuvvalu 5) Explosive substance of 4000 grams, 6 ) two big bundles of Nellore bombs each bundle containing 10 7) Red coloured designed papers using for Nellore bombs

8) Thoranalu-9 9) Thread rounds-6 10) Wicks (vathulu)-5 11) Iron Sieve-1

12) Iron tubes-30 for using Aakasuvvalu without having any licence.

Then Pw.4 arrested the accused and seized the said material in the presence of mediators under cover of mahazarnama and then the said mazarnama was registered as Crime No.424/2016 under Section 286 IPC and Section 9(b)(a) (A) Explosive Act 1884 and served Section 41-A

Cr.P.C., notice to the accused. Later PW.4 sent samples of seized material to FSL for analysis, who examined the same and opined that they are common constituents of fireworks composition low explosive in nature and after completion of entire investigation, LW.6/N.Ram Murthy, the then S.I of Police, Nellore Rural P.S., filed charge sheet against the 3 accused.

3.This case was taken on file for the offence punishable Under

Telugu for which he pleaded not guilty and claimed to be tried.

4. During the course of trial, the prosecution examined P.Ws 1 to 4 and got marked Exs.P1 to P.6 and Mos.1 to 12. P.W.1/Shaik Sharif and PW.2/Shaik Slama are circumstantial mediators, who are neighbours of the scene of offence, PW.3/Putta Raben is stated to the mediator for the arrest of the accused and Seizure of fire crackers along with Pws.1 and 2 and PW.4/G.Subba Rao, the then Sub-Inspector of Police, Nellore

Rural PS is the Investigating Officer. The prosecution given up the evidence of LW.4/Jana Ravindra Babu, another mediator and LW.6/N.Ram

Murthy, S.I of police, who field the charge sheet.

Exs.P1 and P2 are the 161 Cr.P.C., statements of Pws.1 and 2 respectively, Ex.P3 is the Mahzarnama dt.24.10.2016, Ex.P4 is the First

Information Report and Ex.P5 is the rough sketch, Ex.P6 is the analyst report dt.20.12.2016 issued by Assistant Director, TSFSL, Hyderabad.

MO.1 is the one plastic bag contains white paper boards for making

Nellore Bombs, MO.2 is the Heap of bamboo sticks for preparation of

Akasasuvvalu, MO.3 is the black colour powder in round shape for 4 preparation of ground pots and flowers-02 in number, MO.4 is the prepared Aakasuvvalu for tying with bamboo sticks -08 in number, MO.5 is the 400 grams powder for giving white bright lighting, MO.6 is the two packets of Nellore bombs big size each packet containing 10, MO.7 is the red colour design paper of Nellore bombs, Ex.P8 is the nine thoranalu,

MO.9 is the thread rolls-6 in number, MO.10 is the Vattulu -05 in number,

MO.11 is the iron Jalleda-01, MO.12 is the iron pipes for preparation of

Aakasuvvalu-30 in number.

5.No oral or documentary evidence adduced for defence. After completion of the prosecution evidence, the accused was examined

6.Heard the arguments of both sides. Perused the material on record.

7. Now the Point for determination of this court is:

Whether prosecution has proved the guilt of the accused for the offences under Section 286 IPC and

Section 9(b)(a) (A) Explosive Act 1884 beyond all reasonable doubt?

8.P O I N T :-

The case of the prosecution is that the PW.4/G.Subba Rao, the then Sub-Inspector, Nellore Rural PS while riding the shed situated at 5

Porlakutta village, Nellore on 24.10.2016 at about 10.0 a.m., in the presence of PW.3 and LW4/Jana Ravindra Babu and found various crackers and raw materials for manufacturing of crackers by accused illegally for the purpose of manufacturing and selling them. PW.4 seized the said fire crackers along with raw materials in the presence of PW.3 and LW.4/mediators under the cover of mediators report/Ex.P3. To prove this case, prosecution examined P.Ws.1 to 4.

9.I have carefully perused the evidence on record. The brief evidence of PW.4/G.Subba Rao, Sub-Inspector of Police is that on 24.10.2016 at about 10.00 a.m., he along with PW.3, LW.4/Jana Ravindra

Babu and his staff raided the shed at Pottepalem village fields where they found one person in suspicious manner and on enquiry he revealed his identity particulars, who is accused herein and basing on the confession of the accused, the accused is preparing crackers in the said shed by taking raw material of explosives without having any licence for his livelihood Then he arrested Accused seized the Deepavali fire crackers i.e., 1) one plastic bag contains white paper boards for making

Nellore Bombs, 2)e Heap of bamboo sticks for preparation of

Akasasuvvalu, 3) black colour powder in round shape for preparation of ground pots and flowers-02 in number, 4) prepared Aakasuvvalu for tying with bamboo sticks -08 in number, 5) 400 grams powder for giving white bright lighting, 6) two packets of Nellore bombs big size each packet containing 10, 7) Red colour design paper of Nellore bombs, 8)

Nine thoranalu, 9) Thread rolls-6 in number, 10) Vattulu -05 in number,

11) Iron Jalleda-01, 12) Iron pipes for preparation of Aakasuvvalu-30 in number in the presence of PW.3 and LW.4 under the cover of Ex-P.3 6 mediators report. Later, P.W.4 brought the accused along with the seized property and registered a case in Cr. No. 424/2016 U/Sec.286 of

IPC and Section 9 (b) (1)(a) of Explosive Act, 1984 against the Accused and released him on bail by serving Section 41-A Cr.P.C., notice.

P.W.4 denied that they did not follow the procedure and they foisted this false case against the accused for statistical purpose, nothing was recovered from the possession of accused and that the accused are no way concerned with the case.

They did not witness the incident of this case and they were not examined by the police. The learned Asst., Public Prosecutor treated 7

Pws.1 and 2 as hostile and sought permission of the Court to cross- examine these witnesses. During the cross-examination by the learned

Asst., Public Prosecutor, nothing favour is elicited from Pws 1 and 2 and they denied their statements before the police under Ex.P1 and Ex.P2.

11.The only independent evidence available on record is

PW.3/Putta Rubin, who is independent mediator for arrest of the accused and seizure of Mos.1 to 12. He deposed that on 24.10.2016 at about 10.00 a.m., as per the request of PW.4/S.I of Police, Nellore Rural P.S,.

During his cross-examination, PW.3 admitted that he is the

V.R.O of Pottepalem village but the scene of offence is within limits of

Porlukatta village, and there is another VRO for Porlukata. PW.3 further admitted that he is resident of Chinna Cherukuru, which is 20 km away from the place of arrest and seizure”. No written summons were served on him to act as a mediator. He further admitted that residential houses are near the scene of offence at a distance of ½ k.m., but PW.4 did not try to secure the local mediators. He further admitted that he did not notice that who scribe Ex.P3/Mediators Report. He did not verify any documents to find out to whom the scene of offence shed belongs to so also not mention the full particulars of one Jana Sekhar, under whom the accused was working. He further admitted that the seized items were not weighed by the police in his presence and did not mention the particulars on the labels of seized crackers.

12.The learned defence counsel argued that though the prosecution examined PW.3 independent mediator, there is no corroboration to support the same and several discrepancies are found between the evidence of Pw.3/mediator and PW.4/Investigating Officer.

The other contention is that Pw4 who is the complainant in this case himself investigated the same and it would cause prejudice to accused.

13. It is further contended that PW.4 S.I of police failed to secure the independent local mediators during the search and seizure. Though the prosecution examined PW.3 as independent mediator, it appears from the record that he no way concerned to the scene of offence since he is the VRO of Pottepalem but the place of search and seizure is within the limits of Porlukatta village. PW.3 admitted that there is another VRO for Porlukatta village. The said VRO was not called as mediator. It is pertinent to note that Pw.3 is resident of Chinnacherukur of T.P.Gudur

Mandal, which is 20 km away from the place of search locality. PW.4 failed to secure two local mediators during the search and seizure which is contrary to the spirit of Sec. 100 (4) of Cr.P.C., Except the evidence of

PW.3, there is no other independent evidence available on record.

14.As seen from the evidence on record, Pws. 1 and 2 who alleged to be acted as circumstantial evidence and witnessed the search and seizure under Ex-P.1 and Ex.P-2 has turned hostile and did not support the case of prosecution. Hence, there is no corroborating evidence to the testimony of PW.3. Except the PW.3 no other witness is examined to prove the search and seizure and the alleged 9 manufacturing of fire crackers by the accused. From the above evidence of Pws.3 and 4, it is evident that PW.4 failed to secure the local inhabitants to act as mediators for search and seizure of the fire crackers . Even otherwise Pws.1 and 2 who stated to present during the search and seizure did not choose to support the prosecution case and they specifically denied their presence during the search and seizure.

16.As per Sec 100 (4) of Cr.P.C. the search shall be conducted in the presence of two independent local inhabitants. When the independent mediators in that locality are not available, the Police

Officials has to record the same and issue an order in writing as prescribed above. It is clear from the record that no such procedure was adopted by the Police Officials though the scene of offence is located is within the vicinity of Porlukatta village. It is not the case of the prosecution that scene of offence is isolated area and nobody were present there. PW.4, S.I of Police admitted in his cross-examination that the residential houses are located ½ k.m., away from the scene of 10 offence. PW.4 failed to explain any reason for not securing any mediator from the said residential houses. It is settled law that in absence of independent local mediators the entire procedure vitiates the case. I feel it is just and proper to go through the relevant case law in this regard. The Hon'ble High court of A.P in the case of 'Yeduru

sreenivasul reddy Vs State of A.P' reported in '2002(1) A.L.D

(Crl) 347 (A.P)' held that:

“When the search and seizure taken place in a busy locality and none have come forward to act as a panch witness, the police should have resort to section 100 (4) of Cr.P.C and should pass a written order. Therefore, in the absence of any such written order, the evidence of police officials that no one came forward to act as mediators can not be believed and relied upon. Therefore, the entire search conducted by the prosecution is vitiated. Held, the search and seizure as well as conviction can not be sustained.”

17.Admittedly, the scene of offence is in the village limits of

Porlukatta and residential houses are near to the scene of offence. But, here, in the present case, the Investigating Officer has not made any serious efforts to secure the mediators at the scene though he secured

PW.3 from 20 km away from the scene of offence as a mediator. This 11 aspect is certainly creates a doubt in the mind of the court.

It is surprise to note that when PW.4 did not choose to call VRO, VRA or

19.It is further contended that PW.4 who is complainant in this case himself acted as investigating officer and it will prejudice the investigation. As seen from the evidence of PW.4, it is specifically reveals that he is the complainant and he conducted the entire investigation except filing of charge sheet. It is clear from the evidence of PW.4 that it is the PW.4, who detected the offence, seized the illegal fire crackers and its raw material and arrested the accused under cover 12 of mediator report and sent the samples to the analyst, drafted rough sketch, registered the FIR and completed the entire investigation.

Investigating Officer, in such case the investigation certainly prejudice the accused and impartial investigation is doubtful.

For this aspect, I feel it is profitable to refer the Gurazala

Ramesh and others Vs. State of Andhra Pradesh reported in

2003 (2) ALD (Crl.) 13 (A.P.,) and AIR 1976 Supreme Court 985

(Bhagavan Singh Vs. State of Rajasthan. In this case the

Hon’ble high Court of Andhra Pradesh and Hon’ble Apex court

held that:

“the infirmity arises and create doubt on the investigation done by the police officer who lodged the FIR and it is Manifest illegality as the same officer who detected the offence and lodged the FIR and investigated into the crime”

In the present case also the the investigation was done by the complainant and the above judgment is very much applicable to the case of the prosecution. Since PW.4 failed to secure the independent local mediators and brought the PW.3 from different village without assigning any reason and considering the fact that PW.4 being 13 complainant, investigated the same case, it is one of the doubtful circumstance on the prosecution case and this court is of the opinion that impartial investigation is doubtful.

20.In view of the above circumstances of this case and in the light of the above authority, I feel the investigation done by the complainant i.e. PW.4 certainly would prejudice the accused.

Therefore, it is not safe to rely upon the evidence of PW.4 and benefit of doubt shall goes to the accused.

21.Apart from the above lacuna's, there is no consistency in between the evidence of Pws.3/mediator and 4/Investigating Officer.

22.Admittedly, Ex.P3 was drafted in four pages, hence it will take considerable time to draft four pages, as such if PW.3 was really present along with PW.4 during the search and seizure, he will certainly depose the name of the PW.4 as scribe of mediator report but here PW.3 failed to notice who drafted Ex.P3 mediator report and he stated the same in his cross-examination, it clearly shows that PW.3 was not present at the time of drafting Ex.P3/mediator report.

23.PW.3 further failed to state the descriptive particulars of the crackers seized under Ex.P3. It is pertinent to note that the name of PW.4 14 was not referred in Ex.P3/mediator report as scribe of the same and the said fact was admitted by PW.4 in his cross-examination also. These circumstances are creating doubt with regard to the presence of PW.3 during the search and seizure.

24.One more doubtful circumstance is that though

Ex.P3/mediator report was drafted in four pages, the signatures of Pws.3 and 4 and accused are found only at the end of the page of

25.According to PW.4 they weighted the raw material under

26.Though, neighbouring persons and alleged eye witnesses were examined as Pws.1 and 2 to prove the prosecution case, they did not support the case of prosecution. Except, the evidence of Pw.3, there is no other material to corroborate the testimony of PW.4. In view of the above discussion it is not safe to rely upon the testimony of Pws 3 and 4.

Act.

27.Therefore, there is no cogent and corroborating evidence to implicate the complicity of the accused in commission of the offence.

28. In the result, accused is found not guilty for the offence under Section 286 IPC and Section 9 (b)(1)(A) of Explosive Act and they are acquitted U/Sec. 255 (1) of Cr.P.C., for the said offence Under Section 286 IPC and Section 9 (b)(1)(A) of Explosive Act. The accused is set at liberty. The bail bonds of the accused shall be in force for a period of six 16 months as per Sec. 437-A of Cr.P.C. Mos.1 to 12 i.e., seized fire crackers and raw materials shall be destroyed after expiry of appeal time. The

Typed to my dictation by the Stenographer (GR-III), corrected and

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

September,2018.

IV Addl.Judl. Magistrate of First Class, Nellore.

APPENDIX OF EVIDENCE.

No. of WITNESSES EXAMINED.

For Prosecution: For Defence: Nil PW.1 : Shaik Sharif

PW.2 : Shaik Salma,

PW.3: Putta Ruben,

PW.4 : G.Subba Rao, the then S.I of Police, Nellore Rural P.S.,

No. of EXHIBITS MARKED.

For Prosecution : For Defence: Nil

Exs.P1: 161 Cr.P.C., statements of Pw.1

Ex.P2: 161 Cr.P.C., statement of PW.2

Ex.P3: Mahzarnama dt.24.10.2016,

Ex.P4: First Information Report

Ex.P5: Rough sketch,

Ex.P6: Analyst report dt.20.12.2016 issued by Assistant Director, TSFSL,

Hyderabad.

MATERIAL OBJECTS MARKED: -

MO.1: one plastic bag contains white paper boards for making Nellore

Bombs,

MO.2: Heap of bamboo sticks for preparation of Akasasuvvalu,

MO.3: Black colour powder in round shape for preparation of ground pots and flowers-02 in number,

MO.4: Prepared Aakasuvvalu for tying with bamboo sticks -08 in number,

MO.5: 400 grams powder for giving white bright lighting,

MO.6: Two packets of Nellore bombs big size each packet containing 10,

MO.7: Red colour design paper of Nellore bombs,

Ex.P8: Nine Thoranalu,

MO.9: Thread rolls-6 in number,

MO.10: Vattulu -05 in number,

MO.11: Iron Jalleda-01,

MO.12: iron pipes for preparation of Aakasuvvalu-30 in number.

IV Addl.Judl. Magistrate of First Class, Nellore.

CC/900453/2014 Acquitted

SHO, Muthukur PS vs Somu Venkatanarayana

05 Oct 2018

IN THE COURT OF IV ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS, NELLORE.

Present: Sri. K.Murali Mohan, IV Additional Judicial Magistrate of First Class, Nellore.

Friday, this the Fifth (05th ) day of October, 2018.

Calendar Case No.453/2014

State: Sub-Inspector of Police,

Muthukur Police Station,..... Complainant.

Vs.

Somu Vekatanarayana S/o.Chavadaiah, Aged 50 years, Caste by Kapu, Driver of APSRTC No.II Depot, Staff No.515019, Nellore, Resident of Jonnawada Road Centre, Buchireddypalem (V &M), SPS Nellore District.

..... Accused

This case is coming before me on 04-10-2018 for hearing in the presence of the learned Assistant Public Prosecutor for the complainant and of Sri D.Ramanaiah, Counsel for the accused, upon hearing and perusing the material on record and having stood over for consideration till this day, this Court delivered the following: -

J U D G M E N T

1.The Sub-Inspector of Police, Muthukur Police Station, filed charge sheet against the accused in Crime No.110/2014 of Muthukur Police Station for the offences punishable under sections 338 and 337 IPC of the Indian Penal

Code, 1860 (herein after referred to as 'IPC').

2.The brief case of the prosecution is that:

On 13.08.2014, the accused/Somu Venkatanarayana and

PW.1/Kancharagunta Nageswara Rao were on duty in APSRTC bus bearing

Registration No.AP 28 Z 3814 and about 16.00 hours, on Nellore to Muthukur

B.T road near Maddimanu Cetnre, Muthukur Vllage, accused being the driver of the APSRTC bus, drove the same in a rash and negligent manner while plying from Nellore to Muthukur and hit behind the water tanker lorry bearing Registrantion No.KA 16 A 9599, which was stationed on road margin 2 and filling water, due to which the driver of the water tanker i.e.,

LW.1/KOnduru Polaiah fell down from to of tanker and sustained bleeding injury to his head, PW.1/K.Nageswara Rao, Conductor of APSRTC bus sustained injuries to his left leg and right shoulder. PW.2/Paruchuru Nagaraju and LW.3/T.Rangaiah and LW.4/Ch.Maheswara Reddy are witnessed the same and then PW.3/Sk.Akbar Basha shifted the injured to DSR Government hospital through 108 ambulance for treatment, where PW.4/Sk.Bikari Sahem,

ASI, MUthukur P.S., recorded the statement of LW.1/Konduru Polaiah and registered the same as a case in Cr.No.110/2014 under Sections 338 & 337

IPC and investigated into. During the course of investigation, PW.4 visited the scene of offence, prepared rough sketch, examined the witnesses and recorded their statements. On 22.08.2014, Lw.10/K.Maruthi Krishna,the then

S.I of Police, Muthukur P.S., arrested the accused and released him on self bail with two sureties. After receipt of wound certificates of LW.1 and PW.1 and after completion of entire investigation, Lw.10/K.Maruthi Krishna,the then S.I of Police, Muthukur P.S., filed charge sheet against the accused.

Hence, the charge.

3.This case was taken cognizance for the offences punishable under

Sections 338 and 337 against the accused.

4.On appearance of the accused before this Court, relevant copies of documents were furnished to him as required under Section 207 Cr.P.C.

5.The accused was examined under Sec. 251 Cr.P.C., the substance of accusations for the offences punishable under Sections 338 and 337 IPC, were explained to accused in Telugu, for which he pleaded not guilty and claimed to be tried.

6.During the course of trial, on behalf of the prosecution, P.Ws.1 to 4 were examined and Exs.P1 to P8 were marked. Ex.P1 is the 161 Cr.P.C., statement of PW.2, Ex.P2 is the 161 Cr.P.C., statement of PW.3, Ex.P3 is the statement of LW.1/K.Polaiah, Ex.P4 is the Original First Information Report in

Cr.No.110/2014, Ex.P5 is the Hospital Intimation, Ex.P6 is the rough sketch of the scene of offence, Ex.P7 is the wound certificate of LW.1/K.Polaiah, Ex.P8 is the wound certificate of PW.1.

(i) The evidence of Lw.1/Konduru Polaiah was abated as he died. The evidence of LW.3/T.Rangaiah and LW.4/Ch.Maheswara Reddy was closed by this court since the prosecution filed memo stating that their whereabouts are not known. The evidence of LW.7/Dr.Suman, LW.8/Dr.A.Krishnamurthy and LW.10/K.Maruthi Krishna was givenup the learned APP since the wound certificates were marked under Section 294 Cr.P.C.,

7. Heard the learned Assistant Public Prosecutor and the defence counsel.

8.Now the point that has arisen for consideration is:

Whether the prosecution proved the guilt of the accused for the offences punishable under Sections 338 and 337 IPC beyond all reasonable doubt?

9. The offences alleged against the accused is for the offences under

Sections 338 and 337 IPC. In order to prove the case, the prosecution is required to prove that:

I) Accused was the driver of the crime vehicle/APSRTC Bus bearing

Registered No. AP 28 Z 3814 at the time of incident.

4 ii) Accused drove the crime vehicle in a rash and negligent manner and dashed the water tanker lorry bearing registration No. KA 16 A 9599 iii) Accused caused injuries to deceased LW.1/Konduru Polaiah and

PW.1/Kancharagunta Nageswarara Rao with his rash and negligent driving.

iv) Pw.1 sustained grievous injury on his left leg and LW.1/K.Polaiah sustained simple injury on his head in the incident.

10.On proving of all the above facts, the accused is liable for conviction for the offences under Sections 338 and 337 IPC. Here, Pw.1 is the direct and injured witness. I have carefully perused the entire evidence on record, the gist of the evidence of Pw.1, who is working as conductor of crime vehicle bus at the time of incident. His evidence is that on 13.08.2014 he was on duty of the crime vehicle/APSRTC bus bearing Registration No.AP 28 Z 3814.

Accused/Somu Venkata Nrayana was the driver of said bus at that time.

They started the service at 5.30 a.m., from Nellore bus stand to Muthukur.

During the course of trips, on that day at about 3.30 p.m., when their bus reached Maddimanu centre of Muthukuru main road, accused drove their bus in sleeping status and dashed the bus to the parked water tanker lorry. As a result left leg of PW.1 was crushed and received heavy bleeding injury on his left leg. PW.1 also stated that one person who is working on the tanker fell down and sustained injuries and the inmates of the bus were also injured.

Due to the accident, both vehicles are damaged. He fell unconscious in the incident and he was shifted to government hospital, Nellore and from there he went to Vijaya Hospital, Chennai for better treatment. Further PW.1 stated that the incident was occurred due to negligence of the accused, who was driver of their bus at the time of incident. According to PW.1, the accused is in the habit of driving the bus in sleeping state and on the date of incident, 5 prior to the accident, he warned the accused 2 or 3 times as he drove the bus in sleeping mode.

11. Pw2/Paruchuru Nagaraju, who stated to be the direct eyewitness to the incident, deposed that he did not witness the incident. He deposed that four years ago, on one day in the evening time, somebody informed him that one accident was taken place on Muthukuru road and one person died in the bus accident but he do not know the manner of the accident and driver of the crime vehicle. According to PW.2 he is not the direct eye witness to the incident and he is only hearsay witness and he do not know anything about the case facts.

12.PW.3/Sk.Akbar Basha, who shifted the injured to DSR Government hospital, Nellore, deposed that he did not witness the incident. He further deposed that four years ago, on one day in the evening time, somebody informed him that one accident was taken place on Muthukuru road and one person died in the bus accident but he do not know the manner of the accident and driver of the crime vehicle. According to PW.3 he is not the direct eye witness to the incident and he do not know anything about the case facts.

(i) As PWs 2 and 3 realised from their statements U/Sec. 161 Cr.P.C., the learned APP requested the Court to treat them as hostile and cross- examined them with the permission of the Court. During the cross- examination, Pws.2 and 3 denied to state to police as in Exs P.2 and P.3 161

Cr.P.C., statements to the effect that on 13.08.2014, accused caused the incident and as well as injuries sustained by LW.1/k.Polaiah and PW.1 during the said incident.

13.PW.4/Sk.Bikari Saheb, the then ASI of Police, Muthukur Police deposed that on 13.08.2014, basing on the information received from hospital, he visited the hospital, recorded the statement of LW.1/K.Polaiah at 9.30 p.m., and the same was registered as a case in Cr.No.110/2014 under Section 337

IPC, visited the scene of offence, prepared rough sketch under Ex.P6, examined the witnesses and recorded their statements and after receipt of wound certificates of injured under Ex.P7 and Ex.P8, added the section of law is 338 IPC as PW.1 received grievous injury and later LW.10/K.Maruthi

Krishna, the then S.I of police filed the charge sheet

14.On perusal of the entire evidence of prosecution witnesses, except the evidence of PW.1, there is no other matieral to connect the accused with the offence. PW.1 was on duty as Conductor of the crime vehcilce/bus. According to him accused was the driver of the bus in that service. PW.1 identified the accused as the driver of the crime vehicle/APSRTC bus on the date of incident. There is no denial by the defence in this regard. The defence did not deny the fact that the accused is the driver of the bus at the time of the incident. The defence disputed the rashness and negligence on the part of the accused while driving the bus but it is not in the dispute that the accused is the driver of the bus. Being the conductor of the crime vehicle

APSRTC bus on that day he is the right person to speak about the driver of the crime vehicle.

15.As seen from the evidence of PW.1, he categorically deposed that accused who is working as driver in APSRTC was the driver of their bus bearing registration No.AP 28 Z 3814 service NO.530 of Muthukuru day out and the bus started at 3.30 p.m., towards Muthukur and accused was driving the said bus. From this part of the evidence of PW.1, which was not challenged by the defence clearly shows that accused is the crime vehicle bus. There is no necessity to PW.1 to implicate the accused in this case if 7 accused is not the driver of the bus. Conductor of the bus is the right person to state who is the driver of the bus. Hence, I believed the version of Pw.1 that accused drove the bus at the time of incident. Moreover, there is no dispute by the defence in this regard.

16.In view of the above this court concluded that the accused is the driver of the crime vehicle/APSRTC bus at the time of incident. Now the question

before this court is with regard to the rashness and negligence on the part of

the accused while driving the crime vehicle/bus.

17.Rash or negligent acts are common ingredients for the offences under

Section 338 and 337 of IPC. Now it has to be seen what is rashness, negligence and criminal negligence:

The “ rash or negligent act ” has not been defined in Indian

Penal Code. But, various judicial pronouncements described the

same as the ‘act without taking reasonable and proper care.

In this regard, it is profitable to refer some authorities to understand the criminal element of rashness or negligence.

In case of Kusum Sharma and others v. Batra Hospital & Medical

Research Centre & Others reported in 2010 (1) LS 120 (SC) = AIR

2010 SC 1050, the Hon'ble Supreme Court was pleased lay the distinction between 'negligence' and 'criminal negligence'. The Hon'ble Supreme Court was pleased to held that, “the 'negligence' is an omission to do something which is a reasonable man guided upon those considerations which ordinarily regulate, doing something which a prudent and reasonable man would not do and that the 'Criminal 8 negligence' is gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to public generally or to an individual in particular, which having regard to all circumstances out of which charge has arisen, it was imperative duty of accused person to have adopted”.

In S.N.Hussain Vs. State of A.P. (1972) 3 SCC 18: AIR 1972

SC 685. it is held by Hon’ble Apex Court that

“Rashness” Consists in hazarding a dangerous or wanton Act with the knowledge that it is also, and that it may cause injury. The criminality lies in such a case in running the risk of doing such a Act with recklessness or indifference as to the consequences ‘criminal negligence’ on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge as it was the imperative duty of the accused person to have adopted.”

18.From the above authority, it has to be seen that whether the acts of the accused in the present case falls under the above definition of rash or negligence or not? and whether the accused acted rashly and negligently while driving the Crime vehicle APSRTC bus. In the light of above authority and expansion of rashness and negligence as above it has to be seen whether the accused failed to take minimum care while driving the crime vehicle APSRTC bus bearing registration NO.AP 28 Z 3814.

19.In this regard only evidence available on record is PW.1, who is the

Conductor of the bus at the time of incident. He deposed with regard to the negligent driving of their bus by the accused who was on duty as driver of the bus at that time. PW.1 deposed that they started the service at about 3.30 p.m., and from VRC Centre , Nellore they proceeded towards Muthukur and reached Maddimanu Centre on Muthukur main road, at that time a water tanker was parked on the left side of the road. The accused who was the 9 driver of their bus drove the same while sleeping and dashed the stationed water tanker on the side of the road. Left side of their bus dashed on the back of the tanker and the bus dashed at the conductor seat and the left leg of PW.1 was crushed due to hit with the tanker. The crush injury of PW.1 is visible even at present there was heavy bleeding from his left leg. Due to hit one person who is working on tanker also fell down and received injuries.

The bus and danker were damaged. Some other inmates of bus also received injuries. PW.1 fell unconscious and shifted to Government hospital,

Nellore from there to Vijaya Hospital, Chennai. He undergone surgery. He treated in the hospital for one and half of month and rods were inserted and skin grafting and plastic surgery was conducted.

20.PW.1 further deposed that accused is in habit of driving the bus while sleeping on that day also in previous trips, accused was sleeping while driving the bus and Pw.1 warned him twice or thrice. The incident was occurred only due to negligent driving of the accused in sleeping condition.

21.PWs.2 and 3 did not depose anything against the accused. They are not the direct witnesses to the incident. Except the testimony of PW.1, there is no other evidence available on record with regard to the rashness and negligence on the part of the accused. The evidence of PW.1 is very natural and convincing. His evidence stood for the test of cross-examination.

It is specific allegation of PW.1 that accused was driving the bus in sleeping condition. It is specifically deposed by PW.1 that accused is in habit of driving the bus in sleeping status and PW.1 warned the accused twice or thrice on that day. When accused drove the bus in sleeping state it went and dashed the stationed water tanker, resulting into crush injury of PW.1. This circumstance clearly shows that negligence on the part of the accused while driving the bus.

22.Though PW.1 was cross-examined by the learned counsel for the accused, nothing is elicited to doubt his testimony. In his cross-examination,

PW.1 deposed that scene of offence is not a busy road. He did not omit to state to police that accused drove the bus in sleeping condition. He denied to depose falsehood due to enmity with accused. Since, he was in semi conscious police again came to Vijaya Hospital, Chennai to examine him.

Accused was suspended for one year by the APSRTC authorities. PW.1 denied the suggestion that there is no negligent on the part of the accused and denied the suggestion that accused was not sleeping while driving the bus.

Except from some formal suggestions in the cross-examination, nothing improbable is elicited. The credibility of Pw.1 was not impeached. I found no reason to disbelieve the evidence of PW.1 that accused drove the bus in sleeping status and dashed the stationed water tanker. Even from the circumstances of the case, it is clear that if accused has taken minimum care it may not hit the stationed water tanker, which was parked on the left side of the road. The incident was occurred in the broad day light. Unless there is negligence on the part of the accused, the incident is not possible. If accused has taken minimum care while driving the bus, he could avoid the accident in hitting the stationed water tanker.

23.While driving the vehicle , the driver is required to take proper care and caution. Driving the bus in sleeping state and while sleeping is undoubtedly an act of gross negligence on the part of the driver of the crime vehicle. PW.1 being the conductor of the bus is very natural witness to notice the mode of driving of the accused. They both are working under

APSRTC. No grounds for the alleged enmity is attributed between them. PW.1 has no reason to depose falsehood against the accused. There is no 11 necessity to PW.1 to falsely implicate the accused if accused did not drove the bus in sleeping state.

24.The learned counsel for the accused argued that except the evidence o f PW.1, there is no corroboration to his testimony, as such it is not safe to rely on the evidence of PW.1. It is pertinent to note that PW.1 is the conductor of the bus and injured in this case. LW.1/K.Polaiah who is the defacto complainant and another injured was died and his evidence was closed. The prosecution failed to examine the other witnesses PWs.2 and 3,w ho were examined by the prosecution turned as hostile. Though there is no other corroborative evidence in the present case, the evidence of PW.1 is very positive and convincing. His evidence inspires the confidence of the court. Though few omissions were suggested to PW.1 in his cross- examination, they are not proved by the defence by putting them to PW.4 /Investigating Officer in his cross-examination. No single omission or contradiction is proved in the evidence of PW.1.

25.It is pertinent to note that as per Section 134 of Indian Evidence

Act no particular number of witnesses are required for proof of any fact.

Here the evidence of PW.1 is found to be wholly reliable and stood for the test of cross-examination and inspires the confidence of the court. As such there is no legal bar to act upon the solitary testimony of PW.1. In this regard, it is just and proper to refer the judgment in Chacko @ Anian

Punju Vs. State of Kerala 2004 SCC (Crl.) 432, in which it was held that:

“Conviction can be maintained on the basis of testimony of solitary witness, if he is wholly reliable. The corroboration is required when he is only partially reliable”.

From this analogy and from Section 134 of Indian Evidence Act, this court conclude that since the evidence of PW.1 who is the conductor of the bus is reliable and no corroboration is required and this court can rely on the evidence of PW.1. From the above discussion, this court conclude that accused drove the bus in rash and negligent manner while sleeping and dashed the stationed water tanker.

26.There are some irregularities committed by the Investigating

Officer during the course of investigation. The lapses on the part of the investigating agency will not come in the way of administration of justice as they are very minute in nature. Moreover the evidence of Pw.1 is fully corroborated with Ex.P3 statement of LW.1 K.Polaiah. From the Ex.P3 statement, it is clear that the crime vehicle bus dashed the stationed water tanker. For all the above reasons, it is clear that the incident was occurred only due to negligent driving of the accused.

27.Coming to the proof of grievous and simple injuries sustained by

PW.1 and LW.1/K.Polaiah in the incident, Ex.P7 and Ex.P8 wound certificates are marked under Section 294 Cr.P.C., The medical officer is not examined.

The radiologist report is not produced and X-rays are not marked. Though there is a evidence with regard to the receiving of injuries by PW.1 in the incident, there is no reliable evidence to show that injuries received by PW.1 are grievous in nature. The defense has no opportunity to cross-examine the medical officer with regard to Ex.P7 and Ex.P8 wound certificates as they marked under Section 294 CR.P.C., However, it is sufficiently established in the evidence of PW.1 in the incident, he received injury on his left leg. As per

Section 319 of IPC, the bodily pain, disease or infirmity can be called as hurt.

Therefore, the evidence of PW.1 though sufficient to prove the hurt within 13 the scope of Section 319 IPC. There is no reliable evidence to prove the grievous injury as required under Section 338 IPC.

28.In view of the above discussion, prosecution is succeeded in proving the fact that accused is the driver of the crime vehicle/APSRTC bus at the time of the incident and he drove bus in negligent manner while sleeping and dashed the stationed water tanker. It is also established that accused caused hurt to PW.1 with his negligent driving, however prosecution failed to prove beyond all reasonable doubt that PW.1 received grievous injury. Therefore, the prosecution proved the case only under Section 337

IPC beyond all reasonable doubt and failed to prove the case under section 338 IPC., Point is answered accordingly.

29. In the result, the accused is found not guilty for the offence punishable under Sections 338 IPC and accordingly he is acquitted under

Section 255(1) Cr.P.C., for the offence under Section 338. However the accused is found guilty for the offence punishable under Section 337 IPC and accordingly he is convicted under Section 255(2) Cr.P.C., for the offence under Section 337 IPC. Accused is required to be heard on quantum of sentence to be imposed against him. Matter is passed over to hear the accused.

Directly typed to my dictation, corrected and pronounced by me in open Court, this the 05th day of October, 2018.

IV Addl.,Judl.Magistrate of I Class, Nellore. 05.10.2018:

30.The accused is questioned with regard to quantum of sentence.

The accused submitted that he is an government employee ie. APSRTC and he is having wife and having two daughters who are studying 10th class and intermediate and all his family members are depending upon him. He 14 further submitted that he undergone By-pass surgery and still taking treatment for his heart ailment and his imprisonment will badly his health condition. He further submitted that if he sentenced to imprisonment, it will effect his job and all his family members will come on roads and requested to shown mercy by imposing fine only.

31. On considering the circumstances and nature of the offence and the manner of the incident in of rashness, I feel that the accused is entitled for the benefit under Probation of Offenders Act.

However, taking into consideration of the submissions of the accused that he is an employee as a driver in APSRTC. If the accused sentenced incarceration, it will effect his employment and also cause much hardship to his all family members and his wife and daughters will be on the scrap heap of the society and he undergone by-pass surgery and suffering with hear ailment and if he sentenced to imprisonment, his health condition will be deteriorate and will effect his life. Considering all the above mitigating circumstances and submissions of the accused sympathetically, I feel accused is entitled for lenient view for imposing sentence of fine to meet the ends of justice.

32.In the result, I convict the accused U/sec.255(2) Cr.P.C. for the offence under Section 337 IPC only and sentenced to pay a fine of Rs. 500/- (Rupees five hundred only) for the offence U/sec.337 IPC. In default of payment of fine the accused is directed to undergo simple imprisonment for a period of one month.

The accused/convict is explained about his right of appeal to the

Hon’ble Sessions Court and free Legal Aid through District Legal Services

Authority, Nellore, if required.

The copy of the judgment is order to be supplied to the accused/ convict forthwith under acknowledgment. Office is further directed to prepare conviction warrant accordingly If he failed to pay the fine.

Directly typed to my dictation, corrected and pronounced by me in open Court, this the 05th day of October, 2018.

IV Addl.,Judl.Magistrate of I Class, Nellore.

Appendix of Evidence

Witnesses examined

For Prosecution: For Defence: None.

PW1: Kancharagunta Nageswara Rao

PW2: Paruchuru Nagaraju

PW3: Sk.Akbar Basha

PW4: Sk.Bikari Saheb, the then ASI of Police,Muthukur P.S.,

DOCUMENTS MARKED

FOR PROSECUTION:-- FOR DEFENCE:--NIL.

Ex.P1: 161 Cr.P.C., statement of PW.2,

Ex.P2:161 Cr.P.C., statement of PW.3,

Ex.P3: Statement of LW.1/K.Polaiah,

Ex.P4: Original First Information Report in Cr.No.110/2014,

Ex.P5: Hospital Intimation,

Ex.P6: Rough sketch of the scene of offence,

Ex.P7: Wound certificate of LW.1/K.Polaiah,

Ex.P8: Wound certificate of PW.1.

MATERIAL OBJECTS MARKED: NIL

IV Addl.,Judl.Magistrate of I Class, Nellore.

CC/900446/2013 Acquitted

SHO, V.Satram PS vs Desavath Swamy Naik

07 Sep 2018

IN THE COURT OF THE IV ADDITIONAL JUDICIAL MAGISTRATE OF I

CLASS :: NELLORE.

Present: Sri. K.Murali Mohan, IV Additional Judicial Magistrate of First Class, Nellore.

Friday, this the Seventh (07th ) day of September, 2018

Calendar Case No.446/2013

State: Sub-Inspector of Police, Muthukur Police Station,

..... Complainant.

Vs.

Desavath Swamy Naik S/o.Somula Naik, Aged 36 years, Caste by ST Sugali, 8th ward, Brahmam Gari Matam, Kadapa District. Driver of of APSRTC bus

bearing No.AP 29 Z 461 of Udayagiri Dept., ..... Accused

This case is coming before me on 05-09-2018 for hearing in the presence of the learned Assistant Public Prosecutor for the complainant and of Sri K.Niranjan Ravi Kumar, Counsel for the accused, upon hearing and perusing the material on record and having stood over for consideration till this day, this Court delivered the following: -

J U D G M E N T

1.The Sub-Inspector of Police, Venkatachala Satram Police Station, filed charge sheet against the accused in Crime No.185/2013 of V.Satram Police

Station the offence punishable under section 304-A IPC of the Indian Penal

Code, 1860 (herein after referred to as 'IPC').

2.The brief facts of the prosecution is that:

On 12.08.2013, at about 10.30 hours at NH-5, Nellore-Gudur Eastern side road near Kasumuru Cross Roads, V.Satram Mandaol, the unknown male deceased, who crossing the said road from East to West, the accused being the driver of the APSRTC bus bearing No.AP 29 Z 461 flying from Nellore to

Gudur in a high speed, rash and negligent manner and dashed the said 2 unknown male deceased, as aresult the deceased fell down on the raod and sustained severe head injury and fell unconscious state. LWs.1 to 5 namely

M.Venakta Seshaiah, A.Vajramma, G.Babu, S.Venkateswarlu and U.Chitti

Babu are witnesse the same, who shifted the unknown male deceased to government hosptial, Nellore for treatment. Basing on the report of

LW.1/M.Venkata Seshaih, LW.11/E.Venkataiah the then Head Constable ,

V.Satram P.s., registered a case in Crime No.185/2013 under Section 337 IPC and during the course of investigation, LW.11/E.Venkataiah the then Head

Constable , V.Satram P.s., visited the scene of offence, drafted scene observation report, prepared rough sketch, examined the witnesses and recorded their statements. Later while undergoing treatment the unknown male deceased was succumbed to his injuires on 21.08.2018 and on receipt of the death intimation, LW.11/E.Venkataiah the then Head Constable ,

V.Satram P.S., went to hopsital, held inquest over the dead body in the presence of mediators and forwarde the same to postmortem. In veiw of death of deceased, LW.11/E.Venkataiah the then Head Constable , V.Satram

P.s., alter the section of law from Section 337 IPC to section 304-A IPC. On 15.08.2013, thea accused surrndered before LW.11/E.Venkataiah the then

Head Constable , V.Satram P.S., and served 41(A) Cr.P.C., notice on accused.

Thereafter on verification of entrie investigation done by LW.11/E.Venkataiah the then Head Constable , V.Satram P.s., LW.12/Y.V.Somaiah, the then S.I of

Polcie, V.Satram P.S., filed charge sheet agaisnt the accused. Hence, the charge.

3.This case was taken cognizance for the offence punishable under

Section 304-A IPC against the accused.

4.On appearance of the accused before this Court, relevant copies of documents were furnished to him as required under Section 207 Cr.P.C.

5.The accused was examined under Sec. 251 Cr.P.C., he was explained in

Telugu, the substance of accusation of the offence punishable under Section 304-A IPC, to which he pleaded not guilty and claimed to be tried.

6.During the course of trial, on behalf of the prosecution, P.Ws.1 to 5 were examined and Exs.P1 to P13 were marked. Ex.P1 is the signature of

PW.1 on report, Ex.P2 is the 161 Cr.P.C.,statement of PW.1, Ex.P3 is the 161

Cr.P.C.,statement of PW.2, Ex.P4 is the scene observation report, Ex.P5 is the

Inquest report, Ex.P6 is the 161 Cr.P.C.,statement of PW.4, Ex.P7 is the

Original First Information Report, Ex.P8 is the report of PW.1, Ex.P9 is the rough sketch, Ex.P10 is the death intimation of the unknown male deceased,

Ex.P11 is the altered First Information Report, Ex.P12 is the postmortem report and Ex.P13 is the Motor vehicle Inspector’s report.

7. Heard the learned Assistant Public Prosecutor and the defence counsel.

8.Now the point that has arisen for consideration is:

Whether the prosecution proved the guilt of the accused for the offence punishable under Section 304-A IPC beyond all reasonable doubt?

9. It is the allegation of the prosecution case that the accused,being the driver of the APSRTC Bus bearing No.AP 29 Z 461, drove the same in a rash and negligent manner while proceeding from Nellore to Gudur and dashed the unknown male deceased while he was crossing the said road , as a result, the deceased sustained severe head injury and thereafter he succumbed to injuries. In order to prove this case, the prosecution examined Pws.1 to 5. Now the offence alleged against the accused under

Section 304-A IPC, the prosecution is required to prove that the accused 4

i) accused is the driver of the crime vehicle/APSRTC Bus bearing

Registration No.AP 29 Z 461, ii) accused drove the crime vehicle in a rash and negligent manner and dashed the unknown male deceased, iii) Thereby caused the injuries, resulting into the death of unknown male deceased, which is not amounting to culpable home-side.

If all the above ingredients are proved, the accused will be liable for the offence under Section 304-A IPC.

10.In order to prove the above facts, the prosecution examined Pws.1 to

5. PW.1/Mandala Venkata Seshaiah is the defacto complainant and direct eye witness to the incident. In his evidence, PW.1 deposed that five years ago, on one day at about 11.00 a.m., while he was present at Sarvepalli Cross road in order to go to Nellore, he noticed a mob on the road, he went there and noticed, one unknown person died with injuries but he do not know how he sustained injuries. Police obtained his signature on some paper but he do not know the contents therein.

11.PW.2/S.Venkateswarlu and PW.4/Ganta Babuy, who are other direct eye witnesses deposed that they do not know the facts of the case and they did not witness anything pertaining to this case and they did not examine by the police.

Under these circumstances, the learned Assistant Public Prosecutor treated Pws.1 to 3 as a hostile and cross-examined them with the permission of the Court but did not elicit anything in favour of the prosecution except marking their 161 Cr.P.C.,statements under Ex.P2, Ex.P3 and Ex.P6.

12.Pw.3/M.Subrahmanyam, who is the mediator of scene observation report and Inquest report deposed that on 12.08.2013 as per the request of 5 police, himself and LW.6/G.Raguramaiah were present at the scene of offence near Kasumure Cross road and in their presence police prepared scene observation reprot and held inquest over the dead body of unknown male deceased and they signed on Ex.P4/Scene Observation reprot and

Ex.P5/Inquest report.

13.PW.5/E.Venkaiah, the then Head Constable, V.Satram P.S., who deposed that on 12.08.2013, at about 10.30 p.m., PW.1 came to police station and gave Ex.P1 report and basing on the same, he registered a case in Cr.No.185/2013 under Section 337 of IPC and investigated into. During the course of investigation, he visited the scene of offence, prepared scene observation report, drafted rough sketch, held inquest over the dead body of deceased, examined the witnesses and recorded their statements. Later he received the death intimation of deceased on 22.08.2013 and hence he altered the Section of law from 337 IPC to Section 304-A IPC. Later he conduct postmortem examination over the dead body of the deceased, inspected the crime vehicle through Motor Vehicle inspector and after attaining all concerned certificates and after completion of entire investigation, LW.12/S.I of Police, V.Stram P.S., filed charge sheet.

14. On careful perusal of entire evidence on record, there is no direct evidence to the incident. As already stated above, the evidence of P.W 1 is only circumstantial evidence as he went to the scene of offence as one mob was gathered there and he noticed one person was died but he do not know how the said person sustained injuries. The evidence of Pws.2 and 4 is direct evidence but they did not support the version of the prosecution case and turned hostile.

15.It is pertinent to note that Pws.1, 2 and 4 did not state anything against the accused and at least they did not narrate about the alleged incident was occurred so also the unknown deceased received injuries.

Hence except the evidence of PW.5 available on record, no other material to connect the accused with the crime vehicle bus or with the incident. But the

Investigating Officer/PW.5 failed to seize any statistical report sheet to connect the accused with the crime vehicle. Unless there is direct evidence to show that accused was the driver of the crime vehicle at the time of the incident, it is not possible to make the accused liable for the incident. For all the reasons stated above, the prosecution failed to prove the identity of the accused as the driver of the crime vehicle as on the date of incident which is one of the crucial ingredients to prove an offence punishable

U/Sec.304-A of IPC.

16. Coming to the aspect of rashness or negligence on the part of the driver of the APSRTC bus, none of the prosecution witnesses deposed with regard to the manner in which the bus was driven by its driver at the time of the incident. There is no direct evidence to speak with regard to the rash and negligent driving of the crime vehicle by its driver. The prosecution did not examine any other witnesses to prove the rash and negligent driving of the crime vehicle by the accused. Absolutely, there is no direct evidence to prove the identity of the accused as the driver of the crime vehicle and there is also no direct evidence with regard to the rash and negligent driving of the bus by the accused. The prosecution utterly failed in proving the identity of the accused as driver of the crime vehicle as well as the manner in which the accident occurred.

17. P.W.3 is a mediator of scene observation report and Inquest report. He is only circumstantial witness. PW.4 investigating officer investigated the 7 case. His role commenced much later to the incident. When there is no direct evidence with regard to the incident, the evidence of P.W.3 and Ex.P1,

Ex.P10, Ex.P11, Ex.P12 and Ex.P13 will not have any significance. Moreover, the factum of the accident and death of the unknown male deceased is not in dispute. When the death of deceased in the accident is not in dispute and when the prosecution failed to prove the identity of the accused as the driver of the crime vehicle and the manner in which the accident occurred, the evidence of P.W.3 and PW.5 Investigating Officer will not give any strength to the case of the prosecution in proving the guilt of the accused for the offence punishable U/Sec.304-A of IPC.

18. As seen from the entire evidence on record, there is no material to connect the accused with the incident and also with the death of the unknown male deceased. No one come forward to narrate the incident.

Without proving the identity of the accused and his rash and negligent driving beyond all reasonable doubt, the accused cannot be made liable.

Without sufficient evidence, the accused cannot be made liable and he cannot be convicted for the offence under Section 304- A IPC. Prosecution failed to prove its case by adducing positive evidence. Therefore, the point is answered in favour of the accused and against the prosecution.

19. In the result, the accused is found not guilty for the offence punishable under Section 304-A IPC and accordingly he is acquitted under

Section 255(1) Cr.P.C., for the said offence under Section 304-A IPC. The accused is set at liberty. The bail bonds of the accused shall be in force for a period of 6 months under Section 437-A Cr.P.C. No property order is passed as no property was deposited in this case.

Typed to my dictation by the Stenographer-G-III, corrected and

pronounced by me in open Court, this the 07th day of September, 2018.

IV Addl.Judl.Magistrate of First Class, Nellore.

Appendix of Evidence

Witnesses examined

For Prosecution: For Defence: None.

PW1: Mandala Venkata Seshaiah

PW2: Sandi Venkateswarlu

PW3: Mandala Subrahmanyam

PW4: Ganta Babu

PW5: E.Venkaiah, the then Head Constable, V.Satram P.S.,

DOCUMENTS MARKED

FOR PROSECUTION:-- FOR DEFENCE:--NIL.

Ex.P1: Signature of PW.1 on report,

Ex.P2: 161 Cr.P.C.,statement of PW.1,

Ex.P3: 161 Cr.P.C.,statement of PW.2,

Ex.P4: Scene observation report,

Ex.P5: Inquest report,

Ex.P6: 161 Cr.P.C.,statement of PW.4,

Ex.P7: Original First Information Report,

Ex.P8: Report of PW.1,

Ex.P9: Rough sketch,

Ex.P10: Death intimation of the unknown male deceased,

Ex.P11: Altered First Information Report,

Ex.P12: Postmortem report

Ex.P13: Motor vehicle Inspector’s report.

MATERIAL OBJECTS MARKED: NIL

IV Addl.Judl.Magistrate of First Class, Nellore.

Order Record 21 total

Case No.	Parties	Date	Type	Outcome
CC/900453/2014	SHO, Muthukur PS vs Somu Venkatanarayana	05 Oct 2018	Judgment	Acquitted
CC/900081/2017	Sate Inspector of police Nellore Rural PS vs YALLASIRI NAGARAJU	17 Sep 2018	Judgment	Acquitted
CC/900082/2017	STATE SUB INSPECTOR OF POLICE RURAL PS vs YALLASIRI MUNEIAH	17 Sep 2018	Judgment	Acquitted
CC/900446/2013	SHO, V.Satram PS vs Desavath Swamy Naik	07 Sep 2018	Judgment	Acquitted
CC/900022/2015	T.P Gudur PS vs Aluru Mallikarjuna	30 Aug 2018	Judgment	Acquitted
CC/900412/2013	SHO, TP Gudur PS vs Maddineni Rambabu and 3 others	21 Aug 2018	Judgment	—
CC/900071/2015	V.Satram PS vs Palepu Sivaiah	06 Aug 2018	Judgment	—
CC/900091/2015	V.Satram PS vs Mannepalli Seshaiah	06 Aug 2018	Judgment	—
CC/900606/2014	Sub-Inspector of Police V Satram Police station vs Inagaluru Vekatasubbaiah	27 Jul 2018	Judgment	—
CC/900096/2015	SI of Police V Satram Police station vs Banala Srinivasulu	24 Jul 2018	Judgment	—
CC/900109/2015	SHO, Muthukur vs Kudumula Srinivasulu	20 Jul 2018	Judgment	—
CC/900024/2015	T.P Gudur PS vs Pacha Seenaiah and 3 others	04 Jul 2018	Judgment	—
CC/900025/2015	T.P Gudur PS vs Goda Yedukondalu and 4 others	04 Jul 2018	Judgment	—
CC/900578/2014	SHO, V. Satram vs Manda Venkataiah	27 Jun 2018	Judgment	—
CC/900512/2014	SHO, V. Satram vs Boyapati Chandrayudu	26 Jun 2018	Judgment	—
CC/900397/2014	SHO , TP Gudur PS vs Nagisetty Seenaih	06 Jun 2018	Judgment	—
CC/900057/2015	Krishnapatnam PS Nellore vs Tella Srinivasa Raju and 3 others	05 Jun 2018	Judgment	—
CC/900191/2015	Nellipudi Jagadeesh and 3 others vs SHO of NRPS	05 Jun 2018	Judgment	—
CC/900201/2015	Indukurupeta PS Nellore vs Tikkavarapu Rami Reddy and anthor	04 Jun 2018	Judgment	—
CC/900183/2016	Rural PS Nellore vs Kukati Mohan and 3 othes	21 May 2018	Judgment	—
MC/900009/2017	Bathala Vani and two others vs Bathala Venkateswarlu	16 May 2018	Order	—

Monthly Orders (Last 12 Months)

Oct 2018		1
Sep 2018		3
Aug 2018		4
Jul 2018		5
Jun 2018		6
May 2018		2

Frequently Asked Questions

How many cases has Sri K. Murali Mohan handled?

Sri K. Murali Mohan has handled 21 court orders since 2018 at Principal District and Sessions Court, Nellore. The average disposal rate is 4 orders per month.

What types of cases does Sri K. Murali Mohan hear?

Based on available records, Sri K. Murali Mohan primarily handles Criminal matters (Criminal Cases) at Principal District and Sessions Court, Nellore.

Where is Sri K. Murali Mohan currently posted?

Sri K. Murali Mohan is posted as IV Additional Judicial Magistrate of I Class Nellore at Principal District and Sessions Court, Nellore, Nellore, Andhra Pradesh.

Are judgments by Sri K. Murali Mohan available online?

Yes. 5 judgments by Sri K. Murali Mohan are available on Legistro with full text, outcome, and sections cited.

How fast does Sri K. Murali Mohan dispose cases?

Sri K. Murali Mohan disposes approximately 4 cases per month, based on 21 orders handled over their tenure at Principal District and Sessions Court, Nellore.

Since when is Sri K. Murali Mohan serving?

Sri K. Murali Mohan has been serving at Principal District and Sessions Court, Nellore since 2018.

Case Types

CC 95%

MC 5%

Posting History

May 2018 — Oct 2018

IV Additional Judicial Magistrate of I Class Nellore · 21 orders

Outcomes on Record

Acquitted 5

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