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IN THE COURT OF I ADDL. JUDL. MAGISTRATE OF FIRST CLASS,
KADAPA.
Present :Smt.K.Prathusha Kumari,
I Addl. Judl. Magistrate of First Class, Kadapa.
Friday, this the 25th day of October, 2019.
C.C.No.1162 of 2019.
Between ;
State Represented by Sub Inspector of Police, Kadapa II Town PS. … Complainant And ;
Shaik Mahammad Hussain, 39 years, S/o late Mahaboob Hussain, Muslim, D.No.14/356-1-1, Kummarikunta, Kadapa city. … Accused
This case came up on 24.10.2019 before me for final hearing in the presence of learned Senior Assistant Public Prosecutor for the State and Sri P. Chandra Guptha, Advocate for the accused and after hearing and upon perusing the record, this Court delivered the following ;-
J U D G M E N T
This is a case filed by the State, represented by the Sub Inspector of Police, Kadapa II Town PS against the accused for the offence punishable u/Sec.411 of the Indian Penal Code (for brevity 'IPC').
2. In brief, the case of the prosecution as per contents of the charge sheet is that, in view of summer holidays on 06.05.2013, Lw.1 Abdul
Hakeem’s wife that is Lw.2/Shaik Sazida Begum took their three children to Coimbattore to her parent’s house. Lw.1/Abdul Hakeem was alone remaining in the house, that on 12.05.2013 at 6.00 pm, he 2 locked his house and went to MKR lodge, old bus stand along with his friend Chennur Bala Krishna Reddy, where he took room No.613 for rent. On 13.05.2013 at about 6.00 pm, Lw.1 Shaik Abdul Hakeem went to his house and found compound door lock was opened and noticed main door was also opened. Immediately, he went into the house and found that the iron safe in bed room was opened and thereby committed theft of two gold rings wg. about 8 gms, 3 children gold rings wg. about 10 gms along with other gold ornaments and escaped with booty. Hence, basing on the report of Lw.1/Abdul Hakeem, a case in Crime No.88/2013 for the offences u/Secs.457 and 380 of IPC has been registered by the investigating officer/Pw.7 and took up investigation. Pw.7 visited the scene of offence, examined the witnesses, recorded their 161 statements and prepared rough sketch of the scene of offence.
3. Similarly, on 14.11.2013 at about 1.00 pm, Pw.1 along with her family members left to her mother-in-law's house situated at Polimera palli village near Rayachoty town on the occasion of Rottela Panduga after duly locked the house. Later, on 15.11.2013 at about 8.00 am,
Pw.1 returned to their house and found that compound wall gate was locked but the main door of the house was in broken, opened and all the articles were in pelmel condition and thereby committed theft of (1) Pattichan, 2.nose ring, 3.black beeds chain, 4.two gold small chains and children rings, total wg. about 1 ½ tulas and silver articles that is
Zumar, Piste, 2 samosas, all worth Rs.41,000/- and escaped with booty. Hence, basing on the report of Pw.1, a case in Crime
No.145/2013 for the offences u/Secs.457 and 380 of IPC has been 3 registered by the investigating officer/Pw.6 and took up investigation.
Pw.6 visited the scene of offence, examined the witnesses, recorded their 161 statements and prepared rough sketch of the scene of offence. Later, Pw.8 verified the investigation of Pw.6 and resumed further investigation.
4. Likewise, on 01.11.2014 at about 7.00 pm, Lw.8/Patan Showkath
Ali Khan along with his wife, children and family members went to
Kummarakunta to attend the function of his relatives. On 02.11.2014 at about 7.00 pm, the son of Lw.8/Akmal Khan went to the house and found the doors were broken, opened the house and thereby committed theft of one locket of pears necklace, necklace, Lacha, dollar chain, rings and ear studs, necklace, 4 bangles, papidi mehandi,
Lacha, 3 rings, one pair of ear studs, two bangles and two dollars, total wg. 12 tulas and worth Rs.45,000/- and escaped with booty. Hence, basing on the report of Lw.8/Patan Showkath Ali Khan, a case in Crime
No.135/2014 for the offences u/Secs.457 and 380 of IPC has been registered by the investigating officer/Pw.5 and took up investigation.
Pw.5 visited the scene of offence, examined the witnesses and prepared scene observation panchanama in the presence of mediators.
Later, Pw.8 verified the investigation of Pw.5 and resumed further investigation.
5. During the course of further investigation on 14.09.2018 at 4.00 pm, the another investigating officer/Pw.4 arrested the accused in the presence of mediators/Pw.3 and Lw.16 C.S.Fazal Ali and during the interrogation, the accused voluntarily confessed about his involvement 4 in this case and other cases of Kadapa I Town PS, II Town PS, Taluk PS and Chinnachowk PS and seized one gold chain, 2 gold white stone rings concerned in Cr.No.88/13, one small gold chain, 5 gold rings, in which one white stones ring and remaining 4 were normal rings concerned in Cr.No.145/2013, one gold necklace wg. about 33.750 gms, one gold dollar wg. about 42.440 gms concerned in
Cr.No.135/2014 along with other stolen properties connected to other crimes. Later, Pw.8 obtained P.T. warrant from this court and produced the accused before this court in the said three crimes. Thereafter, Pw.8 got conducted property identification proceedings through Pw.3 over the seized property with Lw.1 Shaik Abdul Hakeem, Pw.1 and Lw.8
Patan Showkath Ali Khan, respectively, on the respective dates under cover of respective identification proceedings. Thus, after completion of the investigation, the accused was charge sheeted.
6. Cognizance of the case was taken on file against the accused for the offence u/Sec.411 of IPC and issued summons to the accused.
7. On production of the accused from the Central Prison, Kadapa, copies of relevant documents were furnished to him as contemplated u/Section 207 Cr.P.C. When the accused was examined u/Sec.239 of
Cr.P.C and framed a charge for the offence u/Sec.411 of IPC, read over and explained to the accused in Telugu, to which he denied, pleaded not guilty and claimed to be tried.
8. During the trial, the prosecution has examined Pws.1 to 8 and got marked Exs.P1 to P12 and M.O.1.
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9. After completion of the evidence from the side of the prosecution, the accused was examined u/Sec.313 Cr.P.C, for the every incriminating evidence made against him from the evidence of State in
Telugu to which he denied and reported no defence evidence.
Accordingly, the defence side evidence was closed.
10. Heard the arguments from both sides and perused the entire material brought on record.
11. Now the points for determination are ;-
1. Whether Lw.1 Shaik Abdul Hakeem, Pw.1 and Lw.8 Patan Showkath Ali Khan are the owners of M.O.1 and other respective seized gold ornaments ?
2. Whether M.O.1 and other sezied gold ornaments were committed in theft from the respective houses of Lw.1 Shaik Abdul Hakeem, Pw.1 and Lw.8 Patan Showkath Ali Khan in the absence of their family members, respectively ?
3. Whether M.O.1 and other seized gold ornaments were recovered in these three crimes from the possession of the accused during course of investigation ?
4. Whether the accused possessed M.O.1 and other seized gold properties in these three crimes soon after they were committed in theft from the respective houses of Lw.1 Shaik Abdul Hakeem, Pw.1 and Lw.8 Patan Showkath Ali Khan, without any account/explanation ?
5. Whether the evidence of Pws.3 and 4 can be held as sufficient and substantive to believe the seizure of the stolen properties made from the possession of the accused ?
6. Whether the State is able to prove the offence leveled against the accused beyond all reasonable doubt ? and
7. To what relief ?
12. In order to prove the case of the prosecution, learned Sr. APP has chosen to examine 8 witnesses out of 21 cited in the charge sheet.
Pw.1 is said to be owner of the stolen properties including M.O.1 and 6 first informant in Crime No. 145/2013. Pw.2 is said to be the person to speak about the theft in the house of Lw.8/Pathan Thaseen, Pw.3 is said to be one of the mediators for the seizure mahazar and the person who conducted property identification proceedings over the seized properties with Lw.1 Shaik Abdul Hakeem, Pw.1 and Lw.8 Patan
Showkath Ali Khan, respectively. Pw.4 is the Inspector of Police who said to have been arrested the accused and seized M.O.1 along with other stolen properties involved in these three crimes and other cases from the possession of the accused under cover of mahazar in the presence of mediators. Pws.5 to 7 are S.I. of Police and HC who registered the Crime Nos.135/2014, 145/2013 and 88/2013 and partly investigated the crimes, Pw.8 is another S.I. of Police who verified the investigation of Pws.5 to 7, produced the accused on PT warrant and filed club charge sheet in all these three crimes. The evidence of Lw.1
Shaik Abdul Hakeem and Lw.8 Patan Showkath Ali Khan was closed basing on the report of the prosecution that their whereabouts are not known and they are unable to trace them. Learned A.P.P on behalf of the State has given up the remaining cited witnesses in this case.
13. Apart from the oral evidence on behalf of the prosecution the following documents and material object got marked. Ex.P1 is the report of Pw.1, Ex.P2 is the relevant portion relating to the seizure of the properties in the mahazar dt:14.9.2018 (certified copy), Exs.P3 to
P5 are the property identification proceedings, Ex.P6 is the F.I.R. in
Cr.No.135/2014, Ex.P7 is the rough sketch in Cr.No.135/2014, Ex.P8 is the F.I.R. in Cr.No.145/2013, Ex.P9 is the rough sketch in
Cr.No.145/2013, Ex.P10 is the report of Lw.1, Ex.P11 is the F.I.R. in 7
Cr.No.88/2013, Ex.P12 is the rough sketch in Cr.No.88/2013. M.O.1 is one small gold chain, one silver Jhummer, 5 small gold rings.
14. No oral and documentary evidence has been adduced on behalf of the defence. The defence of the accused is one off denial of the case of the prosecution.
15. While advancing the arguments on behalf of the prosecution, learned Sr. A.P.P submitted that since Pw.1 has categorically stated that she is the owner of the stolen properties and stolen properties including M.O.1 were committed in theft from her house in the absence of all the house mates and since no cross examination is made on behalf of the defence over Pw.1, the evidence of Pw.1 is sufficient to believe the ownership of Pw.1 on M.O.1. The further argument of learned APP is that though Lw.1 Shaik Abdul Hakeem and Lw.8 Patan
Showkath Ali Khan are not examined on the ground their whereabouts are not known, in view of clear evidence of Pw.2 and Pws.5 to 7, the prosecution has proved that house breaking offences were also committed in their house, committed theft of gold ornaments, and they are the owners of the seized property in the other two crimes. The further argument of learned APP is that since Pw.4/investigating officer has categorically stated that he has seized the stolen properties involved in 53 cases which were committed in and around Kadapa City including the present crime and since it is supported by the independent mediator/Pw.3, the prosecution has established the seizure of M.O.1 and other gold ornaments in two other crimes in this case were made from the possession of the accused beyond all 8 reasonable doubt. With these submissions, learned APP finally sought to convict the accused.
16. Per contra, learned counsel for the accused argued that the accused is an innocent and he is falsely implicated in this case by the police for statistical purpose. The further argument of the defence counsel is that since Pw.3 is a VRO and he did not obtain written permission from the MRO to accompany the police and present at the time of seizure, the evidence of Pw.3 cannot be believed. The next argument of the defence counsel is that since there is an inconsistency elicited between the evidence of Pws.3 and 4 as to the time of information about the offender received and the team of Pw.4 reaching the place of apprehension, the evidence of Pws.3 and 4 cannot be believed. It is the further argument of the defence counsel that as the served summons on the mediators are not filed before the court, the contention of the Pw.4 and Pw.3 cannot be believed that written summons were served on the mediators before seizure of the properties.
17. The defence counsel further argued that as the seized articles are not containing ID slips, the evidence of Pws.3 and 4 about seizure of the stolen property and the material instruments used in break opening the locks and iron safes cannot be believed. It is the further argument of the defence counsel that Pw.4 did not seize and produce the white colour bag in which the stolen properties were carried and since iron rod and other material instruments which were allegedly seized from the possession of the accused are openly available in the open market, 9 since there is no material showing that the investigating officer carried the crime records to the place of apprehension and noted the particulars of the crimes in the seizure mahazar, the evidence of Pws.3 and 4 cannot be believed. The defence counsel further argued that the accused never confessed about the offence and never possessed the stolen properties as alleged and it is a false case foisted against the accused. The last argument of the defence counsel is that though the place of apprehension is in the busy locality and there was every possibility to secure local respectables, Pw.4 did not secure the local respectables and hence the seizure made by Pw.4 in the presence of
Pw.3 and another mediator cannot be believed. With these submissions the defence counsel finally sought to acquit the accused from this case.
18.Points Nos.1 and 2;- Since the points Nos.1 and 2 are interrelated, they are taken up together for the sake of convenience and discussion.
As could be seen from the entire evidence let in before the court on behalf of the prosecution and cross examination made on behalf of the defence over the prosecution witnesses, it is noticed that there is no denial from the defence about the ownership of Lw.1 Shaik Abdul
Hakeem, Pw.1 and Lw.8 Patan Showkath Ali Khan on one gold chain, 2 gold white stone rings concerned in Cr.No.88/13, one small gold chain, 5 gold rings, in which one white stones ring and remaining 4 were normal rings concerned in Cr.No.145/2013/Mo.1, one gold necklace, one gold dollar concerned in Cr.No.135/2014 along with other gold ornaments were committed in theft from the respective houses of Lw.1 10
Shaik Abdul Hakeem, Pw.1 and Lw.8 Patan Showkath Ali Khan in the absence of the family members on the respective dates. Further, as per contents of Ex.P1 report and Exs.P8 F.I.R, the offence said to have been occurred between night on 14/15.11.2013 and the criminal law was set into motion basing on the report given by the first informant/Pw.1 on 15.11.2013 at 11.00 am. The further contents of the Ex.P1 report and Ex.P8 FIR speak that in the absence of the family members of Pw.1, some unknown offenders entered into her house by break open the locks and committed theft of gold pattichan, nose ring, black beeds chain dollar, 2 gold small chains and children rings, total wg. about 1 ½ tulas, silver articles that is Zumar, piste, 2 samosas, worth Rs.41,000/-.
19. Further, as per contents of Ex.P11 F.I.R, the offence said to have been occurred on the night of 12/13.05.2013 and the criminal law was set into motion basing on the report given by the Lw.1/Abdul Hakeem on 14.05.2013 at 9.00 am. The further contents of Ex.P11 FIR speak that in the absence of the family members of Lw.1 Abdul Hakeem, some unknown offenders entered into his house by break open the locks and committed theft of 2 gold rings wg. about 8 gms and 3 gold children chains wg. about 10 gms, total worth Rs.45,000/-.
20. Furthermore, as per contents of Ex.P6 F.I.R, the offence said to have been occurred between 7.00 pm on 01.11.2014 and 7.00 am on 02.11.2014, and the criminal law was set into motion basing on the report given by the first informant/Lw.8/Patan Showkath Ali Khan on 02.11.2014 at 10.00 pm. The further contents of the Ex.P6 FIR speak that in the absence of the family members of Lw.8 Patan Showkath Ali 11
Khan, some unknown offenders entered into his house by break open the locks and committed theft of 1.gold locket of a pearls chain, 2.gold necklace, 3.Lacha, 4.gold dollar chain, 5.gold rings, 6.gold ear studs, 7.gold haram, 8.four gold bangles, 9.one gold child mehendi chain, 10.gold Lacha, 11.three gold rings, 12.one pair of gold ear studs, 13.two gold chains, 14.two gold dollars, all wg. aout 12 tulas, worth about Rs.45,000/-.
21. Moreover, in support of the contents of Ex.P1 report, the author of the report that is Pw.1 claimed before the court during the evidence that on 14.11.2013 by locking their house all the family members went to Polimerapalli to celebrate Moharrum and on the next day morning they returned to the house and found that theft had occurred in their house and stolen gold black beeds dollar, 5 small gold rings, one gold chain, 6 big gold rings, one silver jhummer, 2 silver key chains, one pair of silver anklets and one pair of silver pistas and a cash of
Rs.40,000/-. Then they went to the PS and lodged Ex.P1 report. About a year ago, police called her to MRO office, there she identified small gold chain, one silver jhummer, 5 small gold rings and they are marked under M.O.1.
22. Further, Pw.2 claimed before the court during the evidence that on 01.11.2014 night she along with all the family members of Lw.8
Patan Showkath Ali Khan left house by locking the door to attend a marriage and on the next day morning they found opening of the doors, and also broken iron safe inside the house and some unknown offenders committed theft of gold haram, 4 bangles, gold mehandi, 3 12 latcha, 3 rings, one pair of ear studs, 2 dollars and 2 gold chains. On that Lw.8/Patan Showkath Ali Khan lodged report on 02.11.2014. Lw.8/
Patan Showkath Ali Khan received the recovered ornaments from the court. Now Lw.8/Patan Showkath Ali Khan is staying at Kuwait for his livelihood.
23. Thus, on perusal of the entire of Pws.1 and 2, it is observed that though, they have narrated the evidence in support of the contents of
Ex.P8 report about stolen of the gold and silver ornaments including
M.O.1 and said ornaments during the absence of their family members from their houses and ownership of M.O.1, no cross examination is made over Pws.1 and 2 on behalf of the defence on any aspect. Hence, the evidence of Pws.1 and 2 is remained unchallenged one. Further, though, there is a delay in lodging Ex.P8 report by Pw.1, there is no cross examination on any aspect including the delay over Pw.1 from the defence. Hence, the delay in lodging the report which is not disputed by the defence, cannot be considered as significance to consider the version of Pw.1 stated in Ex.P8 and during the evidence
before the court about the theft of M.O.1 from her respective house.
24. Furthermore, in support of the evidence of Pw.1, Pw.6/
S.Mahammad Ali, S.I. of Police, deposed that on 15.11.2013 at 11.00 am, while he was present in the police station, Pw.1 went to the police station and presented Ex.P1 report, basing on the same he registered the crime, examined the witnesses, recorded their 161 statements, visited the scene of offence and drafted rough sketch of the scene of offence. So also, Pw.5 and Pw.7/Sub Inspector of Police and ASI, in 13 support of the evidence of Pw.2 and Lw.1/Shaik Abdul Hakeem, deposed that on 02.11.2014 at 10.00 am and on 14.05.2013, basing on the reports of Pw.2 and Lw.1 Shaik Abdul Hakeem respectively, they registered the crimes, examined the witnesses and drafted rough sketches of the scene of offences.
25. Though Pws.5 to 7 were subjected to cross examination on behalf of the defence, there is no denial from the defence about theft of M.O.1 and other ornaments from the houses of Pws.1, 2 and Lw.1/Shaik
Abdul Hakeem and lodging the reports by them in the police station soon after commission of the thefts. Further, though it was suggested and elicited from Pws.5 to 7 that Pws.1, 2 and Lw.1 Shaik Abdul
Hakeem did not enclose bills or photograph of stolen property along with reports, it cannot be considered as a discrepancy since it is not suggested to them and no cross examination is made on any aspect including ownership of Lw.1 Shaik Abdul Hakeem, Pw.1 and Lw.8 Patan
Showkath Ali Khan on M.O.1 and other concerned gold ornaments.
Moreover, the contents of Exs.P7, 9 and 12 rough sketches are also corroborated and supported the evidence of Pws.1, 2, 5 to 7 about the location of the concerned scene of offences.
26. More so, in respect of conducting identification of the stolen properties, Pw.3 deposed that on 24.9.2018 at 2.45 pm, on 26.09.2018 at 9.30 am and 4.40 pm respectively, he conducted property identification proceedings at MRO office by calling Lw.1/Shaik
Abdul Hakeem, Pw.1 and Lw.8/Patan Showkath Ali Khan with the properties sent by police and by securing similar type of ornaments 14 through his VRA from a gold shop, mixed both items, called Lw.1/Shaik
Abdul Hakeem, Pw.1 and Lw.8/Patan Showkath Ali Khan and asked them to identify the stolen property if any found, for which they identified the respective ornaments (M.O.1 and other gold ornaments) which were sent by the police as that of the stolen properties under cover of Exs.P3 to P5 identification proceedings, respectively.
27. However, no cross examination is made on any aspect over
Pws.1 and 2. Therefore, no dispute about the identity of the property stolen from the respective houses of Lw.1 Shaik Abdul Hakeem, Pw.1 and Lw.8 Patan Showkath Ali Khan on the respective dates from the defence. Thus, the prosecugtion has proved beyond all reasonable doubt that Lw.1 Shaik Abdul Hakeem, Pw.1 and Lw.8 Patan Showkath
Ali Khan are the owners of M.O.1 and other recovered properties respectively and they were committed in theft from the respective houses of Lw.1 Shaik Abdul Hakeem, Pw.1 and Lw.8 Patan Showkath
Ali Khan in the absence of the family members on the respective dates.
Accordingly, the points are answered in favour of the State and against the defence.
28. Points Nos.3 to 7 :- Since the points Nos.3 to 6 are interrelated, they are taken up together for the sake of convenience and discussion.
In order to substantiate these aspects, learned APP is mainly relying upon the evidence of Pws.3 and 4 and the contents of Ex.P2 mahazar. Admittedly, out of two mediators, one mediator is examined as Pw.3 and another mediator/Lw.16 C.S.Fazal Ali is not examined on behalf of the prosecution and his evidence was given up by the State 15 through its APP on the reason that Pw.3 has been supported the evidence of Pw.4 and contents of seizure mahazar. Further, Pw.3 is a
Revenue Official, working as VRO of Nagarajupalli and Kadapa City by the date of seizing the properties and still he is working as VRO of both revenue villages. Further, Pw.4 is the Inspector of Police and investigating officer who said to have been caught the accused and recovered the stolen properties pertaining to 53 cases involved in and around Kadapa City. Therefore, both witnesses are official witnesses and hence the evidence of Pws.3 and 4 is to be scrutinized with due care and caution. Thus, now it is to be find out whether the evidence of the investigating officer and revenue official/mediator of the seizure mahazar can be relied upon beyond all reasonable doubt.
29. To strengthen the contents of seizure mahazar and in support of the case of the prosecution, Pw.4 T.V.Satyanarayana/investigating officer deposed that on 14.09.2018, he received an information about the movement of the accused/Shaik Mahammad Hussain, immediately he secured mediators/Pw.3 and Lw.16 C.S.Fazal Ali, through the S.I of police/Amarnadh Reddy, to II Town PS at 8.00 am., then he briefed them and served notices to the mediators. At 8.30 am., he along with his staff, SI of II Town, ASI, 4 HCs, and 7 PCs left in two Govt. Police vehicles along with mediators started and reached Dorralagoreelu at 8.45 am., there, he started vehicle checking. At 9.00 am, the accused came from Machupalli side towards Kadapa on Honda Duo scooty bearing No.AP04 DE 4733, on seeing the police, the accused tried to fled away. But two constables chased, and apprehended him, brought him and produced before him.
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30. It is further deposed by this investigating officer that in the presence of mediators, he examined the accused and recorded his confessional statement about commission of 53 house breaking and theft offences concerned in I Town PS, Chinnachowk, Kadapa Taluq and
II Town police stations. The accused further confessed that some of the stolen properties were kept with his possession and some of the properties were handed over to his brother-in-law by name Iliyaz
Basha. Then the accused voluntarily produced the stolen properties which were hided in a white plastic bag under the seat of the Scooty.
In the presence of mediators, he opened the said white bag and found 53 plastic covers containing Gold and Silver ornaments and cash of
Rs.1,47,140/-. Then, he verified the said properties with the FIRs which were in the possession of I.D. Party staff who accompanied him at that time and tallied the same with the stolen properties in the said crimes.
31. The further evidence of Pw.4 speaks that the accused produced the implement tools which he used in breaking the house locks ie., one iron rod, 2 chisels, 3 bunch of keys which were kept in a Zip bag under scooty seat cover. In the same bag one Pass port of the accused was also found (M.Os 2 to 5 and Ex.P5 which were produced and marked in
C.C.No.661/2018). Then, he arrested the accused at 4.00 pm., and seized all the Gold ornaments, cash, scooty and other said objects under cover of panchanama in the presence of mediators, brought the accused along with the seized property to the P.S. He obtained the signatures of mediators and affixed I.D. slips on the seized property.
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32. In the cross examination of the defence, though it is elicited from
Pw.4 that he did not secure the local inhabitants from the school and the hospital situated nearby the place of apprehension and both the mediators are not belonging to the locality of Doralagoreelu where the properties were seized and though Pw.3 also admitted the same, the evidence of Pw.4 cannot be disbelieved since no enemity or animosity is pleaded and elicited from Pw.4 to book cases much less 53 in number against the accused and to plant the properties in 53 cases recovered else where by leaving the real offender. Moreover, on perusal of the entire evidence of Pw.4, it is observed that the evidence of Pw.4 is confident, trustworthy and credible.
33. Furthermore, the Hon'ble Apex Court, in the cases of State of
U.P. v. Anil Singh, 1988 Supp SCC 686, State, Govt. of NCT of
Delhi v. Sunil and another, (2001) 1 SCC 652, Ramjee Rai and
others v. State of Bihar, (2006) 13 SCC 229, has laid down
recently in Kashmiri Lal v. State of Haryana, 2013 AIR SCW
3102 and in Pramod Kumar v. State (GNCT) of Delhi, AIR 2013
S C 3344, held that “There is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinizing the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the 18 department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence.”
34. In the instant case also the testimony of Pw.4/Investigating officer is found to be reliable and trustworthy. Further, it is not the contention of the defence that non securing the local respectables and seizure of the stolen properties made by Pw.4 in the presence of the witnesses secured from distant place causes serious prejudice to the case of the accused. More so, though, Pw.4 did not secure the local respectables as mediators to observe the seizure as per the procedure contemplated under Sec.100 (4) of Cr.P.C., it is a mere irregularity and not an illegality, as per the Judgment of the Hon’ble Apex Court held in the case of Kaur Sain Vs. State of Punjab reported in AIR 1974
SC 329. Therefore, the evidence of Pw.4/investigating officer should
not be discarded only on the ground that he is the investigating officer and he is always interested in the success of the prosecution.
Therefore, Pw.4 should not be dubbed as an interested witness since his evidence is otherwise, trustworthy and credible for acceptance.
35. Furthermore, in support of the evidence of Pw.4, Pw.3/mediator deposed that he knows another panchyathdar/Fazar Ali and he has seen him on the date of seizure and he has also seen the accused. It is the further evidence of Pw.3 that on 14.09.2018 around 7.10 am.,
S.I of police II Town PS, Kadapa telephoned to him while he was present at his house and requested him to come to II Town PS on the instructions of the C.I of police. Then they sent one constable to
Kadapa MRO office and at 8.00am., he went to MRO office. From MRO 19 office he went along with the constable on his bike to II Town PS,
Kadapa. By the time he reached the PS the another mediator Fazal Ali was present in the PS. Then the Inspector of police requested them to acts as mediators in respect of an information received by him about the offenders in stolen cases. Then he served summons to him and another mediator. Around 8.30 am., they followed the Inspector of police, S.I. of police, ASI other staff of II Town PS in their jeep started and while proceeding and crossing Masapet, they reached Dorala
Goreelu burial ground, where the police were conducting vehicle check over the vehicles were passing on that day. At that time the accused came on Honda scooty from Machupalli side and on observing the police party, he tried to take back his bike and escaped. But on the instruction of the C.I of police, his staff caught the accused and brought him to the C.I of police. On suspicion over the accused, C.I.
of police enquired him and elicited his name and address particulars.
36. It is the further evidence of Pw.3 that basing on the confession made by the accused, he produced a cover which was hided in scooty dickey and it contains gold, silver articles and a cash of Rs.1,40,000/- and odd approximately. Then the police verified the FIR book which was brought to the said place and noticed that there were 53 cases in which the accused committed theft of the properties. Then the properties produced by the accused weighed individually, packed separately case wise and affixed I.D.slips having the signatures of himself, another mediator and C.I of police on the seized items. Then the accused also produced the instruments which were used for break opening the doors and iron safes to commit thefts ie., 2 chisels, iron 20 rod and 3 bunch of keys hided from scooty dickey. Inspector of police also verified R.C. of scooty and it stands in the name of a lady who is the daughter of the accused. Then the police arrested the accused after informing the grounds of arrest and prepared a mahazar and obtained the signatures of himself, another mediator, the accused, S.I of police,
Inspector of police and others in the laptop typed by the Inspector of police and after taking print outs, one copy of mahazar was served on the accused. Then, they returned to the PS along with the accused and properties around 4.30 pm, and then the Constable dropped him at his office.
37. The further evidence of Pw.3 speaks that the ornaments which were recovered from the possession of the accused in their presence are Gold ear studs, rings, bangles, black beed chains, plain chains,
Talibottu Sarudulu, Dollar chains, gold biscuits-2 and also silver articles of plates, bowls, tumblets, anklets, Kadiyalu, Kumkuma Bharinas,
Agarbathi stands, etc. were seized from the accused.
38. Though, Pw.3 was subjected to cross examination at length on behalf of the defence, the defence failed to shake the credibility of
Pw.3. Further, though it is suggested from the defence to Pw.3 that due to close acquaintance with the II Town S.I. of Police G.Amarnath Reddy he deposed false, Pw.3 denied the same. Furthermore, it is elicited by the defence from Pw.3 that Ex.P2 confessional cum seizure mahazar was got prepared through laptop simultaneously while examining the accused and basing on the narration given by him.
39. As stated supra, the evidence of Pw.3 is fully corroborated and 21 supported the evidence of Pw.4/investigating officer. Moreover, though
Pw.3 is a revenue official, he categorically deposed that on the oral permission from the MRO, he participated in the raid and witnessed the seizure of the stolen properties in 53 crimes made by Pw.4. Further, motive or animosity is also not pleaded and elicited from Pw.3 to speak false against the accused and in support of the evidence of Pw.4, on behalf of the defence. Furthermore, the evidence of Pw.3 is also appearing cogent, credible and trustworthy. Moreover, Pw.3 has narrated the facts from the time of he was picking up by the police from his office and till he was dropping in the office after completion of the seizure and apprehension formalities.
40. Further, it is not the contention of the defence that Pw.3 is a stock mediator to the police and he is habituated to sign on the mahazars prepared by the police to suit their case. Furthermore, the evidence narrated by Pw.3 is also having intrinsic value. Therefore, the veracity of Pw.3 made in support of the evidence of Pw.4 cannot be doubted or discarded merely on the ground that he is not an independent and not inhabitant of the locality where the accused was apprehended and seized the properties.
41. Thus, looking into the above discussion, the evidence of Pws.3 and 4 is enough and sufficient to believe that the accused possessed
M.O.1/part of the stolen properties after committing theft of the same from the houses of Pws.1 and 2 and seizure of M.O.1 and other gold ornaments respectively from the possession of the accused on 14.9.2018 under cover of mahazar.
22
42. The next limb of argument of the defence counsel is that there is inconsistency elicited between the evidence of Pws.3 and 4 as to the time of information received about the offender, the team of Pw.4 reaching the place of apprehension, since written summons on the mediators are not placed before the court, white colour bag in which the accused produced the alleged stolen properties is not seized and placed before the court, seized articles are not containing ID slips and they are available in the open market and since there is no material showing that the investigating officer carried the all crime records to the place of apprehension for noting the crime numbers in the seizure mahazar, the evidence of Pws.3 and 4. As stated supra, as per the specific evidence of Pws.3 and 4 and contents of seizure mahazar, the investigating officer has been seized stolen properties in 53 cases by catching the accused while conducting vehicle check when the accused came on scooty. As per the further evidence of Pws.3 and 4, Pw.4 also seized the scooty stands in the name of the daughter of the accused, passport of the accused and also the tools which were used for break open the locks andiron safes from the possession of the accused.
Further, as per the specific evidence of Pws.1 and 2, seized ornaments were given to interim custody of Pws.1 and 2 by the court. Therefore, there is no possibility to keep the identification slips affixed on the seized property.
43. More so, if really Pw.4 did not seize the stolen property from the possession of the accused and planted the same along with other stolen properties against the accused and foisted a false case (we 23 assume for a while but not admitting), how it is possible to secure the moped of the accused and particularly the passport of the accused.
Moreover, the evidence of Pws.3 and 4 is un-contradicted and it is corroborated to each other. Thus, in the course of seizure of the stolen properties pertaining to 53 cases, certainly some mistakes may occur in preparation of the record and in following the due procedure contemplated under Law. Thus, the inconsistencies argued by the defence counsel cannot be considered as significances and fatal to the case of the prosecution to the extent of the accused gets the benefit of acquittal. Therefore, and in view of the above discussion, all the contentions of defence counsel find no merits and the same cannot be considered to the extent of acquitting the accused.
44. Moreover, the investigation of Pw.4/Inspector of Police by name
Sri T.V.Sathyanaraya is on right lines and he had taken many pains to trace the accused who involved in 53 house breaking offences and seizure of huge number of stolen properties in 53 cases laying without any progress since many years and made to do justice to the owners of the stolen properties by tracing real offender and part of the stolen properties in some cases and all stolen properties in some cases. So, this type of upright Investigating Officer should be encouraged and he is deserved for appreciation. Further, entrustment of investigation in grave and serious offences cases to this type of investigating officers would certainly give confidence to the public on police system and hence investigation in grave and serious cases to this type of investigating officers is recommended.
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45. Thus, under these circumstances and in view of the foregoing reasons, without any hesitation, the court safely reached to a conclusion that the seizure of M.O.1 made by Pw.4 from the possession of the accused soon after they were committed in theft from the respective houses of Lw.1 Shaik Abdul Hakeem, Pw.1 and Lw.8 Patan
Showkath Ali Khan in the presence of Pw.3 and another mediator on 14.9.2018 is believed and relied upon. But, the accused/defence is failed to explain or account for possession of the stolen properties soon after they were committed in theft. Therefore, as per Sec.114
Illustration (a) of the Indian Evidence Act, the court is presumed that the accused is the thief of M.O.1 and other seized gold ornaments involved these three crimes in this case. Hence, it is held that the prosecution has successfully proved the charge leveled against the accused beyond all reasonable doubt. Accordingly, the points are answered in favour of the prosecution and against the accused.
46. POINT NO. 7 :- In view of the findings recorded to the Points
Nos.1 to 6, it is held that the accused is liable for conviction.
In the result, the accused is found guilty for the offence punishable u/Sec.411 of IPC and accordingly, he is convicted of the same u/sec.248 (2) of Cr.P.C.
Directly typed to dictation by the Stenographer, corrected and pronounced by me in the open Court this, the 25th day of October, 2019.
Sd/- K.Prathusha Kumari,
I Addl. Judl. Magistrate of I Class, Kadapa.
47. When the accused is questioned as to the question of sentence to 25 be imposed against him, the accused submitted that since he is having wife and four children and they are depending on his earnings, he prayed to show mercy. Since the facts proved before the court show that the accused involved in many property theft offences, it is not a fit case to invoke the benevolent provisions under the Probation of
Offenders Act or Sec.360 of Cr.P.C. But by considering the submissions of the accused, age of the accused and nature of the offence and involvement of the accused in similar property theft offences, the court feels that the following sentence would meet the ends of the Justice.
48. Hence, the accused is sentenced to undergo Rigorous imprisonment for a period of 2 (Two) years for the offence u/Sec.411 of IPC. Remand period undergone by the accused from 19.12.2018 till date is ordered to be set off u/Sec. 428 of Cr.P.C. M.O.1 (C.P.R.No.52/2019) which is in the interim custody of Pw.1 shall holds good after expiry of appeal time if no appeal prefers. The unmarked property (C.P.R.Nos.50/2019 and 55/2019) shall be returned to its owners if not yet returned and shall holds good after expiry of appeal time if no appeal prefers.
49. The accused is informed about his right to prefer appeal against this Judgment before the Hon'ble Court of Sessions and to get free legal aid from the DLSA, Kadapa to prefer appeal if he intends to prefer appeal and if he has no means to engage counsel.
Directly typed to dictation by the Stenographer, corrected and pronounced by me in the open Court this, the 25th day of October, 2019.
Sd/- K.Prathusha Kumari,
I Addl. Judl. Magistrate of I Class, 26
Kadapa.
Appendix of Evidence
Witnesses examined for prosecution
Pw.1: Shakir Chand, Pw.2: Ayesha Khan, Pw.3: Y.Chinnaiah, VRO, Pw.4: T.V.Satyanarayana, C.I. of Police, S.B., Pw.5:S.V.Narasimha Rao, C.I. of Police, Pw.6: S.M.Ali, C.I. of Police, Pw.7: P.Rama Narasimhulu, ASI, Pw.8: C.Rushendra Babu, S.I. of Police.
Exhibits marked on behalf of Prosecution
Ex.P1: Report of Pw.1, Ex.P2: Relevant portion relating to the seizure of the properties in the mahazar dt:14.9.2018 (certified copy), Exs.P3 to P5: Property identification proceedings, Ex.P6: F.I.R. in Cr.No.135/2014, Ex.P7: Rough sketch in Cr.No.135/2014, Ex.P8: F.I.R. in Cr.No.145/2013, Ex.P9: Rough sketch in Cr.No.145/2013, Ex.P10: Report of Lw.1, Ex.P11: F.I.R. in Cr.No.88/2013, Ex.P12: Rough sketch in Cr.No.88/2013.
Witness examined on behalf of the Accused
--Nil-
Exhibits marked for Defence
- Nil -
Material objects marked on behalf of the Prosecution
M.O.1: One small gold chain, one silver Jhummer, 5 small gold rings.
Sd/- K.Prathusha Kumari,
I Addl. J.F.C.M., KADAPA. // True copy //
Sd/- K.Prathusha Kumari,
I Addl. Judl. Magistrate of I Class, Kadapa.
CALENDAR AND JUDGMENT
Calendar and Judgment tried by the I Addl. Judl. Magistrate of First Class, Kadapa.
DATE OF
Offence Report Apprehen- Release Commence- Close of Judg- sion of on bail ment of trial ment 13.05.13 14.05.13 14.09.18 -- 14.08.19 24.10.19 25.10.19 -------------------------------------------------------------------- -------------------------------- Calendar and Judgment in C.C.No.1162/2019 on the file of I Addl. Judl. Magistrate of I Class, Kadapa.
COMPLAINANT:Sub Inspector of Police, Kadapa II Town PS. in Cr.Nos.88/13, 145/13, 135/14
Name of the accused Age Calling Religion Residence With father’s name
Shaik Mahammad Hussain, 39 years, S/o late Mahaboob Hussain, Muslim, D.No.14/356-1-1, Kummarikunta, Kadapa city.
Offence :u/Sec.411 of IPC.
Finding : Accused is found guilty
Sentence : In the result, the accused is found guilty for the offence punishable u/Sec.411 of IPC and accordingly, he is convicted of the same u/sec.248 (2) of Cr.P.C.
When the accused is questioned as to the question of sentence to be imposed against him, the accused submitted that since he is having wife and four children and they are depending on his earnings, he prayed to show mercy. Since the facts proved before the court show that the accused involved in many property theft offences, it is not a fit case to invoke the benevolent provisions under the Probation of Offenders Act or Sec.360 of Cr.P.C. But by considering the submissions of the accused, age of the accused and nature of the offence and involvement of the accused in similar property theft offences, the court feels that the following sentence would meet the ends of the Justice.
Hence, the accused is sentenced to undergo Rigorous imprisonment for a period of 2 (Two) years for the offence u/Sec.411 of IPC. Remand period undergone by the accused from 19.12.2018 till date is ordered to be set off u/Sec. 428 of Cr.P.C. M.O.1 (C.P.R.No.52/2019) which is in the interim custody of Pw.1 shall holds good after expiry of appeal time if no appeal prefers. The unmarked property (C.P.R.Nos.50/2019 and 55/2019) shall be returned to its owners if not yet returned and shall holds good after expiry of appeal time if no appeal prefers.
The accused is informed about his right to prefer appeal against this Judgment before the Hon'ble Court of Sessions and to get free legal aid from the DLSA, Kadapa to prefer appeal if he intends to prefer appeal and if he has no means to engage counsel.
Sd/- K.Prathusha Kumari,
I Addl. Judl. Magistrate of I Class, Kadapa.
Copy submitted to the Hon'ble I Addl. District Judge, Kadapa.
Dis.No. dt:
// True copy //
Sd/- K.Prathusha Kumari,
I Addl. Judl. Magistrate of I Class,