Smt K.Prathush Kumari

IN THE COURT OF THE II ADDL. JUDL. MAGISTRATE OF I CLASS: NELLORE.

Present: Smt.K.Prathusha Kumari, II Additional Judicial Magistrate of First Class, Nellore.

Friday, this the Eighth (8th) day of May, 2015.

C.C.No.971 of 2013.

State: Sub-Inspector of Police, No.2 Town Police Station, NelloreComplainant.

Vs.

Sk.Chand Basha, S/o Khader Hussain, Aged about 41 years, r/o D.No.5/57, Girijana Colony, Leguntapadu, Kovur Mandal, SPSR Nellore District Driver of Komitla Town Bus A.P.26-TB-7693Accused.

This case is coming on 4-5-2015 before me for final hearing in the presence of the learned Assistant Public Prosecutor for the complainant and of Sri N.Sudheer Reddy, Counsel for the accused, upon hearing both sides and having stood over for consideration till this day, this Court delivered the following: -

J U D G M E N T

1. This is a case filed by the State, represented by the Sub-Inspector of

Police, 2 Town Police Station, Ngdellore against the accused for the offence punishable under Sec.304-A of I.P.C.

2. Briefly, the case of the prosecution, as per the contents of the charge sheet, is on 24-8-2013 at about 7-30 P.M., the accused being the driver of

Komitla Town Bus, bearing Regd. No.A.P.26-TB-7693, drove the bus in a rash and negligent manner near Burmashellgunta, Nellore while proceeding towards

Kovur, lost control over the vehicle and dashed against the opposite coming

Hero Honda Passion Pro Motor cycle, bearing Regd. No.A.P.26-AF 1348, as a result, the deceased Vayila Chinnaiah, who was the rider of the motor cycle sustained bleeding injuries on the head and died on the spot instantaneously.

The defacto-complainant, who was the pillion rider of the said motor cycle escaped unhurt in the accident. Basing on the report of the defacto-complainant, the crime was registered and during the course of investigation held inquest and postmortem examination over the dead body of the deceased in the presence of the mediators, examined the witnesses, visited the scene of offence, observed the scene of offence in the presence of the mediators. The Medical Officer, who 2 treated the defacto-complainant issued wound certificate opining that no external injuries were noted and hence, he cannot give opinion. The Motor

Vehicle Inspector inspected the crime vehicle and opined that the accident was occurred not due to any mechanical defects of the vehicle. In the investigation, the accused was apprehended and released on bail and after completion of the investigation, the accused was charge sheeted.

3. This case was taken on file against the accused for the offence punishable Under Sec. 304-A IPC.

4. On appearance of the accused, the copies of case documents were furnished to the accused as required u/S 207 Cr.P.C. The accused was examined under Sec. 251 Cr.P.C., and explaining the substance of accusation leveled against the accused for the offence under Sec. 304-A IPC, for which he denied the offence as pleaded not guilty and claimed to be tried.

5. During the course of trial, the prosecution has examined PWs.1 to 9 and got marked Exs.P-1 to P-10 on its behalf.

6. After closure of the prosecution side evidence, the accused was examined under Sec. 313 Cr.P.C., and explained the incriminating evidence available in the evidence of prosecution witnesses, for which the accused denied the same and reported no defence evidence on his behalf.

7. Heard the arguments on both sides.

8. Now the point for determination in this case is:-- “Whether the prosecution has established the guilt of the accused for the offence under Sec.304-A of IPC., beyond all reasonable doubt ?”

9. In order to prove its case, the prosecution has examined L.Ws.1, 2, 6, 7, 9, 13 to 16 as P.Ws.1 to 9. The evidence of the rest of the witnesses was closed as given up by the prosecution. P.W.1 is said to be the direct eye witness-cum- injured and the defacto-complainant, P.W.2 is another direct eye witnesses for occurrence of the accident, P.W.3 is the person, who is working as mechanic in

Komitla bus service and who knows about the accident. P.W.4 is one of the mediators for the scene observation report, P.W.5 is one of the mediators for the 3 inquest report of the deceased, P.W.6 is the Medical Officer, who conducted autopsy over the dead body of the deceased, P.W.7 is the Medical Officer, who treated P.W.1, P.W.8 is the Motor Vehicle Inspector, who inspected the crime vehicle and issued his report and P.W.9 is the Investigating Officer.

10. Apart from oral evidence on behalf of the prosecution, the following documents are got marked. Ex.P-1 is the report, Ex.P-2 is the 161 Cr.P.C.

statement of P.W.3, Ex.P-3 is the scene observation report, Ex.P-4 is the inquest report, Ex.P-5 is the Postmortem certificate, Ex.P-6 is the wound certificate,

Ex.P-7 is the M.V.I. report, Ex.P-8 is the F.I.R., Ex.P-9 is the rough-sketch of the scene of offence and Ex.P-10 is the Photographs (11 in number).

11.No oral and documentary evidence has adduced on behalf of the defence and the defence of the accused is total denial of the case of the prosecution.

12. While advancing the arguments on behalf of the prosecution, the learned

Assistant Public Prosecutor submitted that due to the rash and negligent driving of the accused being the driver of the crime vehicle the accident was occurred to the deceased and hence, the deceased died at the spot and the same was spoken by P.Ws.1 and 2, hence, by considering the evidence of the prosecution witnesses the accused is to be punished heavily.

13. Per contra, the learned counsel for the accused strongly contended that the evidence of the prosecution witnesses is quite contradictory from the version of P.W.1 stated in the 161 Cr.P.C., statement and no test identification parade is conducted over the accused during the investigation, hence, the identification of the accused by P.Ws.1 and 2 before the Court cannot be considered. It is the further contention of the learned defence counsel that no record is seized by the Investigating Officer to connect the accused to the crime vehicle and hence, the accused is to be acquitted.

14. Point:

In the light of above rival arguments made on behalf of the both parties, it is to be seen whether the following ingredients have to be established to prove the offence u/sec. 304 A of IPC.

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1. Whether the death of the deceased in question and the deceased died in the road accident at 7-30 P.M.on 24-8-2013 near Burmashelgunta on Kavali to Nellore road ?

2. Whether P.W.1 sustained any injuries in the same accident ?

3. Whether the crime vehicle Komitla bus bearing Regd. No. A.P.26-TB 7693 is involved in the accident ?

4. Whether the accused was driver of the said crime vehicle at the time of accident ?

5. Whether the accident was occurred to the deceased due to rash or negligent driving of the accused ?

15. Point Nos.1 and 2 :

Since the points 1 and 2 are interrelated, they are discussed together. To prove these two ingredients, the prosecution is relying upon the evidence of

P.Ws.1, 2, 4 to 6, 9 and Exs.P1, P-3 to P-5, P-8 to P-10.

16. The evidence of PW.1 speaks that the deceased Vayila Chinnaiah is his co-brother. In the year 2013 on one day which falls on 24th day at 7-00 P.M., while he along with the deceased, as a rider and pillion rider respectively, coming to Nellore from Mypadu on Hero Honda Passion pro motor cycle was pillion rider, they reached near a Petrol Bunk, which is by the side of the bridge leading to Kovur, in Nellore one Private bus was coming with high speed from

Nellore towards Kovur and hit to their bike. As a result, both of them fell down from the bike and the deceased sustained head injury and died at the spot and on that he gave Ex.P1 report to the police.

17. On perusal of Ex.P-1 report of Pw.1, the contents of Ex.P1 speak that on 24-8-2013 at about 7-30 P.M., while himself and the deceased were coming on

Passion Pro motor bike, bearing No.A.P.26-AF-1348, a bus, bearing No.A.P.26-TB- 7693, which was coming from Nellore towards Kovur hit to their bike due to the rash and negligent driving with high speed of the driver of the bus and as a result, the deceased sustained severe head injury and died at the spot. The contents of Ex.P1 report further speak that the information was lodged in the

Police Station within 1 ½ hours of the accident.

18. Coming to the evidence of P.W.2, who is another eye witness speaks that about a year ago on one day at 6-00 or 7-00 P.M., while he was attending as cashier work in Bharath Petrol Bunk near Penna Bridge, he heard a sound from 5 the road and on that he went there and observed that there was a road accident occurred to a scooterist and as a result, a person died.

19. Coming to the evidence of P.W.4 whose spoken that in his presence the police have observed the scene of offence and in the scene of offence, they have noticed about stationing of a bus and Hero Honda Passion Pro motor cycle.

20. The evidence of P.W.5 speaks that the police have conducted the inquest upon the dead body of the deceased at the place of the accident itself near a

Penna Bridge in the presence of himself and L.Ws.10, 11 by names

K.Balaramaiah and K.Peda Yanadaiah and during the inquest, they have noticed that the deceased sustained severe injuries on the head and other parts of the body and the police have prepared inquest report in their presence after conducting inquest.

21. As for as the evidence of medical officer is concerned P.W.6 speaks that as per the requisition of the complainant police, he has conducted postmortem examination over the dead body of the deceased from 11-00 A.M. to 1-00 P.M., on 25-8-2013 and noted both external and internal injuries whose details are mentioned in Ex.P-5 certificate and he is of the opinion that the cause of death of the deceased is to the best of his knowledge is shock due to head injury. The contents of Ex.P-5 Postmortem report of P.W.6 shows that there are several external and internal injuries noted by the Medical Officer upon the dead body of the deceased while conducting autopsy and cause of the death of the deceased is that shock due to head injury.

22. P.W.9, the Investigating Officer claimed that on 24-8-2013 basing on the report of P.W.1, he registered the crime, visited the scene of offence, observed the scene of offence under cover of scene observation report, taken the photographs of the scene, examined the witnesses, held inquest upon the dead body of the deceased and forwarded the dead body of the deceased to the

Head Quarters Hospital for postmortem examination and after conducting postmortem examination, he handed over the dead body of the deceased to his relatives.

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23. Therefore, through the evidence of the P.Ws.1, 2, 4 to 6 and 9,

Exs.P-1, P-2 to P-5, P-8 to P-10, the prosecution has successfully established that the deceased died in the road accident, which was occurred to the motor cycle of the deceased and Pw.1 on 24-8-2013 at 7-30 P.M., near Burmashelgunta,

Nellore.

24. Furthermore, as per the evidence of P.W.1 he sustained injury on the left leg. In Ex.P-1 report P.W.1 clearly mentioned that he escaped with simple injuries in the accident. Further, the evidence of the Medical Officer, P.W.7 and

Ex.P-6 wound certificate speak that no external injuries were sustained by P.W.1.

As per the contents of Ex.P-8 F.I.R the P.W.1 sustained only swelling injuries.

Therefore, the prosecution has also established that Pw.1 also traveled in the motor cycle of the deceased along with the deceased at the time of accident but escaped un-heart in the accident. Hence, these two points are answered accordingly.

25. Point Nos.3 to 5:

The further evidence of the P.W.1 speaks that the driver of the private bus drove the bus with high speed and hit to the bike of the deceased and P.W.1 and on that they both fell down and the deceased died at the spot due to sustaining severe head injury. Moreover, the Pw.1 clearly identified the accused as that the driver of the offending vehicle at the time of the accused. Further,

P.W.1 claimed before the court in the evidence that he do not remember the number of the bus. Though P.W.1 was subjected to cross-examination on behalf of the defence in respect of manner of the accident, identifying the accused and witnessing the accident, P.W.1 clearly denied them and no useful material is elicited from the mouth of the P.W.1 in support of the version of the defence and against the evidence of P.W.1 which stated in the chief examination.

26. Though the P.W.1 speaks that he do not remember the bus number, he clearly identified the accused as that of the driver of the offending bus at the time of accident before the court during the evidence. Furthermore, the evidence of P.w.1 speaks that after the accident he gave Ex.P-1 report. On perusal of Ex.P-1 report it came to light that the first information was lodged in 7 the police station by P.w.1 at 9-00 P.M., on 24-8-2013. The accident had occurred at 7-30 P.M., on 24-8-2013. As per Ex.P1 report and the evidence of

Pw.1 the accident had occurred due to the rash and negligent driving with high speed of the driver of the offending bus. The lodging the first information report in the police station about the manner of the accident, death of the deceased in the accident due to the driving of the driver of the offending bus soon after the occurrence of the accident strengthens the version of Pw.1 in respect of the manner of the accident, involvement of the accused being the driver of the offending bus and hence, there is no chance to implicate the offending bus and its driver falsely in this case to the prosecution witnesses by leaving the real offender.

27. As stated supra, the prosecution is examined one of the eye witnesses as

P.W.2. The evidence of P.W.2 speaks that on hearing a sound, he rushed to the place of the accident and during his enquiry, he came to know that due to hitting of Komitla Bus to the motor cycle of the deceased, the deceased sustained severe injuries and died at the spot. Though P.W.2 did not speak in respect of the manner of accident, he clearly spoken that there was a Komitla

Bus at the place of the accident immediately after the accident when P.W.2 rushed to the place of the accident. The evidence of P.W.2 shows that Pw.2 is partly supported the version of P.W.1 and the case of the prosecution.

28. After examining the entire evidence of P.W.1 and contents of the

Ex.P-1 report, it is clear that the accident had occurred to the motor cycle of the deceased and Pw.1 due to hitting of the crime bus. Further, the evidence of

P.w.1 is showing credibility, trustworthiness and having intrinsic value in respect of the manner of the accident. The identification of the P.W.1 over the accused

before the Court during the evidence as that of the driver of the crime vehicle at

the time of accident is believable and considered as no motive or animosity is pleaded and elicited from the P.w.1 by the defence as if he identified the accused falsely. Further the accident had occurred near a Petrol Bunk in Nellore at 7-30 P.M., and moreover, as per the evidence of the P.W.1 the accident had occurred through the crime bus while it was coming in the opposite direction to the bike of the deceased and P.W.1. Therefore, there was every possibility to the 8

P.W.1 to view and observe the driver of the crime vehicle at the time of the accident, remember him and on that identified him him before the Court.

29. On perusal of the Ex.P-10 photographs and in view of the evidence of the P.Ws.2 and 4 that they have noticed the presence of the crime vehicle at the scene of offence after the accident, it is of the opinion of the Court that P.W.1 had a good opportunity to observe the driver of the crime vehicle at the time of accident and remember him and identified him before the Court. Therefore, though the Investigating Officer did not take steps in conducting the identification parade over the accused with the eye witnesses during the course of the investigation it is not fatal to the case of the prosecution to the extent of discarding the entire evidence of the direct eye witnesses and that too who escaped unhurt from the accident.

30. Though P.W.3, who said to be the employee, working in the Komitla bus service not supported the case of the prosecution and turned hostile wholly, it will not effect the case of the prosecution as naturally P.w.3, who was working along with the accused in the same services, supports the case of the accused and but to the case of the prosecution. However, the Investigating Officer failed to collect the documentary record in respect of the bus and the driver of the bus during the course of investigation. Though to some extent it is fatal to the case of the prosecution, in view of the clear and categorical evidence of the P.w.1 (direct eye witness) that the accused was the driver of the crime vehicle at the time of accident, it is not considered as a material discrepancy to the extent of giving acquittal to the accused. But this type of investigation of the investigating officers shall be curtailed.

31. As for as the evidence of P.W.8, Motor Vehicle Inspector is concerned, he examined the crime vehicle on 18-10-2013 at the premises of the 2 Town Police

Station and found no damages to the vehicle and he has taken the vehicle for road test and he is of the opinion that the accident was occurred not due to any mechanical defects of the vehicle. As per the evidence of P.W.4 one of the mediators for the scene observation report, there was damage to the front shape of the motor cycle of the deceased. Ex.P-10 Photographs also showing 9 that there was damage to the motor cycle of the deceased and the head of the deceased crushed. On going through the Ex.P10 photographs, they speak that the offending bus ran over the head of the deceased. Moreover, the evidence of the P.W.1 clearly speaks that the bus was coming with high speed. It means the driver of the offending vehicle drove the vehicle in a rash manner.

32. Therefore, in view of the foregoing reasons, it is clear that the accident had occurred to the deceased due to the rash driving of the accused being the driver of the crime bus.

33. In the light of the above clear and crystallized discussion, it is held that the prosecution has successfully established the offence against the accused for the offence punishable u/Sec.304-A of I.P.C., beyond all reasonable doubt and thus, the accused is liable for conviction.

34. In the result, the accused is found guilty for the offence punishable u/Sec.304-A of I.P.C., and accordingly he is convicted of the same u/Sec. 255 (2)

Cr.P.C.

Dictated to Personal Assistant transcribed by him, corrected and

pronounced by me in the Open Court, this the 8th day of May, 2015.

Sd/-K.Prathusha Kumari

II Additional Judicial Magistrate of First Class,

Nellore.

35.The accused is present. When the accused is questioned with regard to the quantum of the sentence, he submitted that he is having small children and his father died and his mother, who is suffering with paralysis is depending on him and further he is diabetic patient and his entire family is depending on him and pleaded to show mercy on him.

36. Due to the rash driving of the accused, one person aged 35 years died at the spot, hence, it is not a fit case to invoke the benevolent provisions of P.O. Act or section 360 of Cr.P.C., But by considering the submission of the accused, this

Court feels the following sentence would meet the ends of justice.

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37. Hence, the accused is sentenced to undergo simple imprisonment for a period of one (1) year and also sentenced to pay a fine of Rs.1,000/- (Rupees one thousand only) and in default to pay the fine amount, he shall undergo simple imprisonment for a period of one (1) month for the offence u/Sec.304-A of I.P.C.

The remand period if any already undergone by the accused shall be set off under Sec. 428 of Cr.P.C.

38.The accused is informed about his right of appeal against the Judgment

before the Hon’ble District Court and to get free legal aid from the D.L.S.A.,

Nellore to prefer an appeal if he intends.

Sd/-K.Prathusha Kumari

II Addl. Judicial Magistrate of First Class,

Nellore.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: - FOR DEFENCE: - NONE. PW.1: U.Govindaiah PW.2: V.Anand PW.3: B.Srinivasa Rao PW.4: K.Vijaya Bhasakr PW.5: U.Prasad PW.6: Dr.P.V.N. Sastry, Medical Officer PW.7: Dr.B.Nageswara Rao, Medical Officer PW.8: V.Jaya Prakash, Motor Vehicle Inspector PW.9: E.Malakondaiah, Sub-Inspector of Police

DOCUMENTS MARKED

FOR PROSECUTION:-- Ex.P1: Report of P.W.1. Ex.P2: 161 Cr.P.C. Statement of P.W.3. Ex.P3: Scene observation report. Ex.P4: Inquest report. Ex.P5: Post Mortem Certificate. Ex.P6: Wound Certificate of P.W.1. Ex.P7: Motor Vehicle Inspector report. Ex.P8: First Information Report in crime No.165/2013 of 2 Town Police Station, Nellore. Ex.P9: Rough-sketch of the scene of offence. Ex.P10: Photographs (11 in number)

FOR DEFENCE:--NIL.

MATERIAL OBJECTS MARKED ON BEHALF OF THE BOTH SIDES

… N I L …

Sd/-K.Prathusha Kumari

II AJMFC, NELLORE.

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THE COURT OF THE II ADDL. JUDL. MAGISTRATE OF I CLASS,

NELLORE.

Present: Smt.K.Prathusha Kumari, II Additional Judicial Magistrate of First Class, Nellore.

Friday, this the Tenth (10th) day of April, 2015.

C.C.No.202 of 2013.

Provident Fund Inspector, Employees Provident Fund Organization, (Ministry of Labour), 16-3-1763, 1st Lane Ramamurthy Nagar, NelloreComplainant.

Vs.

1.M/s. Nagarajam Provision Stores, 18/86, Barracks, Justice Ansari Road, Nellore – 524 001.

2. V.Prasad Rao, Proprietor, S/o Late Nagarajam, 18/86, Barracks, Justice Ansari Road, Nellore – 524 001.Accused.

This case is coming on this day before me for final hearing in the presence of the learned Assistant Public Prosecutor for the complainant and of Sri Arigela Nagendra Sai, Advocate for the accused, upon hearing both sides and having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

1. This is a complaint filed by the Provident Fund Inspector, Employees

Provident Fund Organization (Ministry of Labour) against the accused Nos.1 and 2 for the offence U/Sec.14 (2A) of the Employees' Provident Funds and

Miscellaneous Provisions Act, 1952.

2. Briefly, the case of the complainant, as per the contents of the complaint, is that M/s.Nagarajam Provision Stores, who is figured as accused

No.1, is an establishment within the meaning of the Employees Provident Funds & Miscellaneous Provisions Act, 1952 and the schemes framed thereunder are applicable to the said establishment and the accused No.2 was the in-charge of 2 the accused No.1 establishment and hence, the responsibility for the conduct of its business and was required to comply with all the provisions of the said Act and schemes framed thereunder in respect of the employees of the said establishment entitled to the benefits thereunder. In spite of the several requests and persuasions the accused Nos.1 and 2 in contravention of Section 6 of the Act read with Para 38 of the Schemes thereunder, they failed to remit the contributions for the months as detailed below:

PERIOD Employees’ Due date

Pension Fund of Contribution Remittanc e NOV – 2001133315-12-2001 DEC -2001133315-01-2002 JAN - 2002133315-02-2002

3. Hence, the sanction order was accorded by the Regional Provident Fund

Commissioner to prosecute the accused as the accused failed to remit the contributions of the employees and failed to submit the returns. Thus, the complainant sought to punish the accused and to direct them to pay the contributions within a week and order for payment of expenses of the complainant for prosecuting the accused.

4. This case was taken on file against the accused for the offence punishable

U/Sec.14 (2A) of the Employees' Provident Funds and Miscellaneous Provisions

Act, 1952.

5. On appearance of the accused, the copies of case documents were furnished to the accused as required u/Sec. 207 Cr.P.C. The accused were examined under Sec.251 Cr.P.C., for the offence under Sec. 14 (2A) of the

Employee’s Provident Funds and Miscellaneous Provisions Act, 1952, read over and explained to the accused in Telugu, for which they denied the offence as pleaded not guilty and claimed to be tried.

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6. During the course of trial the complainant has examined P.W.1 is examined and got marked Exs.P-1 to P-13 on its behalf.

7. After completion of the prosecution side evidence, the accused were examined under Sec.313 Cr.P.C., explaining the incriminating material available in the evidence of prosecution witnesses to the accused, for which the accused denied the same and reported no oral or documentary evidence on their behalf.

Hence the defence side evidence was closed.

8. Heard the arguments on both sides and perused the entire material on record.

9. Now the point for determination in this case is:-- “Whether the complainant has proved the guilt of the accused for the offence U/Sec.14 (2A) of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952., beyond all reasonable doubt ?”

10.To prove the case on behalf of the complainant, the Provident Fund

Inspector, who filed the complaint is examined as P.W.1. Apart from oral evidence on behalf of the complainant, Exs.P-1 to P-13 are marked. Ex.P-1 is the sanction of the Competent authority, Ex.P-2 is the Form 5 A (ownership particulars), Ex.P-3 is the summons issued to the accused, Ex.P-4 is the adjournment notice, dated 25-6-2009 issued to the accused along with acknowledgment dated 7-7-2009, Ex.P-5 is the adjournment notice, dated 27-7- 2009, Ex.P-6 is the adjournment notice, dated 20-8-2009, Ex.P-7 is the adjournment notice, dated 25-9-2009, Ex.P-8 is the adjournment notice dated 12-10-2009, Ex.P-9 is the adjournment notice dated 27-10-2009, Ex.P-10 is the certificate under Sec.8B of EPF and MP Act, 1952, dated 1-4-2011, Ex.P-11 is the

Copy of Notification abut the appointment of Inspectors, Ex.P-12 is the

GO.No.2196, dated 7-8-1971 and Ex.P-13 is the memo filed on behalf of the complainant dated 1-11-2014.

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11.While advancing the arguments, on behalf of the prosecution, the learned

Assistant Public Prosecutor submitted that in spite of several requests and persuasions of the complainant, the accused failed to remit the contributions of the employees and hence, 7(A) proceedings were initiated and passed the orders against the accused and though the accused remitted the contributions and filed a returns during the pendency of the present case, the accused have committed the offence as they failed to remit the same and file returns within the stipulated period and sought to convict the accused.

12. On the other hand, the learned defence counsel strongly contended that the sanction is not a valid sanction to prosecute the accused and no record filed that to show that the accused No.2 is the Proprietor of the accused No.1 of establishment and there is no material to show that the accused No.2 is the person, who remitted the contributions and submitted the returns during the pendency of the case and further P.w.1 is not the inspecting authority of accused No.1 establishment and non-examination of the then Provident Fund

Inspector is fatal to the case of the prosecution. Further the contention of the defence counsel is that the details of the employees for whom the contributions were not remitted are not furnished in the complaint and no evidence placed to show that how many employees worked in accused No.1 establishment and without placing such crucial material, the complainant cannot prove the offence leveled against the accused and finally sought to acquit the accused.

13. In order to substantiate its case, the complainant has examined the

Provident Fund Inspector-cum-Enforcement Officer, Employees Provident Fund

Organization, District Office, Nellore, who filed the complaint as representative of the complainant against the accused, as P.W.1. The evidence of P.W.1 speaks that the accused No.1 is an establishment covered under the Employees

Provident Fund Act and the accused No.2 is the Proprietor of the 1st accused establishment and though it is the duty of the accused to remit the employees provident fund contributions of their employees and submit their account 5 returns within the time, the accused failed to do the same in spite of number of reminders and hence, as per the Provisions laid down in the Act, an enquiry was conducted under Sec. 7-A before the Assistant Provident Fund Commissioner and an order was passed after giving number of adjournments to the employer under the principles of natural justice to appear before the commissioner to plead his case and though different opportunities were given to the employer and duly adjourned the case the employer failed to attend the enquiry and represent his case and hence, an exparte order was passed duly assessing the dues for the period from November, 2001 to May, 2009, vide speaking order,

dated 19-1-2011 and despite repeated visits to the accused No.1 establishment

and informing the employer about the arrear demand, the employer has not remitted the due and then the he remitted some challans that he has already remitted some dues and during the course of pending the present proceedings, the employer has remitted the remaining entire balance due and submitted all the returns as required under the law and they also accepted by the department and on that the complainant has filed a memo, which was got marked under Ex.P-13. On perusal of Ex.P-13, memo of the complainant, which clearly speaks that after filing the present complaint, the accused paid the entire amount assessed by the assessing officer, vide 7-A order dated 19-1-2011 for the period from November, 2001 to May, 2009 pertaining to the provident fund dues of the employees and submitted all the statutory returns and thereby complied with the statutory procedures under the Employees

Provident Funds and Miscellaneous Provisions Act, 1952 and the Schemes framed thereunder.

14.Though it is the strong contention of the learned defence counsel that the complainant failed to prove that the accused No.1 is the Proprietor of accused

No.1 establishment and the accused No.2 is not the person who remitted the entire arrears due and submitted the statutory returns, the documents Exs.P-2 to P-10, i.e., Form 5-A ownership particulars, summons issued to the accused in 6 7-A enquiry, adjournment notices and the certificate of the Assistant Provident

Fund Commissioner showing the amount in the arrears of contributions and administrative charges assessed under Sec.7-A of the Act against the accused they are clearly and categorically showing that the accused No.1 is an establishment covered under the E.P.F. and M.P. Act, 1952 and the accused

No.2 is the proprietor of the 1st accused establishment. Further in Ex. P2 Form 5A relating to the ownership particulars of the 1st accused containing the signature of the accused No.2 as proprietor against the column of the signature of the employer. Therefore as per the section 73 of the Indian Evidence Act, this court has authority and jurisdiction to compare the available signatures of the parties to the proceedings in order to come to a conclusion. Thus, the court compared the signatures of the 2nd accused appearing on the 239 and 313

Cr.P.C., examinations with the signature appearing on Ex.P2 Form 5A document and noticed no difference. Hence the person who singed on Ex.P2 document is none other than the accused No.2 herein.

15.It is the further contention of the learned defence counsel that none of the employees are examined on behalf of the complainant to prove that the 1st accused establishment had the strength of the employees of Nineteen and above and the accused failed to remit their contributions and failed to submit the statutory returns and P.w.1 has no knowledge about the accused, since he did not visit the same, hence, the evidence of P.w.1 cannot be considered and sought to acquit the accused.

16. In the cross-examination made on behalf of the defence, P.W.1 clearly stated that he has not personally visited the 1st accused establishment for the simple reason that the 1st accused was reportedly closed and non existence by that time. Admittedly the period of arrears due was from November, 2001 to

May, 2009 as per the speaking order of 7-A authority marked under Ex.P-10. As per the evidence of P.W.1, the establishment of the first accused was closed and non existence and since the arrears was due between November, 2001 to 7

May, 2009 and hence, there was not possibility to the Provident Fund Inspector, i.e, P.W.1 to visit the establishment of 1st accused. Further, there is no chance to the complainant to get and examine the employees of the 1st accused establishment for whom the contributions were not remitted on account of the establishment was closed.

17. It is not the case of the defence that the parties against whom 7 A enquiry was conducted and passed an exparte order, challenged the said order by preferring appeal before the concerned authority. Therefore the order passed in 7 A enquiry is final and conclusive proof.

18. Further contention of the learned defence counsel is that the name of the 1st accused establishment is shown wrongly in some of the complainant documents and hence the accused are entitled for acquittal. There is a truth in the contention of the learned defence counsel that in the adjournment notices issued by the 7 A authority and acknowledgments the name of the 1st accused establishment is shown as Nagarjuna Provision Stores instead of showing as

Nagarajam Provision Stores and it is a typographical and clerical mistake but not a material discrepancy to the case of the complainant to the extent of giving acquittal to the accused as contended by the learned APP., in view of the contents of the Ex.P2 form 5A ownership certificate in which the address of the 1st accused is clearly shown and further, in the Ex.P10 certificate issued u/sec.

8 B the said Act the name of the 1st accused clearly shown.

19. It is the further contention of the learned defence is that the Ex.P1 sanction is not a valid one and hence the complainant failed to prove the case against the accused. Perused the Ex.P1 sanction order which is issued by the

Regional Provident Fund Commissioner – II, Kadapa, AP., and it is in accordance with the provisions of the said Act. Therefore no merits find in the contention of the defence counsel in this regard.

8

20. Therefore, through the evidence of P.W.1 and the documents, Exs.P-1 to

P-13, the complainant has successfully established that the accused No.2 is the proprietor of the 1st accused establishment and the accused have failed to remit some of the E.P.F. contributions of their employees dues for the period from

November, 2001 to May, 2009 and failed to submit the statutory returns within the time as contemplated under the E.P.F. and M.P. Act, 1952 and their schemes.

21. Further, the complainant has proved that the accused have remitted all the arrears due and submitted the statutory returns and they also accepted by the complainant department during the pendency of the case. As per the said Act though the employer has remitted the contributions and submitted the statutory returns subsequently or during pendency of the criminal proceedings, it is a continues offence as the accused failed to remit the contributions and submitted the returns within the time as contemplated under the said Act.

Therefore, the accused are liable for conviction for the offence u/Sec.14 (2A) of the said Act.

22.IN THE RESULT, the accused No.1 and 2 are found guilty for the offence punishable u/Sec.14 (2A) of the Employees' Provident Funds and Miscellaneous

Act, 1952 and accordingly they are convicted of the same under Sec.255 (2)

Cr.P.C.

Dictated to the Personal Assistant, transcribed by him, corrected and

pronounced by me in the Open Court this the 10th day of April, 2015.

II Addl. Judicial Magistrate of First Class, Nellore.

23. When the accused is questioned with regard to the quantum of sentence, he submitted that due to financial crises he could not pay the amount and there is no willful default and the due was paid with the financial aid from 9 his brothers and now he is working with others and prayed to show mercy by reducing sentence.

24.Since the offence is economical one it is not a fit case to take lenient view by invoking the benevolent provisions of P.O. Act or Sec.360 Cr.P.C. But by considering the submissions of the accused and since the complainant reported under Ex.P13 memo that the accused already paid the entire due amount department and submitted the statutory returns to the department during pendency of the present proceedings, the court is of the view that it is fit case to consider the matter in imposing lesser sentence on the accused.

25.Hence, the Accused No.2 being the representative of the Accused No.1 establishment, is sentenced to undergo simple imprisonment for a period of one (1) month and to pay a fine of Rs.500/- (Rupees five hundred only) and in default of payment of fine, they shall undergo simple imprisonment for a period of one (1) month for the offence under Sec. 14 (2A) of the Employees Provident

Funds and Miscellaneous Provisions Act, 1952. Since the accused have committed the offences under one establishment, the sentence imposed against the accused in the present case and also the sentence imposed in

C.C.Nos.202/2013 to 232/2013 shall run concurrently.

26. The accused is informed about the preferring of appeal against this

Judgment and he reported positively to engage counsel if he prefers an appeal.

II Addl. Judicial Magistrate of First Class,

Nellore.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: -- PW.1: K.V.Praveen, Provident Fund Inspector-cum- Enforcement Officer.

FOR DEFENCE: -- NILL 10

DOCUMENTS MARKED

FOR PROSECUTION:-- Ex.P-1: Sanction of the Competent Authority. Ex.P-2: Form 5A (Ownership Particulars) Ex.P-3: Summons issued to the accused to appear in person under Sec.7-A of the EPF and MP Act, 1952, dated 1-6-02009 along with acknowledgment, dt. 9- 6-2009.

Ex.P-4: Adjournment notice, dated 25-6-2009 issued to the accused along with acknowledgment, dt.7-7-2009. Ex.P-5: Adjournment notice, dt. 27-7-2009 issued to the accused along with acknowledgment, dt. 30-7-2009. Ex.P-6: Adjournment notice, dt.20-8-2009 issued to the accused along with acknowledgment dt.9-9-2009. Ex.P-7: Adjournment notice, dt.25-9-2009 issued to the accused along with acknowledgment, dt.1-10-2009. Ex.P-8: Adjournment notice, dt.12-10-2009 issued to the accused along with acknowledgment, dt.14-10-2009. Ex.P-9: Adjournment notice, dt.27-10-2009 issued to the accused along with acknowledgment, dt.31-11-2009. Ex.P-10: Certificate under Sec.8-B of EPF and MP Act, 1952, dt.1-4-2011, showing the details amount in arrears of contributions and Administrative charges assessed under Sec.7-A of the Act issued to the accused along with acknowledgment, dt. 1-5-2011. Ex.P11: Copy of Notification about the appointment of Inspectors appointed under sub section of section 13 of the EPF and MP Act, 1952 as Assistant Public Prosecutors for the purpose of conducting the cases within their respective jurisdiction. Ex.P12: G.O.No.2196, dt.7th August, 1971 about the appointment of Provident Fund Inspectors as Public Prosecutor to conduct the prosecution under employees Provident Fund Act. Ex.P-13: Memo filed on behalf of the complainant, dt.1-11-2014.

FOR DEFENCE:--

MATERIAL OBJECTS MARKED ON BOTH SIDES

.. N I L…

II AJMFC,

NELLORE.

THE COURT OF THE II ADDL. JUDL. MAGISTRATE OF I CLASS:NELLORE

Present: Smt.K.Prathusha Kumari II Additional Judicial Magistrate of First Class, Nellore

Friday, this the First (1st) day of May, 2015

C.C.No.75 of 2014

State: Sub-Inspector of Police, No. 1 Town Police Station, Nellore City Complainant.

Vs.

Ozili Sudhakar, S/o Papaiah, aged 45 years, Rajaka by caste, 4th Street, Lakeview colony, Podalakur road, Nellore CityAccused.

This case is coming on 27-04-2015 before me for final hearing in the presence of the learned Assistant Public Prosecutor for the complainant and of Sri B.R.Maruthy Kumar Reddy, Counsel for the accused, upon hearing both side and having stood over for consideration till this day, 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, 1 Town Police Station, Nellore against the accused for the offence under Sec. 324 IPC.

2.Briefly the case of the prosecution as per the contents of the charge sheet is that on the night of 31-12-2013 at about 9-30 P.M. the defacto- complainant left his house in order to go to his relatives house situated at 6th

Street of Lakeview colony to get gas cylinder and on the way he reached near to Raviraja office, where P.W.3 asked him where he was going, for which the defacto-complainant replied that he was going to his relatives house and on that the same casual discussion were made between them, then the accused who was present there, interfered unnecessarily, used insulting words towards him and on that there was an altercation between them and the accused stopped him to which he himself adjusted and went on his way towards bus stop, but the accused followed him on his back and beat him with a brick stone on the head and left eye and caused bleeding injuries and he also fisted on the mouth, resulting the defacto-complainant fell down with injuries. P.W.3 and another witnessed the same, interfered and sent away the accused. Later on information, P.Ws.2 and L.W.3, Y.Rohit, 2 who are the wife and son the defacto-complainant rushed to the spot, shifted him for Government Hospital for treatment. Basing on the hospital intimation, statement of the defacto-complainant was recorded towards the report of the defacto-complainant and the crime was registered and investigated into and after completion of investigation, the accused was charge sheeted.

3. This case was taken on file against the accused for the offence

Under Sec.324 IPC.

4.On appearance of the accused, the copies of case documents were furnished to the accused as required under Sec. 207 Cr.P.C. On his examination under Section 239 Cr.P.C., the charge under Sec.324 IPC was framed and explained the same to the accused in Telugu, for which the accused denied the offence as pleaded not guilty and claimed to be tried.

5. During the course of trial, the prosecution examined PWs.1 to 6 and got marked Exs.P-1 to P-5.

6. After completion of the prosecution side evidence, the accused was examined under Sec.313 Cr.P.C. and explaining the incriminating material evidence available in the evidence of prosecution witnesses to the accused, for which the accused denied the same and reported no defence evidence on his behalf.

7. Arguments heard from both sides and perused the entire material on record.

8. Now the point for determination in this case is:--

Whether the prosecution has proved the guilt of the

accused for the offence under Sec.324 IPC beyond all reasonable doubt?

9.In order to prove its case, the prosecution has examined six witnesses out of eight cited in the charge sheet from L.Ws.1, 2, 4, 6 to 8. P.W.1 is the injured-cum-defacto-complainant, P.W.2 is the wife of P.W.1, P.W.3 is the eye witness for the occurrence of the incident, P.W.4 is the Medical Officer, who treated P.W.1 and issued wound certificate, P.W.5 is the Head Constable, who recorded Ex.P-1 statement from P.W.1 and P.W.6 is the Investigating 3

Officer. The evidence of rest of the witnesses was closed as given up by the prosecution.

10.Apart from oral evidence on behalf of the prosecution, the following documents are got marked. Ex.P-1 is the statement of P.W.1 recorded towards report, Ex.P-2 is the wound certificate, Ex.P-3 is the hospital intimation, Ex.P-4 is the F.I.R. and Ex.P-5 is the rough-sketch.

11.While advancing the arguments on behalf of the prosecution, the learned Assistant Public Prosecutor submitted that the accused unnecessarily interfered in the chatting of P.Ws.1 and 3 and insulted P.W.1, slapped initially and though P.W.1 left the place, the accused followed him and attacked him with deadly weapon and caused injuries, which was spoken by P.Ws.1 to 6, hence, the prosecution proved the offence against the accused beyond all reasonable doubt and sought to convict the accused.

12.On the other hand, the learned defence counsel contended that there is discrepancy with regard to the material object alleged to be used in causing injuries, i.e., whether it was a brick or iron rod, and that there are material contradictions and discrepancies elicited from the evidence of

P.Ws.1 and 3 with regard to the manner of incident and further P.W.1 is in the habit of taking alcohol and in a drunken state he fell down and sustained injuries and by taking advantage of the same, he foisted the false case against the accused, hence, the accused is to be acquitted.

13.Point:

P.Ws.1 and 2 are the husband and wife. Admittedly P.W.2 is not an eye witness for the occurrence of the incident and she is a circumstantial witness. The criminal law is set into motion basing on the statement of P.W.1 recorded towards report while he was undergoing treatment in the hospital at 2-30 A.M. on 1-1-2014. The alleged incident had taken place at 9-30 P.M.

on the night of 31-12-2013 near Raviraja Office at Lakeview colony in

Nellore.

14.To strengthen the case of the prosecution, the prosecution is relying upon the ocular evidence of P.W.1 to 6 and documentary evidence Exs.P-1 to 4

P-5. The evidence of P.W.1 speaks that he knows the accused, that on 31-12-2013 at 9-30 P.M. while he was going to get gas cylinder, he reached near Raviraja office at Lakeview colony, where he was talking with P.W.3, the accused came there and attacked him stating that why he talking with PW.3 and on that he left the place and returning to home, but the accused again attacked him with iron rod and caused injuries on the fore-head, resulting he fell down. On knowing the same his wife and son rushed to him, shifted him to Head Quarters Hospital, Nellore for treatment, where the police recorded his statement.

15.In corroboration of the evidence of P.W.1, P.W.3, who said to the direct eye witness for the occurrence of the incident speaks that he knows P.W.1 and accused, that on 31-12-2013 at about 9-30 P.M. while he was near

Raviraja office in Lakeview colony and talking with the accused, P.W.1 was going to get gas cylinder and on observing him, he stopped and attacking with him and in the meantime the accused came to P.w.1 and gave a slap and on that he interfered and pacified the same and sent both of them.

While P.W.1 was going the accused followed him, beat him with a brick stone on the head and on the face and caused injuries, on that the relatives of

P.W.1 rushed there and shifted him to the hospital.

16.In support of the version of the injured and eye witness, P.Ws.1 and 3, the circumstantial witness, P.W.2 claimed that she is the wife of P.W.1 that on the night of 31-12-2013 at 9-30 P.M. her husband left the house in order to get the gas cylinder and within a half an hour known person came to their house and informed that her husband was lying on the ground with injuries near Podalakur road, which is on the back side to RTC bus stand and immediately herself and her son rushed there and shifted him from the scene of offence through an Auto for treatment. Then on enquiry P.W.1 revealed that while her husband was talking with P.w.3, the accused slapped him and on that while P.W.1 returning to home, the accused again followed him from the behind and attacked him with a brick stone and caused injuries on the head and on the nose and the accused also kicked him on the neck and mouth and as a result the teeth of P.W.1 is loosen. Further, she has noticed a swelling injury on the right eye. Though P.W.2 is hearsay witness in 5 respect of manner of the attack made by the accused, she is the circumstantial witness in respect of P.W.1 left the house in order to get the gas cylinder, noticing lying of P.W.1 with injuries at the scene of offence, shifting him to the hospital for treatment.

17.It is the strong contention of the learned defence counsel that there is discrepancies with regard to the material object alleged to be used in attacking P.W.1 in the evidence of P.W.1 from Ex.P-1 report, hence, the accused is to be acquitted.

18.On perusal of Ex.P-1 report and the entire evidence of P.W.1, it is clear that P.w.1 stated in the First Information Report (Ex.P-1) in respect of material object as brick stone, but he stated during the chief-examination as iron rod. But P.W.1 clearly stated in the cross-examination made on behalf of the defence that the accused beat him with a brick piece, but not with an iron rod. Further, the direct eye witness, P.W.3 and circumstantial witness,

P.W.2 spoken that P.W.1 sustained the injuries through a brick stone, but not iron rod. After going through the entire chief and cross-examination of

P.W.1, it is clear that P.W.1 might be stated in the chief examination by oversight as an iron rod instead of brick stone and he clearly and categorically stated in the cross-examination of the defence the accused beat him with a brick stone, but not with iron rod. Therefore, there is no discrepancy with regard to the material object used by the accused in attacking P.W.1.

19.As stated supra, the evidence of P.W.3 is fully corroborated and supported the version of P.W.1 in respect of time of offence, place of offence, manner of incident and specific overt acts made by the accused against P.W.1 including the material object used by the accused. Further, no motive is attributed against P.W.3 to give false evidence against the accused and in support of the version of P.W.1. Therefore, the evidence of P.W.3 is showing credibility and having intrinsic value. Moreso, the evidence of circumstantial witness, P.W.2 is also corroborating and supporting the version of P.Ws.1 and 3 in respect of time of incident, place of incident, sustaining injuries by P.W.1 and shifting the injured to the hospital.

6

20.As per the prosecution in order to strengthen the ocular evidence of

P.Ws.1 to 3, has examined the Medical Officer as P.W.4. The evidence of

P.W.4 speaks that on 1-1-2014 at about 00-30 hours he examined P.W.1 and found one contusion of 2 X 2 cm. over fore head, 2) contusion of 2 X 2 cm.

over left temporal region and 3) Laceration of 1 Cm. over the nose. He is of the opinion that the above three injuries are simple in nature and accordingly he issued Ex.P-2 wound certificate. In the cross-examination

P.W.4 clearly stated that the above injuries may be possible if a person falls on blunt object. As per the evidence of P.Ws.1 to 3, the accused beat him with a brick piece and fisted on the nose and thereby caused injuries.

Therefore, the medical evidence of P.W.4, the contents of Ex.P-2 wound certificate are corroborating the evidence of P.Ws.1 to 3 in respect of the injuries sustained by P.W.1.

21.Coming to the evidence of P.W.5, Head Constable who said that he received hospital intimation of P.w.1 and on that he rushed to the hospital on 31-12-2013 at 2-30 A.M. and recorded Ex.P-1 statement from P.W.1. Though it was suggested to P.W.5 that he is not the competent person to say the injured was in a fit condition, in Ex.P-1 statement the Medical Officer has clearly endorsed that the patient is conscious and coherent and answering the questions while recording the statement. Therefore, P.W.1 in a fit condition while P.W.5 recording his statement.

22.As per the evidence of P.w.6, the Investigating Officer, who narrated his part of role done in this case as noted in the charge sheet. Though P.W.6 admitted in the cross-examination that he has not seized the material object of brick stone from the scene of offence, it is not a material discrepancy to throw the entire case of the prosecution to the extent of giving acquittal to the accused as P.W.6 himself stated in the cross-examination that the scene of offence is located in the busy locality and if so it is not possible to the

Investigating Officer to collect the material object after receiving Ex.P-1 statement.

23.In view of the above foregoing reasons and clear discussion, it is held that the prosecution has successfully proved the offence leveled against the 7 accused beyond all reasonable doubt that the accused voluntarily causing hurt to P.W.1 with a dangerous weapon of brick stone and hence, the accused is liable for punishment.

24.In the result, the accused is found guilty for the offence punishable under Sec. 324 IPC and accordingly he is convicted of the same under

Sec.248 (2) Cr.P.C.

Dictated to the Personal Assistant, transcribed by him, corrected and

pronounced by me in the Open Court this the 1st day of May, 2015.

Sd/- K.Prathusha Kumari

II Addl. Judicial Magistrate of First Class,

Nellore.

25.When the accused is questioned with regard to the quantum of sentence, he submitted that his remaining brothers and parents were died and the children of his brothers are depending upon him and prayed to show mercy.

26. Since the offence is causing hurt with deadly weapon, it is not a fit case to invoke the benevolent provisions of P.O. Act or Sec.360 Cr.P.C.

27. By considering the submission of the accused, this Court feels that the following sentence would meet the ends of justice. Hence, the accused is sentenced to pay a fine of Rs.10,000/- (Rupees ten thousand only) and in default to pay the fine amount, he shall undergo simple imprisonment for a period of three (3) months for the offence under Sec.324 IPC. Out of the total fine amount of Rs.10,000/- (Rupees ten thousand only), Rs.9,000/- (Rupees

Nine thousand only) is ordered to pay to P.W.1 towards compensation under

Sec. 357 (3) Cr.P.C. No order needs to be passed as to the property since no property is deposited in this case.

28.The accused is also informed about the preferring of appeal and regarding means to engage Legal Aid counsel.

Sd/- K.Prathusha Kumari

II Addl. Judicial Magistrate of First Class,

Nellore.

8

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: -- FOR DEFENCE: -- NONE. PW.1: Y.Raja Vardhan PW.2: Y.Lakshmi Bhavani PW.3: A.Srinivasulu PW.4: Dr.Suresh Kumar, Civil Asst. Surgeon, DSR Government Hospital, Nellore. PW.5: S.James, Head Constable PW.6: P.Venkaiah, Sub-Inspector of Police.

DOCUMENTS MARKED

FOR PROSECUTION:-- Ex.P1: Statement of P.W.1. Ex.P2: Wound certificate. Ex.P3: Hospital Intimation. Ex.P4: First Information Report in crime No.1/2014 of 1 Town Police Station. Ex.P5: Rough-sketch of the scene of offence.

FOR DEFENCE: - NIL.

MATERIAL OBJECTS MARKED ON BEHALF OF BOTH SIDES

.. N I L…

Sd/- K.Prathusha Kumari

II AJMFC,

NELLORE.

THE COURT OF THE II ADDL. JUDL. MAGISTRATE OF I CLASS,

NELLORE.

Present: Smt.K.Prathusha Kumari, II Additional Judicial Magistrate of First Class, Nellore.

Tuesday, this the Fifth (5th) day of May, 2015.

C.C.No.176 of 2015.

State: Sub-Inspector of Police, No. 2 Town Police Station, Nellore City Complainant.

Vs.

1.Shaik Shahul, S/o Riyaz, aged 19 years, Muslim by caste, Khajanagar, Buchireddypalem,

2. Shaik Riyaz, S/o Late Kalesha, aged 40 years, Musilm by caste, Khajanagar, BuchireddypalemAccused.

This case is coming on 1-5-2015 before me for final hearing in the presence of the learned Assistant Public Prosecutor for the complainant and of Sri B.Murali, Counsel and legal aid counsel for the accused, upon hearing both sides and having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

1. This is a case filed by the State, represented by the Sub-Inspector of

Police, 2 Town Police Station, Nellore against the accused No.1 and 2 for the offence u/Sec. 411 IPC, alleging that on 17-9-2014 at about 9-30 hours the defacto-complainant locked his house and went to his native Village and during his absence some unknown offenders gained enter into the house by breaking the locks and committed theft of gold chain, weighing 10 grams and one bracelet, weighing 10 grams, all worth Rs.45,000/- from iron safe and decamped with the booty. On the next day the defacto-complainant returned to his home and noticed the same. Basing on the report of the defacto-complainant, the crime was registered and investigated into. During the course of investigation, on 5-1-2015 P.W.3, Investigating Officer arrested both the accused Nos.1 and 2 in the presence of mediators at East Railway

Station entrance in Nellore and recovered the stolen property under cover of mahazarnama. Later the recovered property got identified by the defacto- complainant in the presence of the elders under cover of identification 2 proceedings. After completion of the investigation, the accused were charge sheeted.

2. This case was taken on file against the accused for the offence Under

Sec.411 IPC.

3.On appearance of the accused, the copies of case documents were furnished to the accused as required under Sec. 207 Cr.P.C. On their examination under Section 239 Cr.P.C., a charge under Sec.411 IPC was framed and explained the same to the accused in Telugu, for which the accused denied the offence as pleaded not guilty and claimed to be tried.

4. During the course of trial, the prosecution examined PWs.1 to 4 and got marked Exs.P-1 to P-5 and M.Os.1 to 3 on its behalf.

5. After completion of the prosecution side evidence, the accused were examined under Sec.313 Cr.P.C. and explaining the incriminating material evidence available in the evidence of prosecution witnesses to the accused, for which the accused denied the same and reported no defence evidence on their behalf.

6. Arguments heard from both sides and perused the entire material on record.

7. Now the point for determination in this case is:--

Whether the prosecution has proved the guilt of the

accused for the offence under Sec.411 IPC beyond all reasonable doubt?

8.In order to prove its case, the prosecution has examined four witnesses out of eight cited in the charge sheet. P.W.1 is said to be the defacto-complainant and owner of the property. P.W.2 is one of the mediators for seizure mahazar, P.W.4 is one of the mediators for identification mahazar and P.W.3 is the Investigating Officer. The evidence of rest of the witnesses was closed as given up by the prosecution.

9. Apart from oral evidence on behalf of the prosecution, the following documents are got marked. Ex.P-1 is the report of P.w.1., Ex.P-2 is the 3 seizure mahazar, Ex.P-3 is the F.I.R., Ex.P-4 is the rough-sketch and Ex.P-5 is the identification mahazar. M.O.1 is the gold bracelet, M.O.2 is the gold chain and M.O.3 is the gold coated wrist watch.

10. While advancing the arguments on behalf of the prosecution, the learned Assistant Public Prosecutor submitted that P.W.3, Investigating

Officer has recovered the stolen properties from the possession of the accused in the presence of independent mediators and the same was supported by the independent mediator, P.W.2 and basing on the evidence of P.Ws.1 to 4 the accused are to be convicted.

11. On the other hand, the learned defence counsel contended that it is a false case foisted against the accused for statistical purpose and the accused never possessed the stolen properties and hence, the accused are to be acquitted.

12. Point:

To strengthen the case of the prosecution, the prosecution has examined the defacto-complainant as P.W.1. The evidence of P.W.1 speaks that on 17-9-2014 at 9-00 A.M., he left the house by locking and on the next day he returned to home and noticed that back side door was broke open by some unknown offenders and committed theft of gold bracelet, weighing 10 grams and gold neck chain, weighing 10 grams and gold coated wrist watch, (M.Os.1 to 3) from the house and on that he went to the 2 Town Police

Station and gave Ex.P-1 report. No cross-examination is made over P.W.1 on behalf of the defence on any aspects including the ownership of the P.W.1 for M.os.1 to 3.

13.In support of the evidence of the P.W.1, P.W.3 Investigating Officer claimed that on 18-9-2014 P.W.1 came to the Police station and gave a report and basing on the same, he registered the crime, visited the scene of offence, examined the witnesses and drafted Ex.P-4 rough-sketch. No cross- examination is made over P.W.3 on behalf of the defence in respect of thefting of M.Os.1 to 3 from the house of P.W.1 and P.W.1 giving report.

4

14. Further, the prosecution has examined one of the elders, who said to have conducted the property identification proceedings in respect of recovered property as P.W.4. The evidence of P.W.4 speaks that on 6-1-2015 he and L.W.7, K.Gangadhar have conducted the property identification proceedings in a Sathram located opposite to II Town Police Station, Nellore in respect of the case property and in their presence one male person has identified his property under cover of Ex.P-5 mahazar which was attested them. In the cross-examination made on behalf of the defence, P.W.4 clearly stated that 10 to 15 gold items were placed in the identification proceedings, out of which three articles, i.e., watch, neck chain and a bracelet were identified by the said male person. Though P.W.4 was subjected to cross- examination on behalf of the defence by putting some suggestions, he clearly denied the same and nothing is elicited in favour of the defence against the version of the prosecution.

15. Therefore, the prosecution has successfully established through the evidence of P.Ws.1, 3 and 4, documents Exs.P-1, P-3 to P-5 and M.Os.1 to 3 that P.w.1 is the owner of M.O.s.1 to 3 and M.Os.1 to 3 were committed in theft in the absence of P.W.1 from his house on 17-9-2014.

16. Coming to the further evidence of P.w.3 that during the course of investigation in the crime he registered the crime basing on the report of

P.W.1 and on 5-1-2015 at Railway Station, Nellore he arrested the accused

No.1 and 2 in the presence of the mediators and recovered the stolen properties involved in this case from their possession under cover of the

Ex.P-2 mahazar. Nothing is elicited in the cross examination of the defence to discard the version stated by P.W.3 in the chief examination.

17. To corroborate and support the version of the Investigating Officer,

P.W.3, one of the independent mediators, who examined as P.W.2 claimed that on 5-1-2015 at 9-00 A.M., at the request of II Town Police, he went to

Police Station, accepted to act as mediator and on that the Police were brought him and L.W.5, K.Prabhakar Reddy to the Railway Station located towards eastern side in Nellore, where the police have found two persons 5 suspiciously, on that the police have enquired them and on search they have noticed two small cloth packets, in which the said two offenders were possessed gold articles and then the police have arrested the accused and seized the gold articles under cover the mahazar.

18. Furthermore, P.W.2 has clearly identified the accused No.1 and 2

before the Court as that of the offenders whom the police have arrested and

recovered the properties. In the cross-examination made on behalf of the defence, P.W.2 clearly stated that the description of the articles which were seized from the possession of the accused. Nothing is elicited from the evidence of P.W.2 in favour of the version of the defence and against the case of the prosecution case. Therefore, the evidence of the independent witness P.W.2 is fully corroborated and supported the version of

Investigating Officer, P.W.3. Hence, the prosecution has successfully established the offence under Sec.411 of I.P.C., against the accused beyond all reasonable doubt.

19. As per Sec.114 (a) of the Indian Evidence Act, if the person, who possessed the stolen property soon after its stolen, without any account for the same is said to be the thief of the said property. In this case the accused failed to explain or account for possession of the stolen properties soon after they were committed in theft. Therefore, the accused No.1 and 2 are said to be thieves of the stolen properties of M.Os.1 to 3. Hence, the accused are liable for conviction u/Sec. 411 IPC

20. In the result, the accused Nos.1 and 2 are found guilty for the offence punishable under Sec. 411 IPC and accordingly they are convicted of the same under Sec.248 (2) Cr.P.C.

Dictated to the Personal Assistant, transcribed by him, corrected and

pronounced by me in the Open Court this the 5th day of May, 2015.

Sd/-K.Prathusha Kumari

II Addl. Judicial Magistrate of First Class,

Nellore.

6

21.When the accused are questioned with regard to the quantum of sentence, the accused No.1 is submitted that he is ready to pay fine amount and he sought to leave his father without any punishment. The Accused No.2 did not submit anything in respect of the quantum of sentence.

22.Since the offence is theft, which is against the society, it is not a fit case to invoke the benevolent provisions of P.O. Act or Sec.360 Cr.P.C. But by considering the submission of the accused, this Court feels that the following sentence would meet the ends of Justice.

23. Hence, the accused Nos.1 and 2 are sentenced to undergo simple imprisonment for a period of six (6) month each and also sentenced to pay a fine of Rs.500/- (Rupees five hundred only) each and in default of payment of fine, they shall undergo simple imprisonment for a period of one (1) month each for the offence u/Sec.411 of I.P.C. M.Os.1 to 3, which are in the interim custody of the P.W.1 shall holds good after expiry of the appeal time.

24.The remand period if any already undergone by the accused shall be set off under Sec.428 Cr.P.C. The accused are informed their right of appeal against the judgment before the Hon’ble District Court and go get free legal aid from the D.L.S.A., Nellore to prefer an appeal if they intend.

Sd/-K.Prathusha Kumari

II Addl. Judicial Magistrate of First Class,

Nellore.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: -- FOR DEFENCE: -- NONE. PW.1: S.Victor Samuel PW.2: P.Anjani Kumar PW.3: K.Sambasiva Rao, Sub-Inspector of Police PW.4: R.Ravi Kumar 7

DOCUMENTS MARKED

FOR PROSECUTION:-- Ex.P1: Report of P.W.1. Ex.P2: Seizure mahazar. Ex.P3: First Information Report in crime No.253/14 of II Town Police Station, Nellore. Ex.P4: Rough-sketch of the scene of offence.

Ex.P5: Identification mahazar.

FOR DEFENCE: - NIL.

MATERIAL OBJECTS MARKED ON BEHALF OF PROSECUTION

M.O.1: One gold bracelet. M.O.2: One gold chain. M.O.3: One gold coated wrist watch.

MATERIAL OBJECTS MARKED ON BEHALF OF DEFENCE

N I L..

Sd/-K.Prathusha Kumari

II AJMFC,

NELLORE.

IN THE COURT OF THE II ADDL. JUDL. MAGISTRATE OF I CLASS: NELLORE

Present: Smt.K.Prathusha Kumari, II Additional Judicial Magistrate of First Class, Nellore

Tuesday, this the Fifth (5th) day of May, 2014

C.C.No.1023 of 2014

State: Sub-Inspector of Police, No.2 Town Police Station, NelloreComplainant.

Vs.

1.Shaik Vengamma, W/o Ramu, aged 45 years, Dudekula by caste, Maruthinagar, 2nd street, Mypadu Gate, Nellore

2.Sharabu Ramu, S/o Venkataswamy, aged 52 years, Kamsali by caste, Maruthinagar, 2nd street, Mypadugate, Nellore

3.Shaik Mobeena, W/o Babu, aged 25 years, Dudekula by caste, New Colony, Zakir Hussain Nagar, Nellore

4.Shaik Ameena, W/o Janu, aged 20 years, Dudekula by caste, New Colony, Zakir Hussain Nagar, Nellore Accused.

This case is coming on 4-5-2015 before me for final hearing in the presence of the learned Assistant Public Prosecutor for the complainant and of Smt.M.Sivaparvathi, Counsel for the accused, upon hearing both sides and having stood over for consideration till this day, this Court delivered the following: -

J U D G M E N T

1.This is a case filed by the State, represented by the Sub-Inspector of

Police, 2 Town Police Station, Nellore against the accused Nos.1 to 4 for the offences punishable under Secs.323 and 290 r/w 34 IPC.

In brief the case of the prosecution as per the contents of the charge sheet is that on 26-8-2014 at about 11-00 hours the accused No.1 to 4 abused the defacto-complainant in filthy language while she was coming out from her house with regard to the flowing the drainage water fro the house of 2 from the house of accused No.1 towards the house of the defacto- complainant, they caught hold the tuft of the defacto-complainant and beat her with hands and legs. Basing on the report of the defacto-complainant, the crime was registered after obtaining the permission of the Court and investigated into. The medical officer, who examined P.W.1 issued wound certificate by opining that the injuries sustained by her are simple in nature.

After completion of investigation, the accused were charge sheeted.

2.This case was taken on file against the accused for the offences punishable Under Secs. 323 and 290 r/w 34 IPC.

3.On appearance of the accused, the copies of case documents were furnished to the accused as required u/S 207 Cr.P.C. The accused were examined under Sec. 251 Cr.P.C., and explaining the substance of accusation leveled against the accused for the offences under Sec. 323 and 290 r/w 34

IPC, for which they denied the offences as pleaded not guilty and claimed to be tried.

4. During the course of trial, the prosecution examined PWs.1 to 5 and got marked Exs.P-1 to P-6.

5. After closure of the prosecution side evidence, the accused were examined under Sec. 313 Cr.P.C., and explained the incriminating evidence available in the evidence of prosecution witnesses, for which the accused denied the same and reported no defence evidence on their behalf.

6.Heard the arguments on both sides.

7. Now the point for determination in this case is:--

“Whether the prosecution has established the guilt of the

accused for the offences under Secs. 323 and 290 IPC

beyond all reasonable doubt “?

8. In order to prove its case, the prosecution has examined five witnesses out of six cited in the charge sheet. P.W.1 is said to be the injured-cum- defacto-complainant, P.Ws.2 and 3 are the eye witnesses for occurrence of 3 the incident, P.w.4 is the Medical Officer, who treated P.W.1 and issued wound certificate and P.W.5 is the Investigating Officer. The evidence of rest of the witnesses was closed as given up by the prosecution.

9.Apart from oral evidence on behalf of the prosecution, the following documents are got marked. Ex.P-1 is the report of P.W.1, Exs.P-2 and P-3 are the 161 Cr.P.C. statements of P.Ws.2 and 3, Ex.P-4 is the wound certificate,

Ex.P-5 is the F.I.R. and Ex.P-6 is the rough-sketch.

10. While advancing the arguments on behalf of the prosecution, the learned Assistant Public Prosecutor submitted that basing on the evidence of

P.Ws.1, 4 and 5 the accused are to be convicted.

11. On the other hand, the learned defence counsel strongly contended that the independent witnesses, P.Ws.2 and 3 are not supported the version of P.W.1 and P.W.1 foisted false case against the accused, hence, the accused are to be acquitted.

12. Point:

It is an admitted fact that P.W.1 and the accused No.1 are the neighbors with each other and residing in same locality. The independent witnesses P.Ws.2 and 3 have turned hostile wholly in spite of facing cross- examination on behalf of the prosecution. Therefore, the solitary evidence of

P.W.1 is alone remaining for the prosecution in respect of the manner of incident and specific overt acts made against the accused, hence, the evidence of P.W.1 is to be scrutinized with due care and caution.

13. Coming to the evidence of P.W.1, which speaks that about 4 or 5 months ago on one day between 10-00 and 11-00 A.M. while she was at her house, herself and accused No.1 were exchanged words in respect of flowing drainage water towards their house and on that she questioned the same with accused No.1 and after 10 minutes the accused No.1 came along with accused No.2 and 3 to P.W.1, abused her in filthy language, by catching hold 4 of her tuft, they pushed her on the ground and beat her with hands and kicked wit legs, then she went to Police Station and lodged Ex.P-1 report. In the cross-examination made on behalf of the defence, P.W.1 clearly admitted that there is no drainage canal to the house of herself and the accused and drainage water from their bath rooms is projecting towards vacant plot situated by the side of her house. Further P.W.1 stated that he has not noticed whether there is drainage tank covering with cap to the bath room of the accused. After examining the entire evidence of P.W.1, it is clear that no incrimination and overt acts are made against the accused No.2 during the evidence before the Court. But as per the case of the prosecution and Ex.P-1 report the accused No.2 is also involved in this case.

14. Further, there is no independent corroborative evidence to the evidence of P.W.1 in respect of his overt acts made against the accused No.1, 3 and 4 as P.Ws.2 and 3 turned hostile wholly. As stated supra, without the drainage water from the bath rooms of P.w.1 and the accused is projecting towards vacant plot, the version of altercation made between P.W.1 and the accused No.1, 3 and 4 cannot be believed. Further, the evidence of P.W.1 is not showing any confidence and trustworthy to the extent of giving conviction to the accused No.1, 3 and 4. Hence, the solitary evidence of

P.W.1 is not sufficient to establish the manner of incident and specific overt acts made against the accused No.1, 3 and 4.

15. Coming to the evidence of P.Ws.4 and 5 the Medical Officer and the

Investigating Officer, who narrated their part of role done in this case, however, the prosecution failed to prove the offences leveled against the accused beyond all reasonable doubt and hence, the accused are entitled for acquittal.

16. In the result, the accused Nos.1 to 4 are found not guilty for the offences under Secs. 323 and 290 r/w 34 IPC and accordingly they are acquitted of the same under Sec.255 (1) Cr.P.C. The bail bonds of the 5 accused with that of their sureties shall stand canceled after expiry of six months. No order needs to be passed as to the property, since no property is deposited in this case.

Dictated to Personal Assistant transcribed by him, corrected and

pronounced by me in the Open Court, this the 5th day of May, 2015.

Sd/- K.Prathusha Kumari

II Additional Judicial Magistrate of First Class,

Nellore.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: - FOR DEFENCE: - NONE. PW.1: B.Bujjamma PW.2: M.Hari Babu PW.3: K.Suresh Reddy PW.4: Dr.Sk.Kalesha Saheb, Medical Officer PW.5: K.Sambasiva Rao, Sub-Inspector of Police

DOCUMENTS MARKED

FOR PROSECUTION:-- Ex.P1: Report of P.W.1. Ex.P2: 161 Cr.P.C. Statement of P.W.2. Ex.P3: 161 Cr.P.C. statement of P.W.3. Ex.P4: Wound certificate. Ex.P5: First Information Report in crime No.247/2014 of 2 Town Police Station, Nellore. Ex.P6: Rough-sketch of the scene of offence.

FOR DEFENCE:--NIL.

MATERIAL OBJECTS MARKED ON BEHALF OF THE BOTH SIDES

… N I L …

Sd/- K.Prathusha Kumari

II AJMFC,

NELLORE.