Ms K.rani

IN THE COURT OF SPL. JUDICIAL MAGISTARATE OF FIRST CLASS

(FOR PROH. & EXCISE OFFENCES) AT NALLAGONDA

Present: Smt. K. Rani, Spl. Judl. First Class Magistrate, (For Proh. & Excise Offences), Nallagonda.

Dated this the 16th day of November, 2018

C.C. No. 158 of 2017

Between:- The State of Telangana through S.H.O. P.S. Nalgonda-I 1Town. …Complainant AND

Md. Jameel Ahmed, S/o: Md. Ismail, R/o: Rahamania Masjid, Nalgonda Town, N/o: Kanagal Village and Mandal. …Accused This case is coming before me today for final disposal in the presence of APP for State and of Sri Md. Raheemuddin, Advocate having heard and having stood over for consideration till this day this court delivered the following:-

JUDGMENT

1. The brief facts of the prosecution case is that the Sub-Inspector of

Police, Nalgonda-I Town has filed charge sheet against the accused person alleging that on 12.03.2001, she got married with accused, due to family disputes on 01.05.2014, they got divorced as per their religious tradition. On 19.08.2014, during the time of Telangana State “Samagra Survey” her ex-husband/ accused criminally trespassed into her house and created nuisance as he want her also to include his details on her address. Again on 23.08.2014 at about 17.00 hours, while she was proceeding in bazaar, when she reached near

Rahamanbagh mosque, in meantime, accused came there and wrongfully restrained her and threatened her with dire consequences.

Basing on the report, L.w.5 registered a case, issued FIR. During the course of investigation, examined the witnesses. On 15.09.2014, accused surrendered before him as such, notice issued under Sec.

41(A) Cr.P.C. to the accused. After completion of investigation, L.W.7 filed charge sheet.

2

2. The accused person was examined u/s 251 Cr.P.C read over and explained in vernacular language for which he pleaded not guilty and claimed to be tried.

3. To substantiate its case, the prosecution has examined PWs.1 to 5 and got marked Exs.P1 to P3.

4. After closure of the prosecution evidence, the accused person was examined under Section 313 Cr.P.C with reference to incriminating material appearing in the evidence of prosecution witnesses, he denied the same and reported no defence evidence.

5. Heard both sides.

6. Point for determination is:- “Whether the prosecution could prove the guilt of accused person beyond reasonable doubt for the offence punishable U/s. 341, 448, 506 IPC?

7. POINT :-

Prosecution to substantiate its case, examined P.w.1 to P.W.5.

P.W.1, Ajeema Praveen, deposed in her evidence that accused is her Ex- husband and her marriage with accused was performed on 12.03.2001 as per muslim customs. Accused used to quarrel with her on petty issues, as such, she left to her parents’ house. Later on 01.05.2001, she obtained divorce through khulanama , due to the petty disputes in between herself and accused. P.W.1 further deposed that accused was previously got married and got 4 children after the divorce from his first wife, accused married her. After 3 months of obtaining the divorce from accused, on his request, she joined the conjugal society of accused. During the stay, she gave birth to two male child, but there was no change in the accused attitude and used to harass her and beat with stones and belt and also used to beat with electrical 3 instruments and iron rod. As such, she left the accused house and stay at her parents’ house along with her children. On 19.08.2014, at the time of Samagra Survey, conducted by the government, accused forcibly trespassed into her house and quarreled with her for entering his details in the said survey as a family member along with her.

Accused not only quarrel with her but used criminally force to her and on the interference of P.W.2 to P.W.4, the accused left the place. On 23.08.2014 when she went to purchased vegetables, accused followed her and threatened with dire consequences of kill her if she got marry to any other person and further deposed that accused on several occasions threatened her with dire consequences and also killing her.

On 23.08.2014, she gave a complaint against accused person.

8. P.W.2, Maddela Shakunthala has deposed in her evidence that about 4 years ago, when she stay in a house rented of P.W.1, some person came for survey and the accused came and quarreled with

P.W.1 and during the quarrel, P.W.1 and accused exchanged heating words. P.W.2 identified the accused person as the same person quarreled with the P.W.1 and stated that she do not know the reason of the quarrel.

9. P.W.3. Animalla Eshwaramma has deposed that she know the accused and P.W.1 and do not know anything about this case.

10. P.W.4, Abdul Rahaman has deposed in his evidence that at the time of quarrel, he used to reside as neighbour in the same locality of

P.W.1. P.W.1 and accused are wife and husband and both used to quarrel frequently and in the year, 2014, at the time of conduct of

Samagra Kutumba Survey , accused visited P.W.1 house and quarreled with her for entering his name and threatened with dire 4 consequences, as such, he separated the accused person from P.W.1 and the said house is in the name of P.W.1.

11. P.W.5, O. Hanumantha Reddy, has deposed in his evidence that on 23.08.2014, he received a complaint from P.W.1 and registered the case, examined and recorded the statements of witnesses and visited the scene of offence. Later on completion of investigation, he filed charge sheet.

12. During the cross examination, it is elicited from P.W.1 that one

Sayyed Saleem is her uncle and one Naveen is son of said Sayyed

Saleem are residing next to her house and also one Raheemuddin is her uncle and residing next to her house. But denied the suggestion that one Habeeb Bai is her neighbour. P.W.1 admitted that one

Sabera is her family friend residing in a street after two streets. It is elicited from P.W.1 that her house is situated at the 4 junction and there is gathering of children in the evening hours. P.W.1 denied the suggestion that after filing of this case, she never visited the accused house and accused has taken care of her children, but admitted that accused used to meet her children outside her house and also admitted that she did not file any khulanama certificate obtaining from the khazi and also denied that she know the validity of khula divorce at the time of obtaining from the accused person. P.W.1 denied the suggestion that she filed a false case against the accused person as accused attended the marriage of his first children out of her dis-interest and also denied that accused never harassed her and never threatened her with dire consequences at public place. P.W.1 admitted that she has not mentioned in the complaint that accused used to beat her with electrical instrument as available in his hand and denied the suggestion that she did not mention in her 161 Cr.P.C.

5 statement that L.W.2 was present at the time of incident and on interference of L.W.2 and some others, accused left the place. P.W.1 admitted that she has not mentioned in the complaint about the presence of L.W.2. P.W.1 admitted that on 19.08.2014, she did not file any case against the accused person, but she volunteered that on several occasions, accused trespassed into the house and quarreled with her and never threatened her with dire consequences and also denied that Rahamanbagh street is a busy street. During the cross examination of P.W.3, it is elicited by the learned APP that prior and subsequent to the conduct of survey by the government, accused was not residing with P.W.1 and admitted that P.W.1 stated to her that she got divorce from accused person and also admitted that Samagra

Kutumba Survey conducted for collection of details about the family members and the properties belongs the families.

13. During the cross examination of P.W.4, it is elicited from accused counsel that at the time of incident, the quarrel took place inside the house and he did not heard of threatening of killing made by the accused person and also do not know the family matters pertaining to the marriage of P.W.1 with accused person. But denied the suggestion that he has deposing false evidence at the instance of P.W.1 and admitted that he has not witnessed the incident that took place at

Rahmanbagh, but he came to know from his wife about the incident informed by the P.W.1. During the cross examination of P.W.5, it is elicited by learned counsel for accused that P.W.1 has not stated in her statement that accused beat her with electrical instrument and rod and also did not mentioned the names of L.W.2 to L.W.4 in the complaint as neighbour and also he admitted that he has not examine the relatives residing adjacent to the P.W.1 house as they were not present at the time of incident and also admitted that P.W.1 has not 6 given any complaint on 19.08.2014 and he did not collected any divorce documents from the P.W.1.

14. 441. Criminal trespass—Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains therewith intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass.”

448. Punishment for house-trespass—Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

15. On the appreciation of the prosecution witnesses, it is the contention of the P.W.1 that after the marriage with accused, she lead marital life for some period and due to the disputes in between them, she got divorce from him in 2001 as per the muslim customs and started living separately from accused person, but subsequently on the request of accused and also on his promise to look after well being of her, she joined accused person in-spite of getting divorce and lead marital life till 2013 and gave birth to 2 male children, but as there was no change in the attitude of the accused person and harassment of accused person by beating with stone and belt and also electrical instrument , she left and separately living at her parents’ house.

During the separation, accused used to visit her and quarreled with her on many occasions and threatened her with dire consequences to killing her . But on 19.08.2014, at the time of conduct of Samagra survey by the Telangana government, accused has allegedly trespassed into her house and entered into quarrel with her for entering his name as a family member along with her, on refusal , accused quarreled with her and used criminal force. But subsequently, on 7 23.08.2014, when she went to buy vegetables, accused followed her and threatened her on the event she performing marriage to anyone, as such, she filed a complaint.

16. It is evident from the evidence of P.W.1 that she has not filed any complaint against the accused person on 19.08.2014, but on the subsequent threatening of accused person, on 23.08.2014, she filed a complaint.

17. It is the contention of the accused counsel that P.W.1 has not filed any compliant on the date of alleged offence. Hence, no explanation has been given by the P.W.1 as to the delay in filing of complaint. Accused counsel elicited from P.W.1 that accused used to visit her house, but she never talk to him, but accused used to see her children outside the house and used to left. Another contention of the accused counsel is that police failed to examine the relatives of P.W.1 residing adjacent to P.W.1 house, but during the cross examination of

P.W.5, he categorically stated that has the said relatives were not present at the time of incident, as such, he did not examine them, but examined other witnesses. P.W.3 has turned hostile, did not support the prosecution case as to her presence at the time of incident. In the cross examination, she categorically admitted that she came to know from P.W.1 about the divorce of P.W.1 with accused person and also that accused was not residing with P.W.1 prior to or subsequent to the conduct of survey by the government. P.W.2 eye witness has supported the version of P.W.1 as to the visit of accused person on the date of conduct of survey of entering into quarrel with P.W.1.

accused counsel failed to elicit anything from the P.W.2. P.W.4 being the circumstantial witnesses has supported the P.W.1 version as to the visit of accused person at the time of conduct of Samagra Kutumba 8 survey entering into the quarrel with the P.W.1, but during the cross examination, he admitted that quarrel took place inside the house and he did not heard of threatening of killing given by the accused person.

Another contention raised by the accused counsel that P.W.1 has not filed any document to show that she got divorce from accused person, but on the appreciation of P.W.3 she admitted that prior to and after conduct of survey, accused was not residing with P.W.1 and she came to know through P.W.1 that she got divorce from the accused person.

18. On the overall appreciation of the prosecution witnesses, it is evident and also undisputed fact that P.W.1 got married accused person and lead marital life for some time even after divorce with the accused and gave birth to two male child, subsequent to the disputes and harassing of the accused person, P.W.1 residing separately from the accused person. P.W.2 and P.W.4 has supported the P.W.1 version and there is consistency in the evidence deposed by them as to the visiting of the accused person at the time of conduct of Samagra Survey by the Government and entering into the quarrel. P.W.3 in-spite of turn hostile has supported the prosecution evidence to the extent of accused residing separately from P.W.1 prior and subsequent to the survey. This strengthen the evidence of P.W.1 that on the date of alleged offence caused has trespassed into her house and entered into quarrel and threatened with dire consequences. P.W.2 being an eye witness has not stated above the threatening given by the accused person. P.W.4 being the circumstantial witness admitted that he has not heard the threatening of killing by the accused person. This court is of considered view that prosecution proved that accused has criminally trespassed into the house of P.W.1, but failed to support the evidence of P.W.1 to the extent of threatening of P.W.1 with dire consequences and they is no evidence to show that accused by entering into the P.W1 house has 9 wrongfully restrained or confined the P.W1. the prosecution able to proved the guilty of the accused person for an offence under section.448 IPC and failed to prove the offence under section.341 and 506 IPC, beyond reasonable doubt. Hence the accused is entitled for benefit of doubt for an offence under sec. 341 ,506 IPC.

19. In the light of above discussion, accused person is found guilty for an offence under Sec. 448 IPC.

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

pronounced by me in open Court on this 16th day of November,

2018.

Spl.Judl.First Class Magistrate (For Proh.& Excise Offences ) Nallagonda.

20. Heard the accused on the quantum of sentence. Accused pleaded mercy and got family, if he send to imprisonment, his family will face hardship and he quarrel with his wife without any intention of causing hurt and requested for imposing of fine. On considering the submissions, this court is of view that imposing fine would meet ends of justice as it is a family matter. Accordingly, accused is convicted under Sec. 255(2) Cr.P.C. Accused is sentenced to pay fine of

Rs.1,000/- for an offence under Sec. 448 IPC. In-default to pay of fine to undergo Simple Imprisonment for a period of 15 days.

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

pronounced by me in open Court on this 16th day of November,

2018.

Spl.Judl.First Class Magistrate (For Proh.& Excise Offences ) Nallagonda.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

Prosecution Defence PW-1 Ajeema Parveen PW-2 Maddela Shakunthala PW-3 Animalla Eshwaramma PW-4 Abdul Rahaman PW-5 O. Hanumantha Reddy 10

EXHIBITS MARKED

Ex.P-1 Complaint Ex.P-2 Sec. 161 Cr.P.C. statement of P.W.3 Ex.P-3 First Information Report

M.Os. Marked -NIL-

Spl.Judl.First Class Magistrate (For Proh.& Excise Offences ) Nallagonda.

IN THE COURT OF SPL. JUDICIAL MAGISTARATE OF FIRST CLASS

(FOR PROH. & EXCISE OFFENCES) AT NALLAGONDA

Present: Smt. K. Rani, Spl. Judl. First Class Magistrate, (For Proh. & Excise Offences), Nallagonda.

Dated this the 14th day of November, 2018

C.C. No.650 of 2013

Between:- The State of Telangana through S.H.O. W.P.S. Nalgonda. …Complainant AND

A.1 Mandula Shekar @ Chandra Shekar S/o Ramachander, Aged: 30 years, Occ: Private employee, R/o H.No.1-7-1022/8/9, Ramnagar, Hyderabad. A.2 Mandula Balamma W/o Ramchander, Aged: 65 years, Occ: House wife, R/o H.No.1-7-10228/9, Ramnagar, Hyderabad. …Accused This case is coming before me today for final disposal in the presence of APP for State and of Sri N.Narsimha Reddy, Advocate for the Accused No.1 and No.2 and having heard and having stood over for consideration till this day this court delivered the following:-

JUDGMENT

1. The brief facts of the prosecution case as enumerated in charge sheet:-

The Inspector of Police, W.P.S. Nalgonda has filed charge sheet against the accused persons alleging that the L.W.1 namely Mandula

Kavitha @ Sneha marriage was performed with A.1 on 30.04.2008 as per the rites and rituals prevailing in their community. At the time of marriage her parents gave Rs.2,00,000/- net cash, 5 tulas gold, under pasupukunkumalu. After the marriage they lived happily for about one year. After that A.1 harassing her mentally and physically demanding to bring additional dowry an amount of Rs.50,000/- from her parents.

A.2 and her sister-in-law Nalla Bhagyalaxmi/alleged A.3 all together necked her out of the house. Since last 7 months L.W.1 residing with her parents and L.w.1 is having 3 years son. The above matter placed 2

before the elders several times, even though accused persons did not

change their attitude. Basing on the report, the investigating officer registered a case, issued FIR. During the course of investigation, L.W.9 examined and recorded the statement of witnesses. On 06.02.2013,

A.1 was arrested and sent him to court for judicial remand, whereas

A.2 has obtained anticipatory bail from the Hon’ble Principal District and Sessions Judge, Nalgonda. After completion of investigation, filed charge sheet against the accused persons.

2. This case is taken on file for the offence punishable U/s.498.A IPC against the accused persons. On appearance of accused persons, copies of documents were furnished to them as contemplated U/sec. 207

Cr.P.C.

3. The accused persons were examined u/s 239 Cr.P.C and charges

U/s. 498.A IPC, were framed, read over and explained in vernacular language, for which they pleaded not guilty and claimed to be tried.

4. During the trial, the prosecution examined P.W.1 and P.W.7 and got marked Exs.P.1 and P.5.

5. The accused persons were examined as contemplated U/sec. 313

Cr.P.C. explaining the incriminating evidence appearing in prosecution witnesses, for which the accused persons denied the same and reported no defence.

6. Heard both sides. Perused the entire record.

7. Points for determination:- “Whether the prosecution is able to prove the guilt of the accused persons for an offence under Sec. 498-A IPC., beyond reasonable doubt?” 3

8. POINT :-

Prosecution to support and substantiate its case, has examined

P.W.1 to P.W.7. P.W.1, Mandula Kavitha has deposed in her evidence that her marriage was performed with A.1 on 30.04.2008 and at the time of marriage, her parents gave Rs.2,00,000/-, 5 thulas of gold and one motor cycle towards dowry and for about one year she lead marital life with A.1 and subsequently she became pregnant, but

A.1,A.2, Nalla Bhagyamma and one Vinodh Kumar has driven out from their house by demanding additional dowry of Rs.50,000/-.

During her stay, A.1 used to beat her in a drunken condition and abused in a filthy language and said Bhaghyalaxmi has supported the acts of A.1 and A.2. The said Vinodh Kumar stayed with them as her brother-in-law died and said Vinodh Kumar used to instigate A.1 by make a false allegation against her. She gave birth of male child in the year, 2010, but all the accused persons did not turn up to see her child, in-spite of the hospital near to the A.1 house. Twice panchayath was took place in the presence of Boya Narsimha, Boya

Yadaiah at Ramnagar, Hyderabad, but no compromise out, as such, she filed a complaint against the accused person.

9. P.W.2, Boya Yadamma has re-iterated the facts deposed by the

P.W.1 as to the marriage of P.W.1 with A.1 and demanding of additional dowry of Rs.50,000/- by accused persons. She further deposed that when P.W.1 was preganant, she was driven out, a panchayath took place in the presence of said Boya Narsimha, Boya Yadaiah, Boya

Ambetkar at Ramnagar, Hyderabad, but no compromise worked out.

P.W.1 gave birth to a male child, but all the accused persons did not turn out to see P.W.1.

4

10. P.W.3, Mudigonda Murali, P.W.4, Nampalli Manga, P.W.5,

Nampalli Daniel cited as circumstantial witnesses as deposed in their evidence that they do not know P.W.1 and P.W.2, but they know

A.1 and do not know anything about the case.

11. P.W.6, K. Malleshwari has deposed in her evidence that on 29.01.2013, she received the CD file from P.W.7 and examined and recorded the statements of L.W.1 to L.W.3 and L.W.5 and L.W.6 . Later she handed over the CD file to P.W.7.

12. P.W.7, P. Surekha, Investigating officer has deposed in her evidence that on 29.01.2013, she received a complaint from P.W.1 and registered the case vide crime No. 19/2013 for an offence under Sec.

498-A IPC and Sec. 4 of D.P. Act and entrusted the investigation to

P.W.6 and on completion of investigation, she filed charge sheet.

13. During the cross examination of P.W.1, it is elicited from P.W.1 that her parents worked as an agricultural labour and her father is no more. Further P.W.1 admitted after the marriage, she completed her graduation and at the time of marriage, she was studying degree second year and completed her B.Ed course after the marriage and at present she is working as a private teacher at Panthangi village since one year. P.W.1 admitted that at the time of marriage, A.1 studied intermediate and was doing a private job and after her marriage, accused father died and also after 4 or 5 months of her marriage, wife of A.1 elder brother pre-deceased and got one son and herself and accused person and with brother-in-law son together stayed. P.w.1 denied the suggestion that she returned to her parents house after 5 months, as she was not interested to reside with all the family members of A.1. P.W.1 admitted that in the complaint and in her statement, she stated that Rs.2,00,000/-, 5 thulas of gold was given 5 towards pasupukumkuma and she did not stated in complaint or in statement that Rs.2,00,000/- and 5 thulas of gold and motor cycle was given to the accused person towards dowry and also admitted that she has not mentioned in complaint or statement that at the time of marriage a motor cycle was presented to A.1 and denied the suggestion that at the time of marriage a motor cycle was not presented to A.1 and denied the suggestion that her parents do not have financial capacity to give Rs.2,00,000/-, 5 thulas of gold and motor cycle .

P.W.1 admitted in her cross examination that she do not remember whether she stated to the police that A.1 used to beat her in a drunken condition and abused her in a filthy language and Bhagyalaxmi has supported the acts of A.1 and A.2. P.W.1 admitted that she did not stated to the police that said Vinodh Kumar used to insist A.1 by making false allegations against her and admitted that she did not stated in her complaint or in 161 statement that accused persons did not turn up to see her child in hospital even it to be near to the accused persons house. P.w.1 admitted that she did not stated in her complaint or 161 statement about details of the panchayath that took place prior to the filing of complaint and admitted that after registering the case, she stay with A.1 for some time and also admitted that she is ready to join conjugal society of A.1 if he takes up residence in or around Panthangi village to reside with A.2, but not with said

Vinodhkumar and denied the suggestion that she want to reside at her village as she is not interested to reside with A.1 relatives.

14. During the cross examination of P.W.2 she admitted that herself and her husband used to do coolie work and P.W.1 stayed at her house till attending 22 months of P.W.1 child, but denied the suggestion that P.W.1 left A.1 as she was not interested to lead marital life with A.1 along with her family members, but admitted that 6 after registering of the case, they informed to the accused person through panchayath elders that P.W.1 is ready to join A.1 on the condition of residing at Panthangi village or Choutuppal. P.W.2 admitted that A.1 is doing job at Hyderabad and got own house and admitted that P.W.1 is not interested to reside with A.1 at Hyderabad and she volunteered that A.1 does not look after well of P.W.1 if she reside at Hyderabad.

15. Learned APP failed to elicit anything from P.W.3 to P.W.5 during their cross examination. It is elicited from P.W.6 that she has not examined any of the neighbours of Ramnagar, Hyderabad and admitted that in P.w.1 and P.W.2 161 Cr.P.C. statement they did not mention about the presenting of motorcycle to A.1 at the time of marriage and also that dowry was given to A.1. P.W.6 admitted that in 161 Cr.P.C.

statement does not mentioned that one Vinodh Kumar has harassed her and necked out the P.W.1 and also instigated A.1 for harassing

P.W.1 and admitted that P.w.1 has not mentioned in her Sec. 161

Cr.P.C. statement that A.1 beat her in a drunken condition and abused her in a filthy language.

16. On the appreciation of the evidence of the prosecution witnesses, it is the contention of the prosecution that A.1 and A.2 along with one

Bhagya Laxmi and Vinodh Kumar has harassed P.W.1 by demanding

additional dowry of Rs.50,000/- and necked out from their house when

she was pregnant and later P.W.1 gave birth to male child, but none of the accused turn up to see P.W.1 and her child and subsequent panchayath was conducted, but no compromise worked out.

17. During the arguments the learned counsel for accused submitted that accused persons never harassed P.W.1 for want of

additional dowry and never necked out, but P.W.1 herself left the

7 house as she was not interested to lead marital life with A.1 along with his family members and also further contended that P.W.1 admitted in cross examination that she is ready to join A.1 if he reside at

Panthangi village, parent village of P.W.1. Accused counsel further contended that the evidence of prosecution does not attracts the ingredients of Sec. 498-A IPC and Sec. 4 of D.P. act and to convict under Sec. 498-A IPC simple cruelty is not sufficient.

18. P.W.1 admitted that she has not stated in her complaint or in their statement that she not mentioned about the gift of motor cycle to the A.1 at the time of marriage. Neither P.W.1 and P.W.2 has stated in their 161 statement about the beating of A.1 in drunken condition and abused P.W.1, but P.W.1 has stated a new fact in a chief examination about the beating of A.1 and abused in a filthy language.

P.W.1 admitted that she did not stated about the beating of A.1 in a drunken condition and admitted that she do not remember whether she stated to the police or not. On this admission an inference can be drawn that a fact which really effects personally cannot be expected to forget about the facts unless it really does not happen. P.w.2 being the mother of P.W.1 has made no reference of beating of P.W.1 by A.1 in a drunken condition. It is the contention of P.W.1 that two panchayath was held, but none of the panchayath elders were examined in support of her contention. Except the evidence of P.W.1 and P.W.2 as to the demand of additional dowry, there is no other independent evidence supporting their version of demanding of additional dowry by A.1. The admission of P.W.1 that she is ready to join A.1, if A.1 takes residence at Panthangi village shows that she is not interested to lead marital life with A.1 along with his family members. Hence there are no facts or occasions to show that accused persons has harassed P.W.1 for want of additional dowry.

8

19. Sec 498-A IPC contemplates as under :

498-A- Husband or relative of husband of a woman subjecting

her to Cruelty: Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation: For the purpose of this section, “Cruelty” means

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health(whether mental or physical) of the woman : or

(b) harassment of the woman where such harassment is with a view to coercing her on any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to hr to meet such demand.

On the appreciation of the above evidence, there is no evidence to prove the alleged offence against the accused persons. Prosecution miserably failed to prove the guilty of the accused persons, beyond reasonable doubt for an offence under Sec.498-A IPC. Therefore, A.1 and A.2 are entitled for benefit of doubt.

20. In the result, Accused Nos. 1 and 2 found not guilty for the offences under Sec. 498-A IPC. Accordingly, accused persons are acquitted under Sec. 248(1) Cr.P.C. Bail bonds, if any, shall stand cancelled after expiry of appeal time.

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

pronounced by me in open Court on this 14th day of November, 2018.

Spl.Judl.First Class Magistrate (For Proh.& Excise Offences ) Nallagonda.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

Prosecution Defence PW-1 Mandula Kavitha None PW-2 Boya Yadamma PW-3 Mudigonda Murali PW-4 Nampalli Manga PW-5 Nampalli Daniel 9

PW-6 K.Malleshwari PW-7 P.Surekha

EXHIBITS MARKED

Ex.P-1 Complaint Ex.P-2 Sec. 161 Cr.P.C. statement of P.W.3 Ex.P-3 Sec. 161 Cr.P.C. statement of P.W.4 Ex.P-4 Sec. 161 Cr.P.C. statement of P.W.5 Ex.P-5 FIR.

M.Os. Marked -NIL-

Spl.Judl.First Class Magistrate (For Proh.& Excise Offences ) Nallagonda.

IN THE COURT OF JUDICIAL MAGISTARATE OF FIRST CLASS 

(SPL. MOBILE COURT) AT NALGONDA

Present: Smt. K. Rani, Spl. Judl. First Class Magistrate, (For Proh. & Excise Offences), Nallagonda FAC: Judl. First Class Magistrate (Spl. Mobile Court) Nalgonda

Dated this the 11th day of November, 2019

C.C. No. 228 of 2019

Between:­ The State of Telangana through S.H.O. P.S Nalgonda Rural.

…Complainant AND Ponnuri Chinna Sathyanandam @ Sathish @ Ramesh, S/o: Nagaiah, Age: 30 years, N/o: Athmakur Village Durgi Mandal of Guntur District of Andhra Pradesh State, now at Balaji Nagar, near Kesara, Hyderabad city. …Accused

This case is coming before me today for final disposal in the presence of APP for State and of Sri. T. Shekar, Free Legal Aid counsel for the Accused and having heard and having stood over for consideration till this day this court delivered the following:­

JUDGMENT

1.The brief facts of the prosecution case as enumerated in charge sheet:­

2. The Sub­Inspector of Police, P.S. Nalgonda Rural has filed charge sheet against the accused person alleging that on 24.08.2018 evening he along with his friend Palakuri Saidulu, L.W.3 went to one function hall near Collector office on his red coloured CB Unicorn motor cycle bearing No. TS­05­ET­5651 and returned to this house on the same day night at about 10.00 p.m. and parked his motor cycle in front of his house veranda and slept in his house. Next day morning at about 5.30 a.m., his wife and his two children were pulling their house main door, but the door not opened, then they telephoned to adjacent house 2 owner L.W.3, then he came and open the door and they observed that his motor cycle was not found in front of their house, some unknown offenders has committed theft of his CB Unicorn motor cycle bearing

No. TS­05­ET5651, worth of Rs.45,000/­. Basing on the complaint,

L.W.09 registered a case, issued FIR. During the course of investigation, L.W.09 has recorded the statement of L.W.1 and subsequently, he visited scene of offence situated at Velugupalli village of Nalgonda Mandal, recorded the statements of witnesses, conducted scene of offence of panchanama, drawn rough sketch in the presence of mediators. L.W.8 arrested the accused at Prakasham district and recovered the stolen property and hand over to L.W.9.

L.w.9 produced the accused before this court on PT warrant and send him to court for judicial remand. After completion of entire investigation, filed charge sheet.

2.This case is taken on file for the offence punishable U/s. 379 IPC against the accused person. On appearance of accused person copies of documents were furnished to him as contemplated U/sec. 207

Cr.P.C.

3.The accused was examined u/s 239 Cr.P.C and charges U/s.

379 of IPC were framed, read over and explained in vernacular language, for which he pleaded not guilty and claimed to be tried.

Accused reported that he got no means to engage an advocate on the request of accused, Legal Aid counsel namely T. Shekar, Legal Aid counsel of this court was allotted to accused for defence.

4.During the trial, the prosecution examined P.W.1 to P.W.7 and got marked Exs.P.1 to P.3.

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5.The accused person was examined as contemplated U/sec. 313

Cr.P.C. explaining the incriminating evidence appearing in the evidence of prosecution witnesses, for which the accused person denied the same and reported no defence.

6.Heard arguments. Perused the entire record.

7. Points for determination:­ “Whether the prosecution is able to prove the guilt of the accused person for an offence under Sec. 379 IPC, beyond reasonable doubt?”

8. POINT :­ 4

Prosecution to support and substantiate its case, examined P.W.1 to

P.W.7. P.W.1, Marri Sudhakar has deposed in his evidence that on 24.08.2018 at about 9.00 p.m., when he returned to his house from his work and parked his Honda Unicorn red colour motor cycle bearing

No. TS­05­ET­5651 inside his house and on the next day at about 5.30 a.m., when he tried to open the main door of his house, he could not open it, as such, he called L.W.3, P. Saidulu his neighbour and saw that front door was bolted. Later on opening the door, he found that main gate was opened and his motor cycle was missing, which he was parked under the shed inside his house. Then he made enquiry about the missing motor cycle, but he could not traced out. On 27.08.2018, he lodged a report to the police and his statement was recorded by the police. After two months of the theft of his motorcycle, he received information from the police about the found of his missing motor cycle and he has taken the interim custody of his motor cycle from this court.

9.P.W.2, Marri Jhansi, wife of P.W.1 deposed in his evidence that on 24.08.2018, P.W.1 parked his motor cycle inside the house under the shed, but found missing on the next day, at about 5.30 a.m., when they tried to open the main door of his house, they could not open it and when P.W.1 called L.W.3, he came and opened front door which was bolted. 

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10.P.W.3, Palakuri Saidulu deposed in his evidence that on 26.08.2018, when he returned along with P.W.1 from the collector office at about 10.00 p.m., on motor cycle vide bearing No. TS­05­ET­ 5651 of P.W.1. On the next day, at about 5.30 a.m., he received a call from P.W.1 informing him that his house door was bolted from outside and requested for opening of the door. Within 10 minutes of his call, he went to the house of P.W.1 and opened the bolt and then found the said motor cycle was missing. He along with P.W.1 and P.W.2 searched the said vehicle, but did not find out.

11.P.W.4, Alugubelli Nirnajan Reddy deposed in his evidence that on 27.08.2018, at about 12.00 noon, police conducted panchanama at the house of P.W.1. P.W.1 informed him about the theft of motor cycle at his house. Scene of offence panchanama was read over to him, then he along with L.W.5 signed on the panchanama. 

12.P.W.5, Renta Chinthala Rama Vishwanadham deposed in his evidence that on 17.01.2019 at about 9.00 am., Donakonda police conducted confession cum seizure panchanama at the house of

Kanishetti Venkateshwarlu at Chapalagadda colony, Dachepally village in crime no.27/2018 of P.S. Donakonda, wherein, accused confessed that he has committed theft of one Unicorn motor cycle on a road in between Miryalaguda and Thipparthy and the said motor cycle was hand over to one Venkateshwarlu for selling. Accused further confessed that he also committed that theft of one Bolero vehicle. Thereafter the police has seized Unicorn motor cycle from said Kanishetti

Venkateshwarlu. He along with L.W.7 has signed on the panchanaama. 

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13.P.W.6, K. Murali Goud, Investigating officer deposed in his evidence that on 27.08.2018, he received a complaint from P.W.1 and basing on it, he registered a case in crime No.172/2018 for an offence under Sec. 379 IPC and issued FIR. During the course of investigation, he examined and recorded the statements of L.W.1 and on the same day, he visited scene of offence and recorded the statement of L.W.2 and L.W.3. He conducted scene of offence panchanama in the presence of L.W.4 and 5. Based on the confession of the accused person in crime No. 1/2019 of Donakonda P.S. of Prakasham district about the theft of this case property he produced accused on execution of PT warrant on 03.04.2019 and he received case property from the said police station. On the completion of the investigation, he filed the charge sheet. 

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14.P.W.7, K.SK. Ch. Meera Saheb another investigating officer deposed in his evidence that on 16.01.2019, at about 1.00 p.m., when he was at Donkonda police station of Podili circle and he received credible information about the property offenders, immediately he along with Sub­Inspector of police, Donakonda police station and staff proceeded in their vehicle towards Bobbapuram junction and he met mediators at Donakonda bus stand and he explained panch witnesses about the receipt of information, then he along with staff and panch witness went to Bobbabpuram junction at about 1.30 pm, when they were standing they found 4 persons on 4 motor cycles and on seeing us they trying to escape but they chased them and taken in to the custody and on his enquiry the 4 persons revealed their names as Ponnuri china Sathyanandam, Muli Panidra reddy, Mumin Saida, and Pudili

Jojibabu and further confession that they are committed several theft offences and he conducted mediators nama in the presence of mediators from 1.30 pm to 6.30 pm and wherein accused confessed

before them that he has committed Honda Unicorn motor cycle near

Thipparthy about few days ago. Accused was arrested in Cr.No.1/2019 of Donakonda police station and other 3 persons were arrested in

Cr.no.30/2018 of Donakonda police station and on confession of accused on 17.01.2019 he conducted mediators nama in presence of

L.W.6 and L.W.7 and seized Unicorn motor cycle from one Kanisetti

Venkateshwarlu of Dachepally village. Accused along with other arrested persons were produced before Judl. First Class Magistrate,

Darsi, Prakasham District. Subsequently on his direction Sub­

Inspector of Donakonda P.S. handover the seized unicorn motor cycle to

SHO, Rural, Nalgonda.

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15. On the appreciation of the evidence of prosecution witnesses, it is the contention of the prosecution that accused has committed theft of motor cycle belonging to P.W.1. The said motor cycle was seized by the Donakonda police on the confession of the accused person. The learned APP submitted that basing on the confession by the accused person before the Donakonda police, the stolen property was recovered.

Hence, requested for the conviction of the accused person.

16.During the cross examination of P.W.1, the legal aid counsel elicited that report was scribed by him after 3 days of the missing of the motorcycle he lodged a report. P.W.1 and P.W.2 admitted that in and around there are houses. Learned legal aid counsel failed to elicit anything from the cross examination of P.W.3 to P.W.7. P.W.6 denied the suggestion that he did not visit the scene of offence and never conducted any panchanama. P.W.7 denied the suggestion that he did not visit the Donakonda center and never conducted any mediators nama in which accused along with others never confessed about the theft of offence. P.W.7 denied the suggestion that he did not seized any Unicorn motor cycle at Dachepally.

17.On the appreciation of the evidence of prosecution witnesses, from the evidence of P.W.1 to P.W.3 it is clear that Honda Unicorn motorcycle vide bearing No. TS­05­ET­5651 was found missing on 24.08.2018 and the same was found by the police after two months of the theft. P.W.4 panch witness has supported the case of prosecution about the conduct of scene of offence panchanama on missing of the motor cycle by the police. The evidence of P.W.7 is crucial, since the accused has confessed during the confession cum seizure panchanama conducted by the Donakonda police about the 9 theft of stolen motor cycle. P.W.5 being the panch witnesses has categorically deposed that upon the confession of the accused before the Donakonda police about the committing of theft of Unicorn motor cycle the said motor cycle was recovered from the Kanishetti

Venkateshwarlu shows that the stolen property was recovered by the police from the possession of said Kanishetti Venkateshwarlu only on confession made by the accused.

18.As per Sec. 27 of Indian Evidence Act if the fact stated by the accused which lead to discovery of new fact that part of information is relevant. In the present case on confession of the accused person stolen property was discovered which is relevant to this case.

19.There are no eye witnesses at the time of committing theft of motor cycle by the accused person and only on the basis of confession of accused, stolen property was recovered. Prosecution failed to prove that accused has committed theft of motor cycle, but prosecution able to prove that the stolen property was recovered basing on the confession of the accused person. P.W.5 has deposed that he can identify the accused person since his evidence was recorded in the absence of the accused person and accused counsel reported no objection if identity of the accused is taken to be proved. The testimony of P.W.5, is sufficient to hold that accused confessed and basing on the confession the stolen property was recovered. Hence the prosecution able to prove that accused has hand over the stolen property to Kanishetti Venkateshwarlu. Hence, it is proved that accused was in constructive possession of the stolen property.

Though the property is not recovered from the accused person, the property recovered is taken as constructive possession. 

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20.In view of above discussion, accused found of constructive possession of the stolen property. The prosecution successfully proved that accused was found with the stolen property.

21.In the result, accused is found guilty for an offence under Sec.

379 IPC. Accordingly, he is convicted under Sec. 248(2) Cr.P.C.

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

pronounced by me in open Court on this 11th day of November, 2019.

FAC:Judl. First Class Magistrate (Spl. Mobile Court) Nalgonda.

22.Heard the accused on the quantum of sentence. Accused stated that he got small kinds and family and he is sole bread wineer of his family, if he is sentenced to imprisonment, his family would be face harship. Hence requested for set off the detention period. On considering the submissions, this court is of opinion that accused is not entitled for lenient view, since he is lodged in several property offences.

In the result, accused is convicted under Sec. 248(2) Cr.P.C.

Accused is sentenced to Rigorous imprisonment for Ten months for an offence under Sec.379 IPC. The period of detention already undergone by the accused shall be given set off under ScSec. 428 of Cr.P.C.

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

pronounced by me in open Court on this 11th day of November, 2019. 

FAC:Judl. First Class Magistrate (Spl. Mobile Court) Nalgonda.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

Prosecution Defence PW­1 M. Sudhakar None PW­2 M. Jhansi PW­3 P. Saidulu PW­4 A. Niranjan PW­5 R. rama Vishwanadam 11

PW­6 J, Murali Goud PW­7 K.SK. Ch. Meera Saheb

EXHIBITS MARKED

Ex.P­1 Complaint Ex.P­2 A portion of certified copy of panchanama Ex.P­3 FIR.

M.Os. Marked NIL

FAC:-Judl. First Class Magistrate, (Spl. Mobile Court) Nalgonda.

IN THE COURT OF SPL. JUDICIAL MAGISTARATE OF FIRST CLASS

(FOR PROH. & EXCISE OFFENCES) AT NALLAGONDA

Present: Smt. K. Rani, Spl. Judl. First Class Magistrate, (For Proh. & Excise Offences), Nallagonda.

Dated this the 19th day of November, 2018

C.C. No. 228 of 2017

Between:- The State of Telangana through S.H.O. P.S. Naldgonda-I Town.

…Complainant AND

A.1 Bathuka Venkatesh S/o Anjaneyulu, Aged: 23 years, Occ: Railway Track man, R/o Railway Quarters, Nalgonda (Rider of Motorcycle bearing No.AP-11-Q-7734). A.2 Bashamouni Srinivas S/o Mallesh, Aged: Private Employee, R/o H.No.2-2-1125/34, New Nallakunta, Hyderabad.

…Accused

This case is coming before me today for final disposal in the presence of APP for State and of Sri. M.Vamshi Krishna, Advocate for the Accused and having heard and having stood over for consideration till this day this court delivered the following:-

JUDGMENT

1.The brief facts of the prosecution case as enumerated in charge sheet:-

The Sub-Inspector of Police, P.S. Nalgonda-I Town has filed charge sheet against the accused persons alleging that on 07.10.2014 at about 6:45 pm one Sunil Paswan was waiting near Kendriya Vidayalam

School beside the road, a motorcyclist has drove his motorcycle bearing

No. AP-11-Q-7734 with high speed, rash and negligent manner and dashed to said Paswan from back side, due to which, he sustained serious injuries to his head. Immediately, some of pedestrians called an ambulance and shifted him to Government Hospital, Nalgonda. But for treatment, Paswan was referred to Gandhi hospital, Secundrabad.

Basing on the report, the investigating officer registered a case vide 2 crime No.241/2014, under Sec. 338 IPC and issued FIR. During the course of investigation, L.W.14 examined and recorded the statements of L.W.1 and L.W.2. L.W.14 visited the scene of offence, conducted scene of offence panchanama and in the presence of mediators and drawn rough sketch map. On 10.10.2014, the injured was succumbed to injuries while undergoing treatment. On that, L.W.14 has altered the section of law from 337 IPC to 304-A IPC and caused the examination and recording the statements of witnesses, and inquest over the dead body of Deceased Sunil Paswan in the presence of mediators. After collecting PME and MVI reports, L.W.14 filed charge sheet against the accused persons.

2. This case is taken on file for the offence punishable U/s. 304-A IPC and Sec. 180/177 of M.V. Act against the accused persons. On appearance of accused copies of documents were furnished to them as contemplated U/sec. 207 Cr.P.C.

3. The accused persons were examined u/s 251 Cr.P.C. Accusation read over and explained in vernacular language for which they pleaded not guilty and claimed to be tried.

4. To substantiate its case, the prosecution has examined PWs.1 to

P.W.9 and got marked Exs.P1 to P7.

5. The accused persons were examined U/sec. 313 Cr.P.C.

explaining the incriminating circumstances appeared in the evidence of prosecution witnesses, for which the accused persons denied the same and reported no defence.

6. Heard arguments. Perused the entire record.

7. Points for determination:.

3 “Whether the prosecution is able to prove the guilt of the accused persons for an offence under Sec. 304-A IPC, Sec. 180/177 of M.V. Act, beyond reasonable doubt?”

8. POINT :.

Prosecution to substantiate its case, examined P.W.1 to P.W.9.

P.W.1, Dharma Paswan has deposed in his evidence that on 07.10.2014 at about 6.45 p.m., he along with Sunil Paswan /deceased after completion of the work was standing near Kendriya Vidyalayam school and deceased was stands few steps ahead to him, one motor cycle bearing No. AP.11.Q.7734 proceeding from Miryalguda to

Nalgonda in a high speed has hit the deceased from the back side, due to which, deceased sustained injuries on the back of the head and also back portion of body, as such, the deceased was shifted to government hospital, Nalgonda in an ambulance. On the advice of the doctor, the deceased was shifted to Gandhi hospital, Hyderabad on 08.10.2014 at about 9.00 a.m., but deceased was succumbed to injuries on 10.10.2014 at about 6.00 a.m.. He further deposed that he cannot identify the rider of the crime motorcycle.

9. P.W.2, Bodasu Chandra Shekar has deposed in his evidence that both P.W.1 and deceased are workers at construction site, Kendriya

Vidyhyalayam. On 07.10.2014 at about 6.45 p.m., when he was standing before Kendriya Vidhyalayam while deceased was walking on the other side of the road, one Passions motor cycle bearing No.

AP.11.Q.7734 came in high speed and hit to the deceased from the back side in a negligent manner, as such, deceased was shifted to government hospital, Nalgonda for treatment and from there he was shifted to Gandhi hospital, Hyderabad, but deceased succumbed to injuries at Gandhi hospital, Hyderabad after three days of the 4 admission. P.W.2 identified the A.1 as a rider of the crime motor cycle.

10. P.W.3, Goli Ramachandraiah has deposed that about 4 years ago, he came to know on the next day of the incident that deceased died in an accident and he do not know anything about the details of the occurrence of the accident.

11. P.W.4, Rajender Paswan father of the deceased deposed that about 3 years ago, P.W.1 informed over phone about the accident of deceased and was shifted to Gandhi hospital, Hyderabad. He stay along with his son in the government hospital and on the next day deceased succumbed to injuries at about 6.00 a.m. and deceased sustained injuries on the back of the head and also legs and he came to know that deceased was hit by a motor cycle.

12. P.W.5, Varikuppala Yellaiah and P.W.6, Alakuntla Yedukondalu has deposed in their evidence that on 10.10.2014, police conducted inquest panchanama over the dead body of deceased at Gandhi hospital, Secunderabad and came to know that accident took place on 07.10.2014 near Kendriya Vidyalayam, Nalgonda and saw the injury on the head of the deceased at the time of panchanama.

13. P.W7, Mandadi Suresh Reddyk has deposed in his evidence that on the request of S.I of police, Nalgonda-I Town, inspected the crime vehicle bearing No. AP-11-Q-7734 and found the damages. 1) Head lamp dome broken, front indicators broken and found all the breaks are efficient and accordingly he issued MVI report. He noticed that the driver of crime vehicle was not having driving license and also insurance, as such, he issued vehicle check-up report No. 2748763 and collected compounding fees Rs.3,500/-.

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14. P.W.8, V. Sreenu, Investigating office has deposed that on 10.10.2014, on the receipt of the information about the death of the deceased. P.W.9 deputed him for conduct of inquest panchanama and also recording of the statement, as such, he visited Gandhi hospital and recorded the statement of L.W.3 to L.W.7 and conducted inquest panchanama over the dead body of deceased and handed over the dead body to the P.W.1.

15. P.W.9, B. Abhilash deposed in his evidence that he received a complaint from P.w.1 on 08.10.2014, registered the case and recorded the statement of L.W.1 and L.W.2 at the police station. On the same day, he visited the scene of offence and conducted panchanama and drawn rough sketch and he recorded the statement of L.W.3 at scene of offence. Later on the receipt of information of death of the deceased, he deputed P.W.8 for recording of the statement and conduct inquest panchanama. Later he filed a requisition to P.W.7 and he served notice on accused persons. Later he handed over the CD file to L.W.6 and L.W.6 has filed charge sheet after completion of the investigation.

16. During the cross examination, it is elicited from P.W.2 that he never saw A.1 before and after incident and denied the suggestion that he did not saw A.1 as it was dark at the time of incident. P.W.2 denied the suggestion that he do not know the crime vehicle registration number which hit the deceased. During the cross examination of

P.W.9, it is admitted that in FIR, it is mentioned that complaint in telugu, but in charge sheet it is mentioned in English, due to the typographical mistake. P.w.9 admitted in the charge sheet it has been mentioned that there is no incriminating material found at the scene of offence and also accused persons sustained injuries, but no medial report of accused persons were filed. P.W.9 admitted that deceased 6 was working at multi floor construction site, but denied the suggestion that deceased fall down from said construction building and sustained injuries.

17. On the appreciation of the evidence of prosecution witnesses, it is an undisputed fact that deceased namely Sunil Paswan has met with an accident on 07.10.2014 at about 6.45 p.m., while he was standing near Kendriya Vidyalayam school and succumbed to injuries on 10.10.2014 at about 6.00 a.m. P.W.1 was alleged to be present at the time of accident, but he admitted that he cannot identify the rider of the crime motor cycle and further stated that said motor cycle was proceeding from Miryalguda to Nalgonda in high speed and hit the deceased and failed to depose about the rash and negligent driver of the crime vehicle, due to which, the accident took place. P.W.2 cited as a circumstantial witness deposed that he was standing before Kendriya

Vidyalayam school, deceased was walking on the side of the road.

18. P.W.1 being eye witness present at the accident has deposed that deceased was standing near Kendriya Vidyalayam school few steps away from him. Further P.w.2 identified the A.1 as a rider of the crime motor cycle. But he admitted that he did not saw A.1 before and after the incident, but identified him in the court hall. The alleged accident happened in the year, 2014. After 3 years of the incident,

P.w.2 identified the A.1 as the rider of the crime vehicle. But P.W.1 being the eye witness could not identify the A.1 as the rider of the crime vehicle. P.W.3 and P.W.4, circumstantial witnesses has not deposed anything to support the prosecution case that A.1 was driving the motor cycle. P.W.5 and P.W.6 being the inquest panch witnesses admitted that police has conducted inquest panchanama. P.W.7 being the crime vehicle inspector has deposed that driver of the crime 7 vehicle is not having any driving license and insurance, as such, he collected the compounding fee of Rs.3,500/., but P.W.9 being the investigating officer has failed to collect receipt from P.w.7 in support to prove that A.2 was the owner of the crime vehicle and without any driving license, he handed over the crime vehicle to A.1.

19. P.W.9, being the investigating officer admitted that there was no incriminating material at the scene of offence shows that he failed to collect material evidence at the scene of offence to prove that crime motor cycle at high speed at the time of accident and driver of the crime vehicle was rash and negligent at the time of driving. More over it is mentioned in the charge sheet that accused No.1 has sustained injury, but no medical report was filed to show that A.1 was driver of the crime vehicle and sustained injuries.

20. On the overall appreciation of the prosecution witnesses, if it is considered that A.1 was driving with a high speed that itself is not sufficient to prove the ingredients under Sec.304. A IPC and to convict the accused person.

21. Section 304.A of IPC contemplates as under :

“Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide”

For convicting an accused for an offence under Sec. 304-A IPC, it has to be proved that driver of offending vehicle drove the vehicle in a rash, negligent manner and was responsible for occurrence of the accident, in turn, resulted into the death of deceased.

22. Prosecution has to proved that driver of the crime vehicle was rash and negligent at the time of driving of the crime vehicle which resulted into the occurrence of the accident in which deceased 8 sustained head injuries and died. No other prosecution witnesses, except the evidence of P.W.2 there is no other evidence to support the prosecution case as to the rash and negligent driving of A.1, due to which, accident occurred. P.W.1 being the eye witnesses has not identified the A.1 as the driver of the crime vehicle. It is an admitted fact that P.W.2 was standing a distance away from scene of accident and this court is of considered view that accused persons cannot be convicted on sole evidence of P.W.2, since he was present a distance from scene of accident and not at scene of accident.

23. In the light of above discussion, prosecution failed to prove the ingredients of Sec. 304-A IPC as alleged against the accused persons.

Hence, the accused persons are entitled for the benefit of doubt as prosecution miserably failed to prove the guilty of the accused persons under Sec. 180/177 of M.V. Act, beyond reasonable doubt.

24. In the result, A.1 and A.2 are found not guilty for the offences under Sec. 304-A IPC and Sec. 180/177 of M.V. Act. Accordingly, accused persons are acquitted under Sec. 255(1) Cr.P.C. Bail bonds, if any, shall stand cancelled after expiry of appeal time.

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

pronounced by me in open Court on this 19th day of November, 2018.

Spl.Judl.First Class Magistrate (For Proh.& Excise Offences ) Nallagonda.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

Prosecution Defence PW.1 Dharma Paswan None PW.2 G.Chandrashekar PW.3 Goli Ramchandraiah PW.4 Rajendra Paswan PW.5 V.Yellaiah PW.6 A.Yedukondalu PW.7 M.Suresh Reddy. PW.8 V.Srinu PW.9 B.Abhilash.

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EXHIBITS MARKED

Ex.P.1 Complaint Ex.P.2 Inquest Panchanama Ex.P.3 MVI report. Ex.P.4 FIR Ex.P.5 Scene of offence panchanama. Ex.P.6 Rough Sketch. Ex.P.7 PME report. M.Os. Marked NIL

Spl. Judl. First Class Magistrate, (For Proh. & Excise Offences), Nalgonda.

IN THE COURT OF JUDICIAL MAGISTARATE OF FIRST CLASS

(SPL. MOBILE COURT) AT NALGONDA

Present: Smt. K. Rani, Spl. Judl. First Class Magistrate, (For Proh. & Excise Offences), Nallagonda FAC: Judl. First Class Magistrate (Spl. Mobile Court) Nalgonda

Dated this the 29th day of November, 2019

C.C. No. 168 of 2019

Between:- The State of Telangana through S.H.O. P.S Thipparthy. …Complainant AND A.1: Ponnuri Chinna Sathyanandam @ Sathish @ Ramesh, S/o: Nagaiah, Age: 30 years, R/o: Balaji Nagar, near Kesara, Hyderabad and native of Athmakur Village Durgi Mandal of Guntur District. A.2: Momin Saida, S/o: Vali, Age: 23 years, R/o: Vemavaram Village of Machavaram Mandal, Guntur District. …Accused

This case is coming before me today for final disposal in the presence of APP for State and of Sri. N. Narsimha, Legal Aid counsel for the Accused No.1 and Sri. M. Nagesh, Advocate for Accused No.2 and having heard and having stood over for consideration till this day this court delivered the following:-

JUDGMENT

1. The brief facts of the prosecution case as enumerated in charge sheet:-

2. The Sub-Inspector of Police, P.S. Thipparthy has filed charge sheet against the accused person alleging that on the night of 08.09.2018, A.1 and A.2 were gained ingress into his jewler shop of complainant namely Chinthoju Srinivsa Chary by broking the shutter located infront of his house and committed theft of one kg silver worth of Rs.40,000/, 16 grams of gold worth of Rs.38,000/- and net cash of

Rs.12,000/ from his jeweler shop and also damaged the CC cameras which were installed in front of the shop and also committed theft of

DVR of CC cameras by broking the house door. Basing on the complaint, L.W.09 registered a case, issued FIR. During the course of 2 investigation, L.W.09 has recorded the statement of witnesses and subsequently, he visited scene of offence situated at jeweler shop, recorded the statements of witnesses, conducted scene of offence of panchanama, drawn rough sketch in the presence of mediators.

L.W.07 arrested the accused persons at Prakasham district and recovered the stolen property and hand over to L.W.09. L.W.09 produced the accused persons before this court on execution of PT warrant and send them to court for judicial remand. After completion of entire investigation, filed charge sheet.

2. This case is taken on file for the offence punishable U/s. 457 and 380 IPC against the accused persons. On appearance of accused person copies of documents were furnished to them as contemplated

U/sec. 207 Cr.P.C.

3. The accused Nos. 1 and 2 were examined u/s 239 Cr.P.C and charges U/s. 457 and 380 of IPC were framed, read over and explained in vernacular language, for which they pleaded not guilty and claimed to be tried. Accused No. 1 reported that he got no means to engage an advocate on the request of accused, Legal Aid counsel namely T.

Shekar, Legal Aid counsel of this court was allotted to accused for defence.

4. During the trial, the prosecution examined P.W.1 to P.W.8 and got marked Exs.P.1 to P.4.

5. The accused persons were examined as contemplated U/sec. 313

Cr.P.C. explaining the incriminating evidence appearing in the evidence of prosecution witnesses, for which the accused persons denied the same and reported no defence.

6. Heard arguments. Perused the entire record.

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7. Points for determination:- “Whether the prosecution is able to prove the guilt of the accused persons for an offence under Sec. 457 and 380 IPC, beyond reasonable doubt?”

8. POINT :-

Prosecution to support and substantiate its case, examined P.W.1 to

P.W.7. P.W.1, Chinthoju Srinivasa Chary deposed in his evidence that on 08.02.2018, at about 8.00 p.m., he closed his gold shop shetter which is located in front portion of his house situated at Miryalaguda road, Thipparthy. At about 5.30 a.m., one Gangi Ramesh residing adjacent to their house came to his house and informed him about opening of his shop shetter. Immediately searched for the DVR inside the house but could not found and further found that CC cameras which were placed in front of his house was broken and he saw the lock of shetter was broke open. On the search of shop, he found that some gold small ornaments of 16 gms and one kg silver articles was missing. Immediately he went to police station and gave a report.

9. P.W.2, Thota Sathi Reddy deposed in this evidence that on 09.02.2018, at about 10.00 a.m., police conducted panchanama at the house of P.W.1 in the presence of him and L.W.3/P.W.7. Police informed him about the theft occurred at the house of P.W.1 on the previous night and he saw all the things at the house of P.W.1 was in pell-mell condition and also found that the wiring of CC camera was disconnected. He gave the details of boundaries with persons of

P.W.1 house. The contents of panchanama was read over to him, he along with L.W.3 signed on the panchanama.

10. P.W.3, Chettupalli Bhasker, another panch witness deposed in his evidence that on 07.03.2019 at about 8.30 am., police conducted confession cum seizure panchanama at Shaligouraram circle office, 4

Nakrekal. In which accused No.1 confessed that he along with A.2 has committed theft of Rs.400/- from the gold shop at Thipparthy by break opened lock of shetter of gold shop and further confessed that he removed DVR from the gold shop and the same was thrown

Vemulapally canal, after he went to Dachepally village and spend the cash for his personal use. P.W.3 stated that he along with L.W.6 signed on the panchanama. P.W.3 reported that he can identified the person, confessed before him. Accused No.1 was not produced from the District Jail, Nalgonda. Therefore, accused counsel reported no objection if identity of the accused persons is taken as identified by the witness.

11. P.W.4, V. Surendher, Head Constable deposed in his evidence that on 08.02.2018, at about 8.00 hours, he received a report from

P.W.1, basing on it, he registered a case vide crime No. 12/2018 for an offence under Sc.457,380 IPC and issued FIR. He recorded the statement of L.W.1 and L.W.2 at police station. On the same day, he visited the house of L.w.1 and conducted scene of offence panchanama and drawn the rough sketch and on the same day he handover CD file to L.W.10.

12. P.W.5, K.Sk. Ch. Meera Saheb, Circle Inspector of police deposed in his evidence that on 16.01.2019, at about 1.00 p.m., when I was at

Donakonda police station of podili circle, he received credible information about the property, immediately he along with SI of police of Donakonda police station and staff proceeded in their vehicle towards Bobbapuram junction and there met mediators L.W.7 and

L.W.8 at Donakonda bus stand and he explained panch witness about the receipt of information, he along with staff and panch witness went to Bobbabpuram junction at about 1.30 pm. When they were standing 5 they found 4 persons on 4 motor cycles and on seeing them they trying to escape but they chased them and taken in to the custody. On his enquiry the 4 people revealed their names as Ponnuri china

Sathyanandam/A1, Muli Panidra reddy, Mumin Saida, and Pudili

Jojibabu/A2.

13. P.W.6, K. Kastro, Investigating Officer deposed in his evidence that A.1 has confessed in Cr.No.27/2018 and 14/2018 of PS

Thipparthy. During the police custody, A.1 confessed that he has committed theft along with A2 from house with the shop of

Complainant of Rs. 400/- and DVR, later DVR was thrown in

Vemulapally canal and spend Rs.400/- for his personal use.

14. P.W.7, G. Saidulu, panch witnesses deposed in his evidence that on 09.02.2018, at about 10.00 a.m., police conducted panchanama in his presence at the house of P.W.1 and drawn the rough sketch. On eastern side of the house of P.W.1, the house of one Venkateshwarlu and on western side the house of one Ramesh is situated. On the southern side of P.W.1 house vacant open land and on north side road leading to Miryalguda. He saw all the things in the house of P.W.1 was in pell-mell condition and P.W.1 informed him but he lost 16 grams of gold, 1 kg silver, DVR and Rs.12,000 cash. The contents of the panchanama is read over to him, he along with P.W.2 signed on the panchanama.

15. P.W.8, D. Madhu, another Investigating officer deposed in his evidence that on 12.09.2018, he received CD file from P.W.4. On 08.03.2019, he collected the confession statement of A.1 from L.W.7, basing on it, he filed a requisition before this court for issuance of PT warrant against A.1 and A.2. On 19.03.2019, he produced the A.2

before this court on PT warrant. On 23.03.2019, he produced the A.1

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before this court on PT warrant and send them to judicial remand.

After completion of investigation, he filed charge sheet.

16. It is the contention of the prosecution that A.1 along with A.2 has committed theft of gold, silver and DVR from the house of P.W.1.

17. During the cross examination of P.W.1, it is elicited from P.W.1 that he drafted the report. P.W.2 admitted that he and P.W.1 belongs to the same village and his house is not situated near to the house of

P.W.1. P.W.2 stated that there are some residential house near the house of P.W.1. It is elicited from P.W.4 that he received complaint from P.W.1 on 09.02.2018 and recorded the statements of L.W.1 and

L.W.2 at about 10.00 a.m., and went to the scene of offence, it took about 15 to 20 minutes each for recording of the statements of L.W.1 and L.W.2.

18. On the appreciation of the evidence of the prosecution, it is the fact that the theft occurred at the gold shop of P.W.1 which is situated in front portion of P.W.1 house in which DVR and gold, silver was thefted. Basing on the confession of A.1 before P.W.6, the charge sheet has been filed. There are no eye witnesses to show that A.1 along with A.2 has committed theft of fold gold, silver and DVR at the gold shop of P.W.1. There are no circumstantial witnesses to show that A.1 and A.2 were present near to the house of P.W.1, at the time of theft.

P.W.1 has categorically deposed that small gold ornaments of 16 gms along with one kg silver articles were thefted. Police has not recovered any stolen property. P.W.1 has never stated that there is a theft of cash at his shop. But police has not recovered any of the gold and silver ornaments from the custody of A.1 and A.2. There is no iota evidence to show that A.1 along with A.2 has committed theft at the gold shop of P.W.1. Any confession made during the police 7 custody is inadmissible as per Sec.26 of Indian Evidence Act.

Therefore, this court is of considered view that basing on the confession of A.1, the accused person cannot be convicted.

19. In the light of above discussion, there is nothing on record to prove the guilty of the accused persons. Prosecution miserably failed to prove the guilty of the accused persons, beyond reasonable doubt.

20. In the result, A.1, A.2 found not guilty for an offence under Sec.

457, 380 IPC. Accordingly, A.1 and A.2 are acquitted U/sec. 248 (1)

Cr.P.C. for the offence punishable U/sec. 457, 380 I.P.C. Bail bonds, if any, shall stand dismissed after expiry of appeal period. Accused No.1 is in judicial custody, the Superintendent, District Jail, Nalgonda is hereby directed to release the accused No.1 if he is not required in any other case.

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

pronounced by me in open Court on this 29th day of November, 2019.

FAC:Judl. First Class Magistrate (Spl. Mobile Court) Nalgonda.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

Prosecution Defence PW-1 Ch. Srinivasa Chary None PW-2 Thota Sathi Reddy PW-3 Chettupalli Bhasker PW-4 V. Surendher PW-5 K. Sk. Ch. Meera Saheb PW-6 K. Kastro PW-7 Gundeboina Saidulu PW-8 D. Madhu

EXHIBITS MARKED

Ex.P-1 Complaint Ex.P-2 Panchanama Ex.P-3 FIR Ex.P-4 Rough sketch M.Os. Marked NIL

FAC:-Judl. First Class Magistrate, (Spl. Mobile Court) Nalgonda.