1 //FAIR//
IN THE COURT OF THE III ADDITIONAL JUNIOR CIVIL JUDGE-CUM-
III ADDITIONAL METROPOLITAN MAGISTRATE’s COURT AT
VISAKHAPATNAM
Present:- Smt K. Latha,
III Additional Junior Civil Judge-cum-
III Addl. Metropolitan Magistrate,
Visakhapatnam
C.C.500415/2018 (Old CC.861/2017)
Wednesday, this the 16th day of June, 2021
(Old C.C.No.861/2017 on the file of Hon’ble IV Additional Chief
Metropolitan Magistrate’s Court, Visakhapatnam)
Between :
State represented by the Inspector of Police, Dwaraka Sub Division (Crimes), Visakhapatnam City.
...Complainant
And :
Mandala Simhachalam Naidu, S/o Mandala Rama Naidu, Aged 28 years, Koppula Velama, Native of Gijaba Village, Garugubilli Mandal, Parvathipuram, Vizianagaram District, Presently R/at D.No.33-38, Opposite Sangam Office, Akkayyapalem, Visakhapatnam. ….Accused
This case coming on 15-04-2021 for final hearing before me in the presence of Smt. T.Vani, Assistant Public Prosecutor for Complainant and of Sri. Kurma Appala Raju, Advocate for Accused and the same having stood over for consideration and this Court delivered the following :
J U D G M E N T
1.The Inspector of Police, Dwaraka Sub Division (Crimes), Visakhapatnam, has filed the charge sheet against the accused for the offence punishable under
Sections 394 of IPC in Crime No.425/2017.
2.The gist of accusation against the accused as can be seen from the contents of the charge sheet and the material available on record is that L.W.1 Kishore kumar running mineral water plant in the name of style “Relax” along with palm -oil business. On 17-10-2017 in the morning, L.W.1 along with his son Pavan
Kumar went to his company and his second son went to his shop situated at
Appughar and L.W.2 who is daughter of L.W.1 went to V.T.School. L.W.3 who is wife 2 of LW1 also went to shop at Appughar. At about 2.00 pm, L.W.1 visited the shop at
Appughar and verified the stock and loaded the empty cans in Mahindra Maxima
Van and went to his home with his wife and cleaner. Later, L.W.1 and L.W.3 had lunch and watched T.V. upto 3.10 pm. Later, L.W.1 went for a bank work, after completion of bank work, while he was returning from bank, L.W.2 called him and informed that L.W.3 was lying on the floor in a pool of blood with cut injury on her neck. Immediately, L.W.1 rushed to the spot and shifted the injured to Pradhama
Hospital for treatment. On 17-10-2017 at 7.00 pm, L.W.1 went to police station and lodged a report that, some unknown culprit came to his house while L.W.3 was alone in the house, attacked her and forcibly taken away the gold pusthulathadu weighing about 4 ½ tulas worth of Rs.45,000/- from her neck by causing injury on her neck in between 3.15 pm to 4.00 pm. On basis of the report,
L.W.9 registered a case in Crime No.425/2017 under Section 392 of IPC of MVP
Police Station, Visakhapatnam and endorsed the same to L.W.10 for investigation, later L.W.10 took up investigation. During the course of investigation, L.W.10 visited the scene of offence on 17-10-2017 at 8.00 pm and seized the blood stained glass pieces and blood stained knife and collected glass cloth samples in the presence of L.W.6 and L.W.7. During the course of investigation on 20-10-2017 at 4.30 pm, L.W.10 arrested the accused in D.No.33-38, Opposite Sangham Office,
Akkayyapalem, Visakhapatnam in the presence of L.W.6 and L.W.7. On enquiry accused voluntarily confessed and admitted the commission of offence in the presence of L.W.6 and L.W.7. In pursuance of confession made by the accused,
L.W.10 seized gold Pusthulathadu identified it as a stolen property and blood strained T-shirt which is kept on the slab under the pebbles in the house of accused and also motor cycle bearing Registration No.AP 31 CQ 5533 from the house of the accused as it was used by the accused for committing the offence under the cover of mediators report attested by L.W.6 and L.W.7. Later L.W.8 issued wound certificate who is Associate Professor, Pradhama Multi Specialty
Hospital and Research Institute Limited, Visakhapatnam who treated the injured 3 person and he opined that the injury sustained by the injured is grievous in nature and en-dangerous to her life. Basing on the wound certificate issued by LW.8,
L.W.10 altered the Section of law from 392 IPC into 394 of IPC as the accused voluntarily caused injury which is grievous in nature and en-dangerous to L.W.3 in committing offence. After completion of investigation, L.W.10 filed charge sheet.
3.The case is taken on file for the offence under Section 394 of IPC against the accused. On appearance of the accused, copies of the documents were furnished to him as required under Section 207 of Cr.P.C.
4.Later, the accused were examined under Section 239 of Cr.P.C, charge was framed under Section of 394 of IPC read over and explained to him in Telugu language and he denied the alleged offence, he pleaded not guilty and claimed to be tried.
5.At the stage of trial, this entire case record (CC.No.861/2017) was transferred to IV Additional Junior Civil Judge-cum-IV Additional Metropolitan
Magistrate’s Court, Visakhapatnam and renumbered as CC.No.415/2018. Again
this case was transferred from IV Additional Junior Civil Judge-cum-IV Additional
Metropolitan Magistrate’s Court, Visakhapatnam to this Court as per the proceedings of Hon’ble Chief Metropolitan Magistrate’s Court, Visakhapatnam communicated in Dis.No.1244, Dt.15-12-2018.
6.After closure of prosecution evidence, the accused were examined under
Section 313 of Cr.P.C and the incriminating evidence is read over and explained to him in Telugu language, for which he pleaded not guilty and he reported defence evidence.
7.To substantiate their contention, the prosecution examined P.W.1 to P.W.8 and got marked Ex.P1 to Ex.P10. On behalf of accused, the accused himself is 4 examined as D.W.1 and no documents are marked.
8.Heard both sides.
9.Now, the point for consideration is that :
1) Whether the accused voluntarily caused hurt in committing robbery to PW1 by using dangerous weapon/knife?
2) Whether the prosecution is able to prove the guilty of the accused for the offence U/Sec.394 IPC beyond reasonable doubt?
10.P O I N T :
The prosecution examined P.W.1 to P.W.8 and Exs.P1 to 10 besides MO.1 to
MO.5 are marked to prove its case.
P.W.1/Kishore Kumar who is the husband of P.W.2 injured/victim categorically deposed that he is running a mineral water company at Tagarapuvalasa,
Visakhapatnam and running office and godown at Apugarh, Visakhapatnam. On 17-10-2017, at about 9.00 am, he along with his son by name Sanjay Kumar went to Apugarh office and dropped his son in order to open their office. Then he went to mineral water palnt at Modavalasa, near Tagarapuvalasa, Visakhapatnam. His wife also went to Apugarh office. After loading water cans, he came back to their office at about 1.30 pm and got unloaded the water cans. Then he along with his wife went to his house for taking lunch. He further deposed that after lunch, he went to bank. At about 4.10 pm, while he was returning from bank on the way, he received a phone call from his daughter by name Parimala Kumari/L.W.2 and she informed that his wife was laying in the pool of blood at his house. Immediately, he rushed to his house and found that his wife was laying in front of pooja mandir in pool of blood with cut injury on her neck. Immediately he raised crisis and neighbours were rushed to the spot. Later, the injured was shifted to Pradhama
Hospital, Visakhapatnam for treatment. His wife was in unconscious state. One gold Pusthula Thadu i.e., MO.1 also found missing from the neck of his wife. Then he lodged report to the police. After fifteen days, he was informed by the police 5 that his wife’s gold chain was recovered and he took the same to his interim custody.
11. The injured L.Vasantha Kumari is examined as P.W.2. According to her on the date of offence, she was residing at 4th Floor, Flat No.403 in G.R.K Grand
Apartment, HB Colony, Visakhapatnam. She was residing from May, 2016 to May, 2018 in the said apartment. On 17-10-2017, she along with her husband went to the office and again they returned at lunch hour to their house at about 3.00 pm.
After taking lunch, her husband went to the bank. When she was alone in the house at about 3.30 pm to 3.40 pm, one person came to their house and rang the bell, then she opened the door and found one Simhachalam Naidu. They have acquaintance with Simhachalam since four years from the date of incident and he used to purchase water cans from their company and distribute the same to others. Then she questioned the said Simhachalam about his arrival, he replied that he came to their house in order to discuss about water cans with her husband for which she replied him to come to their office as her husband is not present at the time. Later, he requested her for a glass of water. Then she went inside the house and to bring the water,when she came back to him by taking water in meanwhile he entered into the house and bolted the door. Then she shouted him why he is coming inside the house. Immediately he came to her and asked her to remove her gold Pusthula thadu and caught hold her hand, when she refused to give gold Pusthula thadu, immediately he took the knife from his pocket and by showing that knife, he demanded to remove her gold Pusthula Thadu and also threatened her with dire consequences. P.W.2 further deposed that when she again refused the same, the said Simhachalam Naidu attacked her and cut her neck and robbed away her gold Pusthula thadu. The said Simhachalam Naidu attacked her with a knife and cut her neck number of times for which she sustained severe bleeding injury and the blood oozed out. Immediately he took the chloroform with in a hand kerchief and closed her mouth and forcibly robbed 6 her gold Pusthula Thadu which is weighing about 40 grams. Then she fell on the ground and the said Simhachalam Naidu went away by taking gold Pusthula
Thadu. She further deposed that after few minutes, her daughter/L.W.2 came to house from school and informed the same to her husband through phone. Later, she fell unconscious. P.W.2 identified the accused who committed the offence.
When she fell conscious, she was admitted in Pradhama Hospital, Visakhapatnam.
Later, she underwent surgery and got 58 sutures on her neck. She also informed to the police about the identity of the accused when police recorded her statement.Later, the police recovered the gold Pusthula Thadu from the possession of the accused and took the same into her interim custody from the
Court.
During cross examination, P.W.2 categorically stated that she regained consciousness on 18-10-2017 in the early hours at about 4.00 am, at the time she was admitted in Pradhama Hospital, Visakhapatnam. On intimation by the doctor, the police came to the hospital examined and recorded her statement. P.W.1 stated that at the time of arrival of police, her husband and her mother in law were present along with her at the hospital. P.W.2 stated that their apartment contains three flats in each floor. The first wife of PW1 died. She does not know how the first wife of her husband died. She took MO.1 i.e., Gold Pusthulathadu to her interim custody in two or three pieces. P.W.2 stated that her clothes are full of blood but she does not know whether the police seized her blood strain clothes i.e., saree blouse or not.
P.W.2 admitted that what she stated before the Court, the same was stated
before police. P.W.2 admitted that the carpenter work was being done in her
neighboring flat on the date of incident. P.W.2 admitted that she is second wife to her husband.
12.P.W.3/A.Madhusudhana Rao who is a Carpenter categorically deposed that on 17-10-2017 at about 9.00 am, he went to carpenter work at Flat No.401, GRK 7
Grand Apartments, HB Colony, Visakhapatnam. While they were working in the said flat at about 4.00 pm, one girl of flat No.403 which is situated opposite to flat
No.401 came to them and knocked their flat door, then he opened the said door.
The girl asked his mobile phone to call her father and he gave his mobile phone to her, but the phone was not connected. When he enquired her, she informed that some unknown person cut the neck of her mother. She again tried call and informed the same to her father through his mobile phone. Then immediately, himself, one Veerabhadra Swamy along with the said girl rushed to their house and found that her mother fell on the ground in front of Pooja room and the blood was oozing from her neck and also found some broken glass pieces on the ground.
After ten minutes, her father came to the spot and shifted the injured person to the hospital and then he went away.
During cross examination, P.W.3 stated that he is working in the said flat from fifteen days prior to the incident. On the said date, himself and one
Veerabhadra Swamy were working in the said flat. He further stated that he did not see whether the injured person clothes are blood stained or not. When he reached the said flat, the injured was in unconscious state. He did not call the neighbors or 108 ambulance or police and after arrival of P.W.1 only, he call the ambulance.
13.V.Gutheswara Rao who is one of the mediators is examined as P.W.4 and he did not support the case of prosecution and turned hostile, but he admitted his signature on scene observation report, Dt.17-10-2017 under Ex.P2 and also admitted his signature, on mediators report, Dt.20-10-2017 under Ex.P3.
14.P.Santhosh Kumar who is one of the mediators is examined as P.W.5 and he did not support the case of prosecution and turned hostile, but he admitted his signature on scene observation report, Dt.17-10-2017 under Ex.P2 and also admitted his signature, on mediators report, Dt.20-10-2017 under Ex.P4.
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15.P.W.6/Dr.R.Kalyana Varma who treated the injured/victim categorically deposed that on 17-10-2017 at about 5.00 pm, he examined L.Vasantha Kumari at the request of SHO, Muvvalavanipalem Police Station, Visakhapatnam.
Accordingly, he examined the injured/L.Vasantha Kumari and found following injuries.
1. Multiple Intersecting Incised wounds with clean cut margins on a whole measuring 14 cm x 5 cm muscles were exposed with active bleeding present over front of neck with no vascular injury. Injury appeared fresh and weapon appear to be a sharp weapon.
The doctor opined that the injury sustained by the injured is grievous in nature which is en-dangerous to her life.
He further deposed that the daughter of injured gave information that she reached house at around 4.10 pm on 17-10-2017 and she saw her mother lying on the floor with cut throat injury and she informed the same to the doctor.
During cross examination, P.W.6 stated that the patient was brought to the hospital at about 5.00 pm in unconscious stage. He cannot say how much blood was lost by the patient after injury. The injury was caused with sharp weapon, it may be any of the sharp weapon. The multiple injury means it may be more than three cuts. He further stated that at the time of admitting the patient in the hospital, the blood was oozing from her neck and she came with blood strained clothes. The injury was covered with dressing at the time of joining in the hospital.
He had given first aid to the patient, then he referred to General Surgeon.
P.W.6 admitted that after referring the patient to General Surgeon, he does not know what happened and patient’s condition.
16.P.W.7/Ch.Shanmukha Rao, who is Inspector of Police categorically deposed that on 17-10-2017, on receipt of report of P.W.1/Lade Kishore Kumar, L.W.9 registered a case in Crime No.425/2017 under Section 392 of IPC and endorsed the same to him.on the same day he took up investigation in this case. Then, he 9 visited the scene of offence along with his staff and mediators at flot No.403, GRK
Grand, Seethammadhara near HB Colony, Visakhapatnam. Near to the scene of offence, he secured the presence of mediators i.e., P.W.4 and P.W.5 and reached the scene of offence at 8.00 pm. In the presence of mediators, he observed the scene of offence and seized broken glass pieces and knife i.e., M.O.2 and MO.3 and prepared scene observation report attested by the mediators under Ex.P7. He also prepared the rough sketch of the scene of offence under Ex.P8. He also preserved blood strain samples collected from the scene of offence. The clues team visited the scene of offence and they collected chance prints and blood strain samples from the scene of offence. P.W.7 examined L.W.1 and L.W.2 and recorded their detailed statements. On 18-10-2017, he visited Pradhama Hospital and secured the presence of L.W.3 injured person examined and recorded her detailed statement and he again visited the GRK Grand Apartment and examined
L.W.4 and L.W.5 and recorded their detailed statements.
P.W.7 further deposed that on 20-10-2017, on credible information, he along with his staff and mediators proceeded to D.No.33/38, Opposite to Sangham office, Akkayyapalem, Visakhapatnam and they found one person and one motor bike. On suspicion, he caught hold him with the assistance of his staff. On enquiry, he revealed his name and address i.e., Simhachalam Naidu, R/o Gijapa Village,
Vizianagaram District. On further enquiry, the accused voluntarily confessed and admitted the offence. P.W.7further deposed that , then he seized 4 ½ tulas gold
Pusthula Thadu and one blood strained T-shirt and also one motor bike bearing
No.AP 31 CQ 5533 from the possession of the accused in the presence of mediators and prepared mediators report attested by the mediators under Ex.P9.
He arrested the accused and sent him for judicial remand. After completion of investigation, he filed charge sheet.
During cross examination, P.W.7 stated that the addresses of P.W.4 and 5 were did not mention in their records. After securing the presence of P.W.4 and
P.W.5, he noted the addresses and cell number. He took photographs at scene of 10 offence but he did not file the photographs before the Court. The chance prints collected at scene of offence by the clues team is not clear and it is not useful for which he did not file any report from clues team. He further stated that he visited
Pradhama Hospital on 18-10-2017 along with woman PC and recorded the injured person statement. P.W.7 further stated that he visited the house of accused on 20- 10-2017 along with his staff. Akkayyapalem is a 60 feet road. He cannot say whether it is a double road or not. He did not enter into the house of accused. He caught hold the accused in front of the house of accused. In pursuance of the confessional statement of accused, he seized MO.1 and MO.4 on the slab of the house under pebbles in the presence of mediators. P.W.7 stated that at the time of seizure of MO.1, it is full chain and it is not cut into pieces. P.W.7 did not observe the injured person about her sutures at the time of recording her statement as it was covered with bandage.
P.W.7 admitted that, P.W.2 stated before him that when she regained conscious and she was informed by her husband that somebody cut her neck and taken away (thempukoni) her gold pusthulathadu. He admitted that after recording the statement of P.W.2, again visited the scene of offence. He did not examine watch man of the apartment. P.W.7 admitted that Akkayyapalem is a 60 feet road, opposite sangham office is a colony. P.W.7 admitted that he did not mention the length, width and model of MO.1 in mediators report. P.W.7 admitted that he did not examine the doctor who treated the injured.
17.M.Maheswara Rao, Inspector of Police is examined as P.W.8 and he categorically deposed that on 17-10-2017 at about 7.00 P.W.1 came to the police station and presented Ex.P1 report. On basis of Ex.P1, he registered a case in
Crime No.425/2017 under Section 392 of IPC and he endorsed the same for investigation to P.W.7.
During cross examination, P.W.8 deposed that after registration of FIR, immediately he endorsed the same to P.W.7.
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18.In this case, the accused himself examined as D.W.1 and he categorically deposed that on 20-10-2017 the police never came to his house and they never arrested him in the presence of mediators and he did not made confession before the police.
D.W.1/Accused further deposed that he had acquaintance with the P.W.1 and
P.W.2 as he used to buy water cans from the shop of P.W.1. On 20-10-2017, P.W.1 was called him and requested him to come Dabagardens, immediately he went to the Dabagardens on his motor bike at about 10.00 am or 10.30 am. Later, P.W.1 took him to the police station and due to acquaintance with P.W.1, he went to the police station along with him. The accused further deposed that the police enquired him about the offence and falsely implicated him in this case. The police seized his motorbike and they never seized gold pusthulathadu and t-shirt from his possession. MO.4 T-shirt does not belongs to him. He did not reside at D.No.33- 38, Sangham Office, Akkayyapalem, Visakhapatnam and police deposed false evidence.
The contention of the prosecution is that the accused made confession
before the mediators and police seized MO.1 MO.4 and MO.5 from his house and
MO.4 T shirt belongs to him. The accused is resident of D.No.33-38, Sangham
Office, Akkayyapalem, Visakhapatnam and the P.W.1 never produced the accused
before the police and he deposed false evidence. The further contention of the
prosecution is that the accused went to the house of P.W.1 and caused injury to the P.W.2 and robbed gold pusthulathadu by causing injury to P.W.2.
D.W.1 admitted that he did not file any proof of document as on the date of arrest i.e., on 17-10-2017, he was elsewhere and police did not arrest him in the presence of mediators. D.W.1/Accused further admitted that he did not file any proof of evidence that P.W.1 called him on 20-10-2017 and he requested him to come to Dabagardens.
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19.Written Arguments :
The learned counsel for the accused filed written arguments by reiterating the evidence on record. The evidence of prosecution witnesses are totally contradictory and there is no corroboration. There are so many latches in the investigation. The investigation officer made table investigation. The Investigation
Officer admitted in his cross examination that “it is true before securing P.W.4 and
P.W.5, he do not know their cell numbers and addresses but how can he secure them it creates a doubt”. The clues team collected the chance prints from the scene of offence but they were not clear and they are not useful for which he did not file any report, which clearly shows that the Investigation Officer did not file clues team report to save P.W.1 and as there is no evidence against the accused.
The Investigation Officer admitted in his cross examination that “It is true that
P.W.2 stated before me when she came to consciousness that she was informed by her husband that somebody cut her neck and taken away her gold pusthulathadu”. Which shows that the P.W.1 and P.W.2 created a story and implicated the accused by pooling all the witnesses. The most important witness is the watchman of the apartment, who is the only person can confirm that whether the accused had gone the plot of P.W.1 or not, but wantedly the investigation officer did not examine the watchman of the apartment. In cross examination, P.W.8 stated that whether it is double road or not and he admitted 60 feet road only, he is presently working as Traffic Inspector in that circle which shows that he never went to the house of the accused. P.W.8 further admitted in cross examination that he did not enter into the house of the accused. How can he seize the MO.1 and MO.4 on the slab under pebbles in the presence of mediators ? He further mentioned the door number of accused is 33/38. Generally in GVMC or any municipality, the door number will be given a three number in
Visakhapatnam District. It clearly shows that P.W.8 did not visit the house of the accused and did not seize anything from the possession of the accused. P.W.8 stated in his chief examination, he seized 4 ½ tulas of gold pusthulathadu and 13 blood strained T shirt and motor bike. In cross examination, he admitted that he did not mention the length and model of the MO.1 and he deposed that he approximately weighed the MO.1 in mediators report. Subsequently, the
Investigation Officer sent police constable and brought weighing machine and weighed the MO.1 gold pusthulathadu in the presence of mediators. The
Investigation Officer failed to examine watchman of the apartment and also failed whether the accused used the said vehicle for committing offence or not ? It is not a chain snatching case. In the entire Ex.P9, it is mentioned as shirt, but the
Investigation Officer produced a t shirt before the Court. It seems that the T-shirt does not belongs to the accused. P.W.4 and P.W.5 did not support the case of prosecution and they deposed that they do not know about Ex.P9 and they just signed at the request of police.
20.The learned counsel for the accused further submitted that the accused has given the evidence as D.W.1 in which he stated that he is not residing in the door
No.33-38 and he is residing beside Sangham office, Akkayyapalem. P.W.7, P.W.4 and P.w.5 never visited his house and he went to the police station at the request of P.W.1 only. The learned APP during cross examination of accused suggested that the accused is residing in the D.No.33-38 only and seized MO.3 and MO.5 which shows that P.W.7 seized the item in the house bearing D.No.38-33. He further argued that P.W.1 has falsely implicated the accused in this case. There is a dispute between P.W.1 and P.W.2 since long time and the incident may have occurred between them. P.W.2 is the second wife of P.W.1. The first wife of P.W.1 died due to harassment of P.W.1 and there is a case against P.W.1. Therefore, to save P.W.1 in the present incident, P.W.2 misguided the Hon’ble Court with wrong statement to save her husband and her matrimonial life. P.W.1 has managed all the witnesses including the investigation officer and falsely implicated the accused who had acquaintance with P.W.1 and P.W.2 since last three years, he also not have any relation and proper back ground and financial capacity. The 14
Investigation Officer did not examine the doctor who gave treatment to the P.W.2.
He examined only who gave first aid to the patient. P.W.6 clearly admitted that after referring the patient to general surgeon, he does not what happened and patient condition. P.W.6 had not treated the injured and he does not know about the injury and about the striches and treatment, how can P.W.6 can give a wound certificate without giving treatment to the injured person. So the wound certificate issued by the P.W.6 is not valid and it cannot be taken into consideration. He further argued that on perusal of evidence of P.W.2 and P.W.1, there are totally contradictory and there is no corroboration. The evidence of P.W.2 are totally improvement version. He further argued that P.W.2 stated that on 17-10-2017, she along with her husband went to office and returned home for lunch at about 3.00 pm. One person came to her house and rang the bell, then she opened the door and found the accused. They have acquaintance with Simhachalam since four years from the date of the incident and he used to purchase water cans from their company. P.W.2 deposed that the said Simhachalam Naidu attacked with a knife and cut her neck number of times for which she sustained severe bleeding injury and the blood oozed out. Immediately, the accused took the chloroform with hand kerchief and closed her mouth and robbed gold pusthulathadu weighing about 40 gm. She further stated that she underwent surgery and got 58 striches on her neck. She further deposed that she took MO.1 gold pusthulathadu to her interim custody in two or three pieces. There is a contradiction comparing with the 161 statement recorded by the L.W.10 and chief examination of P.W.2. In her 161 statement, she stated that she knows the accused since two years and also mentioned that the accused caught hold her hand and she slabbed him, but in her chief examination, she stated that she had acquaintance with the accused since four years and the accused cut her neck with a knife number of times and robbed gold pusthulathadu by using chloroform, but in the statement, she did not state that the accused cut her neck number of times and the accused used chloroform.
P.W.2 stated that she took the gold pusthulathadu to her interim custody which is 15 in two or three pieces, but in IO evidence, he stated that he seized gold pusthulathadu as single piece. The weight of pusthulathadu also contradictory.
21.The learned counsel for the accused further submitted that due to family disputes between the P.W.1 and P.W.2, the husband of injured i.e., P.W.1 falsely implicated the accused by influencing the police officials and the entire prosecution witnesses. The accused is no way concerned to the present case. The evidence of prosecution witnesses are totally contradictory and there is no corroboration. No eye witnesses are examined by the prosecution. MO.4 T shirt does not belongs to the accused and the prosecution miserably failed to prove the charge against the accused and the accused is entitled for acquittal. The learned counsel for the accused prays the Court to acquit the accused.
According to Section 394 in The Indian Penal Code :
394. Voluntarily causing hurt in committing robbery : If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
22.Discussion :
The contention of the accused is that pw1 never went to the bank as stated in his chief examination.
During cross examination, P.W.1 stated that after receiving phone call from his daughter within 10 minutes, he reached the scene of offence i.e., his house and found that his wife was laying on the pool of blood and his daughter is present. Except them, no body were present at his house. After listening his crisis, their neighbors are gathered at scene of offence. But P.W.4 deposed that, he and one Veebhadraswamy rushed to the spot along with L.W.2 and after ten minutes, 16 her father came to the spot and shifted the injured person to the hospital and then he went away.
During cross of P.W.4 he further stated that he did not see the injured person clothes are blood stained or not. When he reached the said flat, the injured was in unconscious state. He did not call the neighbors or 108 ambulance or police and after arrival of P.W.1 only, he call the ambulance. There are some material contradictions in evidence of P.W.1 and evidence of P.W.4. The evidence of P.W.4 is doubtful.
The contention of the accused is that P.W.2 did not state before the police as per her chief evidence. The accused contended that P.W.2 did not state before the police that the accused took the chloroform with the hand kerchief and closed her mouth. The accused never came to her house and never cut her neck and he never robbed her gold chain and the accused is no way concerned with the present case. Due to disputes in between P.W.2 and her husband, they intentionally implicated the accused in this case. The contention of the accused is that her husband’s first wife committed suicide and a criminal case was also registered. The contention of the accused is that as there is no offence is committed by the accused and she never raised crisis. The further contention of the accused is that the accused never came to her house and never caused any injury with MO.2 i.e., Knife and he never robbed her gold Pusthulathadu.
The contention of the accused is that the door number mentioned in mediators report i.e., 33/38 is wrong and the said door number was no where allotted by the GVMC in entire Visakhapatnam. P.W.7 never visited the house of accused along with mediators and staff and he never seized MO.1, MO.4 and MO.5
P.W.7 did not weighed the MO.1 through gold smith and he mentioned the weight of MO.1 at the instructions of complainant. The specific contention of the accused is that the accused falsely implicated in this case and the accused is no way concerned to the present case and MO.4 T shirt does not belongs to the accused.
The accused never committed any offence the he falsely implicated the accused 17 in this case at the instigation of husband of P.W.2.
23.Now the question for consideration is whether the said robbery was committed by the accused herein. On this aspect On perusal of entire evidence on record, the mediators P.W.4 and P.W.5 who are witnesses to the scene observation report and seizure of MO.2 and MO.3 and also arrest of the accused and seizure of
MO.1,MO.4 and MO.5 are turned hostile and they did not support the case of the prosecution.
24.No independent witnesses were examined by the Investigation Officer.
Except PW2 who is injured, no prosecution witnesses are identified the accused.
25.On perusal of the evidence of P.W.2/victim/injured, categorically deposed that she has acquaintance with the accused prior to the incident as the accused used to purchase water cans from their company and he used to distribute the same to others, but P.W.1/Kishore Kumar who is husband of P.W.2 did not state anything about the accused with regard to their acquaintance prior to the incident. Even after the incident also, P.W.1 did not disclose prior acquaintance with the accused. P.W.7 admitted that, P.W.2 stated before him that when she regained conscious, she was informed by her husband that somebody cut her neck and taken away (thempukoni) her gold pusthulathadu. P.W.2 stated that her clothes are full of blood but she does not know whether the police seized her blood strain clothes i.e., saree, blouse or not.
There are contradictions, improvements and omissions in the evidence and 161 statement of pw2 . L.W.2 who is daughter of P.W.1 and P.W.2 and who saw the injured in the pool of blood did not examine by the prosecution. The learned APP given up the evidence of L.W.2. On perusal of the evidence of P.W.3, who did carpenter work in Flat No.401 which is situated opposite to Flat No.403 i.e., scene of offence, P.W.3 stated that he did not see whether the injured person clothes are blood strained or not. When he asked the daughter of P.W.1 and P.W.2, she 18 informed that some unknown person cut down neck of her mother and she informed the same to her father through his mobile phone. After receipt of information by L.W.2, P.W.4 and L.W.5/M.Veerabhadra Swamy rushed to the scene of offence and found that the injured person i.e., P.W.2 was laying on the ground in front of pooja room and the blood was oozing from her neck and he also found some glass pieces at scene of offence.
26.On perusal of the evidence of P.W.6/Dr.R.Kalyana Varma who issued wound certificate under Ex.P6 opined that the injuries sustained by the P.W.2 are of grievous nature which are en-dangerous to her life. P.W.6 stated in his cross examination that he had given first aid to the patient, then he referred to General
Surgeon, but the said General Surgeon is not examined by the Investigation
Officer.
27.On receipt of Ex.P1 report, P.W.8 registered a case in Crime No.425/2017 under Section 392 of IPC under Ex.P10. The incident took place at about 3.00 pm and the FIR is lodged at about 7.00 pm. On perusal of evidence of P.W.7, he visited the scene of offence along with mediators and observed the scene. P.W.7 deposed that he had also collected blood strained samples from the scene of offence and also informed clues team and the clues team collected chance prints and blood strained samples from the scene of offence, but no report is filed before the Court.
Whether the chance prints collected from the scene of offence is tallied with the accused or not ?
28.It is the evidence of P.W.7 that M.O.4 T-shirt did not sent to Forensic Science
Laboratory for report and it was not tested whether the human blood was detected on M.O.4. T-shirt or not ? There is no piece of evidence to prove the occurrence of robbery except oral evidence of P.W.2 and there is no corroboration.
The evidence of P.W.2 also totally contradictory, improvements and omissions.
19
29.The Investigation Officer seized knife i.e. MO.2 from the scene of offence, but it is not sent for expert for comparison of finger prints of accused. The
Investigation Officer did not file photographs of the scene of offence before the
Court. The Investigation Officer did not collect any CC TV footages whether the accused came to the apartment on his motor bike and committed the offence or not and he did not seize any visitors register maintained by the watchman/Apartment Association and the Investigation Officer did not examine the watchman of the apartment. The investigation Officer did not conduct test identification of property. The mediators i.e., P.W.4 and P.W.5 who turned hostile and did not support the case of prosecution and mediators were not secured at the place of arrest and that they did not belong to the place of arrest., and the
Investigation Officer did not follow the procedure laid under Cr.P.C at the time of seizure of MO.1 to MO.5. The specific contention of the accused is that he is not residing in the D.No.33-38 mentioned in the seizure report and there is no such door number in Visakhapatnam city and the Investigation Officer never visited the house of accused along with mediators and he did not seize MO.1 and MO.4 and
MO.5 from the house of accused and the accused is being falsely implicated in this case and MO.4 T-Shirt does not belongs to the accused and prosecution failed to prove the case.
30.P.W.4 and P.W.5 who are mediators for the confession and seizure report under Ex.P9 have turned hostile and they stated that, they are residents of Ram
Nagar and Yendada and that when they went to the police station, their signatures were obtained on some documents and they do not know the contents of the said documents. They stated that they never visited scene of offence at any time earlier and that no body was arrested in their presence by the police. These two witnesses are declared as hostile to the prosecution case and when the prosecution case was suggested to them, they denied the same. In view of the evidence of P.W.5 and 6 that their signatures were obtained at the police station 20 and no confessional statement was recorded and no property was seized in their presence, from the houses of accused at their instance became doubtful.
Therefore, I am of the view that the evidence of P.W.5 and P.W.6 cannot be relied upon to hold that the accused made confession and basing on their confession, the robbed property i.e., MO.1, MO.4 and MO.5 concerned in this case were recovered from the house of accused. Therefore, the accused must be given benefit of doubt.
31.The accused came into the witness box and examined as D.W.1 and it is the evidence of accused/D.W.1 that, P.W.1 is the husband of the P.W.2/injured. On 20- 10-2017, at the request of P.W.1 he went to the Dabagardens on his motorbike, due to acquaintance with him and took him to the police station and falsely implicated him in this case and MO.4 T-Shirt does not belongs to him and he is not residing in D.No.33/38, Sangham Office, Akkayyapalem, Visakhapatnam. Except suggestions, the prosecutions did not elicit any reliable evidence against the accused/D.W.1.
32.The Investigation Officer who seized MO.4 T-Shirt did not mention the descriptive particulars of MO.4 T-Shirt in Mediators Report and simply he mentioned in mediators report it is a “Shirt”. On the other hand, the mediators turned hostile and they did not support the case of the prosecution. So, the seizure of MO.4 T-Shirt is doubtful. P.W.2 stated that when she came to consciousness that she was informed by her husband that somebody cut her neck and taken away her gold pusthulathadu, but P.W.2 deposed in her evidence that she is aware that the accused cut her neck and taken away her gold pusthulathadu. P.W.2 stated in her evidence that she took the MO.1 gold pusthulathadu to her interim custody which is in two or three pieces, but the
Investigation Officer deposed in his evidence that he seized gold pusthulathadu.
The weight of gold pusthulathadu also contradictory. So the evidence of P.W.2 is doubtful.
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33.Under these circumstances, it is not safe to rely on the sole evidence of the injured/P.W.2 to convict the accused. There are latches in the investigation and no independent witnesses are examined by the prosecution. The evidence of P.W.2 is doubtful. There are material contradictions and omissions in the evidence of P.W.1 to P.W.3 and PW7.
34.In view of the aforesaid discussion, I am of the view that the prosecution miserably failed to establish the charge levelled against the accused beyond all reasonable doubt. Therefore, the accused must be given benefit of doubt.
Accordingly, the accused is entitled for acquittal.
35.In the result, the accused is found not guilty for the offence punishable under Section 394 of IPC and he is acquitted under Section 248 (1) of Cr.P.C. The bail bonds of accused shall be in force for a period of six months and thereafter it shall be stand cancelled. The property i.e., MO.1 : Gold Pusthulathadu in this case was given interim custody to P.W.2 and she shall hold them absolutely after the appeal time. MO.2 MO.3 & MO.4 are ordered to be destroyed, after expiry of appeal time. MO.5 : Motor bike i.e., Hero Glamour bearing No.AP 31 CQ 5533 is ordered to be returned to the registered owner of the property after expiry of appeal time.
Typed to my dictation directly on system by the stenographer, corrected and
pronounced by me in the open Court on this 16th day of June, 2021.
III ADDITIONAL METROPOLITAN MAGISTRATE,
VISAKAHAPATNAM.
APPENDIX OF EVIDENCE
No. of Witnesses Examined
For Complainant:
P.W1 : Kishore Kumar (Husband of P.W.2)
P.W.2 : L.Vasantha Kumari (Wife of P.W.1)
P.W.3 : A.Madhusudhana Rao (Carpenter)
P.W.4 : V.Gutheswara Rao (Mediator) 22
P.W.5 : P.Santhosh Kumar (Mediator)
P.W.6 : Dr.R.Kalyana Varma (Doctor)
P.W.7 : Ch.Shanmukha Rao (Inspector of Police)
P.W.8 : M.Maheswara Rao (Inspector of Police)
For Accused :
D.W.1 : Simhachalam Naidu (Accused)
MARKING OF DOCUMENTS
For Complainant: For Accused : NIL
Ex.P1 : Report.
Ex.P2 : Signature Portion on scene observation report, Dt.17-10-2017.
Ex.P3 : Signature portion on mediators report, Dt.20-10-2017.
Ex.P4 : Signature Portion on Scene Observation Report, Dt.17-10-2017 at 8.00 PM.
Ex.P5 : Signature Portion on Mediators Report, Dt.20-10-2017 at 4.30 PM.
Ex.P6 : Wound Certificate.
Ex.P7 : Scene Observation Report.
Ex.P8 : Rough Sketch.
Ex.P9 : Mediators Report.
Ex.P10 : FIR
MATERIAL OBJECTS
MO.1 : Gold Pusthulathadu.
MO.2 : Knife.
MO.3 : Broken Glass.
MO.4 : Blood strain t-shirt.
MO.5 : Motor bike i.e., Hero Glamour bearing No.AP 31 CQ 5533.
III AMM/VSP 23
CALENDAR AND JUDGMENT
IN THE COURT OF THE III ADDITIONAL METROPOLITAN MAGISTRATE AT
VISAKHAPATNAM
C.C.No.500415/2018
Date of OffenceExplanation for delay & : 17-10-2017remarks Date of Filing:29-12-2017No delay is occurred
Date of Appearance:26-06-2019 Release on bail: --
Date of Commencement of trial :04-02-2021 Closure of trial:06-04-2021 Date of Judgment:16-06-2021
CC.No.500415/2018 on the file of III Additional Metropolitan Magistrate,
Visakhapatnam.
COMPLAINANT:
State represented by the Inspector of Police, Dwaraka Sub Division (Crimes), Visakhapatnam City.
ACCUSED :
Mandala Simhachalam Naidu, S/o Mandala Rama Naidu, Aged 28 years, Koppula Velama, Native of Gijaba Village, Garugubilli Mandal, Parvathipuram, Vizianagaram District, Presently R/at D.No.33-38, Opposite Sangam Office, Akkayyapalem, Visakhapatnam.
Offence:Section 394 of IPC Finding: Accused found not guilty.
Sentence:In the result, the accused is found not guilty for the offence punishable under Section 394 of IPC and he is acquitted under Section 248 (1) of Cr.P.C. The bail bonds of accused shall be in force for a period of six months and thereafter it shall be stand cancelled. The property i.e., MO.1 : Gold Pusthulathadu in this case was given interim custody to P.W.2 and she shall hold them absolutely after the appeal time. MO.2 MO.3 & MO.4 are ordered to be destroyed, after expiry of appeal time. MO.5 : Motor bike i.e., Hero Glamour bearing No.AP 31 CQ 5533 is ordered to be returned to the registered owner of the property after expiry of appeal time.
III Additional Metropolitan Magistrate, Visakhapatnam.
To : The Hon’ble Chief Metropolitan Magistrate, Visakhapatnam.
Calender Case No.500415/2018 Date of Judgment : 16-06-2021