Smt. M. Indira Priya Darsini

1

IN THE COURT OF THE SPL.JUDL.MAGISTRATE OF FIRST CLASS FOR

PROH. & EXCISE OFFENCES, GUNTUR

Present : Smt. M.INDIRA PRIYADARSINI

Spl.Judl.Magistarate of I Class for Proh. & Excise, Guntur

Friday, this is the 23rd day of April, 2022

CC.No.557/2016

Between :

The State: Sub-Inspector of Police,

Nallapadu P.S ...Complainant

AND

Akula Srinivasa Rao, S/o.Radha Krisnna Murthy, Aged about 42 years, Telaga by caste, R/o.D No.4-16-86, 3rd lane, Bharathpeta, Guntur.….Accused

This case coming before me on 21.04.2022 for final hearing in the presence of Assistant Public Prosecutor for the complainant and of Sri G.K.Rao, Advocate for accused, and upon hearing the arguments on the side of both parties, and upon perusal of the entire material available on record, and upon having been stood over consideration till this day, this Court delivered the following:

J U D G M E N T

The Sub-Inspector of Police, Nallapadu P.S filed charge sheet against the accused in crime No.918/2014 of Nallapadu Police station for the offence under section 408 IPC.

2. The averments of the charge sheet in brief are that,

LW1 Maram Nageswara Rao is a resident of 1st lane,

Nagaralu, Guntur Rural Mandal and for the last nine(9) years he is working as Manager in Swathi Filling Station Petrol Bunk (Bharath

Petroleum), near Bharat Gas company, Nagaralu, Guntur Rural

Mandal, generally every day the cashers, who are working in their petrol bunk, used to handover the sale transactions cash of petrol and diesel to LW1 Maram Nageswara Rao at the time of their unmounting duty. LW1 Maram Nageswara Rao used to deposit the same in bank and the accused is working as cashier since 3 years in their Petrol

Bunk and on the afternoon of 29.11.2014 at 12.00 Noon the accused has to handover the petrol and diesel sale transactions to L.W1 2

Maram Nageswara Rao at the time of the unmounting of his duty, but he did not hand over the cash to him and the accused gave the empty cash bag to L.W3, Lukka Seetharambabu who is working as

Pump boy in their bunk went off and the sale transactions cash of

Petrol and diesel of Rs.2,81,000/- has to remitted by the accused, but without handing over the same to L.W1Maram Nageswara Rao, the accused went off and he informed the same to his owner i.e. L.W.2

Gullapalli Veeren Chakravathi and on the instructions of L.W.2

Gullapalli Veeren Chakravarthi, L.W1 Maram Nageswara Rao went to the house of the accused, but it was found locked and then LW1

Maram Nageswara Rao caused searches about the accused and his family members, but could not trace their whereabouts and the accused switched off his cell No. 9502420449.

ii)It was further alleged that on receiving the report of

L.W.1Maram Nageswara Rao, L.W.7 K.V.Koteswara Rao, S.I of Police,

Nallapadu P.S registered the same as a case in Cr.No.918/2014 U/s 408 IPC of Nallapadu P.S. on 23.12.2014 at 1.30PM and he took up investigation in this case and during the course of investigation, L.W.7

K.V.Koteswara Rao, S.I of Police, Nallapadu P.S examined L.W.1Maram

Nageswara Rao and recorded his detailed statement and he visited the scene of offence, examined the same and prepared a rough sketch of the scene of offence and he secured the owners as well as crew of the petrol bunk i.e., LW.2 Gullapalli Veeren Chakravarthi,

L.W.3 Lukka Seetharambabau and L.W.4 Vasupalli Venu, examined them and recorded their detailed statements and while the efforts were going on to apprehend the accused, on 09.01.2015 on receiving a credible information police party proceeded to Gorantla village centre along with mediators L.W5 Sk.Yasin Basha and L.W. 6 Vaka 3

Ramakrishna, when the accused found, L.W7 K.V.Koteswara RAo, S.I of

Police, Nallapadu P.S arrested the accused, recovered the cash of Rs.

33,000/- under the cover of a mediatornama, duly attested by the above said mediators in which the accused gave his clean breast confession in committing offence and after completion of investigation, L.W.7 K.V.Koteswara RAo, S.I of Police, Nallapadu

P.Sfiled charge sheet.

3.The case was taken on file for the offence under Section 408

IPC against the accused and registered as C.C.No.557/2016. On appearance of accused, copies of documents furnished to him as required under Section 207 Cr.P.C.

4.The accused was examined under Section 239 Cr.P.C.

Charge under Sections 408 IPC was framed against the accused, read over and explained to him in Telugu for which he denied and pleaded not guilty and claimed to be tried.

5.On behalf of the prosecution, P.W.1 to P.W.6 were examined and got marked Exs.P1 to P7.

6.After completion of the prosecution side evidence, the accused was examined under section 313 Cr.P.C explaining the incriminating circumstances appearing against him in oral and documentary evidence, he denied the evidence and reported no defence evidence.

7.Heard the arguments submitted on both sides.

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8.Now the point that arises for determination is:-

Whether the prosecution could prove the guilt of the accused for the charges under Sections 408 IPC beyond reasonable doubt?

To bring home the guilt of accused for the offence under section 34(a) of A.P Excise Act, 1968 the prosecution has examined

P.W1 to 6 and and got marked Exs.P1 to P7.

9.The evidence of prosecution witnesses in brief is as follows:

I) P.W.1 deposed in his chief-examination that he has been working as

Manager in the said Petrol bunk for the past seven to eight years and

L.W.2 is the proprietor of the Swathi Petrol Bunk, L.Ws 3 and 4 used to work as Pump boys in the aforesaid petrol bunk as on the date of the commission of offence and accused is the cashier in the aforementioned petrol bunk and further deposed that in general practice that on the alternative days the accused and another person by name Mohan Reddy used to perform their respective duties as cashiers in the Swathi Petrol bunk and during the course of employment of the accused in the petrol bunk the amount used to be collected by the accused after the petrol or the diesel was filled by the pump boys and the entire amount collected during the course of day during their working hours has to be handed over to him by the cashiers of Swathi Petrol Bunk and accused had been working as the cashier for the past three years in the Swathi Petrol Bunk prior to the date of commission of the offence by him.

P.W.1 further deposed that on 29.11.2014 at about 11.30 am to 12.00 noon, the accused at the time of unmounting of his duty had not handed over to him the cash that was collected by him on 5 filling of the petrol or diesel by the pump boys during the sale transactions performed on that day and on verifying the cash account balance, he found that an amount of Rs.2,81,000/- had not been remitted by the accused to him and the accused had went off without handing over the above mentioned amount to him and on coming to know that the above mentioned amount had not been handed over to him by the accused and he informed the same to his owner and on receiving his instructions he went to the house of the accused and found the door locked, and later on, search of various places have been made by him and the other boys of their petrol bunk for knowing the whereabouts of the accused and his family members but their attempts have ended in vain as they could not trace their whereabouts and several calls were made to the contact number of the accused but they could not get the connection and after lapse of period of twenty days, on the instruction given by his proprietor he lodged the written report in Nallapadu P.S narrating them the chain of events regarding the commission of offence by the accused and the concerned police have examined him and accused after taking the amount of Rs.2,81,000/- which was raised from the sale transaction performed on 29.11.2014, had made use the same for his personal needs and thereby had committed misappropriation of the same and had also committed breach of trust. Ex.P1 is the written report given by P.W.1 and Ex.P2 is the signature of P.W.1 in Ex.P1.

During the course of cross examination P.W.1 deposed that he has given report in the police station on 23.12.2014 and admitted that he is not the owner of Swathi Petrol Bunk and that look after the aspects of cash and other accounts the person to whom one have the faith will be appointed to look into such aspects and denied that the person who is going tobe appointed as Cashier or the accountant in 6 a petrol bunk has to furnish sureties and that he has to deposit certain amount and at the time of occurrence of the incident there were nine members working in Swathi filling station petrol bunk and the details of the nine members who were working at that time with the labour officer and admitted that the date of which the report was lodged with Nallapadu police was not mentioned by him and admitted that no documents were given to the police depicting the aspect that the accused was given employment as a cashier in their petrol bunk and admitted that he has not filed any documentary evidence to show that to a tune of Rs.2,81,000/- the amount which was remitted by the accused was not remitted by him and that he has committed the mischief in respect of the aforesaid amount and witness volunteered that the person who is discharging his duties as achier for particular day as to give the details of the difference in the opening and closing balance of cash transactions to the cashier who would appear on the following days a routine manner of conduct of the business and admitted that in EX.P1 he has not clearly specified the quantum of filing points which were accountable by the accused to a tune of Rs.2,81,000/- and admitted that there is a delay in lodging FIR as they have made efforts for fetching him and they have lodged the report when their efforts in securing his presence has turned futile and admitted that he is working under the control of

L.W.2 and denied that he is the person accountable to L.W.2 and that he is responsible for the mischief done to a tune of Rs.2,81,000/- and denied that for a period to be appointed as s cashier he must atleast have B.Com graduation and he does not know the educational qualifications of the accused as such qualifications are not required for applying him as a cashier and denied that with an intent to cheat

L.W.2, he has intentionally lodged a false report in Nallapadu P.S by 7 levelling the blame of misappropriation of amount on the accused and witness volunteered that as the accused is the cashier, he is the person who is accountable and responsible with regard to the handing over of the cash pertaining to the sale transactions done for a particular day and admitted that they are not having any Bio-data form of the accused to depict that accused has been working as cashier in their petrol bunk for the past three years and denied that on th same day when the amount was misappropriated the same might have been intimated to L.W.2 and the report might have been lodged on the same day and verification of the filling points might have been done in the presence of L.W.2, and denied that in order to falsely implicated the accused in this case, he has lodged the report in the P.S instead of L.W.2 and witness added that as he was the manager, L.W.2 has informed him that responsibility was cast on him to lodge the report and denied that in order to get rid of his responsibility for the misappropriated amount, he has lodged the report belatedly and witness volunteered that from the date when they have noticed that the amount was not remitted by the accused and they have made enquiries for him and as they attempts have turned futile, report was lodged in the police station, police have visited their petrol bunk and he do not remember the date when the police have visited Swathi Petrol Bunk, as he was having tension after the amount was misappropriated and as he has not visited the petrol bunk from that day when the aforesaid amount was misappropriated, he was not present at the time when the police have visited the petrol bunk and he has never visited the petrol bunk after the date when cash of Rs.2,81,000/- was not handed over to the owner and on occurrence of such incident and denied that after lodging of the report he has not visited the petrol bunk as he was accountable for 8 the misappropriated amount as a manager and denied that column no.14 of FIR was left blank as he was responsible as a manager for the difference amount and to evade such payment to L.W.2 and admitted that he has made payment on his own to a tune of

Rs.2,81,000/- to L.W.2 before lodging of the report in Nallapadu P.S and denied that he has requested the police to take his report as he lost the trust which L.W.2 has reposed on him and in order to gain the trust and faith of L.W.2,he has requested the police to take his report which was lodged against the accused and admitted that after the report was lodged on 23.12.2014 he was not examined by the police and he was not summoned by them and witness added that after the report was lodged, the arrest of the accused was affected and that the accused has voluntarily confessed that he was accountable for the amount of Rs.2,81,000/- and on such confession, the accused was produced before this Court and admitted that he was also present along with the police when the accused has given his confession in the police station, at the time of giving confession the accused was in possession of Rs.33,000/- and the police have informed him that the amount of Rs.33,000/- which was obtained by the accused through cheating would be handed over to the Court and admitted that no petition was filed for return of such amount and he has been requesting the police for return of such amount which was handed over by the accused in the police and the police have been informing him that the same would be represented to the learned

A.P.P and that the amount would be returned after filing of the petition and admitted that mediator report was drafted in his presence and one auto union secretary has scribed his signature as a mediator in the police station and another auto driver has scribed his signature as another mediator in the police station and denied that no petition 9 was filed for return of the amount of Rs.33,000/- which was recovered from the accused as he would be questioned by L.W.2 with regard to the remaining amount and denied that the accused who was innocent was falsely implicated in this case by making him to confess before the police.

ii) P.W.2 deposed in his chief examination that he knew L.W.3 and 4 and they are cashiers and accused used to work a Cashier in the aforementioned petrol bunk and he has worked a such for three years prior to the lodging of this case and on 29.11.2014 P.W.1 made a call to him at about 1.00 p m and informed him that the accused has not given his accountability for the cash to a tune of Rs.2,81,000/- and that he has handed over the empty bag to L.W.3 and immediately he instructed P.W.1 to go to the house of the accused and when enquiries were made by P.W.1 in the surrounding houses, the whereabouts of accused were not known and P.W.1 intimated to same to him, later he went to Police station along with P.W.1 and P.W.1 lodged the report against he accused for committing the offence of criminal breach of trust and for fleeing away along with the money which ought to be paid by the bunk and later he was examined by the police at the Swathi filling station petrol bunk and the statements were recorded.

During the cross-examination held on 08.03.2022 the P.W.2 deposed that on 23.12.2014 the police examined him at Police

Station since accused was working under them and police examined him and the name of owner of petrol bunk is Aruna Kumari who is his aunt and further deposed that she has not filed any complaint and since the police did not ask them as such, they do not reveal that the owner of the petrol bunk is ‘Aruna Kumari’ and there are eight 10 pumping points in the petrol bunk and there are two cashiers. P.W.2 admitted that specifically the readings were not mentioned in the complaint that from which point of reading to which point of reading the accused filled the fuel and collected the amount of Rs.2,81,000/- (Rupees two lakhs eight one thousand only) and that th incident took place on 29.11.2014 and complaint given on 23.12.2014. The witness volunteers that since the accused promised that he will repay the said amount, they do not give complaint immediately and the said fact of delay is not mentioned in the complaint and denied that in order to avoid the dues of payment to the accused, they filed false case against accused and deposing false and denied that if really the fraud took place and accused cheated them and take away the above said cash of Rs.2,81,000/-, they should have mention regarding readings of filing points in the complaint and the police verified the Sales

Register, Duty Sheet, Attendance Register and also enquired the boys and cashiers about the presence of the accused on the date of incident and P.W.2 admitted that the said facts are not mentioned in the complaint and denied that they managed the police and gave a false report against the accused and deposing false.

iii)P.W.3 is the person who previously worked as Cashier in

Swathy Filling Station, Bharat Petrol Bunk deposed in his chief examination that on the date of incident, he was on leave due to the death of his father and that he came to know through P.Ws 1 and 2 that the accused left from the Bunk and they do not reveal any reason or fact and that police examined him but he do not know the facts of the case. Ex.P3 is the 161 Cr.P.C statement. At this stage, the learned

A.P.P declared the witness as hostile and sought permission of the

Hon'ble Court to cross examine P.W.2 and during the course of cross

11 examination by the learned A.P.P, the P.W.2 deposed that he came to know through staff that the accused left from the petrol bunk without handing over the cash and he came to know through staff that the accused without handing over the cash of Rs.2,81,000/- to the concerned and left from the bunk by giving empty bag and police enquired in the petrol bunk after lodging the complaint and he was present at the time of police enquiry and admitted that police asked him about the incident and he informed to the police that he do not know what was happened exactly as he was on leave at the time of incident and denied that in order to help the accused, he deposed false evidence in chief and denied that he stated before the Police as in Ex.P3.

During the course of cross-examination by the counsel for accused P.W.3 admitted that he worked in the above said Petrol Bunk for about three months during the year 2013 and he do not remember the date that when he returned to the duty after completion of his leave, as such, he cannot say the date that when the police enquired him and he cannot say the name of the staff to whom the police enquired before and after examine him and none were examined in his presence and further deposed that one constable enquired him and that no documents were handed over to the police in his presence and that his job is not permanent one at the above said petrol bunk and that he has no idea that whether any Board is maintained by the Petrol bunk owner mentioning the names of workers working in the petrol bunk as per labour manual and that he do not know L.W.3 L.Seetha Rambabu and P.W,.2 admitted that the police read over his statement in the Court.

12 iv) P.W4 deposed in his chief examination that he know deceased

L.W.5 Sk. Yasin Basha and previously he was resided at 13th lane,

Sarada Colony, Guntur and presently he is residing at Rajeeva

Gruhakalapa Apartments, Adavitakkelapadu, Guntur District and furhter deposed that his brother’s son in law L.W.3 Lukka Rambabu was working in the Bharat Petrol Bunk at Nagaralu as the police took

L.W.3 Lukka Rambabu and the accused to the Police station, he went there along with L.W.5 Sk.Yasin Basha and police asked therm their signatures and obtained the same from them and they returned.

P.W.4 further deposed that he came to know through the police that they brought the accused since amount was misplaced in the petrol bunk and he do not know how much of cash was misplaced and the witness identified his signature on mediators report dated 08.01.2015.Ex.P4 is the signature of P.W.4 on the mediators report. At this stage, the learned A.P.P declared the witness as hostile and sought permission of the Hon'ble Court to cross examine the witness and during the cross examination P.W.4 denied that on 08.01.2015 the police conducted Panchanama at Gorantla Village Center and seized a cash of Rs.33,000/- from the possession of the accused herein and the accused confessed his guilt of offence in his presence and in the presence of L.W.5 Sk.Yasin Basha and in order to help the accused, he is deposing false and denied that the accused voluntarily admitted his guilt at the time of drafting mediatornama in their presence.

Durng the course of cross- examination by the Counsel for accused P.W.4 deposed that he does not know when the police took the L.W.3 Lukka Seetha Rambabu to the Police Station but after came to know that he was in Police custody in the police station, they went there and he do not remember whether they put signatures on 13 written papers or on blank papers of mediatornama.

v. P.W.5 is the then SI of Police, Nallapadu P.S deposed in his chief examination that on 23.12.2014 at 1.30 Pm when he was at Police

Station, he received a written report from P.W.1, immediately he registered a case in Crime No.918/2014 u/s.408 IPC and he submitted original FIR land complaint copy to the Hon’ble Court and concerned officers and he examined P.W.1 and recorded his statement u/s.161 of

Cr.P.C at Police Station and on the same day he visited the scene of offence and prepared rough sketch of the scene of offence and he was examined P.W.2, L.W.5, P.W.3 and recorded their statements u/s.161 of

Cr.P.C and on 08.01.2015 at 6.00 PM, he received information about accused in this case, and then he secured mediators L.W.5 Sk.Yasin

Basha, P.W.4 and then went to Gorantla along with said mediators and his staff, when they reached to Village center, Gorantla, one person on seeing them in police jeep tried to escape from that place on suspicion, he stopped and enquired him, he disclosed his name as ‘’Akula Srinivasa Rao and other identity particulars, and then he identified him as accused in this case and arrested him and recorded his confession in the presence of said mediators, in the said confession the accused stated that as per the content of mediators report dated 08.01.2015 and he recovered as per his confession

Rs.33,000/- and seized in the presence of mediators and arrested him after informing the grounds of his arrest under cover of mediators report and on 09.01.2015 he sent the accused to the Hon’ble Court for judicial remand and after completion of investigation, he filed charges sheet. Ex.P5 is the FIR,E.P6 is the Rough sketch and Ex.P7 is the mediators report dated 08.01.2015.

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During the cross examination P.W.5 admitted that there is delay of 25 days in giving report and that the reasons were not mentioned for said delay and he do not seize any material objects at scene of offence on the date of his visit and drawing of rough sketch at alleged scene of offence and he do not verify that how many points of petrol sold on that day and how much of collection was received by the

Management is not verified by him and further admitted that the complainant is not an original owner and denied that he do not investigate the matter in proper lines and he laid a false charge sheet against the accused basing on the false complaint given by them and that he is deposing false.

10.It is clear that except the evidence of P.Ws 1 to 5, the

Investigating officer i.e. P.W.6 did not connect any documents to show that the accused was working at the Petrol Bunk as on the date of the alleged incident and he worked as a Cashier as on that day.

11. P.W.1 deposed that on 29.11.2014 at about 11.30 A.M to 12.00 Noon the accused did not hand over the cash that was collected on that day, when he was unmounting of the duty and on verification he found that an amount of Rs.2,81,000/-(Rupees Two lakhs Eight one thousand only) was not remitted by the accused to him, and he informed the same to the owner. In the cross-examination

P.W.1 clearly admitted that he has not filed any documentary evidence to show that the amount to a tune of Rs.2,81,000/- (Rupees

Two lakhs Eight one thousand only) was not remitted by the accused, and he had committed mischief in respect of the said amount and that in EX.P1, he has not clearly specified the quantum of filling point which were accountable by the accused to a tune of Rs.2,81,000/- 15 (Rupees Two lakhs Eight one thousand only).

12. P.W.2 deposed that P.W.1 informed him that the accused has not given his accountability for cash to a tune of Rs.2,81,000/- ((Rupees Two lakhs Eight one thousand only) and that he has handed over the empty bag to P.W.5 (L.W.3). In his cross examination he admitted that specific readings was not mentioned in the complaint that from which point of reading, to which point of reading the accused filled the fuel and collected the amount of Rs.2,81,000/- (Rupees Two lakhs Eight one thousand only)

13. Even P.W.3 deposed in his cross examination by the learned

Assistant Public Prosecutor that he came to know the accused left without handing over Rs.2,81,000/- (Rupees Two lakhs Eight one thousand only) to the concerned by giving an empty bag.

14.So except the oral evidence of P.Ws 1 to 3, no document is placed to show that the accused was entrusted with the duty of filling up of petrol and collecting cash from the purchasers. In absence of any such material and without any document to show that the accused had collected Rs.2,81,000/- from the purchasers of the petrol, the oral evidence of P.Ws 1 to 3, alone is not sufficient.

15. As per the recitals in the report in Ex.P1 before giving the reports, P.W.1 searched for the accused and his family members and on instructions of P.W.2 and others, and his whereabouts are not known, he had given the report. Even in the column number ‘8’ of FIR in Ex.P5, the reason for delay in lodging the report was mentioned as ‘ informed owner and enquired.’ Even in the chief examination P.W.1 16 deposed the same. But P.W.2 had disposed in the chief examination that he had instructed P.W.1 to go to the house of accused and enquiries made by P.W.1 in the surrounding houses, the whereabouts of the accused were not known and P.W.1 intimated the same to him, and he accompanied P.W.1, when P.W.1 lodged the report. But in his cross examination, P.W.2 had deposed voluntarily said, since the accused promised that he will repay the said amount he did not give the complaint immediately and that the said fact of delay is not mentioned in the complaint. So, a new case is stated by P.W.2 in his cross examination. Apart that, P.W.1 clearly admitted in the cross- examination that he had made payments on his own to a tune of

Rs.2,81,000/- (Rupees Two lakhs eight one thousand only) to L.W.2 (P.W.2) before lodging of the report in Nallapadu Police Station. But this aspect was not mentioned in the report in EX.P1 or deposed by

P.W.2. Likewise handing over of empty bag to the P.W.5 was not deposed by P.W.5, and P.W.1 and it was mentioned by P.W.2. So, the reason for the delay in lodging the report as stated by P.W.1 is different from the reason deposed by P.W.2 in the cross examination.

16. Further P.W.2 deposed in the cross examination that the owner of the Petrol Bunk is Aruna Kumari, who is his aunt and she had not filed any complaint and since the police did not ask them, they did not reveal that the owner of the Petrol Bunk is Aruna Kumari.

It is the duty of the P.W.6 to ascertain who is the owner of the Petrol

Bunk and whether the alleged offence was brought to the notice of the owner of the Petrol Bunk and whether the report was given with the consent of the original owner. No investigation is made by P.W.6 in this regard. It also throws a doubt upon the case of the prosecution.

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17.As per the case of the prosecution on 08.01.2015 the accused was arrested and cash of Rs.33,000/-(Rupees thirty three thousand only) was recovered from him under the cover of mediators report, in the presence of Sk.Yasin Basha (L.W.5) and Vaka

Ramakrishna (P.W.4), but P.W.4 deposed that since police took Lukka

Rambabu (P.W.5) and accused, he went to the Police Station along with Shaik Yasin Basha and the police asked them for their signatures and obtained same, and he came to know that the police brought the accused since amount was misplaced. The evidence of P.W.5 is contra to the case of prosecution and nothing was elicited from his cross examination that could support the case of prosecution. P.W.6 deposed that the accused had confessed about committing of offence and Rs.33,000/- was recovered from the accused. As seen from the

Ex.P6 the accused was caught hold at Gorantla village Center. But,

P.W.6 did not make any efforts to secure mediators from the locality.

The alleged confession of accused is not valid in the eye of law, since it is made in the presence of the police and hit by the provisions of section 25 and 26 of the Indian Evidence Act. As per the alleged confession, the accused did not handed over cash on 28.11.2014 and when P.W.1 asked him to give the collection of both days, he stated that the collection of yesterday was in his house and he will bring the same and handed over to him. But these aspects was not mentioned in Ex.P1 as well as the evidence of P.W.1. The evidence of P.W.1 shows that the accused did not hand over cash on 29.11.2014 alone and not for two days. So the alleged confession of the accused which is inadmissible also becomes doubtful.

18.So, in the absence of any evidence to show that the accused was entrusted with the duty on the date of alleged incident and he 18 had collected Rs.2,81,000/- on the date of incident, it can be said that the prosecution failed to establish that the accused is guilt of the offence under section 408 of IPC. More over the cash of Rs.33,000/- said to have been seized from the accused was not marked in this case. It is also fatal to the case of prosecution. It is clear from the records that the interim custody of the unmarked cash was not taken either by P.W.1 or P.W.2 or by the original owner. It is also clear that the accused did not make any claim in respect of the said amount.

Therefore, this Court is of the opinion that the unmarked cash of

Rs.33,000/- shall be returned to the registered owner of the Swathi

Filling Station Petrol Bunk, (Bharat Petroleum, Nagaralu, Guntur Rural

Mandal. Hence, in view of the above discussion, this Court concludes and holds that the prosecution has failed to establish the guilt of the accused for the offence under section 408 of IPC beyond all reasonable doubt.

19.In the result, accused is found not guilty for the offence punishable under section 408 IPC and accordingly he is acquitted under section 248(1) Cr.P.C for the said offence. The bail bonds of the accused shall remain in force for a period of six months as per section 437-A Cr.P.C.

Typed to my dictation, corrected and pronounced by me in the Open Court, this the 23rd day of April, 2022.

Sd/-M.Indira Priyadarsini

SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS,

FOR PROHIBITION AND EXCISE, GUNTUR

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:FOR DEFENCE: None

P.W.1: Maram Nageswara Rao p.W.2: Gullapalli Veeran Chakravathi 19

P.W.3: Vasupalli Venu

P.W.4: Vaka Ramakrishna

P.W.5: L.Seetha Rambabu

P.W.6: K.V.Koteswara Rao

DOCUMENTS MARKED

FOR PROSECUTION: FOR DEFENCE: NIL

Ex.P1 is the written report given by P.W.1

Ex.P2 is the signature of P.W.1 on Ex.P1.

Ex.P3 is the Relevant portion in 161 Cr.P.C statement

Ex.P4: is the signature of P.W.4 on the mediators report.dated 08.01.2015.

Ex.P5: FIR

Ex.P6: is the rough sketch

Ex.P7: is the mediators reporte dated 08.01.2015

Ild/-M.I.P.D

Spl.J.F.C.M.

for P & E, G.N.T 20

IN THE COURT OF THE SPL.JUDL.MAGISTRATE OF FIRST CLASS

FOR PROHIBITION AND EXCISE: GUNTUR CALENDAR AND JUDGMENT IN C.C.NO.557/2016

DISTRICT: GUNTUR

DATE OF

OffenceFilingAppreheReleaseCommencClosure of Sentence nsiond on bailement of trialor order trial

Explanation for Delay:-

This case was taken on file on 27.9.19. Copies were furnished to the accused and he was examined u.s.239 Cr.P.C on 20.10.20. On 27.10.2020 L.W.1 is examined as P.W.1 and Exs.P1 and P2 marked. On 18.11.2020 L.w.2 is examined as P.W.2 and Ex.P3 marked. On 16.11.21P.Ws 3 and 4 are examined Exs.P4 and P4 are marked. On 23.11.2021 P.W.5 is examined and Exs.P6 marked. On 26.11.2021 P.W.6 is examined and Exs.P7 to P9 are marked. The learned A.P.P given up the evidence of l.W.7. Prosecution evidence is closed and accused were examined u.s.313 Cr.P.C and both the accused are directed to produce their surety holders to comply section 437 -A Cr.P.C. On 29.11.2021 accused 1 and 2 are present and for producing of surety holders at request call on 03.12.2021. On 03.12.2021 accused 1 and 2 present. Heard on both sides. on 09.12.2021 judgment pronounced. Hence, no delay.

Name of the complainant: State: The Sub Inspector of Police, Nallapadu P.S in Crime No.918/2014 Name of the accusedFather's CallingReligion Age village name Akula Srinivasa Rao, S/o.Radha Krisnna Murthy, Aged about 42 years, Telaga by caste, R/o.D No.4-16-86, 3rd lane, Bharathpeta,Guntur.

Nature of offence: 408 IPC Plea of the accused: Pleaded not guilty Finding: Found not guilty

Sentence or order: In the result, accused is found not guilty for the offence punishable under section 408 IPC and accordingly he is acquitted under section 248(1) Cr.P.C for the said offence. The bail bonds of the accused shall remain in force for a period of six months as per section 437-A Cr.P.C.

Sd/-M.Indira Priyadarsini

SPL.JUDL.MAGISTRATE OF FIRST CLASS,

FOR PROHIBITON & EXCISE, GUNTUR

Copy Submitted to: The Hon’ble Chief Judl. Magistrate, Guntur.

Copy to: The Superintendent of Police, (Excise) Guntur Urban.

1

IN THE COURT OF THE SPL.JUDL.MAGISTRATE OF FIRST CLASS FOR

PROH. & EXCISE OFFENCES, GUNTUR

Present : Smt. M.INDIRA PRIYADARSINI

Spl.Judl.Magistrate of First Class for Proh. & Excise, Guntur

Saturday, this the 23rd day of April, 2022

CC.No.1162/2019

Between :

The State : The Sub Inspector of Police,

Chebrolu P.S ….. Complainant.

AND

Karumuri Swarajyam W/o. Joseph, Aged about 65 years, caste: SC Madiga R/o.Old Madigapalle, Kothareddypalem, Cherolu village and mandal,

Guntur District. ...Accused

This case coming before me on 21.04.2020 for final hearing in the presence of Assistant Public Prosecutor for the complainant and of Smt.S.B.A Jhansi,Counsel for accused, upon hearing the arguments on the side of both parties, upon perusal of the entire material available on record, and upon having been stood over consideration till this day, this Court delivered the following :

J U D G M E N T

The Sub-Inspector of Police, Cherbolu P.S laid charge sheet against the accused for the offence under section 34(a) of A.P Excise Act.

2.The averments of the charge sheet in brief are that, On 30.09.2016, L.W.7 Smt.V.Aruna KUmari, Asst. Proh. & Excise Superintendent, Tenali along with LW.1 HC 2488 Akkiraju Narsimha Rao, L.W.2 PC 5098 Shaik Nurulla of Chebrolu P.S visited Old Madigapalle, of Kothareddypalem and noticed that the accused while she was carrying a bag containing Old Tavern whisky bottles 36 Nos (180ML), arrested her under cover of police proceedings, seized the same from the possession of the accused, brought the accused to Chebrole P.S along with the case property, registered the Police proceedings as a case in Cr.No.178/2016 U/s 34 (A) AP. Excise Act of Chebrole P.S on 30.09.2016 at 11 am, took up investigation, examined them and sent one sample Old Tavern bottle to the Government Chemical Examiner, Guntur for analysis and released the accused on bail by serving notice U/s 41-A Cr.P.C and according to the analysis report vide RC.No.2876/2016, the sample was analyzed and the opinion is the sample at Sl.No.24955 is containing alcohol as shown the column and it is Indian Liquor and L.W.8 K.Arogya Raju, S.I .,Chebrolu P.S submitted proposals to the Deputy Commissioner, Prohibition & Excise, Guntur for disposal of the case property, for which orders were issued vide RC.No. 414/2017/B1, dated 22.02.2018 to dispose of the contraband i.e., IML by way of Departmental Process/ Public Auction in the presence of Prohibition & Excise Superintendent, Tenali U/s 46(4) of Excise Act 1968 and basing the 2 orders of the Deputy Commissioner, Prohibition & Excise, Guntur, L.W.6 Kanijam Srinivasa Rao, license holder of SLN Wines conducted auction, and the contraband in this case and other 24 cases was purchased by L.W.5 Guntur Sudhakar for Rs. 62,742/- and deposited the amount in Sub-Treasury vide Ch.No.21012694042018, dated 27.06.2018 and handed over the challan receipt and after completion of investigation, L.W.9 V.Babu Rao, the then S.I., filed charge sheet against the accused.

3.This case was taken on file under section 34(a) of A.P Excise Act against the accused.

4. On appearance of accused, copies of case documents were furnished to her as required under section 207 of Cr.P.C. Accused was examined under section 239 Cr.P.C and the charge under section 34(a) of A.P Excise Act was framed, read over and explained to the accused for which she pleaded not guilty and claimed to be tried.

5. To prove its case, the prosecution examined P.Ws.1 to P.W.5 and got marked Ex.P1 to P8 and M.O.No.1. Ex.P1 is the police proceedings dated 30.09.2016, Ex.P2 is the signature of P.W.2 on mediators report dated 27.06.2018, Ex.P3 is the signature of P.W.3 on mediators report dated 27.06.2018, Ex.P4 is the FIR, Ex.P5 is the rough sketch and Ex.P6 is the letter of advice and Ex.P7 is the analysis report, Ex.P8 is the auction mediators report dated 27.06.2018 M.O.No.1 is the sample liquor bottle. The learned A.P.P given up the evidence of L.W.2 PC 5098 Shaik Nurulla, L.W.3 WPC No.5344 Dasari swathi, L.W.6 Kanijam Srinivasa Rao, License Holder of SLN wines, Chebrolu and L.W.10 G.Balakrisnna, S.I., Chebrolu P.S.

6. After completion of the prosecution side evidence, the accused was examined under section 313 Cr.P.C explaining the incriminating circumstances appearing against her in oral and documentary evidence, she denied the evidence and reported no defence evidence.

7. Heard on both sides and perused the records.

The learned A.P.P submitted that the prosecution by examining P.W1 to P.W5 coupled with Exs.P1 to P8 and M.O.No.1 established the guilt of the accused beyond all reasonable doubt for the offence under section 34(a) of A.P Excise Act, 1968 and hence he is liable to be convicted for the said offence. The learned Counsel for accused argued that the accused is falsely implicated in the above crime and there are several contradictions and discrepancies in the evidence of P.W.1 to P.W.5 and that the prosecution failed to prove the guilt of accused beyond all reasonable doubt. Hence, the accused is entitled for acquittal.

8. Now the point that arises for determination is: Whether the prosecution is able to prove the guilt of accused for the offence punishable under section 34(a) of A.P Excise Act,1968 beyond all the reasonable doubt?

9.POINT: To bring home the guilt of accused for the offence under section 34(a) of A.P Excise Act, the prosecution has examined P.W1 to 3

P.w.5 who are the Excise officials and got marked Exs.P1 to P8 and M.O.No.1.

10.The evidence of prosecution witnesses in brief is as follows: I) P.W.1 is the then Head Constable, Chebrolu P.S deposed in his chief examination that on 30.09.2016 at about 9.30 AM, received information through 100 dial about illegal selling of liquor, then himself, L.W.2 Shaik Nuruall PC 5098 and L.W.3 WPC Dasari Swathi went to Kothareddypalem, when they reached to Telugu Baptist Church, they found one old woman, having possession of white plastic, on seeing them, she tried to skulk away, on suspicion, he stopped her and questioned her, she informed that she is having liquor bottles in her possession and then he decided to draft a special report, and enquired the accused, she revealed her name ‘’Karumuri Swarajaym’ and other identity particulars and they observed 36 Old Tavern fine whisky bottles of 180 ml capacity and he drawn one sample bottle taken and the remaining bottles were seized under cover of police proceedings which was scribed by him and affixed identity slips on the sample bottle and seized the remaining bottles and later he arrested the accused after explaining the grounds of her arrest, and brought her after completion of proceedings, they all went to chebrolu P.S. Ex.P1 is the police proceedings and M.O.No.1 is the sample bottle. During the cross-examination by the legal aid counsel P.W.1 denied that he is the complainant, issued FIR , seizure of the property and remanded the accused to the Court and sent analysis and sent it for Analyst opinion through Court and denied that he foisted a false case against the accused for statistical purpose and denied that they do not go to the raids and nothing is seized from the possession of accused and no special report is prepared at the scene of offence, and do not summon any witness to act as mediator and that falsely implicated the accused in the above crime and deposing false. I do not file any document to show that I received call from ‘100’ It is true I do not mention the time underneath the date on police proceedings.

ii. P.W.2 who is one of the mediator deposed in his chief examination that at about 3 years back, while he came towards police station, Chebrolu Police stopped him and obtained his signature, but he do not know the contents of paper. Ex.P2 is the signature of P.W.2 on mediators report dated 27.06.2018. Thus he turned hostile to the case of prosecution and did not support the case of prosecution and the learned A.P.P obtained permission form the Hon’ble Court to cross examine him and during the course of cross examination he denied that himself f and L.W.5 Guntur Sudhakar were participated in the auction conducted by the police wherein himself and L.W.5 put the signatures on mediators report and that he is deposing false to help the accused iii) P.W.3 is another mediator deposed in his chief examination that he do not know P.W.2 and he does not know anything about this case and at about 3 years back, while he came towards police station, Chebrolu Police stopped him and obtained his signature, but he do not know the contents of paper. Ex.P3 is the signature of P.W.3 on mediators report dated 27.06.2018. Thus he turned hostile to the case of prosecution and did not support the case of prosecution and the learned A.P.P obtained permission form the Hon’ble Court to cross examine him and during the course of cross examination he 4 denied that himself, and P.W.2 were participated in the auction conducted by the police wherein himself and P.W.2 put the signatures on mediators report and that he is deposing false to help the accused iv)) P.W.4 is the then SI of Police, Chebrolu P.S deposed in his chief examination that on 30.09.2016 at about 11.00 AM, he received police proceedings, case property, sample and accused, and then, he took up further investigation in this case and basing on police proceedings, he registered a case in crime No.178/2016 u/s.34 (a) of A.P Excise Act, and submitted original FIR to the Hon’ble court and he secured the presence of P.W.1, L.W.2 Shaik Noorulla, L.W.3 Dasari Swathy examined them and recorded their statements u/s.161 Cr.P.C and on the same day he visited the scene of offence, and prepared rough sketch and on the same day served 41-A Cr.P.C notice to the accused and on 29.12.2016 he sent the samples on letter of advice and on 15.01.2017 he received the analysis report in this case. E.P4 is the FIR, Ex.P5 is the rough sketch and Ex.P6 is the letter of advice, Ex.P7 is the analysis report.

During the cross-examination P.W.4 deposed that he do not examine any of the neighbors of scene of offence and denied that he do not examine the list of witnesses and that he is deposing false and he denied that he do not conduct the further investigation in proper lines and laid a false charge sheet against the accused only for statistical purpose.

v) P.W.5 is the then S.I cherbolu P.S deposed n his chief examination that he received case file from P.W.4, and he conducted further investigation in this case, he secured P.W.2 and P.W.3 as mediators and in their presence, he conducted auction on 27.06.2018 , and submitted proposals to the Excise Superintendent, Tenali. Ex.P8 is the auction mediators report dated 27.06.2018 and after completion of investigation, L.W.10 G.Balakrishna, S.I filed charge sheet. During the cross examination P.W.5 denied that they do not conduct any auction in the presence of the mediators and that he is deposing false and he do not issue any notice or written requisition to the said mediators with respect of the above alleged auction.

11. Upon gone through the evidence of P.Ws 1 to 5 coupled with Exs.P1 to P8, as per the case of the prosecution 36 -180 ml bottles of Old Tavern Whisky bottles were found in possession of the accused and she did not produce any licence or permit for possessing the same. The P.W.1 who conducted raids deposed that the accused confessed that she is in possession of 36 liquor bottles, then he decided to draft a special report, the P.W.4 deposed that he registered the crime and he secured the presence of P.W.1 and L.W.2 Shaik Nurulla and L.W.3 Dasari Swathi , examined them and recorded their statements u/s.161 of Cr.P.C and he served notice u/s.41-A Cr.P.C to the accused on 29.12.2016. The P.W.5 deposed that in his further investigation, he secured P.W.2 and P.W.3 as mediators and in their presence he conducted auction on 27.06.2018. So, it is clear from the evidence of P.Ws 1, 4 and 5 and the police proceedings, the prosecution did not make any efforts to secure the presence of mediators by way of notices. But, the P.W.1 did not explain as to why he could not secure the presence of any other local people in the same vicinity of scene of offence though it is a busy locality and the time of raids is at 9.30 a.m. It shows that the P.W.1 did not make any 5 sincere efforts to secure the persons of the locality or other officials and mediators, without making such efforts he proceeded to the police proceedings report under Ex.P1. So the proceedings of seizure made by P.W.1 are hit by the provisions of section 100 Cr.P.C.

12.It is clear that the prosecution relying upon the alleged confession of the accused regarding her possession of the property to sell the same. The alleged confession is made before P.W.1 and other Police Officials. Any confession made before the Police Official is inadmissible in evidence under provision of section 25 and 26 of the Indian Evidence Act. P.W.1 did not make any investigation in the vicinity of scene of offence to establish that she is selling liquor bottles for an higher price by purchasing from different wine shops and she is in illegal possession of the same and do not find any purchaser at the scene of offence to say that the accused is in possession of those liquor bottles to sell them for higher prices. Since the confession of the accused is inadmissible, the evidence of P.Ws 1, P.W.4 and P.W.5 is not much helpful. More over, as per the case of the prosecution M.O.No.1 was seized on 30.09.2016. As seen from the production of M.O.No.1 was produced before the Court on 20.04.2019 vide CPR No.104/2019 for sending for analysis. There is a gap of nearly two and half years from the date of alleged seizure of M.O.No.1 and its production before the Court for being sent for analysis. The said delay is not at -all explained by the P.W.4. More over, the P.W.4 deposed that he sent the sample to the Chemical Examiner but no date is specified by him. The said non-explanation of delay of production of property into the Court throws a doubt upon the alleged seizure of M.O.No.1 under Ex.P1. Further, as per the list of property confiscation proposals were to submitted to the concerned authority regarding, remaining case property seized from the accused, the P.W.5 deposed that he secured the mediators i.e. P.W.2 and P.W.3 and in their presence he conducted auction on 27.06.2018 and submitted proposals to the Excise Superintendent, Tenali. But the P.W.2 and P.W.3 who are said to be the mediators were turned hostile to the case of prosecution and they do not support the case of prosecution in any manner. So, except the evidence of P.W.5, there is no independent evidence to prove that the P.W.5 conducted auction. Hence, the auction proceedings under Ex.P8 is not proved.

13.Further, as per Ex.P1 the alleged seizure was made by P.W.1 and he is the complainant under Ex.P1. As seen from the M.O.No.1 was produced before the Court by P.W.4. But P.W.4 do not depose that when he sent the samples on letter of advice to the Court. But the case records shows that the property was produced on 20.04.2019. So, the said inordinate delay in producing property into the Court throws a doubt upon the alleged seizure of property from the accused under Ex.P1. It is clear that except alleged confession and the evidence of P.Ws 1,4 and 5 who are police personnel, there is no independent evidence to establish the seizure and the case of the prosecution. So, the confession is inadmissible and the seizure proceedings in Ex.P1 are not made in accordance with law. Therefore, it can be said that the prosecution failed to establish the seizure of M.O.No.1 and other case property from the accused under Ex.P1.

14. Therefore, in view of the above discrepancies from the evidence of P.Ws 1, 4 and 5, and Ex.P1 to Ex.P8, the prosecution failed to bring home the guilt of the accused for the offence under section 34(a) of A.P Excise Act, 1968 as alleged by them. Accordingly, point is 6 answered.

15.Hence, in view of the above discussion, the prosecution has failed to establish its case against the accused, beyond all reasonable doubt. Hence, the accused is entitled for acquittal. Accordingly, the point is answered.

16.In the result, accused is found not guilty for the offence punishable under section 34(a) of A.P Excise Act and she is acquitted under section 248(1) of Cr.P.C for the said offence. The bail bonds of the accused shall remain in force for a period of six months as per section 437-A Cr.P.C. M.O.No.1 shall be destroyed after expiry of appeal time. Typed to my dictation to the Stenographer, corrected and

pronounced by me in the Open Court, this is the 23rd day of April

2022.

Sd/-M.Indira Priyadarsini

SPECIAL JUDICIAL MAGISTRATE OF I CLASS,

FOR PROHIBITION AND EXCISE, GUNTUR

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:FOR DEFENCE: None

P.W1: Akkiraju Narasimha Rao

P.W.2: Shaik Basheed

P.W.3: Guntur Sudhakar

P.W.4: K.Arogya Raju

P.W.5: V.babu RAo

DOCUMENTS MARKED

FOR PROSECUTION: FOR DEFENCE: NIL

Ex.P1 is the police proceedings dated 30.09.2016,

Ex.P2 is the signature of P.W.2 on mediators report dated 27.06.2018

Ex.P3 is the signature of P.W.3 on mediators report dated 27.06.2018

Ex.P4 is the FIR

Ex.P5 is the rough sketch

Ex.P6 is the letter of advice

Ex.P7 is the analysis report,

Ex.P8 is the auction mediators report dated 27.06.2018

MATERIAL OBJECTS MARKED

M.O.No.1 is the sample bottle of 180 ml Old Tavern fine whisky bottles.Spl.J.F.C.M.

7

IN THE COURT OF THE SPL.JUDL.MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE: GUNTUR CALENDAR AND JUDGMENT IN C.C.NO.1162/2019 DISTRICT: GUNTUR

DATE OF

OffenceFilingAppreheReleaseCommencClosure of Sentence nsiond on bailement of trialor order trial 30.9.1618.3.192.12.212.10.1615.3.228.4.2223.04.22

Explanation for Delay:-

This case was taken on file on 27.5.19. This case is posted from time to time due to Covid-19 for serving of summons against the accused. On 02.12.2022 accused examinded u/s.239 Cr.P.C. This case is posted from time to time due to covid-19 for evidence of prosecution witnesses. On 15.03.2022 P.Ws.1 to P.W.3 were examined and Ex.P1 to P3 and M.O.No.1 are marked. On 08.04.2022 P.Ws 4 and 5 are examined. Ex.P4 to P8 marked L.W.2, 3,.6 and 10 evidence is given up by learned A.P.P Prosecution evidence is closed. On 21.04.2022 accused examined u/s.313 Cr.P.C and he denied the incriminating evidence appearing against them. hrard both sides. On 2304.2021 judgment pronounced. Hence, no delay.

Name of the complainant: State: The sub Inspector of Police in Crime No. 178/2016 Name of the accusedFather's CallingReligion Age village name Karumuri Swarajyam W/o. Joseph, Aged about 65 years, caste: SC Madiga R/o.Old Madigapalle, Kothareddypalem,Cherolu village and mandal, Guntur District. Nature of offence: 34(a) of A.P Excise Act Plea of the accused: Pleaded not guilty Finding: Found not guilty

Sentence or order: In the result, accused is found not guilty for the offence punishable under section 34(a) of A.P Excise Act and she is acquitted under section 248(1) of Cr.P.C for the said offence. The bail bonds of the accused shall remain in force for a period of six months as per section 437-A Cr.P.C. M.O.No.1 shall be destroyed after expiry of appeal time.

Sd/-M.Indira Priyadarsini

SPL.JUDL.MAGISTRATE OF FIRST CLASS,

FOR PROHIBITON & EXCISE, GUNTUR

Copy Submitted to: The Hon’ble Chief Judl. Magistrate, Guntur.

Copy to: The Superintendent of Police, (Excise) Guntur Urban.

1

IN THE COURT OF THE SPL.JUDL.MAGISTRATE OF FIRST CLASS FOR

PROH. & EXCISE OFFENCES, GUNTUR

Present : Smt. M.INDIRA PRIYADARSINI

Spl.Judl.Magistrate of First Class for Proh. & Excise, Guntur

Saturday, this the 23rd day of April, 2022

CC.No.1162/2019

Between :

The State : The Sub Inspector of Police,

Chebrolu P.S ….. Complainant.

AND

Karumuri Swarajyam W/o. Joseph, Aged about 65 years, caste: SC Madiga R/o.Old Madigapalle, Kothareddypalem, Cherolu village and mandal,

Guntur District. ...Accused

This case coming before me on 21.04.2020 for final hearing in the presence of Assistant Public Prosecutor for the complainant and of Smt.S.B.A Jhansi,Counsel for accused, upon hearing the arguments on the side of both parties, upon perusal of the entire material available on record, and upon having been stood over consideration till this day, this Court delivered the following :

J U D G M E N T

The Sub-Inspector of Police, Cherbolu P.S laid charge sheet against the accused for the offence under section 34(a) of A.P Excise Act.

2.The averments of the charge sheet in brief are that, On 30.09.2016, L.W.7 Smt.V.Aruna KUmari, Asst. Proh. & Excise Superintendent, Tenali along with LW.1 HC 2488 Akkiraju Narsimha Rao, L.W.2 PC 5098 Shaik Nurulla of Chebrolu P.S visited Old Madigapalle, of Kothareddypalem and noticed that the accused while she was carrying a bag containing Old Tavern whisky bottles 36 Nos (180ML), arrested her under cover of police proceedings, seized the same from the possession of the accused, brought the accused to Chebrole P.S along with the case property, registered the Police proceedings as a case in Cr.No.178/2016 U/s 34 (A) AP. Excise Act of Chebrole P.S on 30.09.2016 at 11 am, took up investigation, examined them and sent one sample Old Tavern bottle to the Government Chemical Examiner, Guntur for analysis and released the accused on bail by serving notice U/s 41-A Cr.P.C and according to the analysis report vide RC.No.2876/2016, the sample was analyzed and the opinion is the sample at Sl.No.24955 is containing alcohol as shown the column and it is Indian Liquor and L.W.8 K.Arogya Raju, S.I .,Chebrolu P.S submitted proposals to the Deputy Commissioner, Prohibition & Excise, Guntur for disposal of the case property, for which orders were issued vide RC.No. 414/2017/B1, dated 22.02.2018 to dispose of the contraband i.e., IML by way of Departmental Process/ Public Auction in the presence of Prohibition & Excise Superintendent, Tenali U/s 46(4) of Excise Act 1968 and basing the 2 orders of the Deputy Commissioner, Prohibition & Excise, Guntur, L.W.6 Kanijam Srinivasa Rao, license holder of SLN Wines conducted auction, and the contraband in this case and other 24 cases was purchased by L.W.5 Guntur Sudhakar for Rs. 62,742/- and deposited the amount in Sub-Treasury vide Ch.No.21012694042018, dated 27.06.2018 and handed over the challan receipt and after completion of investigation, L.W.9 V.Babu Rao, the then S.I., filed charge sheet against the accused.

3.This case was taken on file under section 34(a) of A.P Excise Act against the accused.

4. On appearance of accused, copies of case documents were furnished to her as required under section 207 of Cr.P.C. Accused was examined under section 239 Cr.P.C and the charge under section 34(a) of A.P Excise Act was framed, read over and explained to the accused for which she pleaded not guilty and claimed to be tried.

5. To prove its case, the prosecution examined P.Ws.1 to P.W.5 and got marked Ex.P1 to P8 and M.O.No.1. Ex.P1 is the police proceedings dated 30.09.2016, Ex.P2 is the signature of P.W.2 on mediators report dated 27.06.2018, Ex.P3 is the signature of P.W.3 on mediators report dated 27.06.2018, Ex.P4 is the FIR, Ex.P5 is the rough sketch and Ex.P6 is the letter of advice and Ex.P7 is the analysis report, Ex.P8 is the auction mediators report dated 27.06.2018 M.O.No.1 is the sample liquor bottle. The learned A.P.P given up the evidence of L.W.2 PC 5098 Shaik Nurulla, L.W.3 WPC No.5344 Dasari swathi, L.W.6 Kanijam Srinivasa Rao, License Holder of SLN wines, Chebrolu and L.W.10 G.Balakrisnna, S.I., Chebrolu P.S.

6. After completion of the prosecution side evidence, the accused was examined under section 313 Cr.P.C explaining the incriminating circumstances appearing against her in oral and documentary evidence, she denied the evidence and reported no defence evidence.

7. Heard on both sides and perused the records.

The learned A.P.P submitted that the prosecution by examining P.W1 to P.W5 coupled with Exs.P1 to P8 and M.O.No.1 established the guilt of the accused beyond all reasonable doubt for the offence under section 34(a) of A.P Excise Act, 1968 and hence he is liable to be convicted for the said offence. The learned Counsel for accused argued that the accused is falsely implicated in the above crime and there are several contradictions and discrepancies in the evidence of P.W.1 to P.W.5 and that the prosecution failed to prove the guilt of accused beyond all reasonable doubt. Hence, the accused is entitled for acquittal.

8. Now the point that arises for determination is: Whether the prosecution is able to prove the guilt of accused for the offence punishable under section 34(a) of A.P Excise Act,1968 beyond all the reasonable doubt?

9.POINT: To bring home the guilt of accused for the offence under section 34(a) of A.P Excise Act, the prosecution has examined P.W1 to 3

P.w.5 who are the Excise officials and got marked Exs.P1 to P8 and M.O.No.1.

10.The evidence of prosecution witnesses in brief is as follows: I) P.W.1 is the then Head Constable, Chebrolu P.S deposed in his chief examination that on 30.09.2016 at about 9.30 AM, received information through 100 dial about illegal selling of liquor, then himself, L.W.2 Shaik Nuruall PC 5098 and L.W.3 WPC Dasari Swathi went to Kothareddypalem, when they reached to Telugu Baptist Church, they found one old woman, having possession of white plastic, on seeing them, she tried to skulk away, on suspicion, he stopped her and questioned her, she informed that she is having liquor bottles in her possession and then he decided to draft a special report, and enquired the accused, she revealed her name ‘’Karumuri Swarajaym’ and other identity particulars and they observed 36 Old Tavern fine whisky bottles of 180 ml capacity and he drawn one sample bottle taken and the remaining bottles were seized under cover of police proceedings which was scribed by him and affixed identity slips on the sample bottle and seized the remaining bottles and later he arrested the accused after explaining the grounds of her arrest, and brought her after completion of proceedings, they all went to chebrolu P.S. Ex.P1 is the police proceedings and M.O.No.1 is the sample bottle. During the cross-examination by the legal aid counsel P.W.1 denied that he is the complainant, issued FIR , seizure of the property and remanded the accused to the Court and sent analysis and sent it for Analyst opinion through Court and denied that he foisted a false case against the accused for statistical purpose and denied that they do not go to the raids and nothing is seized from the possession of accused and no special report is prepared at the scene of offence, and do not summon any witness to act as mediator and that falsely implicated the accused in the above crime and deposing false. I do not file any document to show that I received call from ‘100’ It is true I do not mention the time underneath the date on police proceedings.

ii. P.W.2 who is one of the mediator deposed in his chief examination that at about 3 years back, while he came towards police station, Chebrolu Police stopped him and obtained his signature, but he do not know the contents of paper. Ex.P2 is the signature of P.W.2 on mediators report dated 27.06.2018. Thus he turned hostile to the case of prosecution and did not support the case of prosecution and the learned A.P.P obtained permission form the Hon’ble Court to cross examine him and during the course of cross examination he denied that himself f and L.W.5 Guntur Sudhakar were participated in the auction conducted by the police wherein himself and L.W.5 put the signatures on mediators report and that he is deposing false to help the accused iii) P.W.3 is another mediator deposed in his chief examination that he do not know P.W.2 and he does not know anything about this case and at about 3 years back, while he came towards police station, Chebrolu Police stopped him and obtained his signature, but he do not know the contents of paper. Ex.P3 is the signature of P.W.3 on mediators report dated 27.06.2018. Thus he turned hostile to the case of prosecution and did not support the case of prosecution and the learned A.P.P obtained permission form the Hon’ble Court to cross examine him and during the course of cross examination he 4 denied that himself, and P.W.2 were participated in the auction conducted by the police wherein himself and P.W.2 put the signatures on mediators report and that he is deposing false to help the accused iv)) P.W.4 is the then SI of Police, Chebrolu P.S deposed in his chief examination that on 30.09.2016 at about 11.00 AM, he received police proceedings, case property, sample and accused, and then, he took up further investigation in this case and basing on police proceedings, he registered a case in crime No.178/2016 u/s.34 (a) of A.P Excise Act, and submitted original FIR to the Hon’ble court and he secured the presence of P.W.1, L.W.2 Shaik Noorulla, L.W.3 Dasari Swathy examined them and recorded their statements u/s.161 Cr.P.C and on the same day he visited the scene of offence, and prepared rough sketch and on the same day served 41-A Cr.P.C notice to the accused and on 29.12.2016 he sent the samples on letter of advice and on 15.01.2017 he received the analysis report in this case. E.P4 is the FIR, Ex.P5 is the rough sketch and Ex.P6 is the letter of advice, Ex.P7 is the analysis report.

During the cross-examination P.W.4 deposed that he do not examine any of the neighbors of scene of offence and denied that he do not examine the list of witnesses and that he is deposing false and he denied that he do not conduct the further investigation in proper lines and laid a false charge sheet against the accused only for statistical purpose.

v) P.W.5 is the then S.I cherbolu P.S deposed n his chief examination that he received case file from P.W.4, and he conducted further investigation in this case, he secured P.W.2 and P.W.3 as mediators and in their presence, he conducted auction on 27.06.2018 , and submitted proposals to the Excise Superintendent, Tenali. Ex.P8 is the auction mediators report dated 27.06.2018 and after completion of investigation, L.W.10 G.Balakrishna, S.I filed charge sheet. During the cross examination P.W.5 denied that they do not conduct any auction in the presence of the mediators and that he is deposing false and he do not issue any notice or written requisition to the said mediators with respect of the above alleged auction.

11. Upon gone through the evidence of P.Ws 1 to 5 coupled with Exs.P1 to P8, as per the case of the prosecution 36 -180 ml bottles of Old Tavern Whisky bottles were found in possession of the accused and she did not produce any licence or permit for possessing the same. The P.W.1 who conducted raids deposed that the accused confessed that she is in possession of 36 liquor bottles, then he decided to draft a special report, the P.W.4 deposed that he registered the crime and he secured the presence of P.W.1 and L.W.2 Shaik Nurulla and L.W.3 Dasari Swathi , examined them and recorded their statements u/s.161 of Cr.P.C and he served notice u/s.41-A Cr.P.C to the accused on 29.12.2016. The P.W.5 deposed that in his further investigation, he secured P.W.2 and P.W.3 as mediators and in their presence he conducted auction on 27.06.2018. So, it is clear from the evidence of P.Ws 1, 4 and 5 and the police proceedings, the prosecution did not make any efforts to secure the presence of mediators by way of notices. But, the P.W.1 did not explain as to why he could not secure the presence of any other local people in the same vicinity of scene of offence though it is a busy locality and the time of raids is at 9.30 a.m. It shows that the P.W.1 did not make any 5 sincere efforts to secure the persons of the locality or other officials and mediators, without making such efforts he proceeded to the police proceedings report under Ex.P1. So the proceedings of seizure made by P.W.1 are hit by the provisions of section 100 Cr.P.C.

12.It is clear that the prosecution relying upon the alleged confession of the accused regarding her possession of the property to sell the same. The alleged confession is made before P.W.1 and other Police Officials. Any confession made before the Police Official is inadmissible in evidence under provision of section 25 and 26 of the Indian Evidence Act. P.W.1 did not make any investigation in the vicinity of scene of offence to establish that she is selling liquor bottles for an higher price by purchasing from different wine shops and she is in illegal possession of the same and do not find any purchaser at the scene of offence to say that the accused is in possession of those liquor bottles to sell them for higher prices. Since the confession of the accused is inadmissible, the evidence of P.Ws 1, P.W.4 and P.W.5 is not much helpful. More over, as per the case of the prosecution M.O.No.1 was seized on 30.09.2016. As seen from the production of M.O.No.1 was produced before the Court on 20.04.2019 vide CPR No.104/2019 for sending for analysis. There is a gap of nearly two and half years from the date of alleged seizure of M.O.No.1 and its production before the Court for being sent for analysis. The said delay is not at -all explained by the P.W.4. More over, the P.W.4 deposed that he sent the sample to the Chemical Examiner but no date is specified by him. The said non-explanation of delay of production of property into the Court throws a doubt upon the alleged seizure of M.O.No.1 under Ex.P1. Further, as per the list of property confiscation proposals were to submitted to the concerned authority regarding, remaining case property seized from the accused, the P.W.5 deposed that he secured the mediators i.e. P.W.2 and P.W.3 and in their presence he conducted auction on 27.06.2018 and submitted proposals to the Excise Superintendent, Tenali. But the P.W.2 and P.W.3 who are said to be the mediators were turned hostile to the case of prosecution and they do not support the case of prosecution in any manner. So, except the evidence of P.W.5, there is no independent evidence to prove that the P.W.5 conducted auction. Hence, the auction proceedings under Ex.P8 is not proved.

13.Further, as per Ex.P1 the alleged seizure was made by P.W.1 and he is the complainant under Ex.P1. As seen from the M.O.No.1 was produced before the Court by P.W.4. But P.W.4 do not depose that when he sent the samples on letter of advice to the Court. But the case records shows that the property was produced on 20.04.2019. So, the said inordinate delay in producing property into the Court throws a doubt upon the alleged seizure of property from the accused under Ex.P1. It is clear that except alleged confession and the evidence of P.Ws 1,4 and 5 who are police personnel, there is no independent evidence to establish the seizure and the case of the prosecution. So, the confession is inadmissible and the seizure proceedings in Ex.P1 are not made in accordance with law. Therefore, it can be said that the prosecution failed to establish the seizure of M.O.No.1 and other case property from the accused under Ex.P1.

14. Therefore, in view of the above discrepancies from the evidence of P.Ws 1, 4 and 5, and Ex.P1 to Ex.P8, the prosecution failed to bring home the guilt of the accused for the offence under section 34(a) of A.P Excise Act, 1968 as alleged by them. Accordingly, point is 6 answered.

15.Hence, in view of the above discussion, the prosecution has failed to establish its case against the accused, beyond all reasonable doubt. Hence, the accused is entitled for acquittal. Accordingly, the point is answered.

16.In the result, accused is found not guilty for the offence punishable under section 34(a) of A.P Excise Act and she is acquitted under section 248(1) of Cr.P.C for the said offence. The bail bonds of the accused shall remain in force for a period of six months as per section 437-A Cr.P.C. M.O.No.1 shall be destroyed after expiry of appeal time. Typed to my dictation to the Stenographer, corrected and

pronounced by me in the Open Court, this is the 23rd day of April

2022.

Sd/-M.Indira Priyadarsini

SPECIAL JUDICIAL MAGISTRATE OF I CLASS,

FOR PROHIBITION AND EXCISE, GUNTUR

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:FOR DEFENCE: None

P.W1: Akkiraju Narasimha Rao

P.W.2: Shaik Basheed

P.W.3: Guntur Sudhakar

P.W.4: K.Arogya Raju

P.W.5: V.babu RAo

DOCUMENTS MARKED

FOR PROSECUTION: FOR DEFENCE: NIL

Ex.P1 is the police proceedings dated 30.09.2016,

Ex.P2 is the signature of P.W.2 on mediators report dated 27.06.2018

Ex.P3 is the signature of P.W.3 on mediators report dated 27.06.2018

Ex.P4 is the FIR

Ex.P5 is the rough sketch

Ex.P6 is the letter of advice

Ex.P7 is the analysis report,

Ex.P8 is the auction mediators report dated 27.06.2018

MATERIAL OBJECTS MARKED

M.O.No.1 is the sample bottle of 180 ml Old Tavern fine whisky bottles.Spl.J.F.C.M.

7

IN THE COURT OF THE SPL.JUDL.MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE: GUNTUR CALENDAR AND JUDGMENT IN C.C.NO.1162/2019 DISTRICT: GUNTUR

DATE OF

OffenceFilingAppreheReleaseCommencClosure of Sentence nsiond on bailement of trialor order trial 30.9.1618.3.192.12.212.10.1615.3.228.4.2223.04.22

Explanation for Delay:-

This case was taken on file on 27.5.19. This case is posted from time to time due to Covid-19 for serving of summons against the accused. On 02.12.2022 accused examinded u/s.239 Cr.P.C. This case is posted from time to time due to covid-19 for evidence of prosecution witnesses. On 15.03.2022 P.Ws.1 to P.W.3 were examined and Ex.P1 to P3 and M.O.No.1 are marked. On 08.04.2022 P.Ws 4 and 5 are examined. Ex.P4 to P8 marked L.W.2, 3,.6 and 10 evidence is given up by learned A.P.P Prosecution evidence is closed. On 21.04.2022 accused examined u/s.313 Cr.P.C and he denied the incriminating evidence appearing against them. hrard both sides. On 2304.2021 judgment pronounced. Hence, no delay.

Name of the complainant: State: The sub Inspector of Police in Crime No. 178/2016 Name of the accusedFather's CallingReligion Age village name Karumuri Swarajyam W/o. Joseph, Aged about 65 years, caste: SC Madiga R/o.Old Madigapalle, Kothareddypalem,Cherolu village and mandal, Guntur District. Nature of offence: 34(a) of A.P Excise Act Plea of the accused: Pleaded not guilty Finding: Found not guilty

Sentence or order: In the result, accused is found not guilty for the offence punishable under section 34(a) of A.P Excise Act and she is acquitted under section 248(1) of Cr.P.C for the said offence. The bail bonds of the accused shall remain in force for a period of six months as per section 437-A Cr.P.C. M.O.No.1 shall be destroyed after expiry of appeal time.

Sd/-M.Indira Priyadarsini

SPL.JUDL.MAGISTRATE OF FIRST CLASS,

FOR PROHIBITON & EXCISE, GUNTUR

Copy Submitted to: The Hon’ble Chief Judl. Magistrate, Guntur.

Copy to: The Superintendent of Police, (Excise) Guntur Urban.

1

IN THE COURT OF THE SPL.JUDL.MAGISTRATE OF FIRST CLASS

FOR PROH. & EXCISE OFFENCES, GUNTUR

Present : Smt. M.INDIRA PRIYADARSINI

Spl.Judl.Magistarate of First Class for Proh. & Excise, Guntur

Friday, this is the 23rd day of April, 2022

CC.No.37/2017

Between :

The State: Station House Officer,

Pattabhipuram P.S ...Complainant

And

Nakka Wilson, S/o. Israiel, Aged about 52 years, mala Native of Door No.54-8-5/1, Aanala Venkatappa Rao road, Addepalli colony, Rajahumundry, East Godavari District, Now at Flat No.505, National Avenue,Manimala Cross road, Yedapppalli, Kocchi-682021Kerala State working as Senior Manager in Hindindustan Petroleum Corporation Ltd, Kocchi, Kerala State.

...Accused

This case coming before me on 21.04.2022 for final hearing in the presence of Assistant Public Prosecutor for the complainant and of Sri G.Joseph Ravi Kumar, Advocate for accused, and upon hearing the arguments on the side of both parties, and upon perusal of the entire material available on record, and upon having been stood over consideration till this day, this Court delivered the following:

J U D G M E N T

The Inspector of Police, Pattabhipuram P.S filed charge sheet against the accused in Crime No.319/2016 of Pattabhpuram Police station for the offence under section 417,420 and 493 IPC.

2. The brief averments of the charge sheet are that, The L.W.1Kambhampati Mary is resident of Door No.5-1-250, Tufan Nagar 2nd lane, Maruthi Nagar Extension, Gujjanagundla, Guntur and her parents were blessed with three children, of them two are male and the other is L.W1Kambhampati Mary and she profession is a cook and in her childhood itself her parents were demised, hence L.W4 J.Poornamma and L.W.5 J.NKeelambaram who are the aunt and uncle fostered her in Venigandla village of Peda Kakani Mandal, Guntur District and when she reached at the age of 14 years her marriage was performed with the second son of Kmbhampati Kotaiah by name Kmbhampati Brahmaiah resident of Yerraguntlapadu village of Phirangipuram mandal in the year 1999 and after the marriage LW1 Kambhampati Mary led the marital life happily for some period and during their wedlock she blessed with two male children and her husband addicted for vices and suspecting her fidelity and not looking after her welfare and her children and used to harass her both physically and mentally and at one instant in the year 2008 she reverted on her husband Brahmaiah for which her husband drive 2 away her from his house and again she reached to the house of her aunt in Venigandla and used to reside there and eking her livelihood by working as a cook in the house at Kakani. At this juncture one Lakshmi and her husband by name Venkata Rao acquainted with her who are the neighbours to LW1 Kambampati Mary informed that one of their relatives residing in Suryapet needs a cook and he will arrange a good salary and there is no extra work and instigated her to go there for work, accordingly she along with Lakshmi and her husband by name Venkata Rao went to Suryapet and she attended for work where they showed the house of their relative (the accused) and the accused informed her that his name is Nakka Wilson, native of Rajamundry and he is staying there on his job and he further informed that his mother and sister used to come to his house and stayed there for some days and gone and he used to go to some other places and don’t fear to stay in his house and after some days the accused also shared his own issues with her and also informed that the accused was married and he discarded his wife and given divorce to his wife and so saying when the accused asked about her details and then she also exposed the entire good and bad occurred in her life and then the accused facilities her financially and looking her welfare well and this was occurred in the year May 2010 and by the way gradually the accused captured her by saying deceitful words that he will marry her and looks after her welfare and so saying the accused used to participate in sex and cohabited with her treating her like his wife, while the matter so in the year 2011 during summer the accused used to go outside and return back to house once in 15 or 20 days and she was lonely suffering so many days and she is facing fear and difficulty in these days and then the accused informed her that he will return again after completion of arrangements such as taking a house and etc., and until that you stay at Guntur and so saying the accused sent her away to Guntur and then she reached to Guntur and taken a small room for rent in Amaravathi road, Guntur in the house of L.W.2 Kunkalagunta Pullaiah, the accused used to come to her house in proper intervals and he also used to take her with him to Rajahmundry, Kakinada and Visakhapatnam and used to stay in the hotles there and later the accused went away and conducted the same ip to January 2015 and finally in the month of March 2015 she vacated the house of L.W2 Kunkalaguntla Pullaiah and reached Gujjanagundla and staying in Maruthi Nagar and in the house of L.W3 Jadiga Meenamma, there also the accused used to come to her house once in a 2 or 3 months and since 5 or 6 months the accused did not visited her house and due to anxiety she enquired for him in Rajamundry and learnt that the accused was married and staying along with his wife in Kerala, and she come to a conclusion that the accused used her for his bodily need utilizing her weakness and ill fate and also saying deceitful words and fulfilled his desires and cheated her stating that he will marry her and look after her welfare and did this intentionally, then she went to Pattabhipuram Police Station and presented a report ii) Basing on the report of L.W1 Kambampati Mary on 21.10.2016 at 6.00 p.m. LW6 Sk.Jeelani Basha, S.I., Pattabhipuram P.S registered a case in Cr.No. 319/2016 U/S 417,420,493 IPC of Pattabhipuram P.S and investigated into the case and during the course of investigation LW6 Sk.Jeelani Basha, S.I., Pattabhipuram P.S visited the scene of offence and examined the prosecution witnesses from Nos. 1 to 5 and recorded their statements and during the course of investigation he arrested the accused on 09.11.2016 and sent him 3 for remand and after completion of investigation he filed the charge sheet.

3.The case was taken on file for the offence under Section 417 and 420 IPC against the accused and registered as C.C.No.37/2017. On appearance of accused, copies of documents furnished to him as required under Section 207 Cr.P.C.

4.The accused was examined under Section 239 Cr.P.C. Charges under Sections 417 and 420 IPC were framed against the accused, read over and explained to him in Telugu for which he denied and pleaded not guilty and claimed to be tried.

5.On behalf of the prosecution, L.W6 Sk.Jeelani basha, Sub Inspector of Police, Pattabhipuram P.S alone examined as P.w.1 and got marked Exs.P1 to P4.

6.After completion of the prosecution side evidence, the accused was examined under section 313 Cr.P.C explaining the incriminating circumstances appearing against him in oral and documentary evidence, he denied the evidence and reported no defence evidence.

7.Heard the arguments submitted on both sides.

8.Now the point that arises for determination is:- Whether the prosecution could prove the guilt of the accused for the charges under Sections 417 and 420 IPC beyond reasonable doubt?

9.POINT:- It is the case of the prosecution that the defacto complainant joined with the accused in his house to work as maid servant as he is divorcee. The further case of prosecution is that the accused developed physical relationship with her by believing that he will marry her and thereafter he neglected her and on enquiry she came to know that he contacted marriage with another woman. Thus, the accused cheated the defacto-complainant.

10. Upon verifying the records, it reveals that the prosecution filed a report issued by the Revenue Authorities stating that the where-abouts of L.W.1 to 3 are not found and they are not residing in the given address. Hence, their evidence is closed. Further, the learned A.P.P given up the evidence of L.Ws 3, 4 and 5. Hence, the evidence remained on the record is that of only the L.W.6 Shaik Jilani Basha who is examined as P.W.1.

11.To prove its case, the prosecution examined L.W.6 Shaik Jilani Basha as PW.1 and he deposed in his chief examination that on 21.10.2016 at about 6.00 PM, he received a report from the defcto- complainant (L.W.1) namely Kambampati Mary gave report to him that accused initially resident of Suryapet district deceived the complainant who is not legally married to him and made her believed that she was legally married him and cohabited with her and cheated her and finally the accused left away from there and the L.W.1 Kambhampati Mary came to know that the accused married another woman and cheated her and etc and basing on the said report, he registered as a case in crime No.319/2016 u/s.417, 420 and 493 IPC 4 and submitted original FIR to the Hon’ble Court and all copies to concerned officers and took up the investigation and on the same day, he visited the scene of offence along with L.W.1 Kambhampati Mary at 2nd lane, Toofan Nagar, Guntur, observed the scene of offence and prepared rough sketch of the scene of offence, and examined L.W.1 Kambhampati Mary and secured the photographs from her and recorded her statement u/s.161 of Cr.P.C and on the same day he secured L.W.2 Kunkalagunta Pullaiah, L.W.3 Jadigam Meenamma who are the owner of the house and previous owner of the house of L.W.1 Kambhampati Mary, examined them and recorded their statements u/s.161 of Cr.P.C and on 22.10.2016 secured the presence of L.W.4 Jerrypothula Purnamma and L.W.5 Jeriputhula Neelambaram examined them and recorded their statements u/s. 161 of Cr.P.C and during the course of further investigation, on 9.11.2016 he arrested the accused at Kochi of Kerala State and produced before this Hon’ble Court for judicial remand and on 24.01.2017 the then S.I filed the memo along with photographs (two in number) of accused and defacto complainant and filed before this Hon’ble Court along with memo and after completion of investigation, he filed charge sheet against the accused in this case. Ex.P1 is the report dated 21.10.2016, Ex.P2 is the FIR dated 21.10.2016, Ex.P3 is the rough sketch, Ex.P4 is the Memo along with original photographs (two in number) of accused and defacto complaiant and as per the information at present according to his knowledge and belief the whereabouts of the witnesses of L.Ws 1 to 5 are not known and present S.H.O. of Pattabhiipuram filed the Verification Reports before this Hon’ble Court to that effect.

12.During the cross examination P.W.1 deposed that he do not know whether the L.W.1 Kambhampati Mary who is defacto- complainant is the scribe of Ex.P1 or not and denied that he do not examine L.W.1 Kambhampati Mary on the date of FIR and that he do not examine and recorded the statements of L.W.2 to LW.5 and that he never went to scene of offence and never prepared rough sketch in Ex.P3 and that he is not the scribe of Ex.P3 and that Ex.P3 do not contain the door number of the house shown and that Ex.P4 photographs are morphing photographs and that in order to support the L.W.1 Kambhampati Mary, he foisted a false case against the accused and laid a false charge sheet against him and deposing false.

13. The defacto complainant (L.W.1) and other witnesses i.e. L.Ws 2 to 5 were not examined by the prosecution . As per the charge sheet and the report in Ex.P1 , It reveals that the accused promised to marry the defacto-complainant and they lived together at the house of the accused, the accused cheated the defacto- complainant (L.W.1) without marrying her. But P.W.1 who is Investigating Officer gave a new case stating that the accused deceived the complainant who is not legally married to him and made her believe that she was legally married and cohabited with her and thereby cheated her. In the cross-examination he admitted that Ex.P3 rough sketch do not contain door Number of the house shows in it and he simply denied the other suggestions given by the counsel for accused. So, it is clear that P.W.1 given totally a new version to that of the report in Ex.P1. The complainant herself is not examined, the evidence of Investigating Officer alone is not sufficient to establish the prosecution case. Therefore, this Court concludes that the prosecution failed to establish case against the accused as alleged by them.

5

14.Therefore, in view of the above discussion, it can be said that the prosecution utterly failed to bring home the guilt of the accused beyond all reasonable doubt for the charges framed against him and hence he is entitled for acquittal. Accordingly, the point is answered against the prosecution and in favour of the accused.

15.In the result, accused is found not guilty for the offence punishable under section 417 and 420 IPC and accordingly he is acquitted under section 248(1) Cr.P.C for the said offence. The bail bonds of the accused shall remain in force for a period of six months as per section 437-A Cr.P.C.

Typed to my dictation, corrected and pronounced by me in the Open Court, this the 23rd day of April, 2022.

Sd/-M.Indira Priyadarsini

SPECIAL JUDICIAL MAGISTRATE OF I CLASS,

FOR PROHIBITION AND EXCISE, GUNTUR

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:FOR DEFENCE: None

P.W.1: Shaik Jilani Basha

DOCUMENTS MARKED

FOR PROSECUTION: FOR DEFENCE: NIL

Ex.P1 is the report dated 21.10.2016

Ex.P2 is the FIR dated 21.10.2016

Ex.P3 is the rough sketch

Ex.P4: is the memo along with original photogarphs (two in number) of accused and defacto complainant.

Ild/-M.I.P

Spl.J.F.C.M.

for P & E, G.N.T 6

IN THE COURT OF THE SPL.JUDL.MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE: GUNTUR CALENDAR AND JUDGMENT IN C.C.NO.37/2017 DISTRICT: GUNTUR

DATE OF

OffenceFilingAppreheReleaseCommencClosure of Sentence nsiond on bailement of trialor order trial 1.12.1612.04.19---19.4.2219.4.2223.04.22 21.10.16

Explanation for Delay:-

This case was taken on file on 31.1.2017. This case is posted from time to time for serving summons to accused. On 26.10.2017 accused called present and copies of documents furnished to the accused. On 12.04.2019 accused was examined u/s. 239 cr.P.C. this case is posted from time to time for evidence of Prosecution witnesses. ON 28.03.2019 the evidence of L.W.1 and 2 is closed. On 19.11.2019 the evidence of L.Ws 3 to 5 is given up. This case is posted from time to time for evidence of L.W.6. On 02.12.2019

Crl.m.P No. 1581/2019 is filed and the same is pending. This case is

posting from time to time due to covid-19. On 24.03.2022 Crl.M.P No.1581/2019 is dismissed. On 19.04.2022 P.W.1 examined. Exs.P1 to P4 marked. Prosecution evidence is closed and accused was examined u.s.313 Cr.P.C and and they denied the incriminating evidence appear against him on record and reported no defence evidence. On 20.04.2022 Heard arguments inpart. On 21.004.2022 heard both sides. On 23.04.2022. judgment pronounced. Hence, no delay. Name of the complainant: State: The Station House Officer,Pattabhipuram P.S in Crime No.319/2016 Name of the accusedFather's CallingReligion Age village name Nakka Wilson, S/o. Israiel, Aged about 52 years, mala Native of Door No.54- 8-5/1, Aanala Venkatappa Rao road, Addepalli colony, Rajahumundry, East Godavari District, Now at Flat No.505, National Avenue,Manimala Cross road, Yedapppalli, Kocchi-682021Kerala State working as Senior Manager in Hindindustan Petroleum Corporation Ltd,Kocchi, Kerala State.

Nature of offence: 417 and 420 IPC Plea of the accused: Pleaded not guilty Finding: Found not guilty

Sentence or order: In the result, accused is found not guilty for the offence punishable under section 417 and 420 IPC and accordingly he is acquitted under section 248(1) Cr.P.C for the said offence. The bail bonds of the accused shall remain in force for a period of six months as per section 437-A Cr.P.C.

Sd/-M.Indira Priyadarsini

SPL.JUDL.MAGISTRATE OF FIRST CLASS,

FOR PROHIBITON & EXCISE, GUNTUR

Copy Submitted to: The Hon’ble Chief Judl. Magistrate, Guntur. Copy to: The Superintendent of Police, (Excise) Guntur Urban.

1

IN THE COURT OF THE SPL.JUDL.MAGISTRATE OF FIRST CLASS

FOR PROH. & EXCISE OFFENCES, GUNTUR

Present : Smt. M.INDIRA PRIYADARSINI

Spl.Judl.Magistarate of First Class for Proh. & Excise, Guntur

Friday, this is the 23rd day of April, 2022

CC.No.37/2017

Between :

The State: Station House Officer,

Pattabhipuram P.S ...Complainant

And

Nakka Wilson, S/o. Israiel, Aged about 52 years, mala Native of Door No.54-8-5/1, Aanala Venkatappa Rao road, Addepalli colony, Rajahumundry, East Godavari District, Now at Flat No.505, National Avenue,Manimala Cross road, Yedapppalli, Kocchi-682021Kerala State working as Senior Manager in Hindindustan Petroleum Corporation Ltd, Kocchi, Kerala State.

...Accused

This case coming before me on 21.04.2022 for final hearing in the presence of Assistant Public Prosecutor for the complainant and of Sri G.Joseph Ravi Kumar, Advocate for accused, and upon hearing the arguments on the side of both parties, and upon perusal of the entire material available on record, and upon having been stood over consideration till this day, this Court delivered the following:

J U D G M E N T

The Inspector of Police, Pattabhipuram P.S filed charge sheet against the accused in Crime No.319/2016 of Pattabhpuram Police station for the offence under section 417,420 and 493 IPC.

2. The brief averments of the charge sheet are that, The L.W.1Kambhampati Mary is resident of Door No.5-1-250, Tufan Nagar 2nd lane, Maruthi Nagar Extension, Gujjanagundla, Guntur and her parents were blessed with three children, of them two are male and the other is L.W1Kambhampati Mary and she profession is a cook and in her childhood itself her parents were demised, hence L.W4 J.Poornamma and L.W.5 J.NKeelambaram who are the aunt and uncle fostered her in Venigandla village of Peda Kakani Mandal, Guntur District and when she reached at the age of 14 years her marriage was performed with the second son of Kmbhampati Kotaiah by name Kmbhampati Brahmaiah resident of Yerraguntlapadu village of Phirangipuram mandal in the year 1999 and after the marriage LW1 Kambhampati Mary led the marital life happily for some period and during their wedlock she blessed with two male children and her husband addicted for vices and suspecting her fidelity and not looking after her welfare and her children and used to harass her both physically and mentally and at one instant in the year 2008 she reverted on her husband Brahmaiah for which her husband drive 2 away her from his house and again she reached to the house of her aunt in Venigandla and used to reside there and eking her livelihood by working as a cook in the house at Kakani. At this juncture one Lakshmi and her husband by name Venkata Rao acquainted with her who are the neighbours to LW1 Kambampati Mary informed that one of their relatives residing in Suryapet needs a cook and he will arrange a good salary and there is no extra work and instigated her to go there for work, accordingly she along with Lakshmi and her husband by name Venkata Rao went to Suryapet and she attended for work where they showed the house of their relative (the accused) and the accused informed her that his name is Nakka Wilson, native of Rajamundry and he is staying there on his job and he further informed that his mother and sister used to come to his house and stayed there for some days and gone and he used to go to some other places and don’t fear to stay in his house and after some days the accused also shared his own issues with her and also informed that the accused was married and he discarded his wife and given divorce to his wife and so saying when the accused asked about her details and then she also exposed the entire good and bad occurred in her life and then the accused facilities her financially and looking her welfare well and this was occurred in the year May 2010 and by the way gradually the accused captured her by saying deceitful words that he will marry her and looks after her welfare and so saying the accused used to participate in sex and cohabited with her treating her like his wife, while the matter so in the year 2011 during summer the accused used to go outside and return back to house once in 15 or 20 days and she was lonely suffering so many days and she is facing fear and difficulty in these days and then the accused informed her that he will return again after completion of arrangements such as taking a house and etc., and until that you stay at Guntur and so saying the accused sent her away to Guntur and then she reached to Guntur and taken a small room for rent in Amaravathi road, Guntur in the house of L.W.2 Kunkalagunta Pullaiah, the accused used to come to her house in proper intervals and he also used to take her with him to Rajahmundry, Kakinada and Visakhapatnam and used to stay in the hotles there and later the accused went away and conducted the same ip to January 2015 and finally in the month of March 2015 she vacated the house of L.W2 Kunkalaguntla Pullaiah and reached Gujjanagundla and staying in Maruthi Nagar and in the house of L.W3 Jadiga Meenamma, there also the accused used to come to her house once in a 2 or 3 months and since 5 or 6 months the accused did not visited her house and due to anxiety she enquired for him in Rajamundry and learnt that the accused was married and staying along with his wife in Kerala, and she come to a conclusion that the accused used her for his bodily need utilizing her weakness and ill fate and also saying deceitful words and fulfilled his desires and cheated her stating that he will marry her and look after her welfare and did this intentionally, then she went to Pattabhipuram Police Station and presented a report ii) Basing on the report of L.W1 Kambampati Mary on 21.10.2016 at 6.00 p.m. LW6 Sk.Jeelani Basha, S.I., Pattabhipuram P.S registered a case in Cr.No. 319/2016 U/S 417,420,493 IPC of Pattabhipuram P.S and investigated into the case and during the course of investigation LW6 Sk.Jeelani Basha, S.I., Pattabhipuram P.S visited the scene of offence and examined the prosecution witnesses from Nos. 1 to 5 and recorded their statements and during the course of investigation he arrested the accused on 09.11.2016 and sent him 3 for remand and after completion of investigation he filed the charge sheet.

3.The case was taken on file for the offence under Section 417 and 420 IPC against the accused and registered as C.C.No.37/2017. On appearance of accused, copies of documents furnished to him as required under Section 207 Cr.P.C.

4.The accused was examined under Section 239 Cr.P.C. Charges under Sections 417 and 420 IPC were framed against the accused, read over and explained to him in Telugu for which he denied and pleaded not guilty and claimed to be tried.

5.On behalf of the prosecution, L.W6 Sk.Jeelani basha, Sub Inspector of Police, Pattabhipuram P.S alone examined as P.w.1 and got marked Exs.P1 to P4.

6.After completion of the prosecution side evidence, the accused was examined under section 313 Cr.P.C explaining the incriminating circumstances appearing against him in oral and documentary evidence, he denied the evidence and reported no defence evidence.

7.Heard the arguments submitted on both sides.

8.Now the point that arises for determination is:- Whether the prosecution could prove the guilt of the accused for the charges under Sections 417 and 420 IPC beyond reasonable doubt?

9.POINT:- It is the case of the prosecution that the defacto complainant joined with the accused in his house to work as maid servant as he is divorcee. The further case of prosecution is that the accused developed physical relationship with her by believing that he will marry her and thereafter he neglected her and on enquiry she came to know that he contacted marriage with another woman. Thus, the accused cheated the defacto-complainant.

10. Upon verifying the records, it reveals that the prosecution filed a report issued by the Revenue Authorities stating that the where-abouts of L.W.1 to 3 are not found and they are not residing in the given address. Hence, their evidence is closed. Further, the learned A.P.P given up the evidence of L.Ws 3, 4 and 5. Hence, the evidence remained on the record is that of only the L.W.6 Shaik Jilani Basha who is examined as P.W.1.

11.To prove its case, the prosecution examined L.W.6 Shaik Jilani Basha as PW.1 and he deposed in his chief examination that on 21.10.2016 at about 6.00 PM, he received a report from the defcto- complainant (L.W.1) namely Kambampati Mary gave report to him that accused initially resident of Suryapet district deceived the complainant who is not legally married to him and made her believed that she was legally married him and cohabited with her and cheated her and finally the accused left away from there and the L.W.1 Kambhampati Mary came to know that the accused married another woman and cheated her and etc and basing on the said report, he registered as a case in crime No.319/2016 u/s.417, 420 and 493 IPC 4 and submitted original FIR to the Hon’ble Court and all copies to concerned officers and took up the investigation and on the same day, he visited the scene of offence along with L.W.1 Kambhampati Mary at 2nd lane, Toofan Nagar, Guntur, observed the scene of offence and prepared rough sketch of the scene of offence, and examined L.W.1 Kambhampati Mary and secured the photographs from her and recorded her statement u/s.161 of Cr.P.C and on the same day he secured L.W.2 Kunkalagunta Pullaiah, L.W.3 Jadigam Meenamma who are the owner of the house and previous owner of the house of L.W.1 Kambhampati Mary, examined them and recorded their statements u/s.161 of Cr.P.C and on 22.10.2016 secured the presence of L.W.4 Jerrypothula Purnamma and L.W.5 Jeriputhula Neelambaram examined them and recorded their statements u/s. 161 of Cr.P.C and during the course of further investigation, on 9.11.2016 he arrested the accused at Kochi of Kerala State and produced before this Hon’ble Court for judicial remand and on 24.01.2017 the then S.I filed the memo along with photographs (two in number) of accused and defacto complainant and filed before this Hon’ble Court along with memo and after completion of investigation, he filed charge sheet against the accused in this case. Ex.P1 is the report dated 21.10.2016, Ex.P2 is the FIR dated 21.10.2016, Ex.P3 is the rough sketch, Ex.P4 is the Memo along with original photographs (two in number) of accused and defacto complaiant and as per the information at present according to his knowledge and belief the whereabouts of the witnesses of L.Ws 1 to 5 are not known and present S.H.O. of Pattabhiipuram filed the Verification Reports before this Hon’ble Court to that effect.

12.During the cross examination P.W.1 deposed that he do not know whether the L.W.1 Kambhampati Mary who is defacto- complainant is the scribe of Ex.P1 or not and denied that he do not examine L.W.1 Kambhampati Mary on the date of FIR and that he do not examine and recorded the statements of L.W.2 to LW.5 and that he never went to scene of offence and never prepared rough sketch in Ex.P3 and that he is not the scribe of Ex.P3 and that Ex.P3 do not contain the door number of the house shown and that Ex.P4 photographs are morphing photographs and that in order to support the L.W.1 Kambhampati Mary, he foisted a false case against the accused and laid a false charge sheet against him and deposing false.

13. The defacto complainant (L.W.1) and other witnesses i.e. L.Ws 2 to 5 were not examined by the prosecution . As per the charge sheet and the report in Ex.P1 , It reveals that the accused promised to marry the defacto-complainant and they lived together at the house of the accused, the accused cheated the defacto- complainant (L.W.1) without marrying her. But P.W.1 who is Investigating Officer gave a new case stating that the accused deceived the complainant who is not legally married to him and made her believe that she was legally married and cohabited with her and thereby cheated her. In the cross-examination he admitted that Ex.P3 rough sketch do not contain door Number of the house shows in it and he simply denied the other suggestions given by the counsel for accused. So, it is clear that P.W.1 given totally a new version to that of the report in Ex.P1. The complainant herself is not examined, the evidence of Investigating Officer alone is not sufficient to establish the prosecution case. Therefore, this Court concludes that the prosecution failed to establish case against the accused as alleged by them.

5

14.Therefore, in view of the above discussion, it can be said that the prosecution utterly failed to bring home the guilt of the accused beyond all reasonable doubt for the charges framed against him and hence he is entitled for acquittal. Accordingly, the point is answered against the prosecution and in favour of the accused.

15.In the result, accused is found not guilty for the offence punishable under section 417 and 420 IPC and accordingly he is acquitted under section 248(1) Cr.P.C for the said offence. The bail bonds of the accused shall remain in force for a period of six months as per section 437-A Cr.P.C.

Typed to my dictation, corrected and pronounced by me in the Open Court, this the 23rd day of April, 2022.

Sd/-M.Indira Priyadarsini

SPECIAL JUDICIAL MAGISTRATE OF I CLASS,

FOR PROHIBITION AND EXCISE, GUNTUR

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:FOR DEFENCE: None

P.W.1: Shaik Jilani Basha

DOCUMENTS MARKED

FOR PROSECUTION: FOR DEFENCE: NIL

Ex.P1 is the report dated 21.10.2016

Ex.P2 is the FIR dated 21.10.2016

Ex.P3 is the rough sketch

Ex.P4: is the memo along with original photogarphs (two in number) of accused and defacto complainant.

Ild/-M.I.P

Spl.J.F.C.M.

for P & E, G.N.T 6

IN THE COURT OF THE SPL.JUDL.MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE: GUNTUR CALENDAR AND JUDGMENT IN C.C.NO.37/2017 DISTRICT: GUNTUR

DATE OF

OffenceFilingAppreheReleaseCommencClosure of Sentence nsiond on bailement of trialor order trial 1.12.1612.04.19---19.4.2219.4.2223.04.22 21.10.16

Explanation for Delay:-

This case was taken on file on 31.1.2017. This case is posted from time to time for serving summons to accused. On 26.10.2017 accused called present and copies of documents furnished to the accused. On 12.04.2019 accused was examined u/s. 239 cr.P.C. this case is posted from time to time for evidence of Prosecution witnesses. ON 28.03.2019 the evidence of L.W.1 and 2 is closed. On 19.11.2019 the evidence of L.Ws 3 to 5 is given up. This case is posted from time to time for evidence of L.W.6. On 02.12.2019

Crl.m.P No. 1581/2019 is filed and the same is pending. This case is

posting from time to time due to covid-19. On 24.03.2022 Crl.M.P No.1581/2019 is dismissed. On 19.04.2022 P.W.1 examined. Exs.P1 to P4 marked. Prosecution evidence is closed and accused was examined u.s.313 Cr.P.C and and they denied the incriminating evidence appear against him on record and reported no defence evidence. On 20.04.2022 Heard arguments inpart. On 21.004.2022 heard both sides. On 23.04.2022. judgment pronounced. Hence, no delay. Name of the complainant: State: The Station House Officer,Pattabhipuram P.S in Crime No.319/2016 Name of the accusedFather's CallingReligion Age village name Nakka Wilson, S/o. Israiel, Aged about 52 years, mala Native of Door No.54- 8-5/1, Aanala Venkatappa Rao road, Addepalli colony, Rajahumundry, East Godavari District, Now at Flat No.505, National Avenue,Manimala Cross road, Yedapppalli, Kocchi-682021Kerala State working as Senior Manager in Hindindustan Petroleum Corporation Ltd,Kocchi, Kerala State.

Nature of offence: 417 and 420 IPC Plea of the accused: Pleaded not guilty Finding: Found not guilty

Sentence or order: In the result, accused is found not guilty for the offence punishable under section 417 and 420 IPC and accordingly he is acquitted under section 248(1) Cr.P.C for the said offence. The bail bonds of the accused shall remain in force for a period of six months as per section 437-A Cr.P.C.

Sd/-M.Indira Priyadarsini

SPL.JUDL.MAGISTRATE OF FIRST CLASS,

FOR PROHIBITON & EXCISE, GUNTUR

Copy Submitted to: The Hon’ble Chief Judl. Magistrate, Guntur. Copy to: The Superintendent of Police, (Excise) Guntur Urban.