Smt Madhavi Vinukonda

IN THE COURT OF THE PRINCIPAL JUDICIAL MAGISTRATE OF

I CLASS AT MIRYALAGUDA

Present: Smt. V. Madhavi II Addl. Judicial Magistrate of First Class Miryalaguda FAC: Prl. Judicial Magistrate of First Class Miryalaguda (Dated this, the 4th day of April, 2022)

C.C. No.57 OF 2022

Between:

The State of Telangana, through, Sub-Inspector of Police, PS Miryalaguda-II Town …Complainant AND

MD.Fasiuddin S/o. Chotu Miya, Age: 31 years, Occ: Scrap Business, R/o. Balanagar, IDPL, Ranga Reddy Kaman, Hyderabad.

...Accused

This case is coming up before on 31.03.2022 for final hearing and disposal in the presence of Sri Krishna Prasanna, Asst. Public Prosecutor for the State and of Sri.U.Rajendra Prasad,Counsel for the Accused and having heard both sides and upon perusal of the material available on record and after consideration, today this court made the following:

: J U D G M E N T :

1.The Inspector of Police, Miryalaguda-II Town Police Station filed the Charge Sheet against the accused in Cr.No.187 of 2021 alleging that the accused have committed offences punishable under sections 380 IPC.

2. The case of the prosecution in brief is that the LW1/Perumalla

Sampath lodged a report with the police, Miryalaguda stating that in the morning hours of 24.06.2021 is mother and sister went to their relative’s house. On 26.06.2021 at 9.00 a.m., LW1/Perumalla

Sampath went outside by closing the doors of his house and returned to his house at 3.00 p.m., and noticed that the doors of his house were broke opened and on going into side the house, he found that some unknown offenders entered into his house, broke opened the almirah and committed theft of gold (Gold chain, Gold ear rings) weighing about 1 ½ tulas and silver weighing about 30 tulas, (total worth of Rs.40,000/-) and decamped with booty.

3.Basing of the report, LW-7/D.Srinivas Reddy, Inspector of

Police registered a case in Cr.No.187 of 2021 for the offences under section380 IPC and took up investigation and dispatched the copies of F.I.R to all the concerned officers for favour of information.

4.During the course of investigation,LW-7/D.Srinivas Reddy

Police examined the defacto-complainant/LW-1 and recorded his detailed statement, issued the crime card and informed about the incident to all theSub-Inspectors of the Police Stations situated in the bordering limits of the PS Miryalagyda-II Town i.e., Miryalaguda-I

Town, Vemulapally and Miryalaguda Rural with the description of material object, with a request to check up the M.O. criminals and to inform him in case they found anything important. Thereafter,

LW-7/D.Srinivas Reddy along with staff members visited the scene of offence situated at Ashok Nagar, Miryalaguda Town observed the scene of offence but could not find any belongings of the accused at the scene. Later, LW-7/D.Srinivas Reddy examinedLW-2/P.Laxmi and recorded her detailed statement thereafter LW-7/D.Srinivas

Reddyconducted scene of offence in the presence of

LW-3/K.Venkanna and LW-4/N.Ram Reddy, issued crime card-II and dispatched the same to the District Crime Records Bureau,

Nalgonda.

5.On 10.09.2021, LW-8/N.Suresh, Inspector of Police apprehended the accused and recorded his confession statement in the presence of LW-5/P.Gopi and LW-6/K.Sagar, during which, the accused confessed that he committed the theft of gold chain, ear studs and silver ornaments from almirah in the house of

LW1/Perumalla Sampath and that while running away along with stolen property, he lost one gold chain on the way. The case property pertaining to this case i.e., 4.9 grams gold ear studs, 190 grams silver ornaments from the possession of the accused. On 15.09.2021, the arrest of accused was regularized by producing the accused before this Court on executing the P.T.Warrant. After completion of investigation LW-8 filed the charge sheet against the accused for the offence under Section 380 IPC.

6.Basing upon the contents of the charge sheet, this case was taken on file for the offence punishable under section 380 IPC against the accused.

[7. The copies of documents were furnished to the accused as contemplated under section 207 Cr.P.C. The accused was examined under Section239 Cr.P.C., charges framed for the offence under section 380 IPC, read over and explained to the accused in Telugu, having understood the same, the accused pleaded not guilty and claimed to be tried.

8.To prove its case, the prosecution examined LW-1 who is cited as defacto complainant as PW-1, LW-2 who is the mother of LW-1 was examined as PW-2, LW-3 and LW-4 who are cited as the panch witnesses for the scene of offence panchanama were examined as

PW-3 and PW-4, LW-5 who is cited as the panch witness for the confession and recovery panchanama was examined as PW-5 and

LW-7 and LW-8 who are cited as Investigation officers were examined as PW-6 and PW-7. The evidence of LW-6/Kurapati Sagar who is cited as panch witness for the confession and recovery panchanama has been given up by the prosecution. Ex.P.1 is the report given by PW-1,Ex.P.2 is the signature of PW-3 the on the scene of offence panchanama, Ex.P.4 is the relevant portion in the certified copies of confessional panchanama, dated:10.09.2021,

Ex.P.5 is the First Information Report.

9.After the completion of the prosecution evidence, the accused was examined under section 313 Cr.P.C., explaining the incriminating evidence available against him in the prosecution evidence, read over and explained to him, for which, he denied the same and reported no defence evidence.

10.Now the point for determination is :

“Whether the prosecution proved the guilt of the accused for the offence punishable U/sec.380 of IPC beyond all reasonable doubt or not?

P O I N T :

11.In order to prove the guilt of the accused the prosecution has to establish that on 26.06.2021 the accused trespassed into the house of defacto-complainant and committed theft of 1 ½ thulas gold and 30 thulas of silver worth of Rs.40,000/-, beyond all reasonable doubt that accused

12.PW-1 who is the defacto complainant deposed in his examination-in-chief that, on 26.06.2021 at 9.00 a.m., he went outside by locking his house and returned to his house at 3.00 a.m., and noticed that the locks of his house were broke opened. On verification he found that silver weighing 30 tulas, gold ear studs and necklace weighing about 1 ½ tulas, which were worth out of

Rs. 40,000/- were missing as such he lodged the Ex.P1/report

before the Police about the incident and that the Police examined

him and recorded his statement.

13.PW-2 who is the mother of PW1 deposed that about 8 months ago on one day, he along with his daughter went to a function and stayed there for one day and that she returned to her house from the function during the morning hours of the following day and noticed doors of the almirah were broke opened and on verification, she found silver anklets weighing 30 tulas, gold ear hangings (Duddulu buttalu) and ear studs were missing. PW-2 further deposed that he along with his son PW-1 went to police station and lodged report with the police about the incident and that police examined and recorded her statement. PW-2 identified M.O.1 and

M.O.2.

14.PW-3 who is cited as mediator/panch for scene of offence panchanama deposed in his examination-in-chief that on 27-06- 2021 at 8.00 a.m., Police conducted Ex.P2/scene of offence panchanama and drawn rough sketch with regard to commission of theft in the house of PW-2 at Prakashnagar in his presence and that

PW-4 was also present during the proceedings and after the completion of the panchanama proceedings, he appended his signature on Ex.P.2/Scene of offence panchanama.

15.During his examination in cross, PW-3 deposed that police did not issue any notice to him with regard to conducting of panchanama and the theft was took place behind his house.

Further PW-3 denied the suggestion by the learned counsel for the accused that no panchanama was conducted by the police in his presence and as PW-1 is his neighbour he appened his signature in

Ex.P.2/ panchanama without knowing the contents therein.

16.PW-4 who is another mediator/panch for scene of offence panchanama deposed in his examination-in-chief that on 27-06- 2021 at 8.00 a.m., Police conducted Ex.P3/scene of offence panchanama and drawn rough sketch in the house of PW-2 at

Prakashnagar in his presence and in the presence of PW-3 and that he appended his signature after completion of the panchanama proceedings.

17.During his examination in cross, PW-4 deposed that police did not issue any notice to him with regard to conducting of panchanama. PW-4 denied the suggestion by the learned counsel

for the accused that no panchanama was conducted and that he

was deposed at the instance of police. Further PW-4 stated that he had not gone through the contents of the panchanama and that the police stated that theft of gold and cash was committed and, he also noticed the spot. Further PW-4 denied the formal suggestion by learned counsel for the accused that he was deposing falsehood to help the accused without knowing anything about the facts of the case.

18.PW-5 who is cited as panch witness for confession and recovery panchanama deposed that he was working as VRO,

Miryalaguda and while identifying the accused he deposed that on 10-09-2021, the C.I. of Police informed their M.R.O. who in turn instructed him to act as mediator. PW-5 further stated that the accused divulged that he committed theft at five places i.e., at

Prakashnagar, Ashoknagar, Santhoshnagar, Appallammagudem ‘X’

Roads, Hero Honda Show Room near Bus Stand.

19.PW-5 further testified that a MO-4/rod was seized from the possession of accused which was stated by the accused to be used for break opening the locks for committing theft of gold and cash at various places and that apart from the rod, Gold ear studs weighing about 4.9 grams, gold chain weighing 19.380 grams, silver anklets weighing 190 grams, OPPO Smart phone and cash of Rs.50,000/- and one Etios Car bearing No.TS-09-UA-3339 were seized from the possession of the accused. Further deposed that four tulas of gold chain (haram), gold weighing 12.100 grams was seized from one

Yasmin Bhanu.and OPPO smart phones were also seized from the possession of the accused and said Yasmin Bhanu. PW-5 stated that

LW6/Sagar was also present during the panchanama and identified

M.O1/Gold ear studs and M.O.2/Silver anklets, M.O.3/Oppo Phone and M.O.4/iron rod (M.O.3 and 4 are called for from the

C.C.No.1552/2021) as the items seized in his presence under confession cum seizure panchanama, dated:10.09.2021 and relevant portion in the attested copy of the said panchanama leading to recovery of the M.O.1 and M.O.2 from the accused has been marked as Ex.P.4 and after completion of panchanama proceedings, PW-5 and LW6/Sagar appended their signatures on

Ex.P.2.

20.During his examination in cross, PW-5 deposed that prior to this instance he had given his evidence on one occasion in a matter connected to this case. PW-5 further denied the suggestion by the learned counsel that he had given his evidence before several

Courts prior to this case and that he had been giving evidence in support of the police in all cases. PW-5 further deposed that he do not know the personal details of the accused and that the accused does not belongs to Miryalaguda and that the accused does not know the localities of Miryalaguda. PW5 deposed that the

Panchanama was typed in the laptop and the printout was taken at

Nandipahad ‘X’ Roads. Further PW5 denied that no panchanama was conducted and that no phone was seized in his presence.

PW-5 denied that the suggestion that accused was no way concerned with the case and that he did not act as mediator and that he was deposing falsehood at the instance of police.

21.According toPW-6, Investigation Officer on 26-06-2021, at 8.00 p.m, he received a Telugu written report/Ex.P1. Basing on the report, he registered a case in Cr.No. 187/2021 for the offence under Secs.380 IPC and issued Ex.P5/FIR. During the course of investigation, he examined and recorded the statements of PW-1 at

Police Station. Thereafter, he visited the scene of offence situated at Prakashnagar, Miryalaguda where he examined and recorded her statement. Thereafter, he secured the presence of PW-3 and

PW-4 and conducted the scene of offence panchanama/Ex.P.2 besides drawing rough sketch/Ex.P3 in their presence.

Subsequently, on his transfer he handed over the Case Diary File to his successor officer I.e PW-7/Inspector of Police for further investigation.

22.During his examination in cross, PW-6 testified that there is correction of date of offence in Ex.P.1/report and that he did not examine the beet constable who attended the patrolling duty in

Prakashnagar area on the date of incident. PW-6 denied the suggestion by the learned counsel that he was not aware any facts with regard to this case.

23.According to the testimony of PW-7/Investigation Officer on 28.07.2021 he received case diary file from PW-6 and verified the investigation done by him to to be on proper lines and took up further investigation and that while the efforts were in progress to apprehend the culprit, on 10.09.2021 the accused was arrested in

Cr.No.36/2021 of PS Miryalaguda-II Town and that during the investigation, the accused voluntarily confessed that he committed several offences in Miryalaguda area including the offence pertaining to this case and that he recovered case property i.e., one pair of gold ear studs weighing 4.9 grams (M.O.1) and one pair of silver Anklets weighing 190 grams (M.O.2) pertaining to this case duly mentioning the recovery of the same (Ex.P.4/relevant portion) under confessional cum seizure panchanama in the presence of

PW-3 and LW-6/K.Sagar. PW7 further deposed that on 15.09.2021, he produced the accused before this Court on executing P.T.Warrant and regularized his arrest in this case and that he deposited the case property before this Court and that After completion of investigation he filed the charge sheet against the accused for the offence under Sec.380 IPC.

24.During his examination in cross, PW-7 deposed that basing on his confession of the accused, he registered four cases against the accused and obtained P.T .Warrant against the accused in four cases.. PW-7 further deposed that he did not have any idea about the date of purchasing the M.O.1 and M.O.2 by PW-1 and that he did not collect any receipt from the PW-1. PW-7 further denied the suggestion by the learned counsel that he falsely implicated the accused in all the pending cases in their police station. PW-7 stated that he might had searched about 50 or 60 vehicles during vehicle checking on the date of apprehending the accused and that he did not file any report to show that he searched 50 to 60 vehicles on the relevant date. PW-7 denied the suggestion by the learned counsel that he did not record any confession statement of the accused and did not recover any property from the possession of the accused including the M.O.1 and M.O.2 and that the accused was falsely implicated in the pending cases of his police station.

25.On cumulative reading of the evidence of PW-1 to PW-5, the prosecution could able to prove that on 26.06.2021 the theft of 1 ½ tulas of gold and 30 tulas of silver total worth of Rs.40,000/- was committed in the house of PW-1 by break opening the locks of house. PW-1 testified that in the morning hour of 26.06.2021 when he came to his house found that the doors of house was broke open and 1½ tulas of gold and 30 tulas of silver worth of Rs.40,000/- was stolen by some unknown offenders by gaining entry into the house by break opening the locks. The evidence of PW-3 who is the mediators/panch witnesses to the scene of offence panchanama testified that the panchanama/Ex.P.2 was conducted in his presence and that he noticed that the locks of the house were broke opened.

26.PW-1 to PW-3 corroborated with each other on the aspect of commission of theft by trespassing into the house of PW-1. Except formal cross examination, nothing material could be elicited by counsel for the defence so as to discredit the testimony of PW-1 to

PW-3 . Thus the evidence on record i.e., PW-1 to PW-3 are cogent, consistent and reliable and corroborating with one another and there is nothing in the record to disbelieve (or) discard their testimony. Hence there is no hesitation to hold that prosecution is succeeded in proving that the theft of 1 ½ tulas of gold and 30 tulas of silver worth of Rs.40,000/- was committed in the house of

PW1 by house trespassing into the house of PW-1.

27.Now it is to be appreciated whether the prosecution succeeded in establishing that the accused committed the said offence of trespassing into the house of the PW-1 and committing theft of the gold and silver ornaments as alleged.

28.On careful perusal of the entire evidence available on record, there is no direct evidence to have witnessed the accused committing the trespass and theft of the case property from the house. The investigation failed to secure any chance finger prints or any CC TV footage or any other sort of evidence to connect the accused with the offence under section 380 IPC. The prosecution failed to establish that the accused committed the offence under section 380 IPC.

29.However, on appreciating the evidence of PW5 who is the mediator to the confession cum seizure panchanama that the police recorded the confessional statement of accused in his presence wherein the accused confessed about the commission of theft in the house of PW-1 at Prakashnagar, Miryalaguda and that

M.O.1 and M.O.2/gold ear studs weighing 4.9 grams and silver anklets weighing 190 grams, were recovered from the possession of the accused apart from the other properties from other places and that LW6/Kurapati Sagar also acted as Mediator. However, the confession of accused before the Police Officer is not admissible in evidence, but the confession leading to the recovery is admissible under section 27 of Indian Evidence Act, 1872 and the relevant portion leading to recovery of stolen property (M.O.1 and M.O.2) in the attested copy of the confessional cum seizure panchanama of accused is only admissible. Hence the confessional statement of accused could be believed to the extent of leading to recovery of the case property. Thus the prosecution could able to establish only to the extent that the accused is in possession of stolen property worth of Rs.40,000/- and the same were recovered from his possession under Ex.P.4/relevant portion leading to recovery from accused in the certified copy of confessional cum seizure panchanama of accused in Cr.No.36/2021 of Police Station

Miryalaguda-II Town.

At this stage it is apposite to refer section 114 (a) of Indian

Evidence act which read as :

114 (a) Court may presume existence of certain facts. —The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume—

(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;

30.In the instant case, the court may presume that the accused was in possession of MO1 and MO2 knowingly that they were stolen property. But there is no valid explanation with regard to his possession of the stolen property by the accused. The record manifests that there are no rivals claims either by the accused or any third party claiming the ownership of the case property even though sufficient opportunity had given to the accused to put forth his claim over the property while adjudicating the petition filed on behalf of the defacto complainant seeking return of property. The accused failed to utilize the opportunity given and did not choose to offer any explanation about the possession of the stolen property worth of Rs.40,000/-. It is not the defence that the accused is the owner of MO1 and MO2 from which adverse inference could be drawn against the accused that he was in possession of the stolen property /MO1 and MO2 knowingly that they were stolen property.

Thus the prosecution could able to establish only to the extent that the stolen property worth of Rs.40,000/- and to prove that the offence under section 411 IPC is established against the accused.

31. On perusal of the entire evidence of record it is no where reveals that the accused committed the trespassed and committed theft from the house of PW-1. Hence the evidence on record does not attracts the offence punishable under section 457 and 380 IPC against the accused. Thus prosecution failed to prove the direct involvement of the accused in the commission of the theft punishable under section 457, 380 IPC, but the prosecution is succeeded to prove the guilt of the accused for the offence under section 411 IPC and the accused is liable for penal consequences for the offence under section 411 IPC.

32. IN THE RESULT, the accused is found not guilty for the offence punishable under section 380 of IPC and accordingly, he is convicted under section 248(1) of Cr.P.C. Further, the accused is found guilty alternatively for the offence punishable under Section 411 IPC and accordingly, he is convicted under Section 248 (2)

Cr.P.C.

(Directly typed to dictation, corrected and pronounced by me in open court, this the 4th day of April, 2022).

II Addl. Judicial Magistrate of I Class, FAC: Prl. Judicial Magistrate of I Class, Miryalaguda.

33.When questioned about the quantum of sentence the

Accused stated that he is having wife and minor children who are dependants on him and prayed for mercy of the court.

34.Having regard to facts and circumstances, it is not a fit case to invoke Sec 360 Cr.P.C. or Sec 3 and 4 of Probation of offenders Act. However considering the nature of offence and the prayer of the accused, I am inclined to take some lenient view in imposing the sentence.

35.IN THE RESULT, the accused is found not guilty for the offence punishable under Section 380 of IPC and accordingly, he is convicted under section 248(1) of Cr.P.C. Further, the accused is found guilty alternatively for the offence punishable under Section 411 IPC and accordingly, he is convicted under Section 248 (2)

Cr.P.C. and sentenced to undergo Rigorous imprisonment for SEVEN

MONTHS. The period of detention already undergone by the accused from 15.09.2021 to till date i.e., 04.04.2022 shall be given set off under Section 428 Cr.P.c. The sentence imposed in this case and sentences imposed in C.C.No.1600/2021 and C.C.No.1534/2021 shall run concurrently. The accused is hereby appraised of his right to prefer an appeal. The copy of judgment shall be given to accused free of cost. The M.O.1 one pair of gold ear studs (Buttala

Diddulu and M.O.2 one pair of silver anklets and M.O.3 Oppo phone shall be given to the original owners on proper identification and acknowledgment. M.O.4 Iron rod shall be destroyed after lapse of appeal period.

(Directly typed to dictation, corrected and pronounced by me in open court, this the 4th day of April, 2022).

Sd/-

II Addl. Judicial Magistrate of I Class, FAC: Prl. Judicial Magistrate of I Class, Miryalaguda.

APPENDIX OF EVIDENCE.

WITNESSES EXAMINED

:FOR PROSECUTION: PW-1: P.Sampath, Defacto-Complainant. PW-2: P.Laxmi, Circumstantial witness PW-3: K.Venkanna, Panch for scene of offence panchanama PW-4: N.Ram Reddy, Panch for scene of offence panchanama PW-5: P.Gopi, Panch for confession and recovery panchanama PW-6: D.Srinivas Reddy, Investigating Officer, PW-6: N.Suresh, Investigating Officer.

:ON BEHALF OF THE DEFENCE:

-- NONE --

EXHIBITS MARKED

:FOR PROSECUTION: Ex.P.1: Report given by PW-1 Ex.P.2: Scene of offence panchanama

Ex.P.3: Rough sketch Ex.P.4: Relevant portion leading to recovery from accused in certified copy of confessional panchanama, dated:10.09.2021. Ex.P.5: First Information Report :FOR DEFENCE: - NIL - :MATERIAL OBJECTS: M.O.1: Gold Ear Studs, M.O.2: Silver Anklets, M.O.3: OPPO Phone , M.O.4: Iron Rod.

Sd/-

II Addl. Judicial Magistrate of I Class, FAC: Prl. Judicial Magistrate of I Class, Miryalaguda.

C.C.No. 1600 OF 2021 Page 1 of 20

IN THE COURT OF THE PRINCIPAL JUDICIAL MAGISTRATE

OF FIRST CLASS AT MIRYALAGUDA

Present: Smt. V. Madhavi II Addl. Judicial Magistrate of First Class Miryalaguda FAC: Prl. Judicial Magistrate of First Class Miryalaguda (Dated, this, the 4th day of April, 2022)

C.C. No. 1600 OF 2021

Between:

The State of Telangana, through, Sub-Inspector of Police, PS Miryalaguda II Town …Complainant

AND

MD.Fasiuddin S/o. Chotu Miya, Age: 31 years, Occ: Scrap Business, R/o. Balanagar, IDPL, Ranga Reddy Kaman, Hyderabad.

...Accused

This case is coming up before on 28-02-2022 for final hearing and disposal in the presence of Sri. Krishna Prasanna, Asst.PublicProsecutorfortheStateandof Sri.P.Paramesh,Counsel for the Accused and having heard both sides and upon perusal of the material available on record and after consideration, today this court made the following:

: J U D G M E N T :

1.The Inspector of Police, Miryalaguda II Town Police Station filed the Charge Sheet against the accused in Cr. No. 234 of 2021 alleging that the accused had committed offences punishable under sections 457, 380 IPC.

PJFCM, Miryalaguda

C.C.No. 1600 OF 2021 Page 2 of 20

2. The brief facts of the case of prosecution are that LW-1/

Defacto complainant is working as Cashier in Sree Krishna Motors

Service Centre at Sagar Road, Miryalaguda Town. On 18.08.2021, at 07.00 p.m, after completion of his work the Defacto

Complainant/LW-1 closed the said Sree Krishna Motors Service

Centre by locking the shutter and went away from that place. On the following day i.e., on 19.08.2021 in the morning at 08.30 hours when the defacto complainant/LW-1 came to the shop he found that the shutter was opened. He immediately went inside the shop and noticed that some unknown offenders entered into their service center, opened cash counter and committed theft of net cash of Rs.22,000/- and decamped with the booty. On this indecent the defacto complainanat/LW1 lodged report with the police on 20-8-2021.

3.Basing of the report, LW-7/Inspector of Police registered a case in Cr.No.231 of 2021 for the offences under sections 457, 380 IPC and took up investigation and dispatched the copies of

FIR to all the concerned officers for favour of information.

PJFCM, Miryalaguda

C.C.No. 1600 OF 2021 Page 3 of 20

4.During the course of investigation, LW-7/Inspector of Police examined the defacto complainant/LW-1 and recorded his detailed statement. LW-7/Inspector of Police, Miryalaguda II Town issued the crime card and informed about the incident to all the

Inspectors of the Police Stations at borders i.e., Miryalaguda I

Town, Vemulapally and Miryalaguda Rural with the particulars of material object with a request to check up Material Objects criminals and to inform him if they found anything important.

Thereafter, LW-7/ Inspector of Police, Miryalaguda II Town along with staff visited the scene of offence situated at Sree Krishna

Motors Service Center near RTC bus stand of Miryalaguda Town and conducted investigation about the occurrence of offence and observed the scene of crime but could not find any clue or belongings of the accused at the scene. Later, LW-7/ Inspector of

Police, Miryalaguda II Town examined LW-2/V.Uday Kumar and recorded his detailed statement. The District Finger Prints Bureau visited the scene of offence and collected the chance prints. LW-7 conducted scene of offence in the presence of mediators/LW-3 and LW-4 under the cover of scene of offence panchanama and

PJFCM, Miryalaguda

C.C.No. 1600 OF 2021 Page 4 of 20 issued crime card-II and dispatched the same to the District

Crime Records Bureau, Nalgonda. While the investigation was in progress, on 10.09.2021, LW-7/ Inspector of Police arrested the accused and recorded his confessional statement in the presence of mediators/LW-5 and LW-6 during which the accused stated that he broke opened the shutter lock with iron rod, entered into the shop and committed theft of net cash of Rs.22,000/- from the cash counter and spent an amount of Rs.2,000/- towards his personal luxuries and the remaining amount of Rs.20,000/- was police seized from the possession of the accused. On 15.09.2021, the accused was produced before this Court on executing of PT

Warrant. After completion of investigation LW-7/Inspector of

Police filed the charge sheet against the accused for the offences under Sections 457, 380 IPC.

5.Basing upon the contents of the charge sheet, this case was taken on file for the offences punishable under sections 457, 380

IPC against the accused. The copies of documents were furnished to the accused as contemplated under section 207 Cr.P.C.

PJFCM, Miryalaguda

C.C.No. 1600 OF 2021 Page 5 of 20

6.The accused was examined under Section 239 Cr.P.C., charges for the offences under sections 457, 380 IPC were framed, read over and explained to the accused in Telugu, having understood the same, the accused pleaded not guilty and claimed to be tried.

7.To prove its case, the prosecution examined LW-1 who is cited as defacto complainant as PW-1, LW-2 who is cited as circumstantial witness is examined as PW-3, LW-3 and LW-4 who are cited as the panch witnesses for the scene of offence panchanama were examined as PW-2 and PW-4, LW-5 who is cited as the panch witness for the confession and recovery panchanama has been examined as PW-5 and LW-7/Investigation officer is examined as PW-6. Ex.P.1 is the report, Ex.P.2 is the personal bond executed by PW-1 at the time of receiving the amount of Rs.20,000/- from the Court towards interim custody,

Ex.P.3 is the scene of offence panchanama, Ex.P.4 is the rough sketch, Ex.P-5 is the relevant portion with regard to seizure of an amount of Rs.20,000/- in the certified copy of confession cum seizure panchanama of accused in Cr.No.36/2021 of PS

Miryalaguda II Town and Ex.P.6 is the First Information Report.

PJFCM, Miryalaguda

C.C.No. 1600 OF 2021 Page 6 of 20

The evidence of LW-6/ Kurapati Sagar who is cited as another mediator for the confession and recovery panchanama has been given up by the learned Assistant Public Prosecutor.

8.After the completion of prosecution evidence, the accused was examined under section 313 Cr.P.C., explaining the incriminating evidence available against him in the prosecution evidence, read over and explained to him, for which, he denied the same and reported no defence evidence.

9. Now the point for determination is :

“Whether the prosecution proved the guilt of the accused for the offence punishable U/sec.457, 380 of IPC beyond all reasonable doubt or not?

P O I N T :

10.The prosecution has to establish that on 18/19.08.2021, during the night hours, the accused illegally trespassed into the Sree Krishna Motor Service Center and committed theft of net cash of Rs.22,000/- prove the guilt of the accused beyond all reasonable doubt.

11.PW-1 who is the defacto complainant deposed in his examination-in-chief that he is working as cashier in Sri Krishna

Motors Service Centre at Sagar Road, Miryalaguda and that on

PJFCM, Miryalaguda

C.C.No. 1600 OF 2021 Page 7 of 20 18.08.2021 after show room hours, he kept the cash of

Rs.22,000/- in the counter, locked the show room and went to his house and that on the following day i.e. on 19.08.2021, when he came to open the shop, he found that the locks of the shutters and cash counter were broke opened and that the amount of

Rs.22,000/- kept in counter was missing. PW-1 further deposed that he does not know who committed the theft of the said amount and that he lodged Ex.P1/report before the Police about the incident. Police examined him and recorded his statement.

PW-1 further deposed that after one month from the lodging of report, the Police informed him about the recovery of Rs.20,000/- and that he received the same from the Court towards interim custody by executing a personal bond/Ex.P2.

12.PW-2 who is cited as mediator/panch for scene of offence panchanama deposed in his examination-in-chief that on 20-08- 2021 at 10.45 a.m., Police conducted Ex.P3/scene of offence panchanama at Hero Honda Service Centre, Miryalaguda with regard to commission of theft at service center besides drawing

PJFCM, Miryalaguda

C.C.No. 1600 OF 2021 Page 8 of 20

Ex.P4/rough sketch in his presence and in the presence of PW4.

During his examination in cross, PW-2 affirmed the suggestion of the learned counsel for the accused that PW-1 and PW-3 were worked in the Sree Krishna show room along with him.

13.PW-4 who is another mediator/panch for scene of offence panchanama deposed in his examination-in-chief that on 20-08- 2021 at 10.45 a.m., the Police conducted Ex.P3/scene of offence panchanama at Hero Honda Showroom, Miryalaguda with regard to commission of theft at the Hero Honda Showroom and that the

Police also drawn Ex.P4/rough sketch and he stated there is petrol bunk on the eastern side, house of Sikh community on the western side and Hero Honda Show Room on the northern side of scene of offence. PW-4 further deposed that he had no idea of southern boundary of scene of offence and that PW-2 was also present at the time of conducting panchanama and that Police read over the contents of Ex.P3/panchanama to him. During his examination in cross, PW-4 stated that PW-1 to PW-3 are working in the Sree Krishna Hero Honda show room along with him.

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C.C.No. 1600 OF 2021 Page 9 of 20

14.PW-3 who is cited as circumstantial witness deposed in his examination-in-chief that he had been working as Service

Manager in Sri Krishna Hero Honda Service Centre for two years and that on 18.08.2021, at 07.00 a.m., he along with PW-1 opened the shutter of Srikrishna Hero Honda Service Center and found the shutter slightly opened on going inside the service center he found that desk locker was opened and cash of

Rs.22,000/- missing but he does not know who committed theft.

Police examined and recorded his statement.

15.PW-5 who is cited as panch witness for confession and recovery panchanama deposed that he had been working as

VRO, Miryalaguda from March, 2014 and that on 10-09-2021, the

C.I.of Police informed the M.R.O. and in turn the M.R.O.instructed him to act as mediator. PW-5 further stated that at request of

C.I.of Police, he asked the accused and another woman by name

Yasmin Bhanu by taking them aside. On his enquiry, the accused divulged that he had bad vices since his childhood, he got acquaintance with the said Yasmin Bhanu and that they were committing thefts by taking a car on rent.

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C.C.No. 1600 OF 2021 Page 10 of 20

16.PW-5 further testified that a MO-2/rod was seized from the possession of accused which was being used for break opening the locks for committing theft of gold and cash at various places besides at the shop the sagar road, two Oppo phones were seized from the possession of the accused and from the said

Yasmin Bhanu. The amount of Rs.30,000/- which was stolen at

Prakashnagar was seized from them and an amount of

Rs.20,000/- which was stolen at motorcycle show room at Sagar

Road was also seized from them. Apart from the other gold and silver articles were seized from the possession of accused and the said Yasmin Bhanu. Apart from the gold and silver articles one Etios car bearing No. TS-09-UA-3339/ MO-1 was also seized.

17.PW-5 further deposed that at the time of conducting panchanama, LW-6/K.Sagar was alo present and that after completion of panchanama, he appended his signature on the panchanama containing the Ex.P.5/the relevant portion with regard to the seizure of Rs.20,000/- pertaining to the instant case in the certified copy of confession cum seizure panchanama of

PJFCM, Miryalaguda

C.C.No. 1600 OF 2021 Page 11 of 20 accused in Cr.No.36/2021 of PS Miryalaguda II Town and identified MO-1/Etios car bearing No. TS-09-UA-3339. MO-2/ Iron rod and MO-3/Oppo Mobile Phone.

18.During his examination in cross, PW-5 deposed that he received summons to attend the Court and that he did not have any written orders from their MRO instructing him to act as mediator and that the C.I. of Police did not give any notice to him under Sec.100 Cr.P.C. to act as mediator. PW-5 further deposed that he regularly attends his office duties but does not sign in any attendance register as his official duties would be on field. PW-5 denied the suggestion of the learned defence counsel that he had personal acquaintance with the Police and that he did not act as mediator and that nothing was seized in his presence. PW-5 admitted the suggestion of the learned defence counsel that he attends the Police Station on rotation basis whenever necessary.

19.According toPW-6, Investigation Officer on 20-08-2021, at 10.00 hours, he received a Telugu written report/Ex.P1. Basing on the report, he registered a case in Cr.No. 234/2021 for the

PJFCM, Miryalaguda

C.C.No. 1600 OF 2021 Page 12 of 20 offences under Secs. 457, 380 IPC and issued Ex.P6/FIR and sent the original FIR to the Court and the copies to all the concerned and he took up investigation. During the course of investigation, he examined and recorded the statements of PW-1 and PW-3 at

Police Station. Thereafter, he visited the scene of offence situated at Srikrishna Motor Service Centre, near RTC bus stand, Sagar

Road, Miryalaguda where he secured the presence of PW-2 and

PW-4 and conducted the scene of offence panchanama/Ex.P2 besides drawing rough sketch/Ex.P4 in their presence.

20.PW-6 further deposed that on 20-09-2021, he arrested the accused in Cr.No.36/2021 of PS Miryalaguda II Town Police

Station and during the course of investigation of that matter, he recorded the confession cum seizure panchanama of the accused in the presence of PW-5 and LW-6/ K.Sagar, wherein the accused confessed about the commission of the offence pertaining to the instant case in Cr.No.234/2021 of PS Miryalaguda II Town apart from some other offenses. Further, the accused divulged that out of the amount of Rs.22,000/- stolen at Sri krishna Motor Service

PJFCM, Miryalaguda

C.C.No. 1600 OF 2021 Page 13 of 20

Centre, he spent an amount of Rs.2,000/- and produced the remaining amount of Rs.20,000/- from his shirt pocket and the same was seized in the presence of PW-5 and LW-6/K.Sagar under the cover of panchanama which contains Ex.P5.

21.PW-6 further deposed that the accused further divulged that one woman namely Yasmin Bhanu was also involved in the commission of the other offenses and seized stolen properties i.e., gold ear studs weighing 4.9 grams, silver anklets weighing 190 grams, gold chain weighing 19.38 grams and cash of Rs.30,000/- pertaining to some other cases and MO- 1/Car, MO-2/iron rod, MO-3/mobile phone under the cover of panchanama. On 15-09-2021, the accused is produced before the

Court on executing PT Warrant and after completion of investigation, he filed charge sheet against the accused for the offenses under Section457, 380 IPC.

22.During his examination in cross, PW-6 deposed that the distance between the Police Station and scene of offence is about half kilometer and that he secured the presence of the

PJFCM, Miryalaguda

C.C.No. 1600 OF 2021 Page 14 of 20 panch witnesses at the scene of offence by orally summoning them without issuing any written summons as they were available at the scene of offence. PW6 further deposed that he did not obtain any chance finger prints at the scene of offence as no such chance finger prints were found by the clues team at the scene of offence. PW-6 denied the suggestion of the learned defence counsel that the Police, Kukatpally Housing Board apprehended the accused initially and handover to them subsequently and that the accused is no way concerned with this case and that he was falsely implicated in this case.

23.On cumulative reading of the evidence of PW1 to PW4, the prosecution could able to prove that during the night of 18-08- 2021, the theft of Rs.22,000/- was committed in the Hero Honda

Service Centre, Sagar Road, Miryalaguda by break opening the shutters and the lockers of the cash counter. PW1 testified that in the morning hour of 19-08-2021 when he came to open the said shop he found that the cash of Rs.22,000/- which was kept in the cash counter on the previous day before closing the shop was

PJFCM, Miryalaguda

C.C.No. 1600 OF 2021 Page 15 of 20 stolen by some unknown offenders, by gaining entry into the shop by break opening the shutters. PW-3 who is the service

Manager of the shop deposed in consistence with the version of

PW-1 and corrobated with the evidence of PW-1. The evidence of PW-2 and PW-4 who are the mediators/panch witnesses to the scene of offence panchanama testified that the panchanama/Ex.P.3 was conducted in their presence and that they noticed that the shutter of the said shop was broke opened.

There is nothing on the record to dent that the evidence of PW-1 to PW-4 and thus the prosecution is succeeded in proving that the theft of Rs.22,000/- was committed in the Sri Krishna Hero

Honda Service Centre during the period after closing the shop

and before opening the shop. Thus the prosecution could able to prove that an amount of Rs.22,000/- was stolen by gaining entry into the shop by break opening the shutters of the shop.

24.PW5 who is the mediator to the confession cum seizure panchanama deposed that the police recorded the confessional statement of accused in his presence wherein the accused

PJFCM, Miryalaguda

C.C.No. 1600 OF 2021 Page 16 of 20 confessed about the commission of theft of Rs.22,000/- from the

Sri Krishna Hero Honda Service Centre, Sagar Road, Miryalaguda and that an amount of Rs.20,000/- was recovered possession of the accused apart from the other properties from other places and that LW6 Was also acted as Mediator.

25.On careful perusal of the entire evidence on record, there is no direct evidencewho witnessed the accused committing the trespassing and theft of the case property from the shop. The investigation failed to secure any chance finger prints or any CC

TV footage or any sort of evidence to prove that the accused committed the offence under section 457 and 380 IPC. The prosecution failed to establish that the accused committed the offence under section 457 and 380 IPC.

26.On perusing the evidence of PW-5 and PW-6, the confession statement was recorded by PW-6 in Cr.No.36/2021 of

P.S.Miryalaguda-II Town wherein the accused divulged about the commission of theft of the instant crime and that an amount of

Rs.20,000/- stolen was from the Sri Krishna Hero Honda Service

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C.C.No. 1600 OF 2021 Page 17 of 20

Centre shop was seized from the possession of accused.

However only the portion of the statement leading to recovery of the stolen property is relevant as envisaged in section 27 of

Indian Evidence Act. Thus the prosecution could able to establish only to the extent that that the stolen amount of Rs.20,000/- has been recovered from the possession of the accused under Ex.P.5/ relevant portion of seizure of amount of Rs.20,000/- under attested copy of confessional-cum-seizure panchanama of accused in Cr.No.36/2021 of Police Station Miryalaguda II Town.

The record goes to show that there are no rivals claim either by the accused or any third party claiming the ownership of the said amount though an notice and opportunity given to the accused to put forth his objections over the property i.e., Rs.20,000/- while adjudicating the petition filed on behalf of the PW-1 seeking return of property of Rs.20,000/- by claiming the ownership of the same. The accused failed to offer any explanation about the possession of the stolen property of Rs.20,000/- by him as per

Ex.P.5. In the above circumstances the prosecution is succeeded

PJFCM, Miryalaguda

C.C.No. 1600 OF 2021 Page 18 of 20 in proving that the offence punishable under section 411 IPC against the accused.

27.IN THE RESULT, the Accused is found not guilty for the offence punishable under Section 457 IPC and 380 of IPC and accordingly, he is acquitted under section 248(1) of Cr.P.C.

Further, the accused is found guilty alternatively, for the offence punishable under Section 411 IPC and accordingly, he is convicted under Section 248(2) Cr.P.C.

Typed to dictation on computer by the Stenographer, corrected and pronounced by me in open court, this the 4th day of April, 2022.

II Addl. Judicial Magistrate of I Class, FAC: Prl. Judicial Magistrate of I Class,

Miryalaguda.

28.When questioned about the quantum of sentence the

Accused stated that he is having wife and minor children who are dependants on him and prayed for mercy of the court.

29.Having regard to facts and circumstances, it is not a fit case to invoke Sec 360 Cr.P.C. or Sec 3 and 4 of Probation of offenders Act. However considering the nature of offence and the prayer of the accused, I am inclined to take some lenient view in imposing the sentence.

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C.C.No. 1600 OF 2021 Page 19 of 20

30.The Accused is found guilty for the offence punishable under Section 411 IPC and he is convicted in terms of Sec. 248(2)

Cr.P.C. and he is sentenced to undergo Rigorous Imprisonment for SEVEN MONTHS. The period of detention already undergone by the Accused from 15-09-2021 to till date i.e., 04-04-2022 shall be given set off under section 428 Cr.P.C. The sentence imposed in this case and sentences imposed in C.C.No.1534/2021 and

C.C.57/2022 shall run concurrently. The Accused is hereby apprised of his right to prefer an appeal. The copy of judgment shall be given to accused free of cost. The cash of Rs.20,000/- given to the PW1 towards interim custody vide

Crl.M.P.No.328/2021 dated.04-10-2021 shall be made absolute

after lapse of appeal period.

(Typed to my dictation directly by the Stenographer, corrected and pronounced by me, in the open Court on this the 4th day of April, 2022).

Sd/-

II Addl. Judicial Magistrate of I Class, FAC: Prl. Judicial Magistrate of I Class, Miryalaguda.

APPENDIX OF EVIDENCE.

WITNESSES EXAMINED

:FOR PROSECUTION: PW-1: K.Saidulu, Defacto-Complainant. PW-2: R.Saidaiah, panch for scene of offence panchanama PW-3: V.Uday Kumar, circumstantial witness PW-4: P.Ashok, panch for scene of offence panchanama PW-5: P.Gopi, panch for confession and recovery panchanama PW-6: N.Suresh, Investigating Officer.

PJFCM, Miryalaguda

C.C.No. 1600 OF 2021 Page 20 of 20 :ON BEHALF OF THE DEFENCE:

-- NONE --

EXHIBITS MARKED

:FOR PROSECUTION: Ex.P.1: Report given by PW-1 Ex.P.2: Personal bond executed by PW-1 at the time of receving the amount of Rs.20,000/- from the Court. Ex.P.3: Scene of offence panchanama Ex.P.4: Rough sketch Ex.P-5:Relevant portion with regard to seizure of an amount of Rs.20,000/- in the certified copy of confession cum seizure panchanama of accused in Cr.No.36/2021 of P.S. Miryalaguda II Town. Ex.P.6: First Information Report :FOR DEFENCE: NIL :MATERIAL OBJECTS: M.O.1: Car M.O.2: Iron Rod M.O.3: Mobile Phone

Sd/-

II Addl. Judicial Magistrate of I Class, FAC: Prl. Judicial Magistrate of I Class, Miryalaguda.

PJFCM, Miryalaguda

C.C.No.944/2017

Dt: 25.04.2023

1

IN THE COURT OF THE II ADDL.JUDICIAL MAGISTRATE OF FIRST CLASS:

AT MIRYALAGUDA

Present :- Smt V. Madhavi, II Addl. Judicial Magistrate of First Class Miryalaguda (Dated this the 25th day of April, 2023)

C.C. No. 944 of 2017

(Cr No.306 of 2023 PS Miryalaguda Rural)

Between : The State of Telangana, through Sub-Inspector of Police, Miryalaguda Rural …Complainant AND

A1: Islavath Moti Singh S/o Ramu, Age:70 years, Occ: Agriculture, A2: Islavath Baloji S/o Lacha, Age:60 years, Occ: Agriculture (DIED) A3: Islavath Srinu S/o Baloji, Age:35 years, Occ: Agriculture, A4: Islavath Babu S/o Baloji, Age:28 years, Occ: Agriculture, A5: Islavath Vali W/o Baloji, Age:50 years, Occ: Agriculture, A6: Islavath Anasurya W/o Srinu, Age:25 years, Occ: Agriculture, A7: Islavath Saide W/o Babu, Age:23 years, Occ: Agriculture, A8: Islavath Savali W/o Moti Singh, Age:58 years, Occ: Agriculture, All are R/o Gaddhagudu Thanda H/o B-Annaram Village of Miryalaguda Mandal, Nalgonda District.

...Accused

This case is coming on this day before me for final disposal in the presence of Asst. Public Prosecutor for the State and Sri. M. Uma

Shankar Reddy, Counsel for the Accused and having heard both sides and upon perusal of material available on record, this court made the following:

-: J U D G E M E N T :-

1)The Sub-Inspector, Miryalaguda Rural Police Station filed this case against the accused in FIR No.306/2013 alleging that accused Nos. 1 to 8 had committed the offence punishable under sections 447, 323, 341, 506

R/w 109 of IPC and section 7(i) of Criminal Law Amendment Act, 1932.

2)The case of prosecution in brief is that on 20.09.2013 at 8.00 PM PW.1 lodged report to the police stating that on the same day at 11.00 PM while he was attending his agricultural work using tractor, A1 to A8 wrongfully

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2 restrained him from doing his work stating that land belongs to them, abused him in filthy language, beaten him with hands and also threatened him with dire consequences. PW.1 further stated that PW.2, PW.4 and PW.6 rescued him from their clutches, and, requested to take legal action against the accused.

3)Basing on the report, PW.5 registered a case in Cr.No.306/2013 under sections 447, 323, 341, 506 R/w 109 of IPC and section 7(i) of Criminal

Law Amendment Act, 1932 and took up investigation. During the course of investigation, PW.5 recorded the statement of PW.1. In the morning on the following day, PW.5 visited B. Annaram Village, where he examined and recorded the statements of PW.2, PW.4, PW.6 and PW.7 and conducted scene of offence panchanama in the presence of LW.8/Singham

Eshwaraiah and PW.3 and on the same day PW.5 arrested A1 and A2 and produced them before the court for judicial custody on 23.09.2013. PW.5 also arrested A3 to A8 and produced before the court for judicial custody on 25.09.2013. PW.5 recorded the statements of LW.6/Ramdeni

Venkateshwarlu and LW.7/Ramdeni Laxminarayana, and recorded their statements. After completion of investigation, PW.5 deleted the name of

R9/Peekla as case was not made out against him and filed charge sheet against A1 to A8 for the offence under sections 447, 323, 341, 506 R/w 109 of IPC and section 7(i) of Criminal Law Amendment Act, 1932.

4)This court has taken cognizance for the offence punishable under

Sections 447, 323, 341, 506 R/w 109 of IPC and section 7(i) of Criminal

Law Amendment Act, 1932 against A1 to A8. On appearance of the accused, copies of the charge sheet and the documents were furnished to them as contemplated under section 207 Cr.P.C.

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3

5)Accused Nos. 1 to 8 were examined under section 251 of Cr.P.C, for the offences under section 447, 323, 341, 506 R/w 109 of IPC against the accused Nos.1 to 8, read over and explained to them in vernacular language, for which, they pleaded not guilty and claimed to be tried.

6)In order to establish its case, the Prosecution examined PW.1 to PW.7 and got marked Ex.P.1 to P.6. PW.1 is defacto complainant and victim, PW.2,

PW.4, PW.6 and PW.7 are eye witnesses, PW.3 is panch for scene of offence, PW.5 is investigation officer. The evidence of LW.6/Ramdeni

Venkshwarlu and LW.7/Ramdeni Laxminarayana was closed by my predecessor on 30.08.2019 as they failed to appear before the court despite of receiving summons from the court. The learned APP given up the evidence of LW.8/Singham Eshwaraiah on 20.09.2019. During the course of trial, the case against A2 was abated by my predecessor.

7)After closure of the Prosecution evidence, accused Nos. 1, 3 to 8 were examined under section 313 Cr.P.C explaining the incriminating material available against her, in the evidence let in by the prosecution, for which, they pleaded that all such evidence is false and reported no Defence evidence.

8)Heard arguments of learned APP and learned counsel for Accused Nos. 1, 3 to 8. Perused the record.

9)Now the points of determination is:

“Whether the prosecution proved guilt of the accused Nos. 1, 3 to 8 beyond reasonable doubt, for the offence punishable u/sec.

447, 323, 341, 506 R/w 109 IPC beyond reasonable doubt ?

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4

10) P O I N T :

It is the case of the prosecution that A1 to A8 criminally trespassed into the agricultural land of PW.1 and wrongfully restrained PW.1 by stating that the land belongs to them and obstructed him in attending the agricultural work, beat him with hands and abused him in filthy language and threatened him with dire consequences.

11)PW.1 deposed that he has agricultural land situated at B. Annaram village to the extent of land is Ac.4.00 in Sy.Nos.134, 135, 136 and he purchased the same from one Islavath Baloji about seven years ago and that he has been in the possession of the said land and has been cultivating the said land since the date of the purchase and also obtained the electricity connection. On one day about four years ago, while he was ploughing the said land, the accused persons A1 to A8 obstructed Pw.1 from ploughing and hence he lodged report with the police. PW.1 further stated that PW.4, PW2, PW.6, PW.7, LW7/Rameni

Laxminarayana witnessed the said incident. During the course of cross examination, PW.1 stated that the land of Saida is a canal were adjacent to his land and a forest was also situated near to his land. It is denied by

PW.1 that the land of one Baloji and A1 are situated near to his land.

PW.1 testifies that he lodged report with the police about 1½ hour after the incident which was occurred at 10.30 AM. PW.1 denied the suggestion of the learned defence counsel to rebute his testimony in the chief examination.

12) PW.2 stated that about four years ago the incident was occurred at

Gaddaguti Thanda and that he does not know whose lands are located, but he specifically stated that there was one Gattu (bund). PW.2 further stated that A.1 to A.8 entered in the altercation with PW.1 stating that the

C.C.No.944/2017

Dt: 25.04.2023

5 said land should not be ploughed, while PW.1 was ploughing the land, when PW.1 continued ploughing his land, A1 to A8 raised cries stating that the said land should not be ploughed. Thereafter, A1 to A8 sent the tractor away from the said land. PW.2 further stated that PW.4 witnessed the incident. PW.2 deposed in his examination in cross that he does not know whether there were previous disputes between PW. 1 and A1 to A8 and whether the land of A1 was situated adjoining the land of PW.1. To the suggestion of PW.2 by the defence counsel (AKKADA YEVAREVARI POLALU

VUNANDI NEEKU TELIAYDU?) which can be translated that he does not whose agricultural fields are situated there, PW.2 replied as he does not know. PW.2 categorically stated that he does not know the survey numbers and boundaries of the said land.

13)PW.3 deposed that police conducted panchanama about 4 or 5 years ago and also drawn rough sketch at agricultural fields of PW.1 in respect of the incident, where the accused quarreled with PW.1 and that he appended his signature after completion of the panchanama proceedings. PW.3 testifies that PW.4 and LW.8/Singham Eshwaraiah were present at that time. During the course of cross examination, PW.3 stated that he does not know the exact date of panchanama, but it was conducted by the police in the afternoon hours between 12 to 4 PM. PW.3 categorically stated that he does not know the Survey number and place of panchanama. PW.3 further stated that the extent of agricultural fields of PW.1 might be 5 to 6 acres.

14)PW.4 deposed that on 20.09.2013 while he was proceeding towards

Kallepally from his village to attend his work and when he reached near the fields of accused, at that time PW.1 came there on his tractor about 10.00 AM. PW.4 further deposed that while the family of PW.1 and accused were standing at their agricultural fields they started quarrel with each other. PW.4 further stated that while PW.1 was driving his tractor, A1 to A8

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Dt: 25.04.2023

6 obstructed him stating that he should not plough the land and claimed the land as theirs. In the meantime himself, PW.6 and PW.2 pacified both the parties not to interfere with each other and PW.4 went to regular work and on the following day, police examined him. During the cross examination

PW.4 categorically stated that he does not know the name of owners who possess the land at scene of offence and that he did not know the registration number of the tractor. While admitting the suggestion that he does not anything, stated that he know only about quarrel between the parties.

15)PW.5/investigation officer stated about receiving report from PW.1, registering case, issuing first information report, recording statement of witnesses, conducting scene of offence panchanama, drawing rough sketch, arresting accused A1 to A8, deleting A9 from the case, filing charge sheet after completion of investigation. During cross examination

PW.5 deposed that he did not mention that PW.1 did not mention either in

Ex.P.1/report and during recording his statement under section 161 Cr.P.C about the mode of acquisition of the disputed land and also the extent of said land. PW.5 stated he has not examined VRO or MRO of B. Annaram

Village and also Tahsildar of Miryalaguda. PW.5 further deposed that he has not collected any documents from the office of Tahsildar Miryalaguda pertaining to said land and further that PW.1 did not submit any documents showing ownership of the land. PW.5 categorically stated he did not examine any of the neighboring land owners of the disputed land.

PW.5 denied that he foisted false case against A1 to A8 and registered the case without conducting proper investigation. PW.5 further stated that he does not know whether A2 had filed civil suit against PW.1 and obtained decree in his favour.

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Dt: 25.04.2023

7

16)PW.6 and PW.7 who are eye witnesses to the incident, totally turned hostile and did not support the case of prosecution. During the cross examination by the learned APP, they denied the suggestion that they stated before the police as in 161 Cr.P.C. statements.

17)Heard the arguments on both sides, wherein the learned APP requested this court to adjudicate the case on merits. The learned defence counsel contended that A.1 to A8 are no way concerned to this case and that the police registered a false case against the accused nos. 1 to 8 basing on the false report of PW.1 keeping previous disputes in mind and filed charge sheet with false allegations against A1 to A8 without conducting proper investigation.

18)At this junction, it is appropriate to refer section 441 of IPC, which defines the criminal trespass. In order to appreciate the evidence and to ponder whether the prosecution could able to prove that the Accused Nos. 1, 3 to 8 committed the offence under section 447 IPC, it is appropriate here to refer section 441 IPC which read as:

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

19)The ingredients to constitute the offence under section 447 IPC are (i)

PW.1 is in legal possession of the agricultural land where the alleged incident took place (Ii). The accused shall enter into the property of PW.1 with an intention to commit an offence.

20)On perusal of the entire material on record, the alleged incident was occurred at B. Annaram, but PW.2 stated that the incident occurred at

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Dt: 25.04.2023

8 Gadhagudu Thanda. PW.1 deposed which was purchased by him from one

Baloji about 7 or 8 years ago and while he was ploughing his land, A1 to

A8 interfered and obstructed him from ploughing his land. The prosecution failed to exhibit any piece of document to show that PW.1 is the owner of said disputed land. It is pertinent to mention that PW.1 stated that the incident occurred at Gadhugudu Thanda, PW.2 who is friend of both PW.1 and A1 to A8 could not state whether PW.1 is the owner of the scene of offence. PW.3 deposed that panchanama was conducted in the agricultural fields of PW.1, but he could not say the survey number and boundaries of the said land. PW.4 stated that he does not know the names of owners who possessed the land at the scene of offence. PW.5 stated that he did not collect any documents from the VRO or VRA of B. Annaram Village or also from Tahsildar, Miryalaguda and that he did not collect any document to show that the alleged land situated in the scene of offence belongs to

PW.1. Moreover, it is the contention of the learned defence counsel that

A.2 obtained a decree in respect of the said land against PW.1 and the same is not denied by the prosecution. Neither of the parties exhibited any piece of document in support of their contentions. However, on perusing the evidence on record, the testimonies of PW.1 to 7 are not sufficient to held that PW.1 is the owner of agricultural land. When the first and foremost ingredient to prove 447 IPC that PW.1 is in lawful possession of the scene of offence is not established, which render the criminal trespass of A1 to A8 into the property of PW.1/scene of offence and interned PW.1 doubtful. In the light of forgoing discussion, it can be held that the prosecution failed to prove the offence under section 447 IPC beyond all reasonable doubt.

21)In order to appreciate the evidence and to ponder whether the prosecution could able to prove that the Accused Nos. 1, 3 to 8 committed

C.C.No.944/2017

Dt: 25.04.2023

9 the offence under section 323 IPC, it is appropriate here to refer section 323 IPC which read as:

323. Punishment for voluntarily causing hurt—Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

.

22)In order to bring home the guilt of accused under section 323 of IPC, the prosecution has to prove that the accused caused simple injuries to PW.1 at the relevant time. On careful scrutiny of entire material available on record, all the witnesses including PW.1/victim/defacto complainant did not state anything that the accused persons beat PW.1. There is no iota of evidence to constitute the ingredients of section 323 of IPC. Therefore, I can be held that the prosecution failed to prove the guilt of the A1 to A8 for the offence under section 323 of IPC.

23)At this junction, it is appropriate to refer section 341 of IPC, which read as:

341. Punishment for wrongful restraint—Whoever wrongfully restrains any person, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.

.

24)As discussed in point No.1 that the prosecution failed to prove that PW.1 is in lawful possession of scene of offence, which render the question of whether the PW.1 has right to proceed in the scene of offence doubtful.

Hence, it can be held that the prosecution failed to prove the guilt of the

A1 to A8 for the offence under section 341 of IPC beyond all reasonable doubt.

25)At this junction, it is appropriate to refer section 503 of IPC, which defines the criminal trespass. In order to appreciate the evidence and to ponder whether the prosecution could able to prove that the Accused Nos. 1, 3 to

C.C.No.944/2017

Dt: 25.04.2023

10 8 committed the offence under section 506 IPC, it is appropriate here to refer section 503 IPC which read as:

503. criminal intimidation—Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intend to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.

.

26)On careful scrutiny, the entire evidence on record, it is disclosed that

PW.1 to PW.4 did not state anything that the accused nos. 1 to 8 threatened PW.1 with dire consequences. There is no iota of evidence to constitute the ingredients of section 506 of IPC. Hence, it can be held that the prosecution failed to prove the guilt of the A1, A3 to A8 for the offence under section 506 of IPC beyond all reasonable doubt.

27)In the light of above, there is no cogent and clinching material on record to fasten the culpability of accused Nos. 1, 3 to 8 with the offences leveled against them. Hence, this court held without any hesitation that prosecution failed to prove the guilt of accused Nos. 1, 3 to 8 for the offences leveled against them beyond all reasonable doubt and thus accused Nos.1, 3 to 8 are entitled for acquittal.

28)In the result, accused Nos. 1, 3 to 8 are found not guilty for the offence punishable under section 447, 323, 341, 506 R/w 109 of IPC against Nos.

1, 3 to 8 and they are acquitted under section 255(1) of Criminal procedure code. The bail bonds and sureties bonds of the accused Nos. 1, 3 to 8 shall stand cancelled after lapse of appeal time.

(Typed to my dictation, corrected and pronounced by me in the open court, on this the 25th day of April, 2023).

II Addl. Judicial Magistrate of 1 Class Miryalaguda

C.C.No.944/2017

Dt: 25.04.2023

11

::APPENDIX OF EVIDENCE::

EXAMINED WITNESSES

Prosecution: PW.1 : Seelam Laxmaiah, complainant and victim PW.2 : Bachalakuri China Kotaiah, eye witness s PW.3 : P. Venkateshwarlu, panch for scene of offence PW.4 : B. Sathish, eye witness PW.5: M. Rahul dev, I,O., PW.6 : D. Hanumanthu, eye witness PW.7 : G. Venkateshwarlu, eye witness Defence : Nil

EXHIBITS MARKED

For Prosecution:

a) Ex.P-1: Report

b) Ex.P-2: panchanama

c) Ex.P-3: rough sketch

d) Ex.P-4: First information report

e) Ex.P-5: 161 Cr.P.C. statement of PW.6

f) Ex.P-6: 161 Cr.P.C. statement of PW.7 For Defence: Nil

MATERIAL OBJECTS MARKED

Nil

II Addl. Judicial Magistrate of 1 Class Miryalaguda

IN THE COURT OF THE I ADDL. JUDICIAL MAGISTRATE OF I CLASS,

MIRYALAGUDA.

Present: Smt. V. Madhavi I Addl.Judl.Magistrate of I Class, Miryalaguda FAC II Addl.Judl.Magistrate of I Class, Miryalaguda.

Dated this the 10th day of November, 2022.

C.C. NO.789 of 2022

(Cr.No.99/2022 of P.S. Miryalaguda I Town)

Between:

The State - Rep., through the Sub-Inspector of police, P.S. Miryalaguda I Town

.... Complainant.

And

Naramdasu Manikanta @Munna, S/o Srinu (late), age: 25 years, Occ: Driver, R/o Venkatapuram, Thallagadda of Suryapet District.

.....Accused.

This case coming on this the 07-11-2022 before me for final hearing and disposal in the presence of A.P.P for the state and in the presence of Sri. J. Yellaiah, Legal-aid counsel for the accused and after having stood over for consideration, the court delivered the following:-

:: J U D G M E N T ::

1. The accused stand charged for the offence punishable U/sec.379 or 411 IPC in Cr.No.99 of 2022 of P.S.Miryalaguda I Town.

2. The Sub-Inspector of police, Miryalaguda I town Police station filed

Charge Sheet against the accused under section 173 Cr.P.C in

Cr.No.99/2022 with the following allegations in brief are as follows:

On 17.04.2022 at 09.00 hours, PW1 parked his Glamour motor cycle bearing No. AP 24-S-5684 at Khalalwada of Miryalaguda town. After completion of his work, he returned at about 1800 hours and found that his bike was not there at the place he parked. Then PW1 searched for his motor cycle in and around Miryalaguda but in vain and lodged a report with the

Police. Basing on the report, the police registered it as a case in

Cr.No.99/2022 for the offence under section 379 IPC and investigated into.

After the completion of the investigation, Charge Sheet before the Court.

3. After filing the Charge Sheet by the police, cognizance was taken for the offence punishable under section 379 IPC against the accused.

4. When the accused produced before the Court, case copies furnished to the accused as required U/s.207 of Cr.P.C. The accused was examined under section 239 Cr.P.C for the offence punishable under section 379 IPC, charges framed, readover and explained to the accused, in vernacular for which, the accused pleaded not guilty and claimed to be tried.

5. In order to bring home the guilt of the accused, the prosecution examined the defacto complainant LW1/P.Raju as PW1, the Circumstantial witnesses LW2/P.Swapna as PW2, Mediator for the confession-cum-recovery panchanama LW7/U. Saidulu as PW3, the Investigation Officer LW8/A.

Rajashekar Reddy as PW4, Mediator for the scene of Offence panchanama

LW4/Veera Swamy as PW5 and LW9/R. Sudheer Kumar as PW6 and marked

Exs.P1 to P4 and material object MO1 on its behalf.

6. The Learned APP given the evidence of LW3/J. Saidulu, LW5/S. Venkat

Reddy, LW6/T. Chandraiah.

7. After the completion of the prosecution side evidence, the accused were called for examination U/sec.313 Cr.P.C, for explaining the incriminating material evidence against him available in the prosecution evidence, having understood the same, the accused denied the incriminating material evidence against him and reported no defence evidence. Hence, the defence evidence was closed.

8. Heard both sides. Perused the entire material on record.

9. Now the point for determination is:

Whether the prosecution has proved the guilt of the accused

for an offence punishable U/sec.379 IPC, beyond reasonable

doubt?

10. In order to prove the guilt of the accused beyond reasonable doubt, for the offences punishable U/sec.379 IPC, the prosecution shall establish that:

1. On 17.4.2022, PW1/P. Raju parked his Glamour motorcycle bearing No. AP-24-S-5684 at Khalalwada, Miryalaguda town and after completion of his work he returned at about 1800 hours and found that his bike was not there at the place he parked and hence he report to police.

2. The accused is the person who committed theft of MO1 belongs to PW1 from Khalawada of Miryalaguda on 17.4.2022.

11. Point No.1: Perused the entire evidence available on record. The testimonies of the prosecution witnesses are very much available on record and it is not necessary to reiterate the same. However, it is appropriate to refer the gist of their testimonies.

12. PW1 testified that on 17.4.2022, he noticed that MO1 which was parked at Shivalayam, Khalalwada, Miryalaguda was missing and lodged a

Ex.P1/Report with the Police. PW2 deposed that on 17.4.2022 at 6.00 pm, he found that MO1 which was parked was missing and then a report was lodged on the same day.

13. PW-3 deposed that on 09-05-2022 at 6-00 p.m., police orally summoned him and asked him to act as mediator and recorded the confessional statement of the accused, during which the accused divulged that he committed theft of several bikes and that the police seized M.O.1 at the instance of accused under Ex.P-2 attested copy of seizure panchanama.

During the cross examination, PW-3 denied that he does not know the page wise contents of the panchanama and stated that he do not have idea about what was mentioned in para No.14 of page No.4 of confessional panchanama.

14. PW-4 deposed that on 09-05-2022 at 6-30 hours, he recorded confessional statement of the accused, during which the accused confessed that he committed theft of several bikes at various places and led the police to his grandmother house at Suryapet and showed 10 stolen two wheeler vehicles including the M.O.1 and the same were seized under the cover of panchanama in the presence of PW-3 and LW-6/T.Chandraiah and arrested the accused. PW-4 further stated that he handed over the M.O.1 to PW-6.

15. PW6 who is one of the Investigating Officer stated that on 04-05-2022 at 5-00 p.m., PW1 lodged a report, basing on which he registered a case in

Cr.No. 99 of 2022 for the offence punishable under section 379 IPC, examined and recorded the statements of PW1, visited the scene of offence and recorded the statments of PW2 and LW3/J.Saidulu and prepared Crime detail form by conducting the scene of offence panchanama besides drawing rough sketch in presence of the panch witnesses PW5 and LW5/S.Venkat

Reddy. PW6 further testified that while the investigation was in progress, he received information from PW4 that the accused confessed in Cr.No. 125 of 2022 of Nalgonda II Town Police Station that he committed theft of MO1 and received MO1 along with attested copy of confessional panchanama in

Cr.NO.125 of 2022 of PS Nalgonda II Town Police Station and deposed MO1

before the Court. Then PW6 regularized arrest of the accused and produced

him before the Court on executing PT Warrant on 25.5.2022 and after completion of investigation, PW6 filed Charge Sheet before the Court.

During the cross examination, PW6 stated that the report was lodged about one and half month after the commission of theft of MO-1 and that he mentioned the reasons for delay in Ex.P4/FIR.

16. The testimony of PW1 is that he lodged a report on noticing that his bike(MO1) was missing and lodged a report on the same day. PW2 stated that on 17.4.2022 at 6.00 pm, they noticed that their bike was missing and lodged a report on the same day. Whereas the report/Ex.P1 depicts that it was dated 4.5.2022 and it appears that there is delay of 20 days in lodging the report. At this stage, it is apposite to mention that in the deposition of

PW1, the Ex.P1 is marked as“ Ex.P1 is the complaint to the Police, dt.

17.4.2022”. However, when perused Ex.P.1/report (complaint), it is dated 04.05.2022. It can be construed that the report/Ex.P.1 is dated, 04.05.2022 but not dated 17.4.2022. It is pertinent to mention here that ExP1 was not lodged on the same date of incident as there is mention in Ex.P.1 that after noticing that MO1 was missing, he had searched for the same till the day he gave the report (04.05.2022), from which it can be inferred that they lodged a report/Ex.P.1 about 20 days subsequent to the date of theft. PW5 who is cited as mediator to the scene of offence panchanama submitted that the police conducted panchanama and drawn rough sketch in his presence at

Shivalayam temple, Miryalaguda with regard to Motorbike theft. Coming to the cross examination, PW5 stated on that the police obtained his signatures on white(blank) papers. On the other hand PW5 stated that he was asked to sign after drafting something and accordingly he appended his signature.

PW1 and Pw2 stated in one voice that they lodged a report that is the date of missing their vehicle (MO1). The testimonies of PW1 and PW2 casts reasonable suspicion on the date of lodging the report. It is highly implausible that the defacto complainant and his wife that they lodged a report 20 days subsequent to the date of incident. The testimony of PW5 who is the mediator to the scene of offence panchanama is also not consistent. On one hand, PW5 stated that the police obtained his signature on blank papers and on the other hand, he stated that they got his signatures after drafting something. From which it could be inferred that the

PW5 was not completely aware as to what purpose his signatures were obtained on crime detail form. From the foregoing discussion, I hold that the prosecution failed to prove that the theft of MO.1 was committed on the alleged date of incident beyond all reasonable doubt.

17. Point No.2: It is the testimonies of PW3/ mediator to the confession cum seizure panchanama and PW-5 that the accused confessed the guilt of committing theft of MO-1 and that MO1 was seized at the instance of the accused. The Prosecution examined PW-3 mediator for confessional and seizure panchanama and PW-4 who testified that on 09-05-2022, while he was conducting vehicle checking he apprehended the accused under suspicious circumstances and on enquiry in the presence of PW-3 and LW- 6/T.Chandraiah the accused confessed the commission of offence pertaining to this case as well as the commission of offence in other cases and he recovered M.O.1 along with other case properties.

18. At this juncture, it is relevant to refer Sec.24 and 27 of Indian

Evidence Act which read as:

Sec.24: “Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding. - A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, 1 having inference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. - A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, 2 having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supporting that by making it he would gain any advantage of avoid any evil of a temporal nature in reference to the proceedings against him”

Sec.27: “How much of information received from accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved”.

19. Sec.24 of Indian Evidence Act envisages that the statement recorded by the police officer in police custody is not admissible in evidence. However,

Sec.27 of Indian Evidence Act contemplates that when any fact is deposed to as discovered in consequence of information received from the accused of any offence, in the custody of a police officer, such portion leading to recovery of any material objects is only admissible in evidence. In the instant case, the prosecution relied upon the testimonies of PW-3 and PW-4 coupled with the confession statement of the accused to prove that the accused committed theft of M.o.1. The testimonies of PW-3 and PW-4 are in consonance with each other that the accused confessed that he committed theft of M.O.1 and that the same was recovered from the possession of the accused under the cover of confession cum seizure panchanama recorded

PW-4/Investigating Officer. The confession given by the accused in the police custody in the presence of police officer is not admissible in evidence as envisaged under Section 24 of Indian Evidence Act. However, the information leading to recovery of M.o.1 is admissible in evidence. Thus from the testimonies of Pws.3 and 4 coupled with Ex.P-2, the prosecution could able to establish that M.O.1 was recovered from the possession of the accused.

20. It is well known fact that unique registration number will be issued by the registering authority to a vehicle. The original registration certification produced by the PW-1 at the time of filing petition seeking return of M.o.1 towards interim custody manifests that PW-1 is the registered owner of the

M.O.1. It cannot be construed that the accused is very much aware that some person is owner of the M.O.1 as he does not possess any registration certificate of the vehicle, but he retained the M.O.1 with him.

21. At this juncture, the presumption under illustration of Sec.114(a) of

Indian Evidence Act can be drawn which contemplates:

“that a man who is in possession of stolen goods soon after theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession”

22. The record manifests that there is no explanation offered by the accused for the possession or knowledge about whereabouts of the M.o.1.

Despite of knowing that the property does not belongs to him, he is assigned with the duty of bailee to return the M.O.1 being the finder of the property as envisaged under Sec.71 of Indian Contract Act, but he did not choose to return the same to the real owner of the M.O.1 who could be ascertained basing on the registration number available on the vehicle. The record is silent that the vehicle M.o.1 has been entrusted to the accused and there is no relationship established between the accused and PW-1 and this Court is constrained to construe that the accused retained the M.o.1 having reason to believe that the same to be stolen property. Thus, it can be presumed that the accused is in possession of M.O.1 knowingly that the same does not belong to him. The prosecution failed to prove the second ingredient that the accused committed theft of the M.O.1, but prosecution able to prove that the accused was in possession of M.O.1.

From the foregoing discussion, I am of the considered opinion that the prosecution failed to prove the guilt of the accused for the offence under

Sec.379 IPC, beyond all reasonable doubt. However, the prosecution succeeded in proving the guilt of the accused alternatively for the offence under Sec.411 IPC.

23.In the result, the accused found not guilty for the offence punishable under section 379 IPC, however, the accused is found guilty for the offence punishable under Sec.411 IPC. Accordingly, he is convicted under Sec.248(2) Cr.P.C.

(Directly computerized to my dictation, corrected and pronounced by me in the open court, on this the 10th day of November, 2022).

II ADDL. JUDICIAL MAGISTRATE OF I CLASS,

MIRYALAGUDA.

FAC: I ADDL.JUDL.MAGISTRATE OF I CLASS,

MIRYALAGUDA.

24. When the accused questioned about the quantum of sentence, the accused pleaded for a lenient view by stating that “my mother’s health condition is not sound and has been admitted to hospital at Hyderabad” and prayed for mercy of the Court.

25. Having regard to the facts and circumstances, it is not a fit case to invoke Sec.360 Cr.P.C., or Sec.3 and 4 of Probation of Offender Act.

However, considering the nature of offence and prayer of the accused, I am inclined to take some lenient view in imposing the sentence.

26. The accused is found guilty for the offence punishable under Sec.411

IPC and he is convicted in terms of Sec.248(2) Cr.P.C., and he is sentenced to undergo Simple Imprisonment for a period of (6) Months. The period already undergone by the accused from 26-05-2022 to till today i.e., 10-11- 2022 shall be given set off under Sec.428 Cr.P.C.

27. The accused shall undergo the above sentence concurrently along with the sentence imposed in C.C.No.765 of 2022.

28. The accused is hereby apprised of his right to prefer an appeal. The copy of judgment shall be given to the accused on free of cost.

29. The M.O.1/Motorbike bearing registration No.AP-24-S-5684 returned to PW-1 vide orders in Crl.M.P.No.425 of 2022, Dt.05-08-2022 shall be made absolute after expiry of appeal time.

II ADDL. JUDICIAL MAGISTRATE OF I CLASS,

MIRYALAGUDA.

FAC: I ADDL.JUDL.MAGISTRATE OF I CLASS,

MIRYALAGUDA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION :

PW-1: P.Raju, Defacto-complainant, PW-2: P.Swapna, Circumstantial witness. PW-3: U.Saidulu, Panch for confession cum seizure panchanama. PW-4: A.Rajasekhar Reddy, Investigating Officer. PW-5: R.Veeraswamy, panch for scene of offence. PW-6: B.Sudheer Kumar, Investigating Officer.

ON BEHALF OF THE DEFENCE:

NONE

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P-1: Report. Ex.P-2: attested copy of seizure panchanama. Ex.P-3: Crime detail form. Ex.P-4: is First Information Report.

FOR DEFENCE:

Nil

MATERIAL OBJECTS MARKED.:

M.O.1: Motorbike bearing No.AP-24-S-5684.

II ADDL. JUDICIAL MAGISTRATE OF I CLASS,

MIRYALAGUDA.

FAC: I ADDL.JUDL.MAGISTRATE OF I CLASS,

MIRYALAGUDA.

IN THE COURT OF THE I ADDL. JUDICIAL MAGISTRATE OF I CLASS,

MIRYALAGUDA.

Present: Smt. V. Madhavi II Addl.Judl.Magistrate of I Class, Miryalaguda FAC I Addl.Judl.Magistrate of I Class, Miryalaguda.

Dated this the 10th day of November, 2022.

C.C. NO.765 of 2022

(Cr.No.101/2022 of P.S.Miryalaguda I Town)

Between:

The State represented through the Sub-Inspector of Police, P.S. Miryalaguda I Town.

.... Complainant.

And

Naramdasu Manikanta @Munna, S/o Srinu (late), age: 25 years, Occ: Driver, R/o Venkatapuram, Thallagadda of Suryapet District.

.....Accused.

This case coming on this the 28th day of October, 2022 before me for hearing and disposal in the presence of A.P.P for the state and in the presence of Sri. J. Yellaiah, Legal-aid counsel for the accused and after having stood over for consideration, the court delivered the following:-

:: J U D G M E N T ::

1. The accused stand charged for the offence punishable U/sec.379 IPC in Cr.No.101 of 2022 of P.S.Miryalaguda I Town.

2. The Sub-Inspector of police, Miryalaguda I town Police station filed

Charge Sheet against the accused under section 173 Cr.P.C in

Cr.No.101/2022 with the following allegations in brief are as follows:

On 18.03.2022 at 11.00 hours, PW1 parked his Passion Plus motor cycle bearing No. AP 11-AB-5321 in front of Dr. Srinivas Reddy Hospital at

Reddy Colony, Miryalaguda town and after half an hour, he returned to the place where parked his vehicle and noticed that some unknown persons committed the theft of his motorcycle and lodged a report requesting the police to take legal action. Basing on the report, the police registered it as a case in Cr.No.101/2022 for the offence under section 379 IPC and investigated into. After the completion of the investigation, Charge Sheet

before the Court.

3. After filing the Charge Sheet by the police, cognizance was taken for the offence punishable under section 379 IPC against the accused.

4. When the accused was produced before the Court, case copies furnished to the accused as required U/s.207 of Cr.P.C.

5. The accused was examined under section 239 Cr.P.C for the offence punishable under section 379 IPC, charges framed, readover and explained to the accused in Telugu by my predecessor, for which, the accused pleaded not guilty and claimed to be tried.

6. In order to bring home the guilt of the accused, the prosecution examined the defacto complainant LW1/T.Prabhakar as PW-1, the

Circumstantial witnesses LW2/T.Rakesh as PW-2, Mediator for the confession-cum-recovery panchanama LW7/U.Saidulu as PW-3, the

Investigation Officer LW8/A.Rajashekar Reddy as PW-4, Mediator for the scene of Offence panchanama LW4/V. Venu as PW-5 and LW9/R. Sudheer

Kumar as PW6 and marked Exs.P1 .to P4 and material object MO1 on its behalf.

7. The Learned APP given the evidence of LW3/K. Rajesh, LW5/J.

Nageshwara Rao and LW6/T. Chandraiah.

8. After the completion of the prosecution side evidence, the accused was called for examination U/sec.313 Cr.P.C, for explaining the incriminating material evidence against him available in the prosecution evidence, having understood the same, the accused denied the incriminating material evidence against him and reported no defence evidence. Hence, the defence evidence was closed.

9. Heard both the learned APP and the Learned Legal aid Counsel for the accused. Perused the entire material on record.

10. Now the point for determination is:

Whether the prosecution has proved the guilt of the accused

for an offence punishable U/sec.379 IPC, beyond reasonable

doubt?

•In order to prove the guilt of the accused beyond reasonable doubt, for the offences punishable U/sec.379 IPC, the prosecution shall establish that:

1. On 18.3.2022, PW1 parked his Passion plus motorcycle bearing No. AP-11-AB-5321 (MO1) in front of Dr. Srinivas Reddy Hospital at Reddy Colony, Miryalaguda and when he returned after half an hour and he found that his bike(MO1) was not there at the place he parked and hence he report to police.

2. The accused is the person who committed theft of MO1 belongs to PW1 which was parked in front of Dr. Srinivas Reddy Hospital, Miryalaguda on 18.3.2022.

•Point No.1: The testimonies of the prosecution witnesses are very much available on record and it is not necessary to reiterate the same.

However, it is appropriate to refer the gist of their testimonies.

•PW1 testified that on 18.03.2022, the passion plus bike bearing No.

AP-11-AB-5321 which was parked in front of Srinivas Reddy Hospital and that he lodged a report/Ex.P1 on 05.05.2022. During the cross examination,

PW1 stated that he did not lodge any report nor got published any advertisement in paper and that he registration certificate of the bike was in

MO1 and that he does not know whether the police written the same in the report or not.

• PW-2 stated that on 18-03-2022 they lost Bike bearing No.AP-11-AB- 5321 which was parked at Srinivasa Reddy Hospital at around 11-00 p.m., and that they gave complaint to police on 05-05-2022 as they could not find the same. During the cross examination, PW-1 stated that in Ex.P-1 report it was mentioned that some unknown persons committed theft of M.O.1.

•PW-3 deposed that on 09-05-2022 at 6-00 p.m., police orally summoned him and asked him to act as mediator and recorded the confessional statement of the accused, during which the accused divulged that he committed theft of several bikes and that the police seized M.O.1 at the instance of accused under Ex.P-2 attested copy of seizure panchanama.

During the cross examination, PW-3 denied that he does not know the page wise contents of the panchanama and stated that he do not have idea about what was mentioned in para No.14 of page No.4 of confessional panchanama.

•PW-4 deposed that on 09-05-2022 at 6-30 hours, he recorded confessional statement of the accused, during which the accused confessed that he committed theft of several bikes at various places and led the police to his grandmother house at Suryapet and showed 10 stolen two wheeler vehicles including the M.O.1 and the same were seized under the cover of panchanama in the presence of PW-3 and LW-6/T.Chandraiah and arrested the accused. PW-4 further stated that he handed over the M.O.1 to PW-6.

•PW6 who is one of the Investigating Officer stated that on 05-05-2022 at 12-00 noon, PW1 lodged a report, basing on which he registered a case in

Cr.No. 101 of 2022 for the offence punishable under section 379 IPC, examined and recorded the statements of PW1, visited the scene of offence and recorded the statements of PW2 and LW3/Rajesh and prepared Crime detail form by conducting the scene of offence panchanama besides drawing rough sketch in presence of the panch witnesses PW5 and LW5/J.Nageshwar

Rao. PW6 further testified that while the investigation was in progress, he received information from PW4 that the accused confessed in Cr.No. 125 of 2022 of Nalgonda II Town Police Station that he committed theft of MO1 and received MO1 along with attested copy of confessional panchanama in

Cr.NO.125 of 2022 of PS Nalgonda II Town Police Station and deposed MO1

before the Court. Then PW6 regularized arrest of the accused and produced

him before the Court on executing PT Warrant on 27.5.2022 and after completion of investigation, PW6 filed Charge Sheet before the Court.

During the cross examination, PW6 stated that the report was lodged about one and half month after the commission of theft of MO-1 and that he mentioned the reasons for delay in Ex.P4/FIR.

•The evidence of PW-5 panch witnesses to the scene of offence and

PW-6 investigating officer are corroborated with the version of the complainant PW1 his son PW-2. There is nothing on record to discredit their testimonies and I am of considered opinion that the prosecution succeeded in establishing that theft of M.O.1 took place, from the scene of offence, on the date of incident, beyond reasonable doubt.

•Point No.2: So far as the identification of the accused is concerned, the Prosecution examined PW-3 mediator for confessional and seizure panchanama and PW-4 who testified that on 09-05-2022, while he was conducting vehicle checking he apprehended the accused under suspicious circumstances and on enquiry in the presence of PW-3 and LW- 6/T.Chandraiah the accused confessed the commission of offence pertaining to this case as well as the commission of offence in other cases and he recovered M.O.1 along with other case properties.

20. At this juncture, it is relevant to refer Sec.24 and 27 of Indian

Evidence Act which read as:

Sec.24: “Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding. - A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, 1 having inference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. - A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, 2 having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supporting that by making it he would gain any advantage of avoid any evil of a temporal nature in reference to the proceedings against him”

Sec.27: “How much of information received from accused may be proved.-Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved”.

21. Sec.24 of Indian Evidence Act envisages that the statement recorded by the police officer in police custody is not admissible in evidence. However,

Sec.27 of Indian Evidence Act contemplates that when any fact is deposed to as discovered in consequence of information received from the accused of any offence, in the custody of a police officer, such portion leading to recovery of any material objects is only admissible in evidence. In the instant case, the prosecution relied upon the testimonies of PW-3 and PW-4 coupled with the confession statement of the accused to prove that the accused committed theft of M.o.1. The testimonies of PW-3 and PW-4 are in consonance with each other that the accused confessed that he committed theft of M.O.1 and that the same was recovered from the possession of the accused under the cover of confession cum seizure panchanama recorded

PW-4/Investigating Officer. The confession given by the accused in the police custody in the presence of police officer is not admissible in evidence as envisaged under Section 24 of Indian Evidence Act. However, the information leading to recovery of M.o.1 is admissible in evidence. Thus from the testimonies of Pws.3 and 4 coupled with Ex.P-3, the prosecution could able to establish that M.O.1 was recovered from the possession of the accused.

22. It is well known fact that unique registration number will be issued by the registering authority to a vehicle. The original registration certification produced by the PW-1 at the time of filing petition seeking return of M.o.1 towards interim custody manifests that PW-1 is the registered owner of the

M.O.1. It cannot be construed that the accused is very much aware that some person is owner of the M.O.1 as he does not possess any registration certificate of the vehicle, but he retained the M.O.1 with him.

23. At this juncture, the presumption under illustration of Sec.114(a) of

Indian Evidence Act can be drawn which contemplates:

“that a man who is in possession of stolen goods soon after theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession”

24. The record manifests that there is no explanation offered by the accused for the possession or knowledge about whereabouts of the M.o.1 stolen property. Thus, it can be presumed that the accused is in possession of M.O.1 knowingly that the same was stolen property. However, in the instant case, there is no direct evidence who witnessed that the accused committed theft of M.O.1.The prosecution failed to prove the second ingredient that the accused committed theft of the M.O.1, but prosecution able to prove that the accused was in possession of stolen property/M.O.1.

From the foregoing discussion, I am of the considered opinion that the prosecution failed to prove the guilt of the accused for the offence under

Sec.379 IPC, beyond all reasonable doubt. However, the prosecution succeeded in proving the guilt of the accused alternatively for the offence under Sec.411 IPC.

25.In the result, the accused found not guilty for the offence punishable under section 379 IPC, however, the accused is found guilty for the offence punishable under Sec.411 IPC. Accordingly, he is convicted under Sec.248(2) Cr.P.C.

(Directly computerized to my dictation, corrected and pronounced by me in the open court, on this the 10th day of November, 2022).

II ADDL. JUDICIAL MAGISTRATE OF I

CLASS,

MIRYALAGUDA.

FAC: I ADDL.JUDL.MAGISTRATE OF I CLASS,

MIRYALAGUDA.

26. When the accused questioned about the quantum of sentence, the accused pleaded for a lenient view by stating that “my mother’s health condition is not sound and has been admitted to hospital at Hyderabad” and prayed for mercy of the Court.

27. Having regard to the facts and circumstances, it is not a fit case to invoke Sec.360 Cr.P.C., or Sec.3 and 4 of Probation of Offender Act.

However, considering the nature of offence and prayer of the accused, I am inclined to take some lenient view in imposing the sentence.

28. The accused is found guilty for the offence punishable under Sec.411

IPC and he is convicted in terms of Sec.248(2) Cr.P.C., and he is sentenced to undergo Simple Imprisonment for a period of ( 6 ) Months. The period already undergone by the accused from 26-05-2022 to till today i.e., 10-11- 2022 shall be given set off under Sec.428 Cr.P.C.

28. The accused shall undergo the above sentence concurrently along with the sentence imposed in C.C.No.789 of 2022.

30. The accused is hereby apprised of his right to prefer an appeal. The copy of judgment shall be given to the accused on free of cost.

31. The M.O.1/Motorbike bearing registration No.AP-11-AB-5321 shall be returned to its original owner after expiry of appeal time.

II ADDL. JUDICIAL MAGISTRATE OF I CLASS,

MIRYALAGUDA.

FAC: I ADDL.JUDL.MAGISTRATE OF I CLASS,

MIRYALAGUDA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION :

PW-1: Tharri Prabhakar, Defacto-complainant, PW-2: Tharri Rakesh, Circumstantial witness. PW-3: U.Saidulu, Panch for confession cum seizure panchanama. PW-4: A.Rajasekhar Reddy, Investigating Officer. PW-5: V.Venu, panch for scene of offence. PW-6: B.Sudheer Kumar, Investigating Officer.

ON BEHALF OF THE DEFENCE:

NONE

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P-1: is Report, Dt.05-05-2022. Ex.P-2: is attested copy of seizure panchanama. Ex.P-3: is Crime detail form. Ex.P-4: is First Information Report.

FOR DEFENCE:

Nil

MATERIAL OBJECTS MARKED.:

M.O.1: Motorbike bearing No.AP-11-AB-5311.

II ADDL. JUDICIAL MAGISTRATE OF I CLASS,

MIRYALAGUDA.

FAC: I ADDL.JUDL.MAGISTRATE OF I CLASS,

MIRYALAGUDA.