CC No. 600 of 2023 1 of 25 Date: 17.09.2024
IN THE COURT OF ADDL. JUDICIAL MAGISTRATE OF FIRST CLASS CUM
ADDL. JUNIOR CIVIL JUDGE, JADCHERLA.
Tuesday, On this the 17th day of September, 2024
PRESENT
SRI MOHAMMAD MUDASSIR,
Addl. Judicial Magistrate of First Class cum Addl. Junior Civil Judge, At Jadcherla.
C.C.No.600 of 2023
BETWEEN: The State of Telangana, Represented by Sub-Inspector of Police, Jadcherla Police Station. …Complainant AND
Kavali Laxmaiah, S/o Chennaiah, age 41 yrs, Occ: Coolie, R/o Velugomula village of Midjil mandal. …Accused ****
This case is coming before me for final hearing in the presence of Learned APP,
for the complainant and Sri V. Pandu Kumar, Learned legal aid defense counsel, for
accused and upon perusing the material on record and the matter having stood over for consideration till this day, the Court delivered the following:
:: J U D G M E N T ::
1. The State represented by the Sub Inspector of Police, Jadcherla laid charge sheet against accused in Cr.No.246 of 2023 of P.S. Jadcherla for the offences punishable U/Secs. 420, 379 of I.P.C. Indian Penal Code. (Hereinafter referred to as ‘IPC’ for short).
2.The case of prosecution in brief is that,
On 29.04.2023 at 20:00 hours, Lw-1/C.Chukkamma lodged a report stating that on 10.02.2023 at about 17:30 hours, she came to Jadcherla from
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her village for buying vegetables, while she standing at Alfa Tea point at
Nethaji chowk, one person came to her and talking with her and looking her gold shells on her neck and he asked gold shells to her to take photo of it and he take her gold shells forcibly from her neck, while she asking him to give her gold, then he took her to K-600 cloth shop and sitting on steps, he also took an amount Rs. 2040/- from her pocket and he told her to stay there and he will bring a quarter bottle of liquor and both of them sit and drink and he left by taking away her half thula of 40 gold shells and he did not return back and the worth of property was Rs.20,000/- and she went to her home and said that matter to her son and they have searched for him till date of lodging report but in vain, finally she came to late Police station. Hence, she requested to take necessary action against accused.
Basing on the above report Lw-9/A.Ramesh Babu registered a case in
Cr. No. 246/2023, U/Secs. 420,379 IPC and took up the investigation. During the course of investigation, the Lw-10/D.Lenin examined and recorded the statement of the Lw-1. On 30.04.2023, Lw-10 visited the scene of offence and he conducted scene of offence panchanama in the presence of Lw-3 and Lw-4 and recorded the statement of Lw-2. On 30.04.2023, Lw-7/G.Balakirshana
Goud/SI of police, Mahabubnagar I-town P.S., arrested the accused in Cr.No.
132/2023 for the offence punishable U/Sec 420, 379 of IPC and the accused confessed that the stolen property alongwith the present crime. On 18.05.2023, Lw-10/D.Lenin/SI of police produced the accused before Hon’ble court by PT warrant. After completion of investigation, Lw-10/D.Lenin, Sub-
Inspector of Police, Jadcherla filed chargesheet against the accused.
3.On receipt of charge sheet and perusing the material on record, this court has taken cognizance for the offence punishable U/Secs. 420, 379 of
I.P.C against accused. Upon appearance, Copies of case documents were furnished to him as required under Sec.207 Cr.P.C. Upon enquiry accused
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reported that he has no means to engage an advocate, as such Sri V.Pandu
Kumar, Legal Aid defence Counsel is appointed to defend the accused.
Accused is examined under Sec.239 of Cr.P.C and charge was framed against the accused for the offence punishable U/Sec 420, 379 of IPC, same was read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.
4.During course of trial, prosecution examined PWs.1 to 10 and got marked Exs.P1 to P5, M.O.-1 on its behalf. Hence, prosecution evidence was closed.
5. After closure of prosecution side evidence, accused examined under
Sec.313 Cr.P.C., explaining the incriminating evidence available in the testimonies of prosecution witnesses, for which accused denied the same and reported no defense evidence on his behalf. Hence, the evidence on behalf of accused is closed.
6.Heard the learned Assistant Public Prosecutor and the learned counsel
for accused. Perused the material on record. The Learned APP argued that the
evidence of Pw-1 was corroborated by Pw-2 and Ex.P5 and scene of offence is proved by way of Ex.P1. Further, the accused confessed while he was in police custody, police seized the stolen property from the possession of the accused under Ex.P2 as such Sec 27 of Indian Evidence Act is fulfilled. Moreover, Pw-1 stated in her report that she can identify the accused, she identified the accused during Test Identification Parade and also in the open court.
Therefore, prosecution has proved that the accused dishonestly induced Pw1 and taken away gold beads from her and the stolen property was recovered from the possession of the accused intact. Hence, the prosecution established
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the guilt of the accused for the offence punishable U/Sec. 420 of IPC beyond all reasonable doubt and prayed to convict the accused as per the law.
On the other hand, the learned legal aid defense counsel argued that the Pw-1 stated that in Ex.P5 that the stolen cash was Rs.2040/- whereas she deposed before the court the stolen cash of Rs.2000/-. Pw-2 testified that he do not know the contents of his Sec 161 Cr.P.C statement. Pws-3 & 4 who are mediators for scene of offence panchanama admitted that they have signed on blank papers as such scene of offence panchanama as not proved. Pw-5 who is the mediator for confession cum seizure panchanama testified that he has signed on Ex.P2 at police station. Admittedly, there is delay of 2 ½ months between the date of offence and lodging the report. As such there are serious lapses on the part of the investigation agency, the accused no way connected with the present case and falsely implicated in this crime and the prosecution failed to prove the guilt of the accused for the offence punishable U/Sec. 420 and 379 of IPC beyond all reasonable doubt and prayed to acquit the accused.
7.Now the point for my determination is:
‘Whether the prosecution has proved and established the guilt of
accused for the charge U/Secs. 420, 379 of I.P.C beyond reasonable
doubt’?
P O I N T:
8.Pw-1/Complainant deposed that at about 1 year ago in the evening hours, she went to buy vegetables at Nethaji chowk. After purchasing the vegetable, she sat at a place where the accused person came to her and asked about her gold beads which she was wearing. She stated that the accused person wanted to take a photo of her gold beads so he asked her to give the gold bead chain. Upon her rejection, the accused immediately snatched the 40 gold beads chain from her neck as well as cash of Rs.2,000/-. Immediately,
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she informed to same to LW2, thereafter, she along with LW2 went to PS and lodged a report. She deposed that her thumb impression is on the said report.
She deposed that Police examined her and recorded her statement. She deposed that the said property has been deposited before the Hon’ble court vide CPR No. 149/2023 and the same has been taken by her through interim custody from the Hon’ble Court. Prosecution has exhibited the 34 gold beads as M.O.1.
8.1.During the cross examination, she testified that she had not written the report, only she went to PS on the date of incident. She testified that she did not know the contents of the report. She identified the accused who is present standing in the dock of the court hall. She deposed that the lost of cash of
Rs.2000/- was in the denomination Rs.2000/- Note. She deposed that she can say the physical features of the accused but she did not remember the color of his dress which accused wear on that day. Witness added that the accused is physically challenged. She deposed that she did not know the name of the accused person. She denied the suggestion that there was no theft took place. She admitted that police has written the report. She denied the suggestion that she did not know anything about the case and she is deposing false upon the instructions of the police. She is deposing for the first time in the court. She denied the suggestion that she never went to buy vegetables and no theft took place and she is deposing false. She admitted that there would be number of persons at chowrasta.
9.PW-2/Circumstantial witness, he deposed that at about 1 year ago in the evening hours PW1 went to buy vegetables at Nethaji chowk and returned home by crying at about 06:00PM. He deposed that, on enquired PW1 then she told him that when PW1 went to purchase the vegetables, she sat at a place, where the accused person came to PW-1 and asked about her gold
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beads which she was wearing and the accused person wanted to take a photo of her gold beads, so he asked PW1 to give the gold bead chain and also offered liquor. Upon PW1 rejection the accused immediately snatched the 40 gold beads chain from her neck, as well as cash of Rs.2,000/-. Immediately they went to PS and lodged a report. Police examined and recorded his statement.
9.1.During the cross examination, he deposed that he came to know about the theft when PW1 informed him. He deposed that he along with PW1 went to
PS and PW1 lodged a report. He deposed that police has written the report and he is illiterate. After 2 days of the incident, they lodged a report. He deposed that he did not know anything about the case, except upon the information given by the PW1. He deposed that he did not know the contents of his Sec. 161 statement.
10. PW-3/Panch for scene of offence panchanama, he deposed that in the month of April, 2023 during morning hours police conducted scene of offence panchanama in his presence and drawn rough sketch at Nethaji chowk,
Jadcherla regarding the theft of gold beads. Prosecution has exhibited scene of offence panchanama as Ex.P1.
10.1. During the cross examination, he deposed that he along with
LW4/Pavan, one police and other persons were present at the time of conducting scene of offence panchanama. He deposed that he went to the scene of offence upon call from police. He deposed that one police was present and he couldn’t say his designation. He deposed that the scene of offence panchanama was conducted at Nethaji chowk. He deposed that the
Nethaji chowrastha is situated 1 km away from PS. He deposed that he knows the boundaries of scene of offence. He deposed that he unable to recollect the
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directions of boundaries. He admitted that he is deposing for the first time
before the court upon the instructions of the police. He deposed that he did
know the number of pages of Ex.P1. He admitted that he had signed on blank papers. He denied the suggestion that he did not know anything about the case and he is deposing false.
11.PW-4/Panch for scene of offence panchanama, he deposed that on 30.04.2023 at about 08:00PM police conducted scene of offence panchanama in his presence and drawn rough sketch at Nethaji chowk, Jadcherla regarding the theft of gold beads.
11.1. During the cross examination, he deposed that he along with Pw-3, one police and other persons were present at the time of conducting scene of offence panchanama. He deposed that he went to the scene of offence upon call from police. He deposed that one police was present and he couldn’t say his designation. He deposed that the scene of offence panchanama was conducted at Nethaji chowk. He deposed that the Nethaji chowk is situated 1 km away from PS. He deposed that he knows the boundaries of scene of offence and he unable to recollect the directions of boundaries. He deposed that he is deposing for the first time before the court upon the instructions of the police. He deposed that he did not know the number of pages of Ex.P1. He admitted that he had signed on blank papers. He denied the suggestion that he did not know anything about the case and he is deposing false.
12.Pw-5/Panch for confession recovery panchanama, he deposed that in the month of February, 2023 at about 06:00PM, Police conducted confession cum recovery panchanama at Jadcherla bus stop and the Police Jadcherla summoned himself and LW5/Srinivasulu to come to Jadcherla bus stop, after reaching the bus stop the police shown one person who is with them and
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asked himself and LW5/Srinivasulu to enquiry him. Thereafter, himself and
LW5 went to the said person and asked the details about him, upon which he replied his name as Laxmaiah and told them that he committed theft of 40 gold beads at Nethaji chowk from one lady aged 65 years. He deposed that in the month of April Police Jadcherla caught hold of him at Jadcherla bus stand. The accused also informed that he sold 6 gold beads out of 40.
Thereafter, the police seized 34 gold beads from the accused person before them. He identified the accused standing in dock of the court. Prosecution has exhibited confession cum recovery panchanama as Ex.P2.
12.1. During the cross examination, he deposed that he went to PS upon summons from PS Jadcherla. He deposed that at the time of conducting confession cum recovery panchanama there were one S.I. of police and two constables were present. He testified that he did not know their names. He denied the suggestion that he had seen the accused in police station for the first time. He deposed that he had affixed 3 signatures on Ex.P2. Ex.P2 contains 3 papers. He deposed that the S.I. of police has drafted Ex.P2 and he had signed on it. He deposed that in the month of April, 2023 at about 05:00PM the confession cum recovery panchanama was conducted. He deposed that he came to know about the theft from the S.I. of police and he along with LW5 came to Jadcherla for cargo service at Jadcherla bus stand.
He admitted that there was Cargo service, police and the accused were present at bus stop. Upon the instructions from police, he enquired the accused, upon which he revealed that he has committed theft 40 gold beads.
He deposed that he had seen the accused for the first time at the time of conducting confession cum recovery panchanama. He admitted that he had signed on Ex.P2 at PS. He denied all the adverse suggestions put by the legal aid defense counsel.
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13.Pw-6/I.O. he deposed that, on 29.04.2023 at about 20:00 hours, he received report from PW1, basing on which he registered a case in Cr.No.246 of 2023 for the offence punishable U/Secs. 420, 379 of IPC and issued FIR vide Ex. P3. Thereafter, he handed over the CD file to LW10/Lenin for further investigation. During further examination in chief, he testified that on 29.04.2023 at about 20:00 hours he received report from Pw-1 vide Ex.P5, basing upon which he registered a case in Cr.No. 246 of 2023 U/Sec 420, 379 of IPC.
13.1. During the cross examination, he testified that he registered Ex.P3.
Basing on the report of PW1. He admitted that in Sl.No.14 of Ex.P2 the signature of Pw-1 has not obtained. Witness added that since it was computerized sheet, there is no need of obtaining signature. He admitted that there is delay in lodging report. Witness added that since PW2 was absent there was a delay. He denied the suggestion that accused is no way concerned to the case and he is deposing false to implicate FIR. He admitted that Ex.P5 was lodged on 29.04.2023 and the date of offence is mentioned as 10.02.2023 in Ex.P5. Witness added that in Ex.P3 it is mentioned as there is delay. He denied the suggestion that accused is no way connected to the present case and he registered false case against the accused.
14.Pw-7/Panch for confession cum recovery panchanama, he deposed that on 30-04-2023 at about 06.30AM police Mahabubnagar conducted confession cum seizure panchanama in his presence and in the presence of PW5 at
Jadcherla bus stop. He deposed that there was one person in the custody of the police and police asked him to know the details from him, upon which, the accused told his name as Laxmaiah and also the accused told them that he took one gold chain from the neck of one old lady by making her believe that he will offer liquor for the gold chain which he has taken from that lady and
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fled away. He deposed that the police seized the gold (34 gundlu) from the possession of the accused.He identified the gold which has seized from the accused and already marked as M.O.1 by PW1. He identified the accused who is presently standing in the dock of the court hall. Prosecution has exhibited confession cum seizure panchanama of accused as Ex.P2.
14.1. During the cross examination, he deposed that he went there upon the summons from S.I. he couldn’t say the name of the S.I. He deposed that Police has not issued any summons to him. He deposed that he is having tea at bus stand Jadcherla and he did not know the number of persons present there. He deposed that he did not know their names. He deposed that there is only one
Pedda bus stand in Jadcherla. He denied the suggestion that Ex.P2 was conducted at old bus stand. He deposed that on 30-04-2023 at about 06.30AM S.I. of police Mahabubnagar police conducted confession cum seizure panchanama. He deposed that Ex.P2 was written on 3 papers and he appended 5 signatures on it. He denied the suggestion that he did not know who has written Ex.P2. He deposed that he knows the contents of Ex.P2 and he did not remember what was written in 3rd paper. He deposed that he had signed on written papers and he had signed on Ex.P2 after police has read over the same to him. He admitted that upon the instructions of police they have enquired the accused. He deposed that till then he did not know the particulars of the accused. He deposed that along with S.I. four police persons, himself and PW5 were present. He did not know the number of cases pending against the accused which was stated by him in Ex.P2. He deposed that he did not remember the boundaries of place where the confession cum seizure panchanama was conducted. He testified that he had appended his signatures on Ex.P2 at bus stand. He deposed that he did not remember which color dress of the accused which he wore on that day. He admitted that by that time he reached there, the police were already present along with
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accused. He deposed that the accused was standing along with the police. He deposed that the accused was handicapped. He admitted that the accused was handicapped under the impression that he may ran away. He testified that police has took out the gold gundlu from the pocket of the accused. He deposed that he did not know the name of the old lady from whom the accused has committed theft of gold. The accused confessed that he got the gold from Jadcherla and Mahabubnagar. He deposed that he did not know the date of commission of theft by the accused at Mahabubnagar and Jadcherla.
Except on the date of conducting the panchanama, he had have never seen the accused. He deposed that he came to Jadcherla to prepare Rumali roties at function hall. He deposed that the police has seized only one gold chain,
Gold patties (14) and gold gundlu (34). He admitted that as he went upon the instructions of police to conduct confession cum seizure panchanama, he is deposing before this court. After conducting confession cum seizure panchanama, he left to his work at function hall. He deposed that the police never examined him nor recorded his statement. He denied the suggestion that the accused never confessed in his presence and nothing was recovered by the police from the possession of the accused in his presence. He denied the suggestion that he is deposing false to help the police.
15. Pw-8/T.Laxmi/Hon’ble Prl. JFCM, Jadcherla who conducted the Test
Identification Parade, she deposed that on 29-05-2023, she received requisition from police Jadcherla to conduct Test Identification parade in
Crime No.246/2023 for the offence punishable U/Secs. 420, 379 of IPC.
Accordingly, she fixed the date of conducting Test identification parade on 03- 06-2023 after issuing notices to the witnesses. She deposed that on 03-06- 2023, she visited District Jail, Mahabubnagar along with her Personal
Assistant to proceed with the conducting TIP at Jailor's Office Room at about 11.30 AM. Even Field Assistant by name A.Ramesh accompanied her, who
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called the witness Chikuri Chukkamma to Jailor’s room, who came and revealed her details and even informed that she can identify the suspect and also stated that she has no prior acquaintance with suspect she further stated that the suspect is handicapped and having bald head with dark complexion.
She deposed that she instructed the witness to stay out side the Jailor’s office room. She deposed that she proceeded to Jailor’s room at District Jail,
Mahabubnagar, which is far away from public view. She deposed that the
Jailor produced the suspect, Kavali Laxmaiah who is 4 feet 8 inches in hight and as per jail record, he is aged about 45 years. She deposed that the Jailor also produced the non suspects 5 in number with similar features of suspect.
The details of the non suspects are:
1) P.Ramulu S/o: P.Nadipanna Age: 46 years with 5 feet height.
2) K.Ashayya S/o: K.Sherwaiah age: 50 years with 5 feet height.
3) Qamruddin S/o: Buddemiya age: 45 years with 5 feet height.
4) Ismail S/o: Buddenna Age: 44 years with 5 feet height.
5) B.Anjaneyulu S/o: B.Bugganna age: 50 years with 5 feet 1 inch in height.
All the non-suspects wore pant and shirt and even the suspect also wore pant and shirt. She deposed that on enquiry with suspect he expressed his satisfaction about the non-suspects who were participating in the TIP.
Thus, she directed the non-suspects to stand in a row and suspect is indicated as “S” in the order.
She deposed that she asked the suspect Kavali Laxmaiah whether he is intending to say anything to which he answered he has nothing to say and even she noted the identification marks of the suspect. Later, she proceeded with the TIP Proceedings and and during the entire proceedings except Court
Field Assistant/A.Ramesh, Steno/S.Srihari none were present at Jailor room,
District Jail, Mahabubnagar. She deposed that she asked the suspect to stand in the row with the non suspects at any place of his choice. She deposed that
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the suspect Kavali Laxmaiah stood in between non suspects in the following manner: 1, 2, 3, S, 4, 5.
Thus, she directed the Field Assistant to call the witness Namely
Chikuri Chukkamma, W/o Late Chennaiah to the Jailor’s office room who brought the witness to identify the suspect. She deposed that the witness after looking at the row within a span of the second she identified the suspect. She deposed that she instructed the witness to leave the Jailor’s room. She deposed that then, she asked the suspect that if to state anything if he has to which he stated that he has nothing to say. She deposed that she obtained the signatures/thumb impressions of non-suspects and also suspect. She deposed that she concluded the TIP proceedings by 12.45PM. She deposed that after returning to the court, she dispatched the proceedings of TIP to
Addl. Judicial Magistrate of First Class, Jadcherla vide Dis.No.1383/2023, dt.03.06.2023. Prosecution has exhibited the proceedings of TIP, dt.
03.06.2023 as Ex.P4.
15.1. During the cross examination, she admitted that none of the non- suspects were having height of 4.8 inches. Witness adds that all the witnesses are 5 feet and due to non-availability of persons with height of 4.8 inches she proceeded with TIP. She admitted that suspect is a Handicapped person. She admitted that none of the non-suspects were handicapped. Witness added that suspect has not taken any objection with regard to non-availability of handicapped persons. Shedenied the suggestion that the TIP was not conducted as per rules.
16.Pw-9/who is the investigation officer, who deposed the chronological events of investigation in similar lines of allegations made in charge sheet.
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16.1. During the cross examination, he deposed that he had not recorded the statements of Pws 1 and 2 on the same day. He admitted that time is also not mentioned. He admitted that there is a delay of 2 ½ months between date of offence and recording statement of Pws 1 & 2. Witness added that there is delaying lodging report itself. He admitted that Pws 5 & 7 are native of
Yenugonda village, Mahabubnagar district. Witness added that Ex.P2 was conducted by Lw-7. He denied the suggestion that accused is no way concerned with the said offence, he made table investigation and filed false chargesheet against the accused. He denied the suggestion that by covering the delay 2 ½ months, he had filed false chargesheet against the accused.
17.Pw-10/who is the another investigation officer, who deposed the chronological events of investigation in similar lines of allegations made in charge sheet.
17.1. During the cross examination, he deposed that his duties are to protect the law and order, to arrest the criminals and to preserve the peace in the society. He deposed that his P.S. limits is I-town PS Mahabubnagar and he had arrested the accused near Jadcherla Bus stand. He deposed that he had not consulted the Jadcherla PS as the accused may absconded. He admitted that only he had arrested the accused without consulting police of
Jadcherla and conducted the confession panchanama. He further admitted that at the time of conducting panchanama, Jadcherla Police were not there.
He admitted that the panch witnesses PW-5 & 7 are belongs to Yenugonda village. He deposed that he had arrested the accused in Cr.No.132 of 2023 of
PS I-Town Mahabubnagar. He denied the suggestion that the accused is not connected in the present crime, he had conducted the panchanama without consulting the police of Jadcherla and falsely implicated the accused in the present crime.
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18.The case of the prosecution in a nutshell is that on 10.02.2023 evening at about 17:30 hours accused came to Pw-1, talking to her and asked her gold beads to take photograph, upon her refusal, he stanched gold beads from the neck of Pw-1 and also took Rs.2040/- from her bag, he offered some liquor to
Pw-1, thereafter he ran away and did not turn up, thereby the accused committed theft of gold beads by cheating her and committed offences punishable U/Sec 420 and 379 of IPC.
19.Upon perusal of the material on record, it could be seen that Pw-1 lodged a report vide Ex.P5 by stating that one unknown offender came to her and asked her to give gold beads to take photographs, when she refused to do so, he snatched the gold beads chain forcibly from her neck and he wore the same. Thereafter, the Pw-1 took Rs.2040/- from the bag of Pw-1 and offered her some liquor and he left from there. The total 40 gold beads were stolen by the offender. Pw-1 stated in her Ex.P5 that she can identify the offender. Pw-1 deposed in the similar lines of Ex.P5 before the court. The learned legal aid defence counsel has argued that there is delay of 2 ½ months between the alleged incident and lodging of report. But the said question was not put to
Pw-1 nor Pw-2. However, in Ex.P5 itself the Pw-1 has stated that the reasons for delay, as they have searched for the offender and when they failed to trace him, she lodged report. Upon perusal of Ex.P3 also the reasons for delay is mentioned as they are searching for him till today. During cross examination of Pw-6/I.O also he stated that there is delay in the lodging of report itself and the reasons for delay is shown in FIR. Even though the report was lodged after 2 ½ months of the alleged incident, Pw-1 has honestly stated that the alleged incident took place on 10.02.2023, she can identify the offender. The said property intact was recovered from the possession of the accused. Therefore, this court is the opinion that the reasons for delay in lodging the report are satisfactory and same is not fatal to the case of prosecution.
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20.It could be seen from the record that Pw-1 lodged a report against unknown offender, which means accused is stranger to her and she stated in
Ex.P5 itself that she can identify the offender. She has met the accused first time on the date of alleged incident. Accordingly, Pw-9 filed requisition before
Pw-8 for conducting Test Identification Parade of accused, who was in jail. The
Hon’ble Judicial Magistrate/Pw-8 conducted Test Identification Parade and
recorded Ex.P4 Test Identification Parade proceedings dt. 03.06.2023. The
Hon’ble Judicial Magistrate/Pw-8 testified that before this court regarding
conducting of TIP proceedings in the similar lines of Ex.P4 and she further stated that the witness after looking at the row within a span of second, she identified the suspect. Further, during cross examination of Pw-1, she identified the accused who was presently standing in the dock of the court hall at the time of trial. Therefore, the identification of the accused in the court hall is corroborated with the TIP proceedings. Hence, identification of the accused is considered as successful. The object of Test Identification
Parade is to assess the witness’s honesty and ability to recognize unknown people and same is relevant as per Sec 9 of Indian Evidence Act.
21.The learned legal aid defence counsel elicited that during cross- examination of Pw-8, admittedly none of the non-suspects were handicapped.
However, Pw-8 stated that the suspect has not taken any objections with regard to non-availability of handicapped persons. It is evident from Ex.P4 that the accused has not taken any objection with regard to non-availability of handicapped persons nor regarding disclosure of his identity to the witness by way of showing photographs etc.
22. Pw-10 who conducted the confession cum seizure panchanama deposed that on 30.04.2023 he arrested the accused herein in Cr.No. 132 of 2023 for the offences punishable U/Sec 420 and 379 of IPC, on the same day
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he secured the presence of Pws 5 & 7 and conducted confession cum recovery panchanama and seized 34 gold beads from the possession of the accused pertaining to the present crime vide Cr.No.246/2023 of PS Jadcherla. The prosecution has exhibited the confession cum recovery panchanama as Ex.P2.
Pw-5 who is the mediator for confession cum seizure panchanama deposed those police summoned himself and Lw-5 to come to Jadcherla bus stop, after reaching there, they have shown one person who is with them and asked him and Pw-7 to enquire him. Thereafter, himself and Pw-7 went to the said person and enquired him, upon which he replied his name as Laxmaiah and told them that he committed theft of 40 gold beads at Nethaji Chowk from one lady aged about 65 years, he sold 6 gold beads out of 40, thereafter police seized 34 gold beads from the accused before them. Further, Pw-5 identified the accused who was standing in the dock of the court during trial. Another mediator for confession cum recovery panchanama Pw-7 also deposed that in the similar lines of Pw-5. Pw-7 also identified the accused who was standing of the dock of the court hall during trial. The prosecution has exhibited confession cum seizure panchanama of the accused person as Ex.P2.
24.The learned legal aid defense counsel elicited during cross examination of Pw-5 that he has signed on Ex.P2 at police station. However, Pw-5 deposed about the conducting of confession cum seizure panchanama in the similar lines of Ex.P2 and he deposed that the Ex.P2 was conducted at Jadcherla bus stop. Further, another mediator for Ex.P2, Pw-7 also deposed in the similar lines of Ex.P2. The legal aid defense counsel cross examined Pw-5 & 7 at length, but nothing was elicited in favour of the accused and their testimonies remained unshaken. The learned legal aid defense counsel argued that there is inconsistencies with regard to the number of signatures of Pw-5 & 7 on
Ex.P2, but same is not fatal to the case of prosecution as the witness may not have photographic memory.
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25.Upon perusal of relevant portion of Ex.P2, the accused confessed that he took the gold bead chain from Pw-1 by inducing her, wore on his neck, thereafter he offered some liquor by taking Rs.2040/- from her bag and ran away. He has spent the stolen cash of Rs.2040/- for consuming alcohol and he sold 6 gold beads to unknown person for Rs.1000/- and the remaining 34 gold beads are lying with him, thereafter he has shown the 34 gold beads from his pocket and same was seized by the police. According to his confession, the stolen property was recovered from the possession of the accused intact under
Ex.P2.
26.It is settled law that any confession made by a person while in police custody that leads tothe discovery of a fact is consideredadmissible in court according to Sec.25 of Indian Evidence Act. However, as per Sec.27 of Indian
Evidence Act, the confession of the accused who is in police custody, is admissible in evidence, but where the confession leads to discovery of a fact, the said portion is relevant and it can be proved against the accused. In the present case in hand, the relevant portion of confession cum seizure panchanama i.e., Ex.P2 which leads to discovery of material objects in the present case is relevant. Accordingly, under Ex.P2 the said material objects were recovered intact from the possession of the accused herein.
27.In the present case in hand, the relevant portion of confession cum seizure panchanama i.e., Ex.P2 which leads to discovery of material objects in the present case is relevant as per Sec.27 of Indian Evidence Act. On the other hand, the accused did not account for the possession of stolen gold beads neither by way of giving suggestions during cross examination nor by giving answer in Sec 313 Cr.P.C examination. Therefore, it could be seen that the property which was dishonestly taken away from the possession of Pw-1 and same was recovered intact from the possession accused. The mediators for
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conducting confession cum seizure panchanama also corroborated the Ex.P2 therefore the conducting of confession cum seizure panchanama in the presence of mediators is proved and the relevant portion of confession cum seizure panahanama can be admissible in evidence.
28.At this juncture, this court has benefit of rising presumption U/Sec 114 of Illustration (a) of Indian Evidence Act 1872, its says that the court may presume 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 the stolen, unless he can account for his possession. Therefore, it is important to refer
U/Sec 114 of Illustration (a) of Indian Evidence Act 1872:
114. 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 ;
29.As per Sec.114 Illustration (a) of Indian Evidence Act, there is requirement that the stolen goods were to be found soon after the theft. Soon after theft does not mean immediately after theft but within a reasonable time after the theft. It must be noted that the phrase “Soon after the theft” has not been defined by the law and therefore the meaning is to be understood contextually with reference to nature of property subjected to theft, its possibility or difficulty in passing the hands in quick succussion etc. In the present case in hand the gold items of PW-1 were subjected to theft. The said property intact was recovered from the possession of the accused herein.
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Hence, this court has benefit to presumes that the accused may be either the thief or has received the goods knowing it to be stolen as per the facts and circumstances. The presumptions is lead into two different situations which are punishable with two different penal provisions i.e., Sec. 379 of IPC or Sec.
411 of IPC even though charge has not been framed. In view of Sec. 114 illustration (a) of Indian Evidence Act 1872 discretion is given to the court either to presume or not to presume the existence of certain facts. At the same time such discretion has to be exercised judiciously.
30.Whereas, basing on the quality of evidence and evidence of Pw-5 & 7/ mediators for Ex.P2, the stolen goods of Pw-1 i.e., MO.1 were found in the possession of the accused after they were subjected to theft from Pw-1. The
Pw-1 identified the accused during Test Identification Parade and also during trial before the open court and also identified the MO-1. Hence, this court presumes that the accused may have committed theft of gold beads of Pw-1.
However, this court at this juncture believes that there is ample evidence to raise the presumption against the accused U/Sec. 114 Illustration (a) of
Indian Evidence Act for offence punishable U/Sec. 379 of IPC.
31.It is clear from the evidence of Pw-1 along with Ex.P2 & Ex.P5, it is substantially established that 40 gold beads and some net cash, were stolen and same was identified by Pw-1 that same is belongs to her. From the evidence of Pw-2 coupled with Ex.P5 & Ex.P7, it is clear that the said stolen property was recovered from the possession of the accused. On the other hand, there is no reasonable explanation given by the accused that same is belongs to him and fails to furnish any explanation for such possession is neither dishonest nor having reason to believe the same to be stolen property.
The accused did not state before the court either in Sec. 313 Cr.P.C examination are failed to produce any evidence in all stages to rebut presumption. Since the accused is identified by Pw-1 and the stolen property
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was recovered from the possession of accused herein, in such circumstances after considering the above said facts, this court believes that the accused has committed theft of gold beads of Pw-1.
32.The provision of Sec. 379 of IPC prescribes punishment for an offence of theft, which is defined under Sec. 378 of IPC. Therefore, it is appropriate to extract sec. 378 of IPC.
Sec. 378 of IPC - Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.
The essential ingredients of theft are as follows: there must be dishonest intention the property must be movable of property the property must be taken out of possession of person without his consent.
33.Adverting to the above discussion, it is clear that the accused dishonestly induced Pw-1 to deliver the gold chain to take photograph, when she refused to do so, he snatched the gold beads chain from the neck of Pw-1.
The term snatching itself shows that it was without her consent even though she has knowledge. Therefore, it clear that the accused without the consent of the Pw-1, took the gold beads chain out of her possession dishonestly, the said property intact recovered from the possession of accused herein in the presence of mediators Pw-5 & 7, to which he does not account for the possession, the Pw-1 identified the accused during Test Identification Parade as well as in open court. Upon connecting the chain of circumstances, the prosecution has established the ingredients of Sec.378 of IPC. The learned legal aid defense counsel cross examined Pw-1, Pw-2, 5 & 7 at length, however, nothing was elicited in favour of the accused and to shake their testimonies. Hence, this court is of the considered opinion that the
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prosecution upon the strength of testimonies of Pws 1 to 10 coupled with
Ex.P2 to P5 established the guilt of the accused for the offence punishable
U/Sec 379 of IPC beyond reasonable doubt.
34.In order to attract the provisions of Sec 420 of IPC the prosecution has to establish the following ingredients.
i) the deception of any person ii) fraudulently or dishonestly inducing that person to delver any property to any person. iii) mensrea or dishonest intention of the accused at the time of making the inducement
35. To indict the accused for the offence punishable U/Sec.420 of IPC, the prosecution has to establish that the accused has deceived Pw-1 dishonestly, basing on such deception, the Pw-1 has delivered the gold beads and dishonest intention of the accused at the time of making inducement. But, in the present case in hand, the Pw-1 deposed before the court that accused asked her gold beads by stating that he wanted to take photo of her gold beads, when she refused to give gold beads chain, accused has snatched the same from her neck, as well as she stated in Ex.P5 that accused forcibly took her chain. Therefore, even though there is dishonest intention of the accused to deceive Pw-1, but Pw-1 has not delivered the gold beads chain basing on deception by the accused, but the accused himself forcibly snatched the chain from the possession of Pw-1 without her consent. Hence, in the present case in hand, there is no delivery of property basing on deception or inducement.
As such, the ingredients of offence punishable U/Sec.420 of IPC not attracts to the present facts of the case.
36.It is trite that in criminal jurisprudence, the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely preponderance
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of probabilities but proof beyond reasonable doubts on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be given to the accused. It is also settled position of law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the court. Hence, the prosecution has failed to establish the essential ingredients to convict the accused for the offence punishable U/Sec.420 of IPC.
37.Therefore, the above discussion leads me to conclude that the prosecution could establish the guilt of the accused for the offence punishable
U/Sec.379 of IPC beyond reasonable doubt, but failed to establish the guilt of the accused for the offence punishable U/Sec.420 of IPC beyond reasonable doubt.
38.In the result, the accused is found guilty for the offence punishable
U/Sec.379 of IPC, Accordingly, the accused is convicted U/Sec. 248 (2) of
Cr.P.C for the offence punishable U/Sec.379 of IPC. And the accused found not guilty for the offence punishable U/Sec.420 of IPC, Accordingly, he is acquitted U/Sec.248(1) of Cr.P.C for the offence punishable U/Sec.420 of IPC.
Typed to my dictation by Stenographer-II, corrected and pronounced by me, in open Court on this the 17 th day of September, 2024.
Addl. JFCM cum Addl. JCJ, Jadcherla.
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Hearing of accused on quantum of sentence:
39. In the facts and circumstances of the case, by considering the gravity of the offence, this court is of the opinion that the accused is not entitled to the provisions of Probation of Offenders Act or Sec.360 of
Cr.P.C.
On hearing the convict on quantum of sentence, he pleaded mercy and submitted that he is the sole bread winner for his family and he has to take care of his family and he is physically challenged person and his presence is necessary for the survival of his family, therefore prays the court to take lenient view while imposing sentence.
Considering the above facts and circumstances and the submissions made by the convict as he is the sole bread winner of his family. I am of the view of that the following sentence would meet the ends of justice.
Accordingly, the convict sentenced to undergo simple imprisonment for a period of 17 (Seventeen) months for the offence
U/Sec. 379 of IPC.
The detention period of accused during course of the investigation and trial, from 18.05.2023 to till date is set-off U/Sec 428 of Cr.P.C.
Accused is informed about the right of appeal. A free copy of judgment shall be given to the accused as per Sec 353 (4) of Cr.P.C r/w Rule 72 of
Criminal Rules of Practice and circular Orders, 1990. The case property vide CPR No. 149/2023 dt: 23.09.2023 which was handed over to Pw-1 towards interim custody vide Crl.M.P.No.2112/2023 dt:23-09-2023 shall become absolute after lapse of appeal period. The bail bonds of the accused if any, shall remain in force for a period of 6 month as provided
U/Sec 437-A of Cr.P.C.
Addl. JFCM cum Addl. JCJ, Jadcherla.
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APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PROSECUTION FOR
ACCUSED
PW-1C. Chukkamma/Complainant :: NONE :: PW-2Ch. Pandu/Cir.Witness PW-3P. Raghavender/Panch for scene of offence panchanama PW-4V. Pavan/Panch for scene of offence panchanama PW-5P. Venkatesh/Panch for confession cum recovery panchanama PW-6A.Ramesh Babu/Investigating Officer PW-7Srinivasulu/Panch for confession cum recovery panchanama PW-8Smt. T. Laskhmi/conducted T.I.P PW-9D.Lenin/Investigating Officer PW-G.Balakrishna Goud/S.I of Police/Arrest accused 10
EXHIBITS MARKED
FOR PROSECUTION FOR ACCUSED
Ex.P1Scene of offence panchanama :: NIL :: Ex.P2Confession cum recovery panchanama
Ex.P3First Information Report Ex.P4Test Identification Proceedings Ex.P5Report of Pw-1
MATERIAL OBJECTS MARKED
FOR PROSECUTION FOR ACCUSED
M.O.-134 Gold Beads:: NIL ::
Addl. JFCM cum Addl.JCJ
JADCHERLA.
Addl.JMFC cum JCJ