Smt Mohideen Zamruth Begum Kamaluddin

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THE COURT OF THE SPL. JUDICIAL MAGISTRATE OF FIRST CLASS (MOBILE)-CUM-III

ADDL. JUNIOR CIVIL JUDGE, VIZIANAGARAM

Present: Smt Mohideen Zamruth Begum Kamaludeen Spl. Judicial Magistrate of First Class (Mobile)-cum- II Addl. Junior Civil Judge, Vizianagaram

Tuesday, this the 16th day of April, 2024

C.C.No. 102/2024 Between: State reptd. by the Sub-Inspector of Police, Gantyada police Station. … Complainant. And:

Boddhuru Jagadeesh S/o Veerababu,a ged 28 years, R/o Dwarapudi village, Viziangaram mandal and District.

… Accused

This case is coming on 08.04.2024 for final hearing before me in the presence of the learned Asst. Public Prosecutor for the complainant, and of Kum. PBS Sai Pavithara, Legal Aid Defence counsel for accused and having perused the material on record, and having stood over for consideration, this Court delivered the following :-

J U D G M E N T

01. The Sub-inspector of Police, Gantyada P.S filed charge sheet against the accused in Cr.No.13/2024 of Gantyada Police Station for the offence punishable under Sections 457, 380 of Indian Penal Code.

02. The case of the Prosecution is that:

On 10.01.2024 night unknown offender break the gate locks of

Sri Mutyalamma Temple in Jaggapuram village, break the hundi and committed theft of cash approximately Rs.6000/- to 8000/- in hundi and decamped with the booty. LW1 to LW5 are committee members of Sri

Mutyalamma temple in Jaggapuram village, on receipt of report from

LW1/Kondapalli Nukalanaidu, LW12 registered a case in Cr. No. 13/2024 u/sec.457, 380 IPC. During the course of investigation LW10 secured the presence of two mediators i.e. LW6 and LW7, visited the scene of offence, prepared rough sketch of the scene under the cover of the mediator report.

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During the course of investigation he examined LW1 to LW6 and recorded their statements. On 18.01.2024 on receipt of credible information LW13 along with LW8 and LW9 with the assistance of LW10 to LW13 visited Sri

Venkateswara Layout, Near Narava village, found the presence of marginal noted accused under suspicious manner, on interrogation the accused confessed and admitted his guilty in presence of mediators and he admitted that he spent some cash which was stolen from the temple hundi and he has shown cash of Rs.1600/- as remaining amount. LW13 seized the said cash from the possession of accused under the cover of mediators report. LW13 arrested the accused and forwarded him to judicial remand and after completion of investigation filed the charge sheet.

03. After perusal of the record, the case was taken on file for the offence punishable under Sections 457, 380 and 411 of Indian Penal Code against Accused.

04. On appearance of accused copies of case documents were furnished to him under Section 207 Cr.P.C. The accused was examined under

Section 239 Cr.P.C. The charges for the offences punishable under Sections 457, 380 and 411 of Indian Penal Code against accused are framed, read over and explained to him in Telugu, for which he denied the offence and pleaded not guilty and claimed to be tried.

05. During the course of trial, the prosecution has examined PW1 to

PW11 and got marked ExP1 to P7.

06. After closure of prosecution evidence, the accused was examined under section 313 Cr.P.C., he denied the incriminating evidence against him and reported no defence evidence and stated false case was filed against him.

07. Heard the arguments of learned Assistant Public Prosecutor and learned counsel for the accused.

08. Now, the point for determination is "Whether the Accused

committed theft of Rs. 6,000/- in the Sri Muatyalamma Temple in

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Jaggapuram village and the stolen amount of Rs.1,600/- was

recovered from the accused, was proved beyond all reasonable

doubt ?"

9. The learned Assistant public prosecutor would contend that the prosecution has examined PW1 to PW11 and established the guilt of the accused beyond reasonable doubt. Legal aid counsel for accused would contend that while filing charge sheet investigation officer does not mention about the clue team visit to scene of offence and obtained finger prints on the hundi and finger prints matched with the accused who has similar crime record. Further clue team member were not shown as witnesses and after examining 6 witnesses, prosecution has filed petition under section 311 CrPC to examine clue team members as LW14/HC1501 and LW15/B.Murali. further

PW5 was shown as one of the mediator to the scene of offence and he deposed clue team has visited the scene of offence. But scene observation report to which PW5 signed as mediator does not reveal the visit of clue team. This clearly shows that accused was falsely implicated when real culprit was not traced out.

10. Evidences before the court:

The evidence of PW1 is that he is resident of Jaggapuram of

Gantyada mandal. He is working as teacher. He know LW2/T.Suryarao,

LW3/N.Sanyasamma, LW4/K.Appalanaidu, LW5/K.Vijay Kumar, LW6/K.Mahesh,

LW7/P.Lokesh, LW8/M.Chandra and LW9/B.Ajay as they are his villagers. He do not know accused. He further stated that on 10.01.2024 at about 6.30 pm he received a phone call from LW2/T.Surya rao informing him that

Mutyalamma temple doors were opened and Hundi was missing in the temple and asked him to come to the temple immediately. Immediately he made phone calls to our village elders and he rushed to the temple. He saw doors of the temple opened and lock was missing. The Hundi which was in 4 garbagudi was missing. He further stated that at about 15 villagers gathered there and they all searched for Hundi in and around the temple. Hundi was found on the bushes opposite to the temple and they saw crowbar at some distance from Hundi. Hundi lock was opened and no money was in the Hundi.

Villagers advised him being a Secretary to the temple to give complaint to the Police. He gave report to the Gantyada Police station. Police examined him and recorded his statement.

During his cross examination he stated that he is resident of

Kamakshi nagar, Vizianagaram. There is no written appointment given to him as Secretary to Mutyalamma temple. Generally they open the Hundi once in 6 months. He opened the Hundi 6 months prior to the alleged offence. He further stated that he cannot say exact date when he opened Hundi prior to the alleged offence and he cannot say how much money was there in Hundi.

He further stated that he did not mentioned how much amount was been committed theft from the Hundi of the temple in his report Ex.P1.

11. The evidence of PW2 is that he is resident of Jaggapuram of

Gantyada mandal. He is Manson. He know PW1, LW3/N.Sanyasamma,

LW4/K.Appalanaidu, LW5/K.Vijay Kumar, LW6/K.Mahesh, LW7/P.Lokesh,

LW8/M.Chandra sekhar and LW9/B.Ajay as they are his villagers. I do not know accused. He further stated that for past 2 years the temple lock keys are with him and he go to temple everyday by 6 am in the morning and opens the door of the temple. Then LW3/N.Sayanasamma would come and clean the temple. He further stated that on 10.01.2024 at about 6.00 am he went to the temple as usual and found temple doors opened and found

Hundi inside the temple missing. Then he called PW1 and informed the same. PW1 came to the temple and made phone call to the village people.

LW4/K.Appalanaidu, LW5/K.Vijay kumar and other few villagers came to the temple and they searched in and around the temple for Hundi and they found Hundi on the opposite side of the temple on the bushes and they also 5 found crowbar beside the hundi. PW1 gave report to the Police. Police examined him and recorded his statement.

During his cross examination he stated that generally people in their village visit Mutyalamma temple on every Tuesday. He has not seen how much money was put by the people in the Hundi and he cannot say how much money was there in Hundi.

12. The evidence of PW3 is that he is resident of Jaggapuram of

Gantyada mandal. He is doing Real Estate business. He know PW1, PW2

LW3/N.Sanyasamma, LW4/K.Appalanaidu, LW6/K.Mahesh, LW7/P.Lokesh,

LW8/M.Chandra sekhar and LW9/B.Ajay as they are his villagers. I do not know accused. He further stated that on 10.01.2024 at about 6.45 am he received a phone call from PW1 informing him that theft was committed in their Mutyalamma temple and asked him to come to the temple as he was been informed by PW2 and he was also coming to the temple. He further stated that immediately he went to the temple and found doors of the temple opened and found Hundi inside the temple missing. himself, PW1 and few other villagers searched for the Hundi in and around the temple. They found Hundi opposite to the temple on the bushes and they also found crowbar beside the Hundi. PW1 gave report to the Police. Police examined him and recorded his statement.

During in the cross examination he stated that generally people in our village visit Mutyalamma temple on every Tuesday. He stated that he has not seen how much money was put by the people in the Hundi. He cannot say how much money was there in Hundi. He further stated that on 10.01.2024 at about 11.30 am Police came to Mutyalamma temple and examined him and recorded his statement.

13. The evidence of PW4 is that he is resident of Jaggapuram village of

Gantyada mandal. He is working as Senior Assistant in APS RTC. He know

PW1to3,LW3/N.Sanyasamma,LW6/K.Mahesh, LW7/P.Lokesh, 6

LW8/M.Chandrasekhar and LW9/B.Ajay as they are his villagers. He further stated that on 10.01.2024 at about 7 am he received a phone call from PW1 and PW2 informing him that doors of the temple were opened and Hundi was missing. Immediately he went to the temple and saw the doors of the temple opened and Hundi in the temple was missing. Himself and other villagers searched for the Hundi in and around the temple and they found Hundi on the bushes western side opposite the temple and crowbar besides the hundi.

PW1 gave report to the Police. Police examined him and recorded his statement.

During his cross examination he stated that eenerally people in our village visit Mutyalamma temple on every Tuesday. He has not seen how much money was put by the people in the Hundi. He cannot say how much money was there in Hundi.

14. The evidence of PW5 is that he is resident of Jaggapuram village of

Gantyada mandal. He is student. He know PW1 to 4, LW3/N.Sanyasamma,

LW7/P.Lokesh, LW8/M.Chandrasekhar and LW9/B.Ajay as they are his villagers. He further stated that on 10.01.2024 at about 7 am on the information that theft was committed in the temple he went to the temple. At about 11 am Police came to the temple and requested him and LW7/P.Lokesh to act as meidator. On searching the surroundings of the temple they found

Hundi on the bushes western side opposite the temple and crowbar besides the hundi. He further stated that clue team also came there and took finger prints from the Hundi and crowbar. Police prepared scene observation report in his presence and LW7/P.Lokesh and read the contents to him and LW7 and himself and LW7 signed on it.

During his cross examination he stated that police did not issue any notice to him to act as mediator for scene observation.

15. The evidence of PW6 is that he has been working as Village

Revenue Officer, Gantyada. He know LW9/D.Ajay who is his colleague Village

Revenue officer of Godiayada village. He further stated that On 18.01.2024 7 on the request of Sub Inspector of Police, Gantyada, Tahasildar, Gantyada directed him and LW9 to go to Gantyada Police Station. At about 10 am himself and LW9 went to Gantyada Police Station and Sub Inspector of Police asked them to come with him to Narava as they got information about the accused in theft case. Police identified accused by matching his finger prints with the finger prints secured on the Hundi MO1. Himself, LW9, Sub Inspector of Police and 2 Constables went to Narava and they stopped the Police vehicle near the wine shop near Venkateswara Layout at Narava. They noticed one person trying to escape from the scene on the seeing the Police vehicle. Police chased the caught hold him and enquired him. On enquiry he revealed his name as Budduru Jagadeesh(accused). The person standing in the accused dock in the court hall is the accused. He further stated that on further enquiry accused stated he has 3 sisters, 2 of them got married. He was addicted to bad vices and committing thefts. There are two other criminal cases against him. He further stated that on 09.01.2024 he went to

Narava and from there he went to Mutyalamma temple at Jaggapuram village with iron rod which was used for tying sheeps. He broke the lock of the temple gate and enter into temple and committed the theft of Hundi. He broke the hundi and took the money from the Hundi and thrown and Hundi on the bushes. There was Rs.6,000/- in the hundi. He spent Rs.4,400/- for his bad vices. There was Rs.1,600/- in his pocket. Police took the money from the accused and counted in his presence. The amount is counted is Rs.1,600/-.

The denomination of Rs.1600/- is 2 Rs.500/- notes, 5 Rs.100/- notes and 2

Rs.50/- notes. MO3 are the Rs.1,700/- the denomination are 2 Rs.500/- notes, 6 Rs.100/- notes and 2 Rs.50/- notes. One Constable recorded the above confession of the accused and himself and LW9 signed on the confession statement of accused.

During his cross examination he stated as a Village Revenue

Officer their every movement while discharging their duty is entered in movement Register. Tahasildar, Gantyada gave oral instructions and did not 8 give any written instructions to go to Gantyada Police Station to act as mediator. he did not receive any written notice from Gantyada Police to act as mediator. He cannot say the name of wine shop where accused was apprehended. He did not mention in his movement Register that he visited

Narava to act as mediator on the oral instructions of Tahasildar, Gantyada.

He admitted that the denomination of Rs.1,600/- seized from accused was not mentioned in confession statement Ex.P3.

16. The evidence of PW7 is that on 10.01.2024 he received a phone call from SHO, Gantyada PS. Immediately he rushed to the scene of offence at

Mutyalamma temple along with his team. They noticed Hundi on the bushes opposite to the Mutyalamma temple. they examined the surroundings and

Hundi. He obtained 12 chance prints and marked as A to H, J, P1 and P2. Out of 12, 4 are unfit for comparison. The remaining prints have been verified with my data base. He further stated that during course of his examination and comparison the photocopy of chance print marked H is found identified with the left index finger impression marked S7 on the finger print slip of

Bodduru Jagadeesh(Accused). He opined chance print marked H and the specimen left index finger marked S7 are made by the same finger of the same person. He further stated that he submitted his detailed report to the

SHO, Gantyada.

During his cross examination he stated that On 10.01.2024 at about 10-10.30 am he received information from SHO, Gantyada. At about 11 am they reached scene of offence. They have taken one hour of time for examining scene of offence and surrounding for collection of clue. He further admitted that village people gather near the temple at the time of his examination of scene of offence and Hundi was found in open place. He again stated that Hundi was found on bushes. He further admitted that people put money in the Hundi as offering to the god. The finger impression of the people who put the money in the Hundi will be there on the Hundi. He further stated that he submitted the particulars of accused in his data base 9 to SHO, Gantyada. He has not submitted particulars of the previous crimes involved by the accused along with Ex.P4.

17. The evidence of PW8 is that On 10.01.2024 PW7 received a phone call from SHO, Gantyada PS. Immediately himself, PW7 and other staff rushed to the scene of offence at Mutyalamma temple. They noticed Hundi on the bushes opposite to the Mutyalamma temple. He examined the surroundings and Hundi and took photographs.

During his cross examination he admitted that time and date was not printed on Ex.P5. He has signed on back side of Ex.P5 but he has not mentioned time and date below his signature.

18. The evidence of PW9 is that on 18.01.2024 on credible information himself, LW13/Sub Inspector of police, LW10/K.Apparao, PW6 and LW9/P.Ajay went to Government wine shop near Narava junction, they noticed one person on seeing them tried to flee from the place near Venkateswara layout, then they chase and caught hold him, LW13 enquired the said person for which he revealed his name as Bodduru jagadeesh, LW13 checked the pant pocket of accused and found Rs.1600/- and enquired the accused. Accused confessed that he committed theft of Rs.6,000/- in Yellamamba temple Hundi near Jaggapuram village. Accused further confessed, he spent Rs.4,400/- for his bad vices and remaining Rs.1600/- is with him. Accused further confessed that he broke the hundi with the iron rod which was used to tie sheeps,. Accused further confessed that after taking money from the hundi he has thrown thehundi and iron rod near the bushes. The above confession made by the accused was drafted by LW13/Sub Inspector of Police, Gantyada

PS. Rs.1600/- was seized from the accused and he was arrested and brought to the police station.

During his cross examination he stated that LW13/Sub Inspector of polcie received credible information at about about 9 am. He cannot say the denomination of Rs.1600/- alleged to be seized from the accused.

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19. The evidence of PW10 is that, on 10.01.2024 while he was present at the police station at about 10.30 am PW1 came to the polcie station and gave written report. Basing on the report he registered case in crime

No.13/2024, u/sec. 457,380 of IPC of Gantyada Police Station. Ahe sent FIR to the court and copies to the concerned officials. He further stated that he informed about the crime to the sub Inspector of police, Gantyada and instructed him to inform the crime to the clue team. He further stated that immediately he rushed to the scene of offence and prepared rough sketch of scene of offence. Meanwhile clue team reached the scene of offence and collected the finger prints from the doors of the temple, hundi and crow bar which was lying on the bushes near the temple. He further stated that he seized Hundi MO1 and crow bar MO2 in the presence of PW5 and

LW7/P.Lokesh and got it signed by them on the scene observation reprot

Ex.P2. He examined PW1 to PW5 and LW3/N.Sanyasamma and recorded their statements. He handed over the case file to LW13/Sub Inspector of polcie for further investigation.

During his cross examination he admitted that whenever they visit any place in respect of crime, they enter the same in the

General diary. He further admitted that he has not mentioned about the visit of clue team to the scene of offence and collection of finger prints from the scene of offence in the scene observation report/Ex.p2. He further admitted that the date is not mentioned in the rough sketch of scene of offence/Ex.P7 and he has not mentioned the date below his signature on the FIR/Ex.P6. He further stated that column No.14 and 15 in Ex.P6 is kept blank. He further admitted that in the statements of PW1 PW1 to PW5 and LW2 which was recorded by him, he has not mentioned the date below his signature.

20. The evidence of PW11 Inspector of police is that on 18.01.2024 at about 10.30 hours while he was present at the polcie station he received a credible information about the accused. He further stated that he secured mediators PW6 and LW9/B.Ajay, went to Narava junction along with his staff.

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They noticed one person near Venkateswara layout trying to flee from the said place on seeing them. They chased and caught hold him. He further stated that he enquired the said person and he revealed his name as bodduru jagadeesh (Accused). On his further enquiry accused confessed that on 09.01.2024 he committed theft money in the hundi in Mutyalamma temple, Jaggapuram village, he further confessed that after taking money from Hundi, he has thrown the said hundi in the bushes near the temple. He further stated that on further enquiry accused confessed that he has committed theft of Rs.6000/- from the hundi and spent Rs.4,400/- and remaining Rs.1,600/- is with him. Accused took Rs.1,600/- from his pocket and gave it to him and he seized the said amount. He drafted the confession statement Ex.P3 of accused in the presence of mediators and got it signed by them. He further stated that the they brought accused along with case property to the police station. Accused was sent to judicial custody after due process of law. PW10 registered the crime and investigated the case. He verified the investigation done by PW10 and found on correct lines and filed charge sheet.

During his cross examination he admitted that if they visit any place in respect of crime, they enter the same in the General diary. He further stated that he received credible information about accused at about 9 am, he ahs not issued any notice to PW6 and LW9/B.Ajay to act as mediators. He further admitted that he ahs not mentioned the denomination of the amount of Rs.1,600/- seized from accused in the Ex.P3. He further admitted that PC

No.242 was mentioned in upper portion of the sentence and not in continuous in the sentence. He further admitted that he ahs mentioned that accused was involved in other crimes but di nto mention particulars of the crimes accused was involved in Ex.P3. He further admitted that in remand report he has mentioned that accused was involved in other crimes but did not mention particulars of the crimes accused was involved. He further admitted that he has not stated in the charge sheet that clue team 12 visited the scene of offence and collected the finger prints on the Hundi and crow bar lying in the bushes near the temple.

21. Discussion, Decision and Reasons thereof:

PW1 to PW4 testimonies reveals that theft of money in Mutyalamma temple hundi took place. PW5 (mediator to scene observation report) testified that hundi and crowbar was found in bushes opposite to the

Mutyalamma temple which is the same versions of PW1 to PW4. PW5 further testified that clue team came and obtained finger prints on the hundi. This fact that clue team visited scene of offence and secured finger prints on the hundi was not mentioned in the scene observation report. Which renders the testimony of PW5 not reliable. PW6 is the mediator to the confession of accused about this crime and recovery of 1600/- from the accused. The confession in the police custody is not admissible. Prosecution wants to prove the confession basing on the recovery. PW6 mediator and

PW11/investigating officer testified that they recovered Rs.1600/- from the accused and it is the prosecution case that the amount of Rs 1600/- was recovered from accused which is the remaining amount of the cash which was committed theft in the Mutyalamma temple hundi. But MO3 is the cash of Rs1700/-.which was not tallying with recovery amount of Rs.1600/- stated by PW6 and PW7. PW11 who is investigation did not offer convincing explanation why he did not mention about the visit of clue team and securing of finger prints from hundi in the charge sheet and non mentioning of PW7 and PW8(clue team members) as witnesses. PW7 and PW8 testified that they observed hundi and obtained finger prints on hundi. They did not mention about crowbar. The hundi might have many finger impressions as many people who put money in the hundi might have touched it. But the crowbar which was used to break temple gate and hundi would have only accused finger impression. Non mentioning of crowbar by PW7 and PW8 renders their evidence not reliable. In the above circumstances the possibility of false implication of accused as defended by the legal aid 13 counsel of accused is not ruled out. The prosecution utterly failed to drive home the offence of the accused U/sec.457, 380 and 411 of IPC beyond reasonable doubt. Accordingly the point is answered in favour of the accused and against prosecution.

22. In the result, accused is found not guilty for the offence U/sec.

457, 380 and 411 of IPC and accordingly he is acquitted U/sec.248(1) of

Cr.P.C for the said offences. The accused is set at liberty forthwith if he is not required in any other case. Accused is directed to execute bond for

Rs.5,000/- with an under taking to appear before the next appellate court in case any appeal preferred against him as contemplated u/s 437-A of Cr.P.C.

M.O.1 and M.O.2 shall be destroyed after expire of appeal period. M.O.3 shallbe return to the PW1 K.Nookalu Naidu ( Secretary to Sri Mutyalamma

Temple of Jaggapuram village) after expiry of appeal period.

Typed to my dictation, corrected, signed and pronounced by me in open Court, this the 16th day of April, 2024.

Sd/- Smt Mohideen Zamruth Begum Kamaludeen

Spl. Judicial Magistrate of I Class (Mobile) – cum – II Addl. Junior Civil Judge, Vizianagaram.

EVIDENCE WITNESSES EXAMINED

FOR PROSECUTION : FOR DEFENCE: None.

P.w.1: K. Nookalu Naidu

P.W.2: T. Surya Rao

P.W.3: K. Vijay Kumar

P.W.4: K. Appalanaidu

P.W.5: K. Mahesh

P.W.6: M. Chandra Sekhar

P.W.7: B. Murali Mohana Rao, Sub Inspector of Police, Finger print Expert.

P.W.8: A. Krishna, Head Constable.

P.w.9: G. Santha Rao, Constables

P.W.10: S. V. Ramana Murthy, Head Constables

P.W.11: B.Surendra Naidu, Sub Inspector of Police.

EXHIBITS MARKED

FOR PROSECUTION : Ex.P.1: Report of Pw1 14

Ex.P.2: Scene Observation Report.

Ex.P.3: Confession statement of the accused.

Ex.P.4: Finger print expert report.

Ex.P5: Photographs of the Mutyalamma Temple, Surroundings, Hundi and

Crowbar along with C. D. 10 in number.

Ex.P6: Original FIR.

Ex.P7: Rough Sketch of scene of offence

FOR DEFENCE : NIL

Material objects marked:

M.O.1: Hundi, M.O.2: Crowbar. M.O.3: For an amount of Rs.1,700/-

Sd/- Smt Mohideen Zamruth Begum Kamaludeen

Spl. Judicial Magistrate of I Class (Mobile) – cum – II Addl. Junior Civil Judge, Vizianagaram.

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CALENDAR AND JUDGMENT

IN THE COURT OF THE SPL. JUDICIAL MAGISTRATE OF FIRST CLASS (MOBILE):

VIZIANAGARAM

****

1. Date of offence :09.01.2024

2.Date of report or complaint:10.01.2024

3. Date of apprehension of accused : 02.04.2024

4. Date of release on bail : -------

5. Date of commencement of trial : 19.02.2024

6.Date of closure of trial : 03.04.2024

7.Date of sentence or order :16.04.2024

8.Remarks for delay : No delay ------------------------------------------------------------------------------------------------- Judgment in Calendar Case No.102/2024 on the file of Spl. Judl.Magistrate of I Class (Mobile), Vizianagaram district.

Complainant: State represented by the Sub Inspector of Police,Gantyada PS, in Cr.No.13/2024.

------------------------------------------------------------------------------------------------- Name of the Accused Father’sName AgeVillage & Mandal

Boddhuru Jagadeesh S/o Veerababu, aged 28 years, R/o Dwarapudi village, Vizianagaram mandal and District. ------------------------------------------------------------------------------------------------ Offence:- theft in dwelling house punishable u/sec.380IPC; possession of stolen property having knowledge that the same is stolen punishable u/sec. 411 IPC

Finding:Accused is found not guilty

Sentence:In the result, accused is found not guilty for the offence U/sec. 457, 380 and 411 of IPC and accordingly he is acquitted U/sec.248(1) of Cr.P.C for the said offences. The accused is set at liberty forthwith if he is not required in any other case. Accused is directed to execute bond for Rs.5,000/- with an under taking to appear before the next appellate court in case any appeal preferred against him as contemplated u/s 437-A of Cr.P.C. M.O.1 and M.O.2 shall be destroyed after expire of appeal period. M.O.3 shall be return to the PW1 K.Nookalu Naidu ( Secretary to Sri Mutyalamma Temple of Jaggapuram village) after expiry of appeal period.

Sd/- Smt Mohideen Zamruth Begum Kamaludeen

Spl. Judicial Magistrate of I Class (Mobile) – cum – II Addl. Junior Civil Judge, Vizianagaram.

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THE COURT OF THE SPL. JUDICIAL MAGISTRATE OF FIRST CLASS (MOBILE)-CUM-II

ADDL. JUNIOR CIVIL JUDGE, VIZIANAGARAM

Present: Smt Mohideen Zamruth Begum Kamaludeen, Spl. Judicial Magistrate of First Class (Mobile)-cum- II Addl. Junior Civil Judge, Vizianagaram

Monday, this the 8th day of April, 2024

C.C.No. 835/2019

Between:

State reptd. by the Sub-Inspector of Police, Traffic Police Station. Vizianagaram. … Complainant. And:

Tholapu Gopi S/o appa Rao, 27 years, H.No.8-18-79, Harijana Street, Vizianagaram Town … Accused

This case coming on this day for hearing before me in the presence of Learned APP for the prosecution and Sri S. Jagannadham Naidu, advocate

for accused and upon hearing and having stood over the matter for consid-

eration to this day, this Court delivered the following:

J U D G M E N T

1. The State represented by the Sub Inspector of Police, Traffic Police

Station, Vizianagaram has filed charge sheet against the Accused in

Cr.No.153/2018 for the offence under section 304-A of IPC against accused.

2. The case of prosecution, in nutshell is as follows:

Deceased is rickshaw puller. On 16.11.2018 the deceased went to drop school children and came to house, night at 8 Pm, keeping the rick- shaw at home, went to attend natural calls and while he was returning to his house at Ashok nagar and crossing the road at the curve near Kalkibha- gavan temple, Kothapeta ring road at about 8.20 pm, the accused driver of

APSRTC Hire Bus bearing No. AP 35 Y 1238 coming from Cheepurupalli to

Vizianagaram drove the same in a rash and negligent manner with high speed without blowing horn and dashed the deceased from behind, result- ing the deceased fell on the road and sustained severe head injury on the back side of his head and bleeding injury in the nose and after receiving in- formation LW1/Buttala Atchiyamma along with LW2 and 3 are rushed to the 2 accident spot and deceased was shifted to Tirumala Hospital, Viziana- garam with the assistance of accused driver of the bus and from there shifted to District Headquarters hospital, Vizianagaram for better treat- ment. Basing on the report of the LW1/Buttala Atchiyamma, LW18/T.

Simhachalam, SI of Police, registered a case in Cr.No. 153/2018 for the of- fence u/s 337 of IPC. During the course of investigation LW18 recorded the statement of LW1 to LW4 and observed the scene of offence in pres- ence of LW9 and 10 and got drafted the scene observation report and rough sketch of the scene. Later getting treatment the deceased was dis- charged on 28.11.2018 and coming home the deceased died on 04.12.2018 at his house due to sever head injury caused in the accident. LW2/Buttala

Apparao gave report, basing on the same LW19/R.Vasudev, SI of Police al- tered section of law from 337 IPC to 304(A) IPC and conducted inquest over the dead body of the deceased in the presence of witness and pan- chayatdars and respondent/defendant-examined LW1,LW2, Lws 4 to LW7 and recorded their statements. On 22.11.2018 the accused/driver of AP-

SRTC Hire Bus bearing No.AP 35 Y 1238 surrendered before LW20/G. Khal- adhar and he issued notice under section 41(A) Cr.P.C. LW17 conducted au- topsy over the dead body of the deceased and issued postmortem certifi- cate. LW16 inspected the vehicle involved and issued accident report and after completion of investigation he filed charge sheet.

3. On receipt of charge sheet, this court took the case into cognizance against the Accused for the offences punishable under Section 304-A of

IPC .

4. On appearance of the accused, copies of case documents were furnished to him as contemplated under Sec.207 of Code of Criminal Proce- dure 1973 [herein after referred to as Cr.P.C for brevity].

5. Accused was examined Under Sec.251 Cr.P.C., and substance of accusation was read over and explained to him in Telugu for the offence

U/Sec. 304-A of IPC for which he pleaded not guilty and claimed to be tried.

3

6. During trial, PW1 to PW12 were examined and Exs.P1 to P10 were exhibited on behalf of the Prosecution.

7. On closure of the evidence let in by the prosecution, the accused was examined U/Sec.313 of Cr.P.C., incriminating material available in the testimonies of Prosecution witnesses was explained and read over to the

Accused, in Telugu for which he denied and reported no evidence on his be- half. Hence, the evidence of Accused was closed.

8. Heard the learned Assistant Public Prosecutor and learned Counsel

for the Accused. Perused the Record.

9. Now, the point for determination is Whether the prosecution

has proved the guilty of Accused for the offence under Section

304-A of IPC beyond reasonable doubt?

10. Evidences before the court:

The evidence of PW1 is that she is resident of Ashok nagar,

Vizianagaram. she is doing coolie works. LW2/B.Apparao is her son. she knows LW3 to LW15. She does not know accused. Deceased Appanna is her husband. She further stated that 7 years back on one day one of her neigh- bours informed her that her husband met with an accident near Kothapeta,

Vizianagaram. Immediately she rushed to the Government hospital,

Vizianagaram. By the time she reached the hospital her husband was suc- cumbed to injuries sustained in the accident. She further stated that she does not know anything about the accident and how her husband got in- jured in the accident. Police obtained her thumb impression on some writ- ten papers and she does not know its contents. .

11. The evidence of PW2 is that he is resident of Ashok nagar,

Vizianagaram. He is working in book binding shop. PW1 is his mother. He knows LW3 to LW15. He does not know accused. Deceased Appanna is his father. He further stated that 7 years back on one day while he was in duty at Dharmapuri he received phone call from one of his neighbours informing him that his father met with an accident near Kothapeta, Vizianagaram. Im- 4 mediately he rushed to the Government hospital, Vizianagaram. Doctor ad- vise him to shift his father to King George Hospital, Visakhapatnam for bet- ter treatment. His father was shifted to King George Hospital, Visakhapat- nam and undergone treatment for about one week thereafter he was dis- charged. They brought his father to his house and on the next day his fa- ther died. He does not know anything about the accident and how his fa- ther got injured in the accident. Police never examined him.

12. The prosecution declared the PW1 and PW2 as hostile with the permission of the court and cross examined PW1 and PW2 and they denied that they stated while being examined by the police as in Ex.P1 and Ex.P2 respectively. In the cross examination nothing was elucidated in support of the prosecution case.

13.The evidence of PW3 is that she is resident of Ashok nagar,

Vizianagaram. she is house wife. Deceased Appanna is her husband. PW1 is the second wife of her husband. PW2 is the son of PW1. She knows

LW3/O.Ankayyamma. LW6/B.Bangari and LW7 are her sons. She knows LW9 to LW15 as they are her neighbours. She does not know accused. She fur- ther stated that 7 years back on one day while she went for cooking work she received a phone call from someone informing her that her husband met with an accident. Immediately herself and her sons rushed to the Gov- ernment hospital and her husband was undergoing treatment for the in- juries sustained in the accident. She further stated that he underwent treat- ment for about 8 days and got discharged. After 3 days of discharge her husband succumbed to the injuries sustained in the accident at her house.

She came to know bus dashed her husband. She does not know the particu- lars of the accident. Police examined her and recorded her statement.

14.The evidence of PW4 is that he is resident of Ashok nagar,

Vizianagaram. He is Rickshaw puller. Deceased Appanna is his father. PW1 is the second wife of his father. PW2 is the son of PW1. He knows

LW3/O.Ankayyamma. LW7/B.Govinda is his younger brother. He knows LW8 5 to LW10 as they are his neighbours. He does not know accused. He further stated that 7 years back on one day while he was in camp he received a phone call from someone informing him that his father met with an acci- dent. Immediately himself, PW1 and LW7 rushed to the King George Hospi- tal, Visakhapatnam and his father underwent treatment for about one week for the injuries sustained in the accident. After 3 days of discharge of his fa- ther his condition was not stable then they took him to the Government hospital, Vizianagaram and he succumbed to the injuries while undergoing treatment. He further stated that he does not know the particulars of the accident. Police examined him and recorded his statement.

15.The evidence of PW5 is that he is resident of Ashok nagar,

Vizianagaram. He is doing business. Deceased Appanna is his father. PW1 is the second wife of his father. PW2 is the son of PW1. PW4 is his elder brother. He knows LW3/O.Ankayyamma. He does not know LW8 to LW15. He does not know accused. He further stated that 7 years back on one day while he was in Lankapatnam he received a phone call from someone in- forming him that his father met with an accident. Immediately himself, PW1 and LW4 rushed to the King George Hospital, Visakhapatnam and his father underwent treatment for about one month for the injuries sustained in the accident. He further stated that after 3 days of discharge of his father his condition was not stable and succumbed to the injuries at their house. He does not know the particulars of the accident. Police examined him and recorded his statement.

16.The evidence of PW6 is that he is resident of Ashok nagar,

Vizianagaram. He is cook. He knows PW1 to PW5, LW8, LW9 and LW10. He does not know accused. He further stated that one day he saw relatives of deceased Appanna crying in their street. Then himself along with other neighbours went to the Government hospital, Vizianagaram and deceased was undergoing treatment. He does not know anything about this case. Po- lice never examined him.

6

17.The evidence of PW7 is that she is resident of Vizianagaram.

She is working as RTC Conductor. She further stated that 6 years back on one day at about 8 pm while she was on duty in APS RTC bus registration bearing number AP 35 Y 1238 which was coming from Rajam to Viziana- garam, their bus stopped at Kalkibhagavan temple, Vizianagaram suddenly.

At that time she was collecting tickets and billing the tickets. She further stated that she has not witnessed anything. She enquired the passengers and they stated one old man fell in front of the bus. The passengers further informed her that the said old man was taken to hospital by his relatives.

Thereafter their bus went to the Vizianagaram complex. Except that she does not know anything about this case. Police never examined her.

18.The evidence of PW8 is that he is resident of Vizianagaram. he is vegetable vendor. Deceased is his neighbour. he knows LW9/Ch.Ramu.

Police called him and LW9/Ch. Ramu , one day to act as mediator for scene observation. Police prepared scene observation report in their presence.

19.The evidence of PW9 is that he is resident of Vizianagaram. he is vegetable vendor. Deceased is her neighbour. he knows LW14/Y.Polayya.

6 years ago on the information that deceased Appanna succumbed to in- juries sustained in the accident. He went to the Government hospital,

Vizianagaram. Police held inquest over the dead body of Appanna in his presence and other panchayatdars.

20.The evidence of PW10( Investigation officer) is that On 04.12.2018 at about 14.30 hours he received a written report from PW2.

Basing on the report he altered the section of Law 337 of IPC to 304-A of

IPC of Traffic Police Station, Vizianagaram. He sent alteration memo to the court. He further stated that on the same day he secured panchayatdars and blood relatives of deceased and held inquest over the dead body of

B.Appanna and took photographs dead body of B.Appanna. He further stated that he sent requisition to Medical officer District Head quarters hos- pital, Vizianagaram for postmortem examination of deceased B.Appanna.

7

On the same day he examined PW1 to PW7 and LW8 and recorded their statements. he handed over the case file to LW20/Sub Inspector of Police for further investigation.

21.The evidence of PW11 (investigation Officer) is that On 17.11.2018 at about 20.00 hours he received a medical intimation along with statement of PW1 from the Government hospital, Vizianagaram. Bas- ing on the statement fo PW1 he registered case in crime No. 153/2018, u/sec. 337 of IPC of Vizianagaram Traffic Police Station. He sent FIR to the court and copies to the concerned officials. Immediately he rushed to the

Government hospital and examined PW1, PW2, PW6 and PW7 and recorded their statements. He further stated that he went to scene of offence and prepared rough sketch of scene of offence and secured the presence of

LW9/Ch.Ramu and PW8 and prepared scene observation report in their presence. He handed over the case file to PW10 for further investigation.

22.The evidence of PW12 (Investigating Officer) is that On 22.11.2018 he received case file from PW10 for further investigation. On the same day while he was present in the Police Station at about 10 am

LW8/S.Laxmi came to the Police Station and he examined her and recorded her statement. On the same accused surrendered before him and he issued 41(A) Cr.PC notice to him. He further stated that he sent requisition to Mo- tor Vehicle Inspector for inspection of crime vehicle. He received Motor Ve- hicle Inspection report. He further stated that on 05.12.2018 he received postmortem examination certificate of B.Apparao. He further stated that he handed over the case file to LW21/S.Bhaskara rao for further investigation. After completion of investigation of LW21/S.Bhaskara rao filed charge sheet.

23.Discussion, Decision and Reasons thereof:

The most important ingredient which needs to be established by the prosecution in order to bring home the conviction of an accused u/s 304 A IPC is the "act of rash and negligent driving by the accused" 8

24.On perusal of all the testimonies of the witnesses of the prose- cution and materials produced before the court nothing was elucidated to show accused drove the alleged crime bus in rash and negligent manner and dashed the deceased resulting deceased fell on the road and sustained injuries to causing his death. On whose fault the accident took place was not established. There is a possibility of the fault on the deceased side also.

Unless there is cogent and convincing evidence, establishing the rash and negligence on the part of accused is the reason for the injuries sustained by deceased resulting his death, Accused cannot be held under section 304-A

IPC. PW1 is hearsay witness. There is no direct or reliable evidence on record to say accused drove the alleged crime vehicle in rash and negligent manner and dashed the deceased and deceased fell on the road and sus- tained injuries which caused his death. The prosecution failed to drive home the offence under section 304-A IPC against accused beyond reason- able doubt. Accordingly the point is answered in favour of the accused and against prosecution.

25. In the result, Accused is found not guilty for the offence pun- ishable under section 304-A IPC and he is acquitted under section 255(1) of Cr.P.C., for the said offence. Bail Bonds of accused shall stand cancelled after appeal time is over as contemplated u/s 437-A of Cr.P.C.

Typed to my dictation by the Stenographer, corrected and pro- nounced by me in open Court, on this the 8th day of April, 2024.

Sd/- Smt Mohideen Zamruth Begum Kamaludeen,

SPECIAL JUDICIAL MAGISTRATE OF I CLASS

(MOBILE), VIZIANAGARAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE : PW1: B. Atchiyyamma - Nil - PW2: B. Apparao PW3: B.Sattemma PW4: B. Bagari PW5: B.Govind PW6: V.Venkayyamma PW7: B.Ramanamma PW8: Y.Polayya PW9: M. Mahesh PW10: R. Vasudev, Sub Inspector of police 9

PW11: T. Simhachalam, Retd. Sub Inspector of police. PW12: G. Kaladhar, Sub Inspector of Police.

DOCUMENTS MARKED

FOR PROSECUTION: Ex.P1: 161 Cr.P.C., statement ofPW1. Ex.P2: 161 Cr.P.C., statement of PW2. Ex.P3: Scene Observation report. Ex.P4: Inquest report. Ex.P5: Alteration memo along with report. Ex.P6: Photographs of the dead body of B.Appanna 5 in number. Ex.P7: Original FIR Ex.P8: Rough sketch of scene of offence. Ex.P9: Motor Vehicle Inspection report. Ex.P10: Postmortem certificate of B. Apparao.

FOR DEFENCE:- - Nil -

MATERIAL OBJECTS

- Nil -

Sd/- Smt Mohideen Zamruth Begum Kamaludeen,

SPECIAL JUDICIAL MAGISTRATE OF I CLASS

(MOBILE), VIZIANAGARAM.

10

Calendar and Judgment

IN THE COURT OF THE JUDICIAL I CLASS MAGISTRATE

(SPECIAL MOBILE COURT), VIZIANAGARAM.

* * * Date of offence: 16.11.2018

Date of report or complaint: 17.11.2018

Date of apprehension of accused: 22.07.2019

Date of release, if any on bail: --

Date of commencement of trial: 28.02.2024

Date of close of trial: 03.04.2024

Date of sentence or order: 08.04.2024

Explanation for delay and remarks:- No delay

Calendar and Judgment in C.C.No.835/2019 on the file of the Judicial

Magistrate of I Class, Special Mobile Court, Vizianagaram.

Complainant:- State represented by the Sub-Inspector, Vizianagaram Traffic Police station, Vizianagaram in Crime No.153/2018.

----------------------------------------------------------------------------------------------- Name of the Accused, Age, Father’s Name, calling, Religion, Residence, Mandal.

Tholapu Gopi S/o appa Rao, 27 years, H.No.8-18-79, Harijana Street, Vizianagaram Town

Offence :- Causing death by negligence punishable u/s 304-A IPC

Finding:- Not guilty.

Sentence:- In the result, Accused is found not guilty for the offence punishable under section 304-A IPC and he is acquitted under section 255(1) of Cr.P.C., for the said offence. Bail Bonds of accused shall stand cancelled after appeal time is over as contemplated u/s 437-A of Cr.P.C.

Sd/- Smt Mohideen Zamruth Begum Kamaludeen,

SPECIAL JUDICIAL MAGISTRATE OF I CLASS

(MOBILE), VIZIANAGARAM.

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

(EXCISE): VIZIANAGARAM

Present:Smt K.M. Zamruth Begum, Spl. Judl. Magistrate of the First Class (Mobile), Vizianagaram, FAC/Judl.Magistrate of First Class (Excise), Vizianagaram

Tuesday, this the 12th day December, 2023

C.C.No. 298/2020

Between :

State represented by the Proh. & Excise Inspector, Vizianagaram-II (R) police station.

….… Complainant And :

A1) Pandranki Venkatarao, S/o.late Appalaswamy, aged 55 years, r/o.Korukonda village, Vizianagaram District.

A2)Siripurapu Shekar, S/o.Krishna, aged 29 years, r/o.Korukonda, Vizianagaram District.

A3)Palapu Nagamani, W/o.Satyanarayana, aged 50 years, r/o.Korukonda, Vizianagaram District.

….… Accused

This case coming before me for final hearing on 12-12-2023 in the presence of learned Assistant Public Prosecutor on behalf of the Complainant State represented by the Police and Sri. S.Jagannadham Naidu, Learned Counsel for accused, upon hearing both sides and the matter having stood upon for consideration till this day, this court delivered the following:

J U D G M E N T;

01.The State represented by the SEB., Proh. & Excise Inspector,

Vizianagaram-II (R) police station laid a charge sheet against the accused for the offence under section 34(a) of AP Excise Act in Cr.No.51/2019.

02.The averments of the charge sheet case :

On 9.4.2019 at about 14 hrs during the course of route watch conducted by LW4 along with staff noticed near Tharu road by the side village tank situated about 100 meters of north side of Chakalipeta, one auto bearing no.AP 35 X 0425 coming towards the raid party. Then LW4 stopped the vehicle and searched the vehicle found one male person driving vehicle and another person sitting on the back seat of the vehicle with possession of five card board boxes and two polythene bags. On questioning about the card board boxes and polythene bags, they perturbed and confessed that they were containing liquor bottles. Then LW3 deputed LW1 for securing mediators from

Chakalapeta village. Then LW1 proceeded to village and returned after some time to the scene of offence and stated that no one came forward to act as mediator and village elders at that were also not available in the village. The siad auto is Bajaj auto maxima diesel BSIII passenger model and bearing registration no. AP 35 X 0425 and vehicle chassis no. MD2A41AZ7EWC04727 and engine no.BBZWEB09060 and also inspected the contents of the 5 card board boxes i.e., in four card board boxes each box containing 48 IML bottles i.e., Officer choice supreme whisky each 180 ml another one box containing 47

IML bottles i.e., Officer choice supreme whisky each 180 ml and inspected the two polythene bags i.e., in one polythene bag containing 33 IML bottles i.e.,

Imperial blue grain whisky each 180 ml and another polythene bag containing 76 IML bottles Mansion house authentic premium french brandy each one 180 ml and all IML liquor bottles seal nos., were torn off and it is further noticed the label I.e, for sale in AP only. On questioning by LW4 the accused persons disclosed identity particulars. Then LW4 with the help of staff seized the bottles and auto and affixed identification slips duly signed by the accused persons and excise officials on the sample bottles drwn and 5 card board boxes and two polythene bags containing remaining portion of property and auto under the cover of occurrence report drafted at the scene of offence. Basing on the occurance report LW5 registered the case in Cr.no.51/2019 under section 34(a) of AP.Excise Act of prohibition and excise station, Vizianagaram-II (R) and released the accused on issuance of 41(a) Cr.P.C., notice and submitted the original FIR along with relevant documents to the Hon’ble court on 10.4.2019. After completion of investigation he filed charge sheet.

03.This case was taken on file against the accused for the offence under section 34(a) of AP Excise Act.

04.On appearance of accused, copies of case documents were furnished to accused as contemplated under Section 207 of Code of Criminal

Procedure, 1973.

05.The accused was examined under section 239 of Cr.P.C., a charges were framed for the offence under section 34(a) of AP Excise Act against accused was read over and explained to him in Telugu, for which, he pleaded not guilty and claimed to be tried.

06.During the course of trial, on behalf of the prosecution, PW1 to

PW4 were examined and ExP1 to ExP4 and MO1 to MO4 are marked.

07. The accused are examined under section 313 Cr.P.C., by putting the incriminating material available in the evidence of prosecution witnesses, for which the accused denied the same and reported no defence evidence.

08. Heard both sides, perused the record.

09.Now the point for determination is that:

Whether the prosecution able to bring home the guilt of the

accused for the charge leveled against them?

10.Evidences before the court:

PW.1/B.Umamaheswari deposed in his chief examination that on 9.4.2019 at about 2 pm himself, LW4, LW3, LW1 and Ch.Lokabhiram went to

Chakalipeta village of Vizianagaram and were conducting route watch and notice one auto bearing no. AP 35 X 0425. On suspicious they stopped the auto and found one person driving vehicle and another person sitting on the back seat of the vehicle with possession five card board boxes and two polythene bags. LW4 questioned the driver about the contents of card board boxes and polythene bag, they perturbed and confessed that they were containing liquor bottles. LW4 verified the card board boxes and polythene bags and 5 card board boxes contains 239 Officer choice supreme whisky each 180 ml, one polythene bag contains 35 Imperial blue grain whisky each 180 ml and another polythene bag contains 76 IML bottles Mansion house brandy 180 ml each. LW4 questioned about the identity particulars and permit or license. LW4 sent LW1 to secure the mediators but none were available. LW4 seized the liquor bottles under the cover of occurrence report drafted by him at the scene of offence. LW4 has drawn the sample bottles out of the seized property. he identified the seized sample bottles basing on the identification slips pasted on the seized property. MO1 to MO4 are marked. LW4 arrested the accused by stating the grounds of arrest, then they brought the seized property, occurrence report and A1 and A2 to the police station.

During cross examination he deposed that scene of offence is a busy locality and alleged offence took place within the office hours of the panchayathi. He further admitted that his name is not mentioned in the occurrence report and the occurrence report does not show the manufacturing date of MO1 to MO4. He further stated that One head constable prepared the identity slips affixed on the sample bottles at the scene of offence and all the identity slips affixed on MO1 to MO4 contain same hand writing.

PW2/Ch.Chakravarthi deposed in his chief examination that on 9.4.2019 at about 2 pm himself, PW1, LW1, LW3, went to Chakalipeta village of Vizianagaram and were conducting route watch and noticed one auto bearing no.AP 35 X 0425. On suspicious they stopped the auto and found one person driving vehicle and another person sitting on the back seat of the vehicle with possession of five card board boxes and two polythene bags. He questioned the driver about the contents of card board boxes and polythene bag, they perturbed and confessed that they are containing liquor bottles. He verified the card board boxes and polythene bags and in 5 card board boxes each box contains 48 IML bottles i.e., Officer choice supreme whisky each 180 ml another one box containing 47 IML bottles i.e., Officer choice supreme whisky each 180 ml and verified the two polythene bags i.e., in one polythene bag containing 33 IML bottles i.e., Imperial blue grain whisky each 180 ml and another polythene bag containing 76 IML bottles Mansion house authentic premium french brandy each one 180 ml. He sent LW1 to secure the mediators but none were available. He seized the liquor bottles under the cover of occurrence report drafted by him at the scene of offence. He has drawn the sample bottles out of the seized property. He arrested the accused by stating the grounds of arrest, then they brought the seized property, occurrence report and A1 and A2 to the police station and handed over to the sentry.

During cross examination he deposed that that he has not mentioned the names of excise officials who accompanied him for route watch and the scene of offence is situated in a busy locality. He has not secured any independent witnesses prior to going to the scene of offence. He has not secured any local inhabitants in this case. He has not seized any documents pertaining to the auto bearing no. AP 35 X 0425. He has not produced the card board boxes

before the court. He has not mentioned the batch number and manufacturing

dated of the MO1 to MO4 in the occurrence report. He further stated that the occurrence report does not show the concluding time of occurrence report. He further stated half an hour time is required to reach the Vizianagaram prohibition and excise from the scene of offence.

PW3/P.Satyanarayana murthy deposed in his chief examination that on 9.4.2019 at about 5.20 pm ESTF party, Vizianagaram handed over the occurrence report, property and accused to the centry in SEB., Vizianagaram-

II police station. Basing on the occurrence report he registered the case in

Cr.no.51/2019 under section. 34(a) of AP.Excise Act of SEB., Vizianagaram.

Basing on the occurrence report he handed over the ESTF party,

Vizianagaram, he sent FIR to the court and copies to the concerned officials.

He issued 41-A Cr.P.C., notice to A1 and A2. He handed over the case file to

LW6 for further investigation.

During cross examination he deposed that enforcement team,

Vizianagaram did not secure any mediator while drafting occurrence report or seizing the case property from A1 & A2.

PW.4/P.Leelarani deposed in her chief examination that she received case file from PW3, she sent samples to the REL., Visakhapatnam for chemical examination and she received chemical analysis report on 2.5.2019. She addressed a letter to the Dy.Commissioner, Visakhapatnam for orders to the confiscate auto and to destroy the liquor bottles in this case. She addressed a letter to the RTO., to provide particulars of the auto. After completion of investigation she filed charge sheet.

11.Discussion, Decision and reasons thereof:

PW1 to PW4 are police officials and no independent witnesses were examined. The deposition of PW1 to PW4 are in lines with the charge sheet.

They have not secured mediators while seizing liquor bottles or drafting the occurrence report which is mandate of section 100 of CrPC. From the testimony of PW1 and PW2, it reveals that the place of alleged offence is busy locality if they really tried to secure mediators they could have secured mediators. Hence non securing local inhabitants while seizing liquor bottles and drafting occurrence report without proper explanation is fatal to the case.

Prosecution failed to prove the liquor bottles was seized from the accused by examining independent witness or producing any cogent and satisfactory evidence in support of the version of PW1 to PW4. A1 and A2 roles are explained by the PW1 to PW4 but no where the role of A3 elucidated. In these circumstances the testimony of PW1 to PW4 are not reliable and A1 to A3 cannot be held liable under section 34(a) of AP Excise Act relying the testimony of PW1 to PW4 thereof without any cogent and satisfactory evidence connecting A1 to A3 to this case. The prosecution miserably failed to prove the offence against the accused under section 34(a) of AP Excise Act beyond reasonable doubt. Hence the accused is entitled to acquittal under benefit of doubt. Accordingly the point is answered in favour of the accused and against prosecution.

12.IN THE RESULT, the A1 to A3 are found not guilty for the offence punishable Under Section 34(a) of AP.Excise Act and accordingly he is acquitted Under Section 248(1) Cr.P.C. The bail bonds of Accused shall remain in force for a period of six months as envisaged Under Section 437-A

Cr.P.C. in order to appear before the Appellate Court if any appeal is preferred.

M.O.1 to MO.4 are ordered to be destroyed after expiry of appeal time.

Typed to my diction, corrected, signed and pronounced by me in the open court this the 12th day of December’2023.

Spl. Judl. Magistrate of First Class (Mobile), Vizianagaram. FAc/ Judl. Magistrate of First Class (Excise), Vizianagaram.

APPENDIX OF EVIDENCE

WITNESS EXAMINED

For Prosecution: For Defence:

PW.1:B.Uma MaheswariNil PW.2: Ch.Chakravarthi PW.3: P.Satyanarayanamurthy PW.4: P.Leelarani

EXHIBITS MARKED

For Prosecution:

Ex.P1Occurrence report. Ex.P2F.I.R. Ex.P3Chemical analysis report. Ex.P4Destruction proceedings

For Defence :- Nil -

MATERIAL OBJECTS

MO.1 is the sample bottle of Officer choice whisky bottle. MO.2 is the sample bottle of Imperial blue grain whisky bottle. MO.3 is the sample bottle of Manson house of premium brandy MO.4 is the sample bottle of Officer choice whisky

Spl. Judl. Magistrate of First Class (Mobile), Vizianagaram. FAc/Judl. Magistrate of First Class (Excise), Vizianagaram.

IN THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS

GAJAPATHINAGARAM

Present: Smt K M Zamruth Begum Spl. Judicial Magistrate of I Class (Mobile) Vizianagaram FAC/ Judicial Magistrate of I Class Gajapathinagaram

Saturday, this the 11th day of December, 2021

C.C. No. 19/2021

Between:

State Represented by the Sub Inspector of Police, Gajapathinagaram Police Station. ... Complainant

And:

A1Revalla Satyanarayana, S/o Ramu, 33 years, Chittayavalsa Village, Gajapathinagaram Mandal, Vizianagaram Dt A2Sara Narayanarao, S/oYerukunaidu, 28 years, Chittayavalsa village, Gajapathinagaram Mandal, Vizianagaram Dt A3Lenka Srinu, S/o Late Gurunaidu, 32 years, Chittayavalsa Village, Gajapathinagaram Mandal, Vizianagaram Dt. A4Valli Ganesh, S/o Thowdu, 27 Years, Chittayavalsa Village, Gajapathinagaram Mandal, Vizianagaram Dt A5Rali Ramesh, S/o Narayana, 25 Years, Chittayavalsa Village, Gajapathinagaram Mandal, Vizianagaram Dt … Accused

This case coming on this day for final hearing before me in the presence of Learned APP for the prosecution and the accused inperson, and upon hearing and having stood over the matter for consideration to this day, this Court delivered the following:

J U D G M E N T

1. The Sub-Inspector of Police, Gajapathinagaram Police Station, has filed the charge sheet against the Accused 1 to 3 in Cr.No.186/2020 for the offence under Section 447, 427, 379 IPC, and Sec. 3(2)(D) of Prevention of

Damage to Public Property Act, and Sec. 21(1) of Mines and Minerals Rules.

2. The brief averments of the Charge-Sheet are that:

The Sub Inspector of Police, Gajapathinagarampolice station has filed the charge sheet against the Accused No.1 to 5 alleging that on 22.10.2020, at about 17.00 hours, on credible information regarding transportation of illegal sand, the S I of Police, along with his staff rushed to Champavathi

River bed near Chittayavalsa Village, found the accused No.1 to 5/drivers of of 1) tractor bearing No. AP 35 Y 5845 and its Trailer bearing No. AP 35 W 6680, 2) AP 35 X 5552 and Trailer AP 35 W 1857, 3) AP 35 X 0427 and Trailer

No. AP 35 W 8874, 4) AP 35 Y 5429 and Trailer No. AP 30 V 1524 and 5) AP 35

X 6162 and its Trailer No. AP 35 X 0793 with loaded sand and on seeing the police, tried to escape, and then the police caught the accused and on interrogation the accused No. 1 to 5 voluntarily confessed that they loaded the sand from river bed of Champavathi river near Chittayavalsa Village un- authorisedly without permission and proceeding to sell the same at a higher price, and on that, the S I of Police, arrested them and seized the crime vehicles along with the sand under cover of occurrence report, and basing on the same he registered it as a case in Crime No. 186/2020 for the offence punishable under Sec. 447, 427, 379 IPC, and Sec. 3(2)(D) of Prevention of

Damage to Public Property Act, and Sec. 21(1) of Mines and Minerals Rules.

Hence the charge sheet.

3.Cognizance was taken against the accused No.1 to 5 for the offences under Section 447, 379 IPC and Sec 3 (2)(D) of PDPP Act.

4.After appearance of the Accused 1 to 5, case copies were furnished to the Accused as required under Section 207 Cr.P.C. and at the time of examination under Section 251 Cr.P.C, they admitted the offence under Sec.

379 of IPC and that this court followed the procedure as contemplated Under section XIX Cr.P.C.

5.Accused No.1 to 5 are found guilty for the offence under Section 379 of

IPC as they admitted their guilt, and as such they are convicted under

Section 252 Cr.P.C., for the said offence.

6. When the Accused No.1 to 5 are questioned about the quantum of sentence, they stated that they sincerely repenting for their action and begged the mercy of the court in imposing less punishment and promised not to commit such offence in future.

7. In the result, the Accused 1 to 5 are found guilty for the offence punishable under Section 379 of IPC and accordingly they are convicted

U/Sec.252 of Cr.P.C. The accused No.1 to 5 are sentenced to pay fine of

Rs.3,000/- (Rupees Three Thousand only) each for the offence punishable

U/Sec.379 of IPC in default of payment of fine, each shall suffer Simple

Imprisonment for a period of 15 days. The property in this case, i.e., the crime vehicles which were given as interim custody shall be made absolute after the appeal time is over. The property i.e., sand shall be disposed off according to law after the lapse of appeal time.

Typed to my dictation, corrected, signed and pronounced by me in open Court, this the 11 th day of December, 2021.

Sd/- xx xx xx

Spl.Judl.Magistrate of I Class (Mobile) Vizianagaram FAC/ Judl. Magistrate of I Class Gajapathinagaram

Appendix of Evidence

Witnesses Examined

No oral or documentary evidence is adduced on either side.

Sd/- xx xx xx

Spl.Judl.Magistrate of I Class (Mobile) Vizianagaram FAC/ Judl. Magistrate of I Class Gajapathinagaram

IN THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS

GAJAPATHINAGARAM

Present: Smt K M Zamruth Begum Spl. Judicial Magistrate of I Class (Mobile) Vizianagaram FAC/ Judicial Magistrate of I Class Gajapathinagaram

Saturday, this the 11th day of December, 2021

C.C. No. 08/2021

Between:

State Represented by the Sub Inspector of Police, Gajapathinagaram Police Station. ... Complainant

And:

A1Logisa Rammurthy, S/o Pentayya, 40 years, Logisa Village, Gajapathinagaram Mandal, Vizianagaram Dt A2Pathiwada Eswara Rao, S/o Surappadu, 35 years, Logisa village, Gajapathinagaram Mandal, Vizianagaram Dt A3Tholapu Nageswara Rao, S/o Venkati, 31 years, Logisa Village, Gajapathinagaram Mandal, Vizianagaram Dt. A4Byreddi Srinu, S/o late Ramunaidu, 35 Years, Logisa Village, Gajapathinagaram Mandal, Vizianagaram Dt … Accused

This case coming on this day for final hearing before me in the presence of Learned APP for the prosecution and the accused inperson, and upon hearing and having stood over the matter for consideration to this day, this Court delivered the following:

J U D G M E N T

1. The Sub-Inspector of Police, Gajapathinagaram Police Station, has filed the charge sheet against the Accused 1 to 3 in Cr.No.49/2020 for the offence under Section 447, 427, 379 IPC, and Sec. 3(2)(D) of Prevention of Damage to Public Property Act.

2. The brief averments of the Charge-Sheet are that:

The Sub Inspector of Police, Gajapathinagarampolice station has filed the charge sheet against the Accused No.1 to 4 alleging that on 05.03.2020, at about 04.30 hours, on credible information regarding transportation of illegal sand, the S I of Police, along with his staff rushed to Champavathi

River bed near Logisa Village, found the accused No.1 to 4/drivers of of 1) tractor bearing No. AP 02 TE 5380 and its Trailer bearing No. AP 35 X 6434, 2)

AP 35 Y 1531 and Trailer AP 35 U 4617, 3) AP 31 DE 2126 and Trailer No. AP 35 X 8978, and 4) AP 35 X 4432 and Trailer No. AP 35 X 4490 with loaded sand and on seeing the police, tried to escape, and then the police caught the accused and on interrogation the accused No. 1 to 4 voluntarily confessed that they loaded the sand from river bed of Champavathi river near Logisa

Village un-authorisedly without permission and proceeding to sell the same at a higher price, and on that, the S I of Police, arrested them and seized the crime vehicles along with the sand under cover of occurrence report, and basing on the same he registered it as a case in Crime No. 186/2020 for the offence punishable under Sec. 447, 427, 379 IPC, and Sec. 3(2)(D) of

Prevention of Damage to Public Property Act. Hence the charge sheet.

3.Cognizance was taken against the accused No.1 to 4 for the offences under Section 447, 379 IPC and Sec 3 (2)(D) of PDPP Act.

4.After appearance of the Accused 1 to 4, case copies were furnished to the Accused as required under Section 207 Cr.P.C. and at the time of examination under Section 251 Cr.P.C, they admitted the offence under Sec.

379 of IPC and that this court followed the procedure as contemplated Under section XIX Cr.P.C.

5.Accused No.1 to 4 are found guilty for the offence under Section 379 of

IPC as they admitted their guilt, and as such they are convicted under

Section 252 Cr.P.C., for the said offence.

6. When the Accused No.1 to 4 are questioned about the quantum of sentence, they stated that they sincerely repenting for their action and begged the mercy of the court in imposing less punishment and promised not to commit such offence in future.

7. In the result, the Accused 1 to 4 are found guilty for the offence punishable under Section 379 of IPC and accordingly they are convicted

U/Sec.252 of Cr.P.C. The accused No.1 to 4 are sentenced to pay fine of

Rs.3,000/- (Rupees Three Thousand only) each for the offence punishable

U/Sec.379 of IPC in default of payment of fine, each shall suffer Simple

Imprisonment for a period of 15 days. The property in this case, i.e., the crime vehicles which were given as interim custody shall be made absolute after the appeal time is over. The property i.e., sand shall be disposed off according to law after the lapse of appeal time.

Typed to my dictation, corrected, signed and pronounced by me in open Court, this the 11 th day of December, 2021.

Sd/- xx xx xx

Spl.Judl.Magistrate of I Class (Mobile) Vizianagaram FAC/ Judl. Magistrate of I Class Gajapathinagaram

Appendix of Evidence

Witnesses Examined

No oral or documentary evidence is adduced on either side.

Sd/- xx xx xx

Spl.Judl.Magistrate of I Class (Mobile) Vizianagaram FAC/ Judl. Magistrate of I Class Gajapathinagaram