J.F.C.M., JMD 1 C.C.No.148 of 2018
IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS AT
JAMMALAMADUGU.
Thursday, the 04 th day of April, 2019
Present: Sri N. Sirish, B.A.,B.L.
Judicial Magistrate of First Class, Jammalamadugu
Calendar Case No.148 of 2018
Between
The State of A.P., through Inspector of Police, Jammalamadugu (U) Police Station
... Complainant
And
1. Shaik Simpathi Fakruddin @ Goresaheb Fakruddin, S/o Fakruvalli @ Sabun, aged about 25 years, Khaderpalli village, Chapadu Mandal. (A1 as per the C.D.)
2. Shaik Simpathi Jakeer, S/o Fakruvalli @ Sabun, aged about 23 years, Khaderpalli village, Chapadu mandal. (A2 as per the C.D.)
3. Chinna Goresab Noushad @ Bombay, S/o Abdul Salam, aged about 37 years, Khaderpalli village, Chapadu Mandal. (A3 as per the C.D.)
4. Simpathi Yaparalapalli Ali S/o Pedda Mabhu, aged about 28 years, Khaderpalli village, Chapadu Mandal. (A5 as per the C.D.)
5. Korrapati Ghouse Lazam, S/o Mahaboob Basha, aged about 27 years, Bojjavaripalli village, Proddatur Mandal. (A6 as per the C.D.)
6. Surabhi Mahesh, S/o Lakshmaiah, aged about 25 years, D.No.7/275-12-C, Bhagyanagar colony, Kadapa City. (A8 as per the C.D.)
... Accused
This case is coming before me on on this day for final hearing in the presence of the learned Assistant Public Prosecutor for the complainant and of Sri S.Zakeer Hussain, Advocates for the accused; and upon hearing both sides and perusing the material on record, and having stood over for consideration, this court delivered the following:
JUDGMENT
1.The Inspector of Police, Jammalamadugu (U) Police Station, has filed charge sheet in Cr.No.101/2016 for the offences punishable U/s.379 or 411 of the Indian Penal Code (for short ‘IPC’) against the accused No.1, 2, 3, 5, 6 and 8.
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2.The prosecutions case in brief is as follows : The informant herein by name V.Saradamma (P.W.1) is the owner of the stolen property herein i.e., Tata Sumo vehicle bearing Reg.No.AP04-TV-5218 (hereinafter referred to as ‘stolen vehicle’) with Chassis No.421058HRZ927500 and
Engine No.497SP28HRZ624664 worth Rs.2,00,000/-. P.W.1 is a resident of Nawabpeta of Mylavaram Mandal. The said stolen vehicle was given to Dalmia Cements Factory on monthly rental basis since about seven years, for Rs.12,000/- per month. One G.Ratna Raju (L.W.3) of Moragudi village has been working as driver for the stolen vehicle since the year 2008. On 06.05.2016, as the said G.Ratna Raju (L.W.3) could not attend to his duties in view of his personal work, one Shaik Jaffer of
Jammalamadugu town acted as driver and after completion of his duty, he parked the stolen vehicle near Dalmia canteen at Teru Bazar in
Jammalamadugu at 08.30 pm. Later, in the morning on 07.05.2016,
P.W.1 came to know through the said G.Ratna Raju (L.W.3) that the stolen property is missing. Accordingly, P.W.1 along with her son V.
Chandra Prakash Reddy (L.W.2) went to the said place near Dalmia canteen and they along with the said G.Ratna Raju (L.W.3) searched for the stolen vehicle, but in vain and they came to know that the stolen vehicle has been stolen by some unknown offenders in the intervening night of 06.05.2016 and 07.05.2016. On the same day at about 08.00 pm, P.W.1 and her son went to the police station of Jammalamadugu and there, P.W.1 lodged a written report about the theft of the stolen vehicle
before the then Inspector of Jammalamadugu (U) P.S. by name
U.Venkata Kumar (L.W.8).
3.Basing on the report of P.W.1, the said C.I. (L.W.8) registered this case and took up investigation. He examined P.W.1, her son and recorded
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their statements. He also secured the presence of the said G.Ratna Raju (L.W.3), examined him and recorded his statement. On the next day i.e., 08.05.2016, the said C.I. (L.W.8) went to the scene of offence, examined it and prepared a rough sketch of it. He secured the presence of the said S.Jaffer and one S.Bhuma Obulesu, who was the cook at the said
Dalmia canteen and examined them. Further investigation was taken up by one T.Sreenivasulu (P.W.6), the successor in office of the said C.I.
(L.W.8).
4.On 19.05.2016, while the Inspector of Police, Rural Circle, Proddatur by name G.Obulesu (P.W.5), was at Chapadu police station, received credible information about illegal transportation of Red Sanders logs; and he secured the presence of two mediators namely U.Mahaboob
Hussain (P.W.3), V.R.O. of Pallavolu village, Chapadu Mandal and M.Rama
Mohan (L.W.5), Sarpanch of Pallavolu village, Chapadu Mandal and he also secured the Forest Officials of Proddatur Forest Range to Chapadu
P.S. P.W.5 also secured a weighing machine, measuring tape and white paint. P.W.5 informed about his information to the mediators and the
Forest Officials; and the mediators agreed to act as mediators.
Accordingly, all of them started in two vehicles at 09.30 am and reached near the bus stop of Khadarpalli village, situated on the main road between Proddatur and Mydukur at 09.45 am and they started conducting vehicular checking. In the process, at about 10.00 am, they saw a Sumo vehicle, which is the stolen vehicle herein, coming from
Khadarpalli village side. The driver of the stolen vehicle did not stop it and tried to go upon the police. All the persons, who were eight in number, got down the stolen vehicle and went into the fields situated to the north of the road and started hurling stones at the police personnel
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by shouting to kill them. P.W.5 and his staff escaped unhurt and they caught one of the said eight persons, who was driving the stolen vehicle and the other seven persons escaped from the said place. On inquiry by
P.W.5 in the presence of the said mediators, the said person, who is the accused No.1 herein, disclosed his identity particulars and also the identity particulars of the said seven persons, who escaped, as the accused No.2 to 8 herein. The accused No.1 further confessed that he along with the accused No.2 to 8 committed theft of the stolen vehicle in the intervening night of 06.05.2016 and 07.05.2016 at about 01.30 am, which was parked near a mess at Theru Bazar in Jammalamadugu. He had further confessed that he and the accused No.2 to 8 are in the habit of illegal transportation of Red Sanders logs and also that they transport them in stolen vehicles and as such he and the said others have stolen the present stolen vehicle; and that, on that day, they were transporting 15 (fifteen) Red Sanders logs to Kattiganahalli village near Bengaluru city by passing through the route of Yerraguntla – Ananthapur –
Bengaluru and he was caught by them. P.W.5 measured the said logs and seized them as per the procedure. He also seized the stolen vehicle herein and arrested the accused No.1 herein in the presence of the said mediators. The said seizure and arrest were done under panchanama
dated 19.05.2016, drafted at 10.00 am near the said Khadarpalli bus
stop. The measurements and other descriptions of the said 15 logs were noted in the said panchanama. Basing on the said panchanama, the S.H.O. of Chapadu P.S. registered a case as Cr.No.50 of 2016 of his
P.S. for the offences punishable U/s 147, 148, 307, 379, 353, 120-B, 109 r/w 149 I.P.C.; and Sec. 20 (1) (c) (ii), (iii), (iv), (vi) and (x) of A.P.Forest
Act, 1967; and Rule 3 of A.P. Sandal Wood and Red Sanders Wood Transit
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Rules, 1969; and Sec.29 and 68 of A.P. Forest Act, 1976 r/w Sec.29 (4) of
A.P. forest Act, 1967; and Sec.3 of P.D.P.P. Act; and Sec.51 of the Wildlife
Protection Act.
5.Basing on P.T. warrants, the accused No.1 to 3, 5, 6 and 8 were produced before this court and they were remanded to judicial custody.
Subsequently, on 06.07.2016, P.W.6 took the accused No.2, 3, 6 and 8 into police custody as per the orders of this court; and on that day, P.W.6 secured two mediators namely N.Mohan (P.W.2) and J.Lakshmi Narayana (P.W.4) and in their presence, P.W.6 inquired with the said accused. The accused No.2, 3 and 6 stated on similar lines that they along with accused No.1,4,5 and 7 have stolen the stolen vehicle herein on the midnight of 06.05.2016 for using it for illegal transportation of Red
Sanders logs and they further confessed that they along with accused
No.4, 5, 7 and 8 were present in the stolen vehicle herein when P.W.5 and his staff tried to intercept the stolen vehicle herein on 19.05.2016 near the bus stop of Khadarpalli, while they were illegally transporting
Red Sanders logs and that all of them except the accused No.1 escaped from P.W.5 and his staff. The accused No.8 had stated that he was in judicial custody at Sub-jail, Bheemavaram from 13.04.2016 to 09.05.2016 in Cr.No.85 of 2016 of Bheemavaram II Town P.S., West
Godavari District, but confessed about his presence in the stolen vehicle herein along with the accused No.1 to 7 on 19.05.2016. The said confession statements of accused No.2, 3, 6 and 8 were recorded under a panchanama dated 06.07.2016, drafted at Urban police station,
Jammalamadugu at 01.30 pm.
6.Further, investigation was taken up by the Inspector of
Jammalamadugu (U) P.S. by name K.Praveen Kumar, the successor in
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office to P.W.6. P.W.7 produced the accused No. 1 and 5 herein before this court on execution of P.T. warrants and the they were remanded to judicial custody. On 10.02.2018, P.W.7 filed a petition before the Court of Authorized Officer-Cum-Divisional Forest Officer, Proddatur requesting to return the stolen property herein i.e., Tata Sumo vehicle bearing
Reg.AP04 TV 5218, to produce it in the present case, which was seized by the Police of Chapadu in Cr.No.50/2016, U/Secs.379, 353, 307, 109, 120-B, 147, 148 r/w 149 I.P.C and Sec.20 (1) (C)(ii)(iii)(iv)(vi)(X) of A.P.
Forest Act, 1967 and other Forest offences for unauthorized transportation of Red Sanders logs. Subsequently, the said Divisional
Forest Officer passed orders, dated 15.03.2018 stating that the said
Sumo vehicle (stolen property herein) cannot be returned since it was involved and seized in an offence relating to Red Sanders logs. Hence, the said stolen Sumo vehicle could not be produced before this Court in this case. After completion of investigation, P.W.7 filed charge sheet.
7.The record shows that the charge sheet is filed only against six accused and two accused (S.Habeebulla @ Gunda) and (Mude Nagamuni
Naik) were shown as absconding and it was mentioned that a separate charge sheet will be filed against them as soon as they are apprehended. The present six accused, who are facing trial, are referred to as accused No.1, accused No.2, accused No.3, accused No.5, accused
No.6 and accused No.8, respectively and the said S.Habeebulla @ Gunda is shown as accused No.4 and the said Mude Nagamuni Naik were shown as accused No.7 in the charge sheet and also in the documents (part-I CD) filed along with the charge sheet. But, the six accused, who are facing trial, were referred to as accused No.1 to 6 respectively in the docket orders. However, for the sake of convenience, they are being
J.F.C.M., JMD. 7 C.C.No.148 of 2018
referred to as accused No1, 2, 3, 6 and 8, as referred to in the charge sheet, in this judgment.
8.Cognizance of the offences under sections 379 or 411 of IPC was taken against the accused herein.
9.On appearance of the accused, they were supplied with copies of documents as required under Section 207 of the Code of Criminal
Procedure, 1973 (for short ‘Cr.P.C’). When they were examined under
Section 239 of the Cr.P.C with reference to the allegations made in the charge sheet, they denied the same. Charges under Sections 379 or 411 IPC were framed against the accused No.1, 2, 3, 5, 6 and 8, read over and explained to them, to which they pleaded not guilty and claimed to be tried.
10.The prosecution, in order to prove its case against the accused herein, has examined PWs.1 to 7 and got marked Exs.P1 to P8. Since the stolen property herein was involved in the commission of Forest offences in Cr.No. 50 of 2016 of Chapadu P.S., the stolen property was produced by the S.H.O., Chapadu police station before the D.F.O.,
Proddatur, as stated supra; and hence, the stolen property i.e., Sumo jeep bearing Reg.No.AP04-TV-5218 is not produced and marked in this case.
11.After closure of prosecution evidence, when the accused No.1, 2, 3, 5, 6 and 8 were examined under Section 313 of Cr.P.C., with reference to the incriminating material appearing against them in the evidence of prosecution witnesses, they denied the same. They, however, did not choose to adduce any evidence on their behalf.
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12.Heard the arguments of the learned APP and the counsel for the accused.
13.Now, the points for determination are:
1) Whether the prosecution brought home the guilty of accused Nos.1,2,3,5,6 and 8
for the offence punishable under section 379 of IPC, beyond all reasonable
doubt?
2) Whether the prosecution brought home the guilty of accused Nos.1,2,3,5,6 and 8
for the offence punishable under section 411 of IPC, beyond all reasonable
doubt?
14.POINT NO.1:- The case of the prosecution is that at about 10.00 am on 19.05.2016, P.W.5 and his staff caught hold of the accused No.1 herein, while he along with the other accused herein were illegally transporting 15 Red Sanders logs in the present stolen vehicle, near
Khadarpalli bus stop; that, except the accused No.1, the remaining accused escaped from P.W.5 and his staff. The accused No.1 had confessed before P.W.5 that he along with the remaining accused committed theft of the stolen vehicle herein in the intervening night of 06.05.2016 and 07.05.2016 for illegal transportation of Red Sanders logs. Accordingly, P.W.5 arrested the accused No.1 and seized the stolen vehicle herein along with the said Red Sanders logs under a panchanama dated 19.05.2016; and a case as Cr.No.50 of 2016 was registered by the S.H.O. of Chapadu P.S. against the accused herein and two others. It is the further case of the prosecution that the stolen vehicle herein could not be produced in this case as the same was seized in a Forest offence and orders of the D.F.O., Proddatur dated 15.03.2018 to that effect were filed. The prosecution had examined
P.Ws.1 to 7 in support of its case.
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15.P.W.1 is the informant and owner of the stolen vehicle. She deposed that about two years ago, their driver G.Ratnaraju-L.W.3 told her in the morning hours that her Sumo bearing Reg.No.AP04-TV-5218 was parked by him near Dalmia canteen at Jammalamadugu on the previous night and that in the morning the said jeep was found missing and he searched for it, but in vain. On the same day, She lodged a written report (Ex.P1) before the S.H.O., Jammalamadugu.
16. P.Ws.2 and 4 are the mediators to the panchanama dated 06.07.2016, wherein it is alleged that the accused No.2, 3, 6 and 8 herein have confessed about the commission of the present offence. They deposed on similar lines that they did not act as mediators to the said panchanama and that they signed in it on one day about two years ago, when they went to Jammalamadugu P.S. on their personal work. Their respective signatures in the said panchanama were marked as Exs.P2 and P4. They were treated as hostile and were cross examined by the learned Assistant Public Prosecutor. Nothing material was elicited in their cross examination, either to discredit their testimony or in support of the prosecutions case.
17. P.W.3 is the V.R.O. of Pallavolu village, Chapadu mandal and one of the mediators to the panchanama dated 19.05.2016. He deposed that at about 9.15 AM on 19.5.2016, while he was at the Tahsildar's Office, a constable of Chapadu P.S. came and requested to accompany him to the
P.S. as per the request of C.I., Proddatur Rural and accordingly, he went to the P.S and there, he saw the C.I., his staff, some forest officials and one M. Rammohan, Sarpanch of Pallavolu village. The C.I. told him that they have received credible information about illegal transportation of
Red Sanders logs and hence requested him and the said M. Rammohan-
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L.W.5 to act as mediators and they agreed to it. Accordingly, he and the said Rammohan accompanied the C.I., his staff and the forest officials in two jeeps and reached Khadarpalli bus stop near Pallavolu on the road between Proddatur and Mydukur at about 9.45 A.M. The Police started vehicular checking and after about 45 minutes, a white color sumo jeep came from Khadarpalli direction and on seeing the Police personnel, eight persons, who were present in the sumo got down and tried to escape. The Police caught one of them, who is accused No.1 herein by name Fakruddin and rest of them escaped. There were Red Sanders logs in the said sumo jeep. On inquiry by the C.I., the accused No.1 disclosed his identity particulars and also about the names and other details of the said seven persons, whose names and details he does not remember. The accused No.1 further confessed that he and the said seven persons were illegally transporting Red Sanders logs and that the said sumo jeep was also committed theft by them in Jammalamadugu on 06.5.2016. There were 15 Red Sanders logs in the said sumo jeep.
The Police seized the said sumo jeep and Red Sanders logs under a
Panchanama drafted at the scene by a Constable to the dictation of the
C.I. at about 12.00 Noon. He along with the said Rammohan, Police personnel, Forest officials and the accused No.1 signed in the said
Panchanama. The said Panchanama, dated 19.5.2016 (Ex.P3) was received in evidence by the prosecution, through PW.3.
18.P.W.5 is the Inspector of Police, Proddatur Rural Circle and the person who arrested the accused No.1 and seized the present stolen vehicle under the said panchanama dated 19.05.2016. He deposed that at 9.30
AM on 19.5.2016, while he was at Chapadu P.S., he received credible information about the illegal transportation of Red Sanders logs and
J.F.C.M., JMD. 11 C.C.No.148 of 2018
after informing the same to his higher authorities, he secured two mediators namely U. Mahaboob Hussain-P.W.3 and M. Rama Mohan-
L.W.2 to the P.S. through a Constable. He also informed the Forest
Officials of Proddatur, who came to Chapadu P.S. and later, he along with his staff and the said mediators and the Forest Officials, left the P.S. and reached the Bus stop at Khadarapalli on the main road between
Proddatur and Mydukur and started conducting vehicular checking; that, they also took a weighing machine, white paint and a measuring tape with them. They reached the said Bus stop at 9.45 AM and at about 10.00 AM, a white Sumo jeep was coming from Khadarapalli and it was going towards Proddatur. The occupants of the said Jeep did not stop and they tried to escape. They stopped the vehicle and there were eight persons in it and they tried to attack him and his staff and they hurled stones at him and his staff by shouting ‘kill the police personnel’ and tried to escape. He and his staff could catch only one person from the said eight persons due to the attack made by them and the others escaped by running in different directions. On inquiry by the said person in the presence of the mediators, the said person disclosed his name as Shaik Simpathi Fakruddin i.e., the accused No.1 herein. The accused No.1 confessed that he along with his brothers and the said seven persons who escaped are in the habit of illegal transporting of
Red Sanders logs and that they have connections with many persons concerned with Red Sanders logs smuggling. Accused No.1 disclosed the names of the said seven persons as 1) Shaik Simpathi Jakeer (brother of accused No.1), 2) Chinnagoresabgari Nawshad, 3) S.
Yaparalapalli Ali, 4) K. Gouse lazam, 5) S. Mahesh, 6) S. Habibulla @
Gunda and 7) M. Nagamuni Naik (i.e., the other accused in this case).
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Accused No.1 further stated that he and the seven persons have stolen the said white Sumo jeep infront of a mess at Teru Bazaar in
Jammalamadugu on 06.5.2016 in the night hours at about 1.30 AM and they are using it for illegal transportation of Red Sanders logs. They found 15 Red Sanders logs in the said jeep. They weighed, measured and marked the said logs with white paint with the help of the Forest
Officials. He also arrested accused No.1 and seized the said 15 logs and the said white Sumo jeep bearing Reg.No.AP04 TV 5218. The said arrest and seizure were done under a panchanama-Ex.P.3 drafted at the said
Bus stop by a Constable to his dictation at 10.00 AM. He mentioned the details of the said logs in Ex.P.3. They returned to Chapadu P.S. and handed over the accused No.1 and the seized property along with case records to the S.I. of Chapadu P.S. with a direction to register a case.
19.P.W.6 is the then Inspector of Jammalamadugu (U) P.S. and one of the investigating officers. He deposed about his investigation, as stated above.
20.P.W.7 is the Inspector of Police, Jammalamadugu (U) P.S. and the successor of P.W.6. He deposed about the registration of this case and the investigation done by the then Inspector of Jammalamadugu (U) P.S.
by name U.Venkata Kumar (L.W.8), as stated above and also about his investigation, as stated above. The F.I.R. (Ex.P5), the rough sketch of scene of offence (Ex.P6), the petition dated 10.02.2018 (Ex.P7) filed in the court of Authorized Officer-cum Divisional Forest Officer, Proddatur and orders dated 15.03.2018 (Ex.P8) passed by Authorized Officer-cum
Divisional Forest Officer, Proddatur were received in evidence by the prosecution, through him.
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21. The learned APP argued that the evidence of P.Ws.3 and 5 along with the panchanama dated 19.05.2016 (Ex.P3) will clearly prove the guilt of the accused and prayed to convict them. On the other hand, it is the arguments of the learned counsel for the accused No.1 to 3, 5, 6 and 8 that the accused have been falsely implicated in the present case as well as in the said Cr.No.50/2016 of Chapadu P.S. for statistical purpose and that there are many discrepancies in the evidence of P.Ws.3 and 5 regarding the proceedings under the panchanama dated 19.05.2016 (Ex.P3) on which the prosecution is mainly relying upon and as such would contend that the accused are entitled to benefit of doubt.
22. It is the case of the prosecution that some unknown offenders have committed theft of the stolen vehicle herein belonging to P.W.1 in the intervening night on 06.05.2016 and 07.05.2016, when it was parked near Dalmia canteen in Jammalamadugu. The accused are not disputing the commission of theft of the stolen vehicle belonging to P.W.1 by some unknown offenders and therefore, they are admitting that the stolen vehicle of P.W.1 has been stolen. The question before the court is whether the accused herein were the persons who have committed theft of the stolen vehicle. P.W.1 had clearly deposed that some unknown offenders have committed theft of the present stolen vehicle belonging to her and thus, she is not a direct witness to the alleged theft. P.W.1 also did not depose anything that the accused herein were the persons who have committed theft of her vehicle. Thus, there is no direct evidence to show that the accused herein were the persons who have committed theft of the stolen vehicle herein. However, the evidence of
P.Ws.3, 5 and 6 shows that the accused herein have made the confession statement about the commission of the theft in the present
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case. It is well settled proposition of law that a confession made before a police officer is inadmissible in evidence. In view of the settled proposition of law, the confession of the accused appearing in the evidence of P.Ws.3, 5 and 6, can not be considered. Thus, there remains no material to connect the accused to the theft in question.
Consequently, it is found that the prosecution had failed to establish the guilt of the accused for the offence punishable U/s 379 of I.P.C.
Accordingly, this point is answered.
23.Point No.2:- It is the case of the prosecution that on 19.05.2016,
P.W.5 arrested accused No.1 and also seized the stolen vehicle herein from the possession of the accused No.1 and at that time seven other persons, who were present along with the accused No.1 in the stolen vehicle herein, escaped; that, P.W.5 had also seized 15 Red Sanders logs that were being transported by the accused No.1 and the said seven persons in the stolen vehicle. The said arrest and seizure were done under cover of a panchanama commenced at 10.00 am and closed at 02.00 pm, in the presence of two mediators (P.W.3 and M.Rama
Mohan – L.W.5).
24. The vehicle said to have been stolen in this case, is said to have been seized in Cr.No.50/2016 while some Red Sanders logs were being transported in it. Since the stolen vehicle has been seized in respect of a
Forest offence, the said vehicle was handed over to the Divisional Forest
Officer, Proddatur. In order to produce the said vehicle in this case,
P.W.7 filed a petition (Ex.P7) before the D.F.O., Proddatur on 10.02.2018 seeking return of the stolen vehicle herein and in pursuance of it, the
D.F.O., Proddatur passed orders (Ex.P8) on 15.03.2018 stating that the stolen vehicle can not be returned as the same is involved in the
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commission of a Forest offence, in view of the section 44 of the A.P
Forest Act, 1967 and that the same is under the process of confiscation.
The accused have not disputed the said production of the stolen vehicle
before the D.F.O., Proddatur and P.W.7 was not even suggested anything
in that regard during his cross examination. Thus, the prosecution has vividly explained as to why the stolen property relating to the present case has not been produced before this court and the said aspect has not been disputed by the accused herein.
25. To bring home the guilt of the accused for the offence punishable under section 411 I.P.C., the prosecution shall establish firstly, the stolen vehicle herein, belonging to P.W.1, was committed theft; secondly, the stolen property (i.e., the stolen vehicle) was recovered from the possession of the accused herein; and finally, the accused herein had failed to account for such possession of the stolen property.
26. While answering point No.1, it was found that the theft pleaded by the prosecution has been proved and that the stolen vehicle herein is a
Sumo jeep bearing Reg.No.AP04-TV-5218, belonging to P.W.1. It may also be noted here that except P.W.1, nobody including the accused herein had claimed the stolen property, as belonging to them. Also, the accused are not disputing with the ownership of P.W.1 over the stolen vehicle. Thus, the first ingredient has been proved by the prosecution.
27. Now the question before the court is, whether the stolen vehicle was recovered from the possession of the accused herein? In order to substantiate its case, the prosecution is relying upon the evidence of
P.W.3 (one of the mediators to the panchanama under Ex.P3) and P.W.5, the Inspector of Proddatur Rural Circle, who had arrested the accused
No.1 and also seized the stolen vehicle under the panchanama under
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Ex.P3. The evidence of P.Ws.3 and 5 is corroborating with the panchanama under Ex.P3 regarding the place, time of arrest of accused
No.1 and the seizure of the stolen vehicle along with other property (Red
Sanders logs). As seen from the evidence of P.Ws.3 and 5, P.W.5 arrested the accused No.1 and seized the stolen property herein (i.e., the stolen vehicle) under a panchanama (Ex.P3) and thus, Ex.P3 is a prime document.
28. It is the arguments of the learned counsel for the accused that the evidence of P.W.3 can not be considered as the prosecution did not file the written permission of the concerned Tahsildar under whom P.W.3 was working and that he, who is a public servant, shall not leave the office without the written permission of his superior and thus, the learned counsel would maintan that it creates a doubt whether P.W.3 had really participated in the arrest and seizure proceedings under Ex.P3. It is also the arguments of the learned counsel for the accused that P.W.3 is a stock witness and for that reason also, his evidence can not be believed.
29. Admittedly, P.W.3 is a Village Revenue Officer and he being a public servant, shall extend his assistance to the police personnel and act as a mediator. It is not the case of the prosecution that P.W.3 had obtained the written permission of his Tahsildar. It is to be noted that there is no cross examination of P.W.3 on this aspect. In the present case, it is the case of the prosecution that P.W.5 received credible information about illegal transportation of Red Sanders logs and he had to secure some mediators. If one insists for a written permission, the said process of obtaining and preparation of written permission and it reaching the hands of the concerned (mediator), considerable delay will be happened and during that time, there is every chance of the suspects escaping,
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which makes the very purpose of which a mediator is being secured, futile. Further, no law requires that a mediator, who is an employee or a public servant, can not act as a mediator unless he obtains written sanction from his superior. Consequently, the contention of the learned counsel for the accused is untenable.
30. The other contention of the learned counsel against the evidence of
P.W.3 is that he is a stock witness, which has no basis. Both P.Ws.3 and 5 have categorically denied in their respective cross examination, that
P.W.3 is a stock witness. The accused did not place any material in support of their contention and they also did not attribute any animosity to P.W.3, to depose falsehood and against them (the accused).
Therefore, there is no need whatsoever for P.W.3 to give false evidence against the accused. Consequently, the arguments of the learned counsel for the accused in this regard are unsustainable.
31.It is also the arguments of the learned counsel for the accused that the panchanama under Ex.P3 as well as the evidence of P.W.3 can not be considered as P.W.3 and the other mediator to Ex.P3 are not the local inhabitants of Khadarpalli village, the village, which is nearest to the place of arrest and seizure under Ex.P3. Thus, it is the contention of the learned counsel that P.W.5 had not complied with the mandatory procedure laid down under section 100 (4) Cr.P.C. and thus, benefit of doubt shall be extended to the accused. In the cross examination of
P.W.5, it was elicited that some public passed through the scene under
Ex.P3 at the time of the said panchanama. It is also not the case of the prosecution that P.W.3 and the other mediator to Ex.P3 are residents of the said Khadarpalli village and as per the record, P.W.3 was the V.R.O. of
Pallavolu village, Chapadu Mandal and the other mediator M.Rama
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Mohan was the Sarpanch of the said Pallavolu village. The question is whether non securing of mediators from the inhabitants of the said
Khadarpalli village is fatal, when the evidence of P.W.3 is otherwise found to be credible and trustworthy. Here, it is apposite to refer to the decision of Hon’ble Apex Court reported in Ronny @ Ronald James
Alwaris Etc vs. State Of Maharashtra [1998 (1) ALT (Crl) page 360 (S.C.)], wherein it was held “…. The only ground of attack on the evidence of PW-6 that he was not from the locality as contemplated under sub- section (4) of Section 100 Cr.P.C. fails because in our view a witness of search other than the one from the locality even if he has been brought by the investigating agencies along with them cannot be disbelieved only on that ground and we do not find anything in his evidence to discredit his testimony. ….”
Thus, in view of the above authority of the Hon’ble Supreme Court, non securing of the local inhabitants as mediators, is not fatal. Further, the learned APP had submitted that the said Pallavolu village is very near to the scene (Khadarpalli bus stop) under Ex.P3, which was not denied by the learned counsel for the accused. Under these circumstances, this court has no hesitation to opine that non securing of local mediators is not fatal to the case of the prosecution and therefore, the said contention of the learned counsel is unsustainable.
32. It is also the arguments of the learned counsel for the accused that the evidence of P.W.5, who is a police personnel, can not be believed as he is an interested witness and he certainly supports the case of the
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prosecution. The following decisions of the Hon’ble Supreme court would show that the evidence of a police officer can not be brushed aside on the mere fact that he is an interested witness, if his evidence is otherwise found to be trustworthy and reliable.
(a)In State of Assam v. Muhim Barataka and another [1987 Crl.L.J 152 = AIR 1987 SC 98], the Hon’ble Apex Court observed that, ''evidence of Police officer cannot be underestimated merely because he is police officer.''
(b)In Tahir Vs. State of Delhi [AIR 1996 SC 3079], the Hon'ble Apex
Court held that:
“Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis for conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case.”
(c) In Anil Alias Andha Sadasiv Nandoskar Vs State of Maharastra [AIR 1996 SC 2943], the Hon'ble Supreme Court observed that, “There is no rule of law that the evidence of police officials has to be discarded or that it suffers from some inherent infirmity. Prudence, however, requires that the evidence of the police officials, who are interested in the outcome of the result of the case, needs to be carefully scrutinized and independently appreciated. The police officials do not suffer from any disability to give evidence and the mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness.”
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In the present case on hand, the evidence of P.W.5 was found to be credible and reliable and his testimony has been corroborated in material particulars by the evidence of P.W.3. Consequently, the contention of the learned counsel for the accused does not sustain.
33.It is also the arguments of the learned counsel for the accused that there are several discrepancies in the evidence of P.W.3 from that of the evidence of P.W.5 and the panchanama under Ex.P3 and the same creates doubt about the credibility of the case of prosecution. According to the learned counsel, P.W.3 had deposed that he along with P.W.5 and others reached the scene under Ex.P3 at about 09.45 am and they saw the stolen vehicle coming after about 45 minutes from the time they have reached the scene under Ex.P3, which is against the case of the prosecution that the stolen vehicle came to the scene at 10.00 am. It is also the contention of the learned counsel, that P.W.3 could not tell the registration number of the stolen vehicle and also the names of the accused other than the accused No.1 and the other details of the panchanama like the description of the alleged Red Sanders logs.
According to Ex.P3 as well as the evidence of P.W.5, he along with his staff, mediators and Forest Officials reached the scene under Ex.P3 at 09.45 am and they saw the stolen vehicle at 10.00 am. It is also true that P.W.3 did not mention the registration number of the stolen vehicle as well as the descriptive particulars of th seized Red Sanders logs. It is to be noted that the proceedings under the said panchanama under
Ex.P3 took place on 19.05.2016 and P.W.3 gave evidence in the court on 16.08.2018, which is after a lapse of more than two years. One can not expect a person, who is giving evidence after a lapse of considerable period like the one in the present case, to state the said events and
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particulars in seriatim and with precision, which is almost an impossible task for a human being. Further, P.W.3 gave only an approximate time and in his evidence, in the cross examination, it was elicited by the learned counsel for the accused, that they were at the scene under
Ex.P3 till 02.00 pm, which is in agreement with the case of the prosecution. It is also natural that a person will not, in many cases, bother to remember even the registration numbers of his own vehicles and therefore, non deposing of registration number of the stolen vehicle and the descriptive particulars of the Red Sanders logs, would only go to show that the conduct of the witness (P.W.3) was natural; and some variations are contradictions in such circumstances are bound to occur and they can not be scrutinized with magnifying glasses. The evidence of P.W.3 regarding the material aspects like the police officer, who had arrested the accused and seized the incriminating material, the place and time of the said arrest and seizure and the things/objects that were seized, is corroborating with the particulars of the panchanama under
Ex.P3 and with the evidence of P.W.5. Therefore, the said discrepancies pointed out by the learned counsel for the accused are not material and they are only trivial in nature, which do not in any way affect the case of the prosecution. Thus, this contention of the learned counsel for the accused is also untenable.
34. It was found that the evidence of P.Ws.3 and 5 is consistent and coherent and the same are corroborating in material particulars with each other and also with the panchanama under Ex.P3. There is no reason whatsoever to disbelieve the testimony of P.Ws.3 and 5.
Therefore, the prosecution had successfully proved that the stolen vehicle was seized by P.W.5 under Ex.P3 and that the accused No.1 was
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arrested while he was in possession of the stolen vehicle. The main question is whether the prosecution could prove that the stolen vehicle has been seized from the possession of only accused No.1, who was arrested at the same time or the prosecution could also prove that the stolen vehicle has been seized from the possession of all the accused herein.
35. There can be no doubt that the accused No.1 was in possession of the stolen vehicle (stolen property in this case) at the time when it was seized by P.W.5, as the accused No.1 was arrested along with the seizure of the stolen vehicle. Regarding the possession of the other accused, it is the case of the prosecution that the accused No.2, 3, 5, 6 and 8 and two others (accused No.4 and 7) escaped on 19.05.2016 and that only accused No.1 was caught by P.W.5 and his staff; and as such it is the contention of the learned APP that the said other accused were also in possession of the stolen vehicle herein along with the accused No.1, who was caught red-handed with the possession of the present stolen property. Admittedly, it is not the evidence of P.W.3 or P.W.5 that they had prior acquaintance with any of the accused herein and thus, the accused are strangers to P.Ws.3 and 5. No descriptive particulars of the seven persons, who are the said to have escaped from the scene under
Ex.P3, were mentioned in Ex.P3. It is also not the case of the prosecution that a Test Identification Parade was held by P.W.5 or by
P.W.6 and 7, to establish whether the accused No.2 to 8 were the persons who had escaped on that day. Further, P.W.3 or P.W.5 did not depose that they can identify the accused No.2, 3, 5, 6 and 8 as the persons who had escaped on that day or they can give the descriptive particulars of the escaped persons. The prosecution is solely relying
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upon the particulars given by the accused No.1 at the time of making his confessional statement, which is inadmissible in view of Sec.26 of the Evidence Act. Consequently, no credence can be given to the testimony of P.Ws.3 and 5 about the possession of the stolen vehicle by the other accused along with the accused No.1. Therefore, the prosecution had failed in proving that the other accused were also in the possession of the stolen property relating to the present case as alleged by it. Therefore, this court is of the considered view that there is no evidence whatsoever against the accused No.2, 3, 5, 6 and 8 to show that they were in possession of the stolen property (stolen vehicle) relating to the present case at the time of its seizure and consequently, they can not be held liable for the offence punishable U/s.411 of I.P.C.
36.It was found that the stolen property in the present case was recovered from the possession of the accused No.1 on 19.05.2016, which is after ten days from the date (07.05.2016) of the commission of theft of the said Sumo vehicle bearing Reg.No.AP04-TV-5218. According to Sec.106 of the Indian Evidence Act, 1872, when any fact is established to be within the knowledge of any person, the burden of proving that fact is upon him. Thus, the burden is upon the accused
No.1 to explain as to why he was in possession of the stolen vehicle and thereby show that he was in possession of the stolen vehicle validly, legally and authorizedly. Admittedly, no such explanation has been offered by the accused No.1 and in fact, it is his contention that the stolen property was not seized from his possession and he has been falsely implicated. According to the illustration (a) to Sec.114 of the
Indian Evidence Act, which says that the court may presume that a person who is in possession of stolen property soon after the theft is
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either the thief or has received such property knowing it to be stolen, unless he can account for his possession. In view of the facts and circumstance of the case, stated above, this is a fit case to take the aid of said presumption and since it was found that the accused No.1 had failed to account for his possession over the stolen property (Sumo vehicle bearing Reg.No.AP04-TV-5218), it can be presumed that he had dishonestly received the stolen property concerned in the present case and consequently, he is liable to be convicted U/s. 411 of I.P.C.
37. In sum and substance it was found that:
(i) the prosecution had failed to establish the guilt of the accused herein for the offence punishable U/s 379 of I.P.C.;
(ii) the prosecution had also failed in proving the guilt of the accused
No.2, 3, 5, 6 and 8 for the offence punishable U/s. 411 I.P.C.
(iii) the prosecution could prove the guilt of the accused No.1 beyond all reasonable doubt for the offence punishable U/s. 411 of I.P.C.;
(iv) the stolen property in this case (i.e., Sumo vehicle bearing
Reg.No.AP04-TV-5218) is in the custody of the D.F.O., Proddatur, as it was involved in the commission of a Forest Offence and hence it was not produced in the present case.
38. In the result:
(a) the accused No.1, 2, 3, 5, 6 and 8 are found not guilty for the offence punishable U/s.379 of IPC and accordingly, they are acquitted for the same U/s.248 (1) of Cr.P.C.;
(b) the accused No.2, 3, 5, 6 and 8 are found not guilty for the offence punishable U/s 411 of I.P.C.and accordingly, they are acquitted for the same U/s.248 (1) of Cr.P.C.; and
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(c) the accused No.1 is found guilty for the offence punishable U/s.411 of IPC and accordingly, he is convicted for the same U/s.248 (2) of
Cr.P.C.
The bail bonds of the accused No.2, 3, 5, 6 and 8 with that of their sureties shall be in force for a period of six months.
Directly typed to my dictation by the Personal Assistant, corrected and
pronounced by me in the open court, this the 04th day of April, 2019.
Sd/- N. Sirish, B.A. B.L.,
Judicial Magistrate of First Class,
JAMMALAMADUGU.
The accused No.1 is absent today and hence, he could not be heard regarding the quantum of sentence. NBWs are issued to secure his presence for hearing on the quantum of sentence.
Sd/- N. Sirish, B.A. B.L.,
Judicial Magistrate of First Class,
JAMMALAMADUGU.
// True copy //