Sri N. Sreenivasa Rao

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I

CLASS:NANDIKOTKUR.

Present: Sri N.Srinivasa Rao, M.A, B.L.,

Judicial Magistrate of I Class, Kurnool.

FAC Judicial Magistrate of I Class, Nandikotkur

Monday the 4 th day of May, 2015

C.C.284/2014

Between:

State: Represented by the Sub Inspector of Police, Nandikotkur Police Station. … Complainant.

-And -

1. Syed Abdul Rawoof S/o S.Abdul Rahiman, aged 34 years, R/o Bheemavaram Village, West Godavari District.

2. Shaik Majeed S/o S.Masoom, aged 20 years, R/o Maruti Nagar, Nandikotkur Town.

3. Shaik Abdul Bhari S/o S.Habeeb Basha, aged 19 years, R/o Haji Nagar, Nandikotkur Town.… Accused 1 to 3.

This case came before me for final hearing in the presence of APP for the state and Sri A.Rahamathulla Baig and Sri P.Nazeer Ahamad, Advocates

for accused and upon perusing the record and having stood over for

consideration, this court delivered the following: -

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

The Sub Inspector of police, Nandikotkur Police Station filed charge sheet in Cr.No.123/2014 for the offence Under Section 457, 380 of Indian

Penal Code against the accused A-1 to A-3.

2. Brief facts of the prosecution case are as follows:

On 20.06.2014 the families of L.Ws.1 and 3 Bandi Srinivasulu,

B.Ramanaiah were slept on the terrace of their houses. On the next day i.e., on 21.06.2014 morning they woke up and they noticed that the lock of the door of their houses broken and on verification they noticed that one pair of gold ear studs, one pair silver anklets, one pair children silver bracelet (Kadiyalu), one silver waist chain and one air toe rings were stolen from the house of L.W.1 Bandi Srinivasulu and one pair of gold ear studs and Forme company cell phone from the house of L.W.3 B.Ramanaiah.

3.Basing on the report of L.W.1, L.W.10 Head Constable registered the case in Cr.No.123/2014 for the offence under Section 457, 380 of Indian

Penal Code.

2

4.It is further alleged that during the course of investigation on 23.06.2014 at about 08.00 hours L.W.11 Sub Inspector of Police arrested the accused and seized the above articles from their possession belongs to

L.Ws.1 and 2 from the possession of accused under the cover of panchanama in the presence of mediators and sent them to court and got remanded to judicial custody. After completion of the investigation police filed charge sheet in this case.

5.On perusal of the charge sheet and other documents filed by the police, this case is taken on file under Section 457, 380 of Indian Penal Code against the accused.

6. On appearance, copies of this case were furnished to accused as contemplated under section 207 Criminal Procedure Code.

7. The accused were examined U/s.239 Criminal Procedure Code and they denied the accusation. Hence charges u/Ss.457, 380 of Indian Penal Code had framed, against the accused and contents of the charge read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

8. During the course of trial the prosecution examined P.W.1 to P.W.6 and got marked Ex.P.1 to Ex.P.6, MOs.1 to 7.

9. After completion of Prosecution evidence the accused were examined

Under Section 313 Criminal Procedure Code. The substance of incriminating material read over and explained to the accused in Telugu for which they denied the same as false and stated that there is no defence evidence on their behalf.

10. However during the course of hearing arguments on petition by learned APP the additional charge under section 411 framed and that the contents of the charge read over and explained to him in Telugu, for which he pleaded not guilty. Thereon heard arguments on both sides and considered the evidence of P.W.1 to P.W.6 coupled with Ex.P.1 to P6 and

MOs.1 to 7 and other material evidence in the record.

11. The point for determination is: Whether the prosecution proved

the guilt of the accused A-1 to A-3 for offence punishable Under

Section 457, 380 or 411 of Indian Penal Code beyond all reasonable

doubt?

12. POINT:

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On careful perusal of the entire evidence available on record in the present case admittedly even P.W.1,P.W.2 personally present at the time of occurrence of alleged offence nearby the scene, they had not caught hold the offender who committed the theft of their property red handedly.

Further for the offence punishable under section 411 ofIndian penal Code what all the Prosecution needs to prove that:

1. That there was theft of some movable property.

2. That the accused was found in possession of the said movable property.

3. That the accused failed to submit proper explanation for its possession

and

4. That the accused retained or detained it knowing it to be stolen property.

13. The learned A.P.P. argued that the evidence of prosecution witnesses

P.W.1 to P.W.6 coupled with Ex.P.1 to Ex.P.6 and MOs.1 to 7 sufficiently established the guilt of the accused beyond all reasonable doubt and prays the court to convict the accused according to law. On the other hand the learned counsel for the accused argued that the evidence of P.W.1 to P.W.6 coupled with Ex.P.1 to Ex.P.6 and MOs.1 to 7 are not at all sufficient to convict the accused and there were several contradictions and omissions in the evidence of material witnesses and the seizure was not carried out according to section 100 (4) Criminal Procedure Code. Therefore, he sought for acquittal of the accused.

14. To substantiate their case the prosecution, they firstly examinedPW.1

B.Srinivasulu and he deposed that on 20.06.2014 at 6 am he along with his family were slept on terrace by locking the doors of their house. Early morning at 6 am they found that the doors of their house were broken. Later they went inside the house and found the articles in pell-mell condition and the doors of the almirah are also broken. On verification he found that gold buttala kammalu, one pair of silver kadiyalu, one pair of silver anklets, one pair of silver mettelu, one silver molatradu (Waist wearing chain) are stolen by unknown persons. L.W.3 and his family were also slept on terrace on the last night and later he also came to know that unknown offenders are also committed theft in the house of L.W.3 and stolen one pair of gold ear rings, one cell phone (Forme company).

15.P.W.1 further deposed that later he went to the P.S. and lodged the complaint on the same date and the same is marked as Ex.P1. After two days the police informed to him that the case property was recovered and called him for property identification parade. Subsequently he along with 4

L.W.3 attended the TIP and identified the stolen articles in the presence of

VRO at MRO office, Nandikotkur. He did not receive interim custody of case property ordered vide Crl.M.P.No.2325/2014, dt.11.11.2014 due to non- availability of surety. The case property is produced before this court today through SHO of Nandikotkur. He can identify the stolen property belongs to him. M.O.1 is the one pair of gold buttala kammalu, MO.2 is one pair of silver anklets, MO.3 is the one pair of silver kadiyalu, MO.4 is the one silver molatradu, MO.5 is one pair of silver mettelu. Police examined him, the same property MO.1 to 5 are returned in view of memo for interim custody to

P.W.1 on execution of self bond of Rs.20,000/-.

16.P.W.2 Ramanaiah deposed that he along with his family were slept on terrace and that on 20.06.2014 at 6 am they found that the doors of their house was broken. Later they went inside the house and found the articles in pell-mell condition and the doors of the almirah are also broken. On verification he found that one pair of gold ear rings, one cell phone (Forme company) are stolen by unknown persons. Later he also came to know that unknown offenders are also committed theft in the house of P.W.1 and stolen the ornaments. Later P.W.1 went to the P.S. and lodged the complaint on the same date and the same is marked as Ex.P1.

17.P.W.2 further deposed that two days thereafter the police informed him that the case property was recovered and called him for property identification parade. Subsequently he along with P.W.1 attended the TIP and identified the stolen articles in the presence of VRO at MRO office,

Nandikotkur. He did not receive interim custody of case property ordered vide Crl.M.P.No.2325/2014, dt.11.11.2014 due to work. The case property is produced before this court today through SHO of Nandikotkur. He can identify the stolen property belongs to him. M.O.6 is the one pair of gold ear studs, MO.7 is the one cell phone (Forme Company). Police examined him, the same property MO.6 and 7 are returned in view of memo for interim custody to him on execution of self bond of Rs.5,000/-.

18.P.W.3 Abdul Gafur deposed that he do not know the contents and the reason for obtaining his signatures on the said paper shown to him. No property was seized and none were arrested in his presence by police. He do not know the accused A-1 to A-3. The signatures shown to him are belongs to him and the same is marked as Ex.P.2.

19.P.W.4 B.Parameswara Reddy deposed that on 21.06.2014 at 11 am he received requisition from the SHO of Nandikotkur to conduct property identification panchanama at MRO office and he sent seven gold ornaments 5 through PC with a request to conduct the property identification parade with

P.Ws.1 and 2. Subsequently he conducted the property parade which is already marked as MOs.1 to 5 along with other properties and P.W.1 identified the MOs.1 to 5 are his property. Subsequently he conducted the same property identification parade with P.W.2 for MOs.6 and 7 and he identified for MOs.6 and 7 as his property. Later he drafted the property identification panchanama marked as Ex.P3.

20.P.W.5 Kalimulla Baig, ASI of Police deposed that on 21.06.2014 at 12.30 hours while he was present at the PS P.W.1 came and lodged written complaint marked as Ex.P1. Basing on Ex.P.1 he registered a case in

Cr.No.123/2014 of Nandikotkur P.S for the offence U/s.457, 380 of IPC and issued FIR and same is marked as Ex.P4 and he examined P.W.1 and recorded his 161 Cr.P.C statement at the P.S., on the same day i.e., 21.06.2014 he proceeded to the house of P.W.1 located near College Midthur road, Nandikotkur and drafted the rough sketch marked as Ex.P5.

21.P.W.6 M.Abdul Jaheer, Sub Inspector of Police deposed that he received

CD file relating to this case from P.W.5 on 22.06.2014, Verified the investigation done by him found it on correct lines. On the same day he along with his staff and P.W.3, L.W.8 V.Venakteswarlu were proceed to Gowri sankar Gas Agency Midthur road and reached thereby 6.50 pm. There they noticed presence of accused A-1 to A-3 in suspicious circumstances and on seeing them accused A-1 to A-3 tried to run away, but they were caught hold of accused A-1 to A-3.

22.P.W.6 further deposed that on interrogation separately all of accused

A-1 to A-3 confessed that on 20.06.2014 during the night time they had committed house breaking at college road, Nandikotkur and thereby committed theft in two houses. On searching he found one pair of gold butta kammalu, one pair of silver anklets and one pair of silver kadiyalu from the possession of accused A1, one silver molatradu, one pair of silver kalimettelu from the possession of accused A2, one pair of gold ear studs and one cell phone (Forme company) from the possession of accused A3. On verification he had identified the same is stolen property in Cr.No.123/2014 of

Nandikotkur P.S., 23.P.W.6 further deposed that he arrested accused A-1 to A-3, seized the above noted property from the possession of them under the cover of panchanama in the presence of mediators. Ex.P6 is the panchanama, dt.22.06.2014 at 7.00 pm. Then he took them and case property to the PS and thereon he sent them to court with remand report and got remanded 6 them. Further on 25.06.2014 he got conducted property identification parade through P.W.4 at MRO office, Nandikotkur in which P.Ws.1 and 2 were participated and identify their respective properties under the cover of property identification proceedings which is Ex.P3. MOs.1 to 7 are the case properties relating to this case. After completion of investigation he filed the charge sheet in this case.

24.On careful perusal of prosecution evidence to prove theft of the case property the prosecution examined P.W.1, P.W.2 and they deposed about theft of case properties from their possession at Nandikotkur and about giving of report at Nandikotkur police station. Further P.W.5 who is investigating officer in this case also supported the version of P.W.1, P.W.2 about registration of the case by them basing of the report of P.W.1. The learned defence counsel failed to discredit the evidence of P.W.1, P.W.2 in regard to theft of case properties from their possession at Nandikotkur and also about giving of the report to the police. Therefore the evidence of P.W.1,

P.W.2 in regard to theft of case property auto from his possession and thereafter about the registration of case by P.W.5 basing on the report of

P.W.1 is remained discredited.

25.Further to establish that seizure of the case property Auto from the conscious possession of the accused and arrest of the accused, the prosecution depended upon the evidence of other material witnesses. On careful perusal of the entire evidence available on record, admittedly even

P.W.1, P.W.2 were personally present at the time of alleged offence, nearby the scene; they failed to caught hold the offenders red handedly. Further no one was examined as a witness by the prosecution who is present personally at the time of alleged offence took place and witnessed the same. Hence the ingredients for the offence punishable under section 457, 380 of Indian Penal

Code do not attracted to this case and the accused are not liable for punishment under section 457, 380 of Indian Penal Code. Further to establish the offence under section 411 of Indian Penal Code, the prosecution needs to prove that the case property which is said to have been stolen was recovered from the conscious possession of the accused soon after commission of theft and accused kept the same with them knowing it to be the stolen property. It is pertinent at this stage to mention the provisions of

Section 114 and114 (a) of Indian Evidence Act which reads as follows:-

Section114: Court may presume existence of certain facts:-

The Court may presume the existence of any fact which it thinks likely have happened regard being had to the common 7 course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

The Court may presume-

Section 114 (a):

That a man who is in possession of stolen goods soon after the

theft is either the thief or has received the goods knowing them to

be stolen, unless he can account for his possession.

26.Therefore Section 114 (a) of Indian Evidence Act casts a duty upon the court to presume a fact that when the accused is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen property unless he is accounted for it. Further the said presumption is discretion conferred on the court which cannot be exercised by the court against the accused unless the cogent evidence is produced by the prosecution establishing that the case property recovered from the conscious possession of the accused soon after the commission of theft. In the instant case, even though the prosecution able to prove that the case properties were stolen by somebody from the possession of P.W.1 beyond reasonable doubt, they failed to prove that the same was recovered from conscious possession of the accused soon after the commission of theft.

27.The presumption under Section 114(a) of Indian Evidence Act arises only when the Prosecution could able to prove recovery of the stolen property from the possession of the accused soon after the commission of theft. In the absence of such evidence, no inference could be drawn and the accused need not offered any explanation even for such alleged possession of the case property. In the present case P.W.3 who is alleged to have been acted as mediator not deposed any incriminating evidence against the accused, he did not identified the accused in open court and that they became hostile. The learned APP sought permission of this court to treat the evidence of P.W.3 is hostile. Permission granted after perusal of the record and evidence of the witnesses. Further the learned A.P.P. was permitted to put the questions in nature of cross-examination to P.W.3. In such cross- examination the learned APP failed to elicit any incriminating evidence against the accused except giving suggestions and marking of their signature on the mediators report as Ex.P-2. Therefore in view of the inconsistent evidence of P.W.3 who are acted as mediators and when they turned hostile, the evidence of P.W.6 who is investigating officer can’t be sole basis to believe that they are seized the case property from the possession of the accused in the presence of mediators as contended by 8 them. When the prosecution failed to prove that case property M.O.1 to

M.O.7 was seized from the possession of the accused at the above said place, the seizure itself becomes doubtful and if the court convicted the accused basing on the evidence of P.W.6, it may leads to miscarriage of justice.

28.Further when the evidence of mediator P.W.3 is not taken into consideration, the confession of the accused before the police officer P.W.6 is of no value in the eye of law as per Section 25 and 26 of Indian Evidence Act.

As the police did not recover the case property immediately after committing the theft from the conscious possession of the accused in the presence of independent mediators by following the procedure laid down under section 100(4) of Criminal Procedure Code, the burden could not be shifted to the accused under section 114 (a) of Indian Evidence Act for calling upon the accused to rebut the presumption to prove that they are not in possession of the stolen property. Therefore it is sole burden of Prosecution itself to prove their case.

29.Further according to section 100(4) of Criminal Procedure Code, the investigating officer has to secure two independent mediators from the place of seizure and if any person refused to act mediator, he can take action against him according to law. The prosecution failed to give any explanation for non-securing independent mediators from the place of seizure of the case property and at the place of the alleged arrest of the accused. Further admittedly police did not examine any of the independent witnesses at the place of seizure of case property and also not obtained their signatures on mediators report. Therefore basing on sole evidence P.W.6 the accused cannot be convicted unless there is sufficient other corroborating evidence is there in support of his evidence.

30.In the light of above discussion when P.W.3 who are alleged to have been acted as mediators in this case not supported the case of the prosecution, turned hostile and when the seizure was not carried out according to section 100(4) of Criminal Procedure Code the accused cannot be convicted basing on the sole evidence of investigating officer without independent corroborating evidence about seizure of the case property from the conscious possession of the accused soon after commission of theft. In the said circumstances the benefit of doubt must be given to the accused.

31.In the result, the accused A-1 to A-3 are found not guilty for the offence Under Sections 457, 380 or 411 of Indian Penal Code and they are acquitted Under Section 248(1) Criminal Procedure Code. The accused are 9 set at liberty forthwith. The concerned Jail authorities are directed to release the accused A.1 and A.2 forthwith if their presence is not required in any other case. The case property MO.1 to M.O.7 which are returned to P.W.1,

P.W.2 respectively for interim custody shall hold well after lapse of appeal time. The unmarked non valuable property if any shall be destroyed after lapse of appeal time. The bail bonds and sureties of the accused shall be in force for a period of 6 months U/sec.437 (A) of Cr.P.C.

Dictated to the Personal Assistant, directly typed by her in computer,

corrected and pronounced by me in open court, this the 4th day of May, 2015.

Sd/- N. Sreenivasa Rao

Judicial Magistrate of I Class, Kurnool.

FAC Judicial Magistrate of I Class, Nandikotkur

APPENDIX OF EVIDENCE

Witnesses examined

For Prosecution : For defence:

P.W.1 : B.Srinivasulu

P.W.2 : Ramanaiah

P.W.3 : Abdul Gafur

P.W.4 : B.Parameswara Reddy

P.W.5 : Kalimulla Baig

P.W.6 : M.Abdul Jaheer- None –

Exhibits marked

For Prosecution: For Defence:

Ex.P.1: Report of P.W.1

Ex.P.2 : Signature of P.W.3 on panchanama 22.06.2014 at 7.00 p.m.

Ex.P.3 : Property identification panchanama

Ex.P.4 : FIR - N I L –

Ex.P.5 : Rough sketch of the scene

Ex.P.6 : Panchanama dated 22.06.2014 at 7.00 p.m.

Material Objects marked.

M.O.1: one pair of gold buttala kammalu

MO.2 : one pair of silver anklets

MO.3 : one pair of silver kadiyalu 10

MO.4 : one silver molatradu

MO.5 : one pair of silver mettelu

M.O.6 : one pair of gold ear studs

MO.7 : one cell phone (Forme Company).

Sd/- N. S.R.

JFCM, KNL.

FAC JFCM., NDK

11

CALENDAR AND JUDGMENT.

In the court of the Judicial Magistrate of I Class :: Kurnool.

Calendar Case No.284/2014

Date of offence: 20.06.14

Date of complaint.: 21.06.14

Date of apprehension of accused.: 20.06.14

Date of release on bail.: 28.06.14 & 02.07.14

Date of commencement of trial.: 19.11.14

Date of close of trial.: 27.04.15

Date of sentence or order.: 04.05.15

Explanation.: ----

Complainant: State: Represented by the Sub Inspector of Police, Nandikotkur Police Station

S.NNameFather’s nameReligioOccupatioResidenceAge onn Bheemavaram S.Abdul 34

1.SyedAbdul Muslim-Village,West Rahimanyrs Rawoof Godavari District MuslimMarutiNagar, 20 2Shaik Majeed S.MasoomNandikotkur yrs Town MuslimHajiNagar, 19 3Shaik Abdul Bhari S.Habeeb BashaNandikotkur yrs Town

Offence: Theft U/S.457, 380 or Dishonestly receiving stolen property U/S.411 of Indian Penal Code.

Section of Law : 457, 380 or 411 of IPC

Finding. : Not guilty

Sentence or order: In the result, the accused A-1 to A-3 are found not guilty for the offence Under Sections 457, 380 or 411 of Indian Penal Code and they are acquitted Under Section 248(1) Criminal Procedure Code. The accused are set at liberty forthwith. The concerned Jail authorities are directed to release the accused A.1 and A.2 forthwith if their presence is not required in any other case. The case property MO.1 to M.O.7 which are returned to P.W.1, P.W.2 respectively for interim custody shall hold well after lapse of appeal time. The unmarked non valuable property if any shall be destroyed after lapse of appeal time. The bail bonds and sureties of the accused shall be in force for a period of 6 months U/sec.437 (A) of Cr.P.C.

Sd/- N. Sreenivasa Rao

Judicial Magistrate of I Class, Kurnool.

FAC Judicial Magistrate of I Class,

Nandikotkur

Copy submitted to the Hon’ble Chief Judicial Magistrate, Kurnool.

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I

CLASS:NANDIKOTKUR.

Present: Sri N.Srinivasa Rao, M.A, B.L.,

Judicial Magistrate of I Class, Kurnool.

FAC Judicial Magistrate of I Class, Nandikotkur

Monday the 4 th day of May, 2015

C.C.236/2014

Between:

State: Represented by the Sub Inspector of Police, Nandikotkur Police Station.…

Complainant.

-And -

Tammadapalli Bujji @ Mala Bujji, S/o John Sundar Rao, aged 23 years, R/o Maruti Nagar, Nandikotkur Town.… Accused

This case came before me for final hearing in the presence of APP for the state and Sri S.Venkata Reddy, Advocate for accused and upon perusing the record and having stood over for consideration, this court delivered the following: -

J U D GM E N T

The Sub Inspector of police, Nandikotkur Police Station filed charge sheet in Cr.No.120/2014 for the offence Under Section 379 of Indian Penal

Code against the accused.

2. Brief facts of the prosecution case are as follows:

On 18.06.2014 at about 8 pm the L.W.1 Shaik Saleem went to his petrol bunk situated outskirts of Nandikotkur Town on his Unicorn Motor

Cycle Bearing No.AP.21.AP.4273 and kept the same at Petrol Bunk and returned to his home. At about 2.30 am he noticed that his motor cycle found missing and the same is informed by L.W.2 Lokesh and that he reported the same to Police Station.

3.Basing on the report of L.W.1, L.W.6 Sub Inspector of Police registered the case in Cr.No.120/2014 for the offence under Section 379 of Indian Penal

Code.

4.It is further alleging that during the course of investigation on 20.06.2014 L.W.7 Sub Inspector of Police arrested the accused at 08.00 hours and seized Unicorn Motor Cycle Bearing No.AP.21.AP.4273 belongs to

L.W.1 from the possession of accused under the cover of panchanama in the presence of mediators and sent him to court and got remanded to judicial 2 custody. After completion of the investigation police filed charge sheet in this case.

5.On perusal of the charge sheet and other documents filed by the police, this case is taken on file under Section 379 of Indian Penal Code against the accused.

6. On appearance, copies of this case were furnished to accused as contemplated under section 207 Criminal Procedure Code.

7. The accused was examined U/s.239 Criminal Procedure Code and he denied the accusation. Hence charge u/Ss.379 of Indian Penal Code had framed, against the accused and contents of the charge read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

8. During the course of trial the prosecution examined P.W.1 to P.W.7 and got marked Ex.P.1 to Ex.P.6 and MOs.1 and 2.

9. After completion of Prosecution evidence the accused was examined

Under Section 313 Criminal Procedure Code. The substance of incriminating material read over and explained to the accused in Telugu for which they denied the same as false and stated that there is no defence evidence on their behalf.

10. However during the course of hearing arguments on petition by learned

APP the additional charge under section 411 framed and that the contents of the charge read over and explained to him in Telugu, for which he pleaded not guilty. Thereon heard arguments on both sides and considered the evidence of P.W.1 to P.W.7 coupled with Ex.P.1 to P6 and MOs.1 and 2 and other material evidence in the record.

11. The point for determination is: Whether the prosecution proved

the guilt of the accused for offence punishable Under Section 379 or

411 of Indian Penal Code beyond all reasonable doubt?

12. POINT:

On careful perusal of the entire evidence available on record in the present case no one were personally present at the time of occurrence of alleged offence, not caught hold the offender who committed the theft of motor cycle red handedly. Further for the offence punishable under section 411 ofIndian penal Code what all the Prosecution needs to prove that:

1. That there was theft of some movable property.

3

2. That the accused was found in possession of the said movable property.

3. That the accused failed to submit proper explanation for its possession

and

4. That the accused retained or detained it knowing it to be stolen property.

13. The learned A.P.P. argued that the evidence of prosecution witnesses

P.W.1 to P.W.7 coupled with Ex.P.1 to Ex.P.6 and MOs.1 and 2 sufficiently established the guilt of the accused beyond all reasonable doubt and prays the court to convict the accused according to law. On the other hand the learned counsel for the accused argued that the evidence of P.W.1 to P.W.7 coupled with Ex.P.1 to Ex.P.6 and MOs.1 and 2 are not at all sufficient to convict the accused and there were several contradictions and omissions in the evidence of material witnesses and the seizure was not carried out according to section 100 (4) Criminal Procedure Code. Therefore, he sought for acquittal of the accused.

14. To substantiate their case the prosecution, they firstly examinedPW.1

S.Saleem and he deposed that on 18.06.2014 in routine course he went to

Petrol bunk on his bike Bearing No.AP.21.P.4273. Later after completion of his work he left his bike at petrol bunk in the premises of petrol pump and came back his house in friend’s car. Later he received phone call from L.W.1 and informed him that his bike and his cell phone are stolen by some unknown person. Later he went to his petrol bunk and made search but found nothing and he gave complaint to the P.S and that on the next date and same is marked as Ex.P1.

15.P.W.1 further deposed that two days thereafter he received a phone call from SHO of Nandikotkur that the stolen property was recovered and called him for verification. Later he received interim custody of his bike from the SHO of Nandikotkur vide orders in Crl.M.P.No.1679/2014, dt.10.09.2014.

The same is produced before this court and the same is marked as MO.1 and that Police examined him.

16.P.W.2 Kumar deposed that on 18.06.2014 he attended his duty at petrol pump at 7 pm and subsequently P.W.1 came on his bike to the petrol bunk and he took the cash and return back to his house in his friend’s car by parking his two wheeler bike Bearing NO.AP.21.AP.4273. Subsequently he slept inside the office room and L.W.2 slept outside the office room. Later at 2.30 am midnight L.W.2 informed him that his cell phone and the motor bike of P.W.1 is found missing and some unknown offenders have committed theft of the cell phone and the bike.

4

17.P.W.2 further deposed that later they searched the stolen articles but they did not find anywhere. Later they informed the same to P.W.1. Then he along with L.W.2 and P.W.1 searched for the stolen articles but they did not find them. He cannot say the worth of the stolen bike, but the stolen cell phone cost around Rs.1500/- and that Police examined him.

18.P.W.3 Lokesh deposed that on 18.06.2014 he attended his duty at petrol pump at 7 pm. Subsequently P.W.1 came on his bike to the Petrol bunk and took away the cash and return back to his house in his friend’s car by parking his two wheeler Bearing No.AP.21.P.4273. Subsequently P.W.2 slept inside the office room and he slept outside the office room along with his cell phone. Later at 3 am midnight he found that his cell phone and the motor bike of P.W.1 is found missing. Some unknown offenders have committed theft of the cell phone and the bike. Subsequently he along with

P.W.2 searched for the stolen articles but they did not find anywhere. Later they informed the same to P.W.1 over hone. Then he along with P.Ws.1 and 2 searched for the stolen articles but they did not find them and that later

P.W.1 lodged the complaint.

19.P.W.3 further deposed that after two days he came to know from the police that the stolen property is recovered. The stolen case property cell phone (Kechadda) is produced before the court by the SHO of Nandikotkur

PS and the same is identified by P.W.3 and marked as MO.2 and that the said material object MO.2 is returned to P.W.3 in view of memo filed by him by taking self bond and Police examined him.

20.P.W.4 N.Ranganna and P.W.5 Chennaiah deposed that on 20.06.2014 at 7.30 pm the Sub Inspector of Police, Nandikotkur Police station called them through their constable to RTC Bus stand, Nandikotkur. L.Ws.6 and 7 along with their staff were conducting vehicle checking near RTC Bus stand,

Kurnool road. By the time he reached the RTC Bus stand the police were drafting the panchanama and showed him the seized motor bike Bearing

No.AP.21.AP.4273, black in colour along with China company cell phone. The police reported them that they have seized the above mention properties from a person by name called Bujji. They do not know whether he was present there or not and they did not see him. They endorsed their signatures on the arrest and seizure panchanama, dt.20.06.2014 at 7.30 pm at RTC Bus stand, Nandikotkur. He is aware of the contents of the arrest and seizure panchanama. Ex.P2 is the signature of P.W.4 on the arrest and seizure panchanama. Ex.P3 is the signature of P.W.5 the arrest and seizure panchanama. In their presence the police seized MOs.1 and 2 under the cover of panchanama, but they did not arrest anyone in their presence.

5

21.P.W.6 M.Abdul Jaheer, Sub Inspector of Police deposed that on 19.06.2014 at about 10.30 pm while he was present at the P.S, P.W.1 came and lodged written complaint marked as Ex.P1. Basing on Ex.P.1 he registered a case in Cr.No.120/2014 of Nandikotkur P.S for the offence

U/s.379 of IPC and issued FIR and same is marked as Ex.P4. There he examined P.W.1 at the P.S and subsequently on the next day i.e., on 20.06.2014 he proceeded to the scene of offence which is to Bharat Petrol

Bunk, towards Kurnool, examined P.Ws.2 and 3 and recorded their 161

Cr.P.C statements and he had drawn the rough sketch marked as Ex.P5.

Later he handed over the CD file his successor L.W.7 for further investigation.

22.P.W.7 G.Jeevan Ganganath Babu, Sub Inspector of Police deposed that he received CD file relating to this case from P.W.6 on 20.06.2014, Verified the investigation done by him and found it on correct lines. On 20.06.2014 at about 6.30 pm he along with his staff conducted routine vehicle checking at

RTC bus stand Nandikotkur. While so, accused came on motor cycle from inside of the bus stand and on seeing them when he try to skulk away they caught hold of accused. As the accused found in suspicious circumstances he secure the presence of P.Ws.4, 5 and in their presence on interrogation accused disclosed his name, address particulars and also confessed on 18.06.2014 he committed theft of motor cycle and cell phone at Nandikotkur from inside the petrol bunk on Kurnool road and on the same day he kept the said vehicle at bushes on the back side of RTC bus stand, Nandikotkur and went away and when the accused is coming with the said vehicle, cell phone to sold away to others he arrested accused, seized the cell phone, motor cycle Bearing No.AP.21.AP.4273 under the cover of panchanama in the presence of mediators. He had identified the said cell phone, motor cycle i.e., the stolen property of Cr.No.120/2014 of Nandikotkur P.S., Ex.P6 is the panchanama, dt.20.06.2014 at 7.30 pm. MOS.1 and 2 are the case properties relating to this case. He sent accused to court with remand report on the next day and got remanded accused and case properties submitted to this court. After completion of investigation he filed the charge sheet in this case.

23.On careful perusal of prosecution evidence to prove theft of the case property the prosecution examined P.W.1 to P.W3 and he deposed about theft of M.O.1, M.O2 properties from their possession at Nandikotkuru and about giving of report at Nandikotkur police station. Further P.W.4 who is one of the investigating officer in this case also supported the version of P.W.1 about registration of the case by him basing of the report of P.W.1. The learned defence counsel failed to discredit the evidence of P.W.1 to P.W.3 in 6 regard to theft of M.O.1, M.O2 properties from their possession at

Nandikotkur and also about giving of the report to the police. Therefore the evidence of P.W.1 in regard to theft of case property M.O.1, M.O2 properties from their possession at Nandikotkur and thereafter about the registration of case by P.W.4 basing on the report of P.W.1 is remained discredited.

24.Further to establish that seizure of the case property Auto from the conscious possession of the accused and arrest of the accused, the prosecution depended upon the evidence of other material witnesses. On careful perusal of the entire evidence available on record, admittedly even

P.W.2, P.W.3 were personally present at the time of alleged offence nearby the scene; he failed to caught hold the offender red handedly. Further no one was examined as a witness by the prosecution who is present personally at the time of alleged offence took place and witnessed the same. Hence the ingredients for the offence punishable under section 379 of Indian Penal

Code do not attracted to this case and the accused is not liable for punishment under section 379 of Indian Penal Code. Further to establish the offence under section 411 of Indian Penal Code, the prosecution needs to prove that the case property which is said to have been stolen was recovered from the conscious possession of the accused soon after commission of theft and accused kept the same with them knowing it to be the stolen property. It is pertinent at this stage to mention the provisions of

Section 114 and114 (a) of Indian Evidence Act which reads as follows:-

Section114: Court may presume existence of certain facts:-

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

The Court may presume-

Section 114 (a):

That a man who is in possession of stolen goods soon after the

theft is either the thief or has received the goods knowing them to

be stolen, unless he can account for his possession.

25.Therefore Section 114 (a) of Indian Evidence Act casts a duty upon the court to presume a fact that when the accused is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen property unless he is accounted for it. Further the said presumption is discretion conferred on the court which cannot be exercised by the court against the accused unless the cogent evidence is produced by the prosecution establishing that the case property recovered 7 from the conscious possession of the accused soon after the commission of theft. In the instant case, even though the prosecution able to prove that theft of case property M.O.1, M.O2 from their possession at Nandikotkur by somebody from the possession of P.W.1 to P.W.3 beyond reasonable doubt, they failed to prove that the same was recovered from conscious possession of the accused soon after the commission of theft.

26.The presumption under Section 114(a) of Indian Evidence Act arises only when the Prosecution could able to prove recovery of the stolen property from the possession of the accused soon after the commission of theft. In the absence of such evidence, no inference could be drawn and the accused need not offered any explanation even for such alleged possession of the case property. In the present case the mediator P.W.4, P.W.5 who are alleged to have been acted as mediators in this case not deposed any incriminating evidence against the accused, they also not identified the accused in open court and that they became hostile. The learned APP sought permission of this court to treat the evidence of P.W.4, P.W.5 is hostile.

Permission granted after perusal of the record and evidence of the witnesses. Further the learned A.P.P. was permitted to put the questions in nature of cross-examination to P.W.4, P.W.5. In such cross-examination the learned APP failed to elicit any incriminating evidence against the accused except giving suggestions and marking of their signature on the mediators report as Ex.P-2, Ex.P-3. Therefore in view of the inconsistent evidence of

P.W.4, P.W.5 who are acted as mediators and when they turned hostile, the evidence of P.W.7 who is investigating officer can’t be sole basis to believe that they are seized the case property from the possession of the accused in the presence of mediators as contended by them. When the prosecution failed to prove that case property M.O.1, M.O.2 were seized from the possession of the accused at the above said place, the seizure itself becomes doubtful and if the court convicted the accused basing on the evidence of

P.W.7, it may leads to miscarriage of justice.

27.Further when the evidence of mediators P.W.4, P.W.5 is not taken into consideration, the confession of the accused before the police officer P.W.7 is of no value in the eye of law as per Section 25 and 26 of Indian Evidence Act.

As the police did not recover the case property immediately after committing the theft from the conscious possession of the accused in the presence of independent mediators by following the procedure laid down under section 100(4) of Criminal Procedure Code, the burden could not be shifted to the accused under section 114 (a) of Indian Evidence Act for calling upon the accused to rebut the presumption to prove that they are not in possession of 8 the stolen property. Therefore it is sole burden of Prosecution itself to prove their case.

28.Further according to section 100(4) of Criminal Procedure Code, the investigating officer has to secure two independent mediators from the place of seizure and if any person refused to act mediator, he can take action against him according to law. The prosecution failed to give any explanation for non-securing independent mediators from the place of seizure of the case property and at the place of the alleged arrest of the accused. Further admittedly police did not examine any of the independent witnesses at the place of seizure of case property and also not obtained their signatures on mediators report. Therefore basing on sole evidence P.W.7 the accused cannot be convicted unless there is sufficient other corroborating evidence is there in support of his evidence.

29.In the light of above discussion when P.W.4, P.W.5 who are alleged to have been acted as mediators in this case not supported the case of the prosecution, turned hostile and when the seizure was not carried out according to section 100(4) of Criminal Procedure Code the accused cannot be convicted basing on the sole evidence of investigating officer without independent corroborating evidence about seizure of the case property from the conscious possession of the accused soon after commission of theft. In the said circumstances the benefit of doubt must be given to the accused.

30.In the result, the accused is found not guilty for the offence Under

Sections 379 or 411 of Indian Penal Code and he is acquitted Under Section 248(1) Criminal Procedure Code. The accused is set at liberty forthwith. The concerned Jail authorities are directed to release the accused forthwith if their presence is not required in any other case. The case property MO.1,

M.O.2 which are returned to P.W.1, P.W.3 respectively for interim custody shall hold well after lapse of appeal time. The unmarked non valuable property if any shall be destroyed after lapse of appeal time. The bail bonds and sureties of the accused shall be in force for a period of 6 months under section 437(A) of Criminal Procedure Code.

Dictated to the Personal Assistant, directly typed by her in computer,

corrected and pronounced by me in open court, this the 4th day of May, 2015.

Sd/- N. Sreenivasa Rao

Judicial Magistrate of I Class, Kurnool

FAC Judicial Magistrate of I Class, Nandikotkur

9

APPENDIX OF EVIDENCE

Witnesses examined

For Prosecution : For defence:

P.W.1 : S.Saleem

P.W.2 : Kumar

P.W.3 : Lokesh

P.W.4 : N.Ranganna

P.W.5 : Chennaiah

P.W.6 : M.Abdul Jaheer

P.W.7 : G.Jeevan Ganganath Babu - None –

Exhibits marked

For Prosecution: For Defence:

Ex.P.1: Report of P.W.1

Ex.P.2 : Signature of P.W.4 on panchanama dt.20.06.2014 at 7.30 pm

Ex.P.3 : Signature of P.W.5 on panchanama dt.20.06.2014 at 7.30 pm

Ex.P.4 : FIR - N I L –

Ex.P.5 : Rough sketch of the scene

Ex.P.6 : Panchanama dated 20.06.2014 at 7.30 p.m.

Material Objects marked.

M.O.1: Unicorn Motor Cycle Bearing No.AP.21.AP.4273.

M.O.2: Cell phone.

SD. N.S.R

JFCM, KNL.

FAC JFCM., NDK

10

CALENDAR AND JUDGMENT.

In the court of the Judicial Magistrate of I Class :: Kurnool.

Calendar Case No.236/2014

Date of offence: 18.06.14

Date of complaint.: 19.06.14

Date of apprehension of accused.: 20.06.14

Date of release on bail.: --

Date of commencement of trial.: 28.10.14

Date of close of trial.: 27.04.15

Date of sentence or order.: 04.05.15

Explanation.: ----

Complainant: State: Represented by the Sub Inspector of Police, Nandikotkur Police Station

S.NNameFather’s ReligioOccupatioResidenceAge onamenn Maruti Nagar, John 23

1.Tammadapalli Bujji @ -Nandikotkur Sundar Raoyrs Mala BujjiTown

Offence: Theft U/S.379 or Dishonestly receiving stolen property U/S.411 of Indian Penal Code.

Section of Law : 379 or 411 of IPC

Finding. : Not guilty

Sentence or order: In the result,the accused is found not guilty for the offence Under Sections 379 or 411 of Indian Penal Code and they are acquitted Under Section 248(1) Criminal Procedure Code. The accused are set at liberty forthwith. The concerned Jail authorities are directed to release the accused forthwith if their presence is not required in any other case. The bail bond and sureties of the accused shall be in force for a period of 6 months under section 437-A of Cr.P.C. The case property MO.1 which is returned to P.W.1 for interim custody shall hold well after lapse of appeal time. The unmarked non valuable property if any shall be destroyed after lapse of appeal time.

Sd/- N. Sreenivasa Rao

Judicial Magistrate of I Class, Kurnool.

FAC Judicial Magistrate of I Class,

Nandikotkur

Copy submitted to the Hon’ble Chief Judicial Magistrate, Kurnool.

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS:

NANDIKOTKUR.

Present: Sri N.Srinivasa Rao, M.A, B.L.,

Judicial Magistrate of I Class, Kurnool.

FAC Judicial Magistrate of I Class, Nandikotkur

Monday, the 4 th day of May, 2015

Calendar Case No.28/2013

Between:

State: Rep., by Sub Inspector of Police,

Nandikotkur Police Station. ...Complainant.

- And –

1. Pikkili Venkateswarlu S/o P.Chinna Savaraiah, aged 37 years, R/o Valmiki Nagar, Nandikotkur Town.

2. Shaik Basheer Miah S/o S.Nabi Saheb, aged 59 years, R/o Gandhi Nagar, Nandikotkur Town.

3. Shaik Osman Basha S/o Shaik Hussain Sa, aged 48 years, R/o Kummari Veedhi, Pagidyala Road, Nandikotkur Town.

4. Prathakota Lazarus S/o Swamydas, aged 45 years, R/o B.R.R Nagar, Kurnool Road, Nandikotkur Town.….Accused 1 to 4.

This case came on this day before me for final hearing in the presence of learned A.P.P for prosecution and Sri V.N.Satyanarayana, Advocate for accused A1 to A4 and having perused the material this court delivered the following:

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

The Sub Inspector of Police, Nandikotkur Police Station filed charge sheet in Cr.No.102/2012 under Sections 143, 452, 353, 427 r/w of Indian

Penal Code and Section 3 of Prevention of Public Property Damage Act against the accused A-1 to A-4.

2. The brief facts of the prosecution case are as follows:

On 06.06.2012 at about 11.00 hours while the L.W.1 G.Vishnuvardhan

Reddy, L.W.2 K.Swami Reddy, L.W.3 P.Rajeswara Rao along with other office staff were present in the Municipal Office, Nandikotkur, attending their office work, the accused A-1 to A-4 and some others formed into unlawful group and highhandedly trespassed into Municipal Office, without any prior representation, raised slogans that there is a scarcity of drinking water in 22nd ward and no one would take responsibility to provide water, abused the 2

L.Ws.1 to 3 and their staff in filthy language and sent them out from the office and thereby disturbed their legitimate duties. Further all the accused damaged the furniture of office and locked the office and that they hold dharna in front of Municipal Office till 1 pm.

3.On the report of L.W.1, a case in Cr.No.102/2012 for the offences

U/Sec.143, 452, 353, 427 r/w 149 of Indian Penal Code and Section 3 of

Prevention of Public Property Damage Act was registered in Nandikotkur

Police Station and investigated into. On 06.06.2012 LW.4 Sub Inspector of

Police arrested the A-1 to A-3 and on 09.06.2012 he arrested the A-4 sent them to court with remand report and got remanded them to judicial custody.

After completion of investigation Police filed charge sheet.

4.On perusal of the charge sheet and other documents filed by the police, this case is taken on file under Sections 143, 452, 353, 427 r/w 34 of

Indian Penal Code and Section 3 of Prevention of Public Property Damage Act against the accused.

5. On appearance of the accused, copies of this case were furnished to accused as contemplated under Section 207 Criminal Procedure Code.

6.The accused were examined Under Section 239 Criminal Procedure

Code and they denied the committing of offence. Hence a Charge under

Sections 143, 452, 353, 427 r/w 34 of Indian Penal Code and Section 3 of

Prevention of Public Property Damage Act against the accused and the contents of the charge were read over, explained to the accused in Telugu to which they pleaded not guilty and claimed for trial.

7.During the course of trial, the Prosecution examined P.W.1 to P.W.3,

Exs.P1 to P4 were marked. The evidence of other witnesses were given up by the prosecution, as the material witnesses were turned hostile.

8. After completion of Prosecution side evidence the accused examination

Under Section 313 Criminal Procedure Code dispensed with, as there is no incriminating material deposed by the prosecution witnesses against the accused.

9.Heard arguments on both sides and considered the evidence of P.W.1 to P.W.3, coupled with Exs.P1 to P4 and other material evidence in the record.

10. The point for determination is: Whether the prosecution proved

the guilt of the accused A-1 to A-4 for offence punishable Under

3

Section 143, 452, 353, 427 r/w 34 of Indian Penal Code and Section

3 of Prevention of Public Property Damage Act beyond all

reasonable doubt?

11.POINT:

In support of their contention the Prosecution firstly examined P.W.1

Vishnuvardhan Reddy and he deposed that on 06.06.2012 at 11 am when he along with L.Ws.2 and 3 are working at Municipal Office, Nandikotkur an unlawful group of CPM party consisting of 60 to 70 people trespassed into the Municipal Office raising slogans and started dharna as there is a scarcity of drinking of water in 22nd ward of Nandikotkur. All the mob trespassed inside highhandedly pushed him, L.Ws.2 and 3 and others out from the office. They also damaged the furniture of the office. The CPM party unlawful members of the group were doing dharna in the office, they sent all of them outside. The incident took place about 1 ½ hour and he cannot say the identify members in the group. They were unknown persons and later he filed the complaint in the police station which is Ex.P-1.

12.P.W.2 K.Swamy Reddy deposed that on 06.06.2013 while he was present at his office along with P.W.1 and L.W.3, some CPM party members nearly 100 members came into the office and made galata about the supply of drinking water. Later they sent all the members out of the office and locked the doors of the office. Subsequently after 2 hours all the people left the office. He cannot say the names of the persons and identify the persons who made galata and that police did not examine him.

13.P.W.3 Rajeswara Rao deposed that on 06.06.2012 at 10.30 am some villagers consisting of 20 to 30 members came to their office and made galata about water supply issue. Then their commissioner by name Murthy promised them that he will rectify the water supply issue. Even then mob present in their office and they did not heed their words and damaged chairs, benches and furniture of their office. They sent the mob outside the office and locked their office till 1 pm and that after the mob disbursed from the scene of offence, they went to the PS and lodged the complaint. He had no idea about the names of the people present in the mob on the date of incident. He cannot identify the accused in the court hall and Police examined him.

14.On careful perusal of the evidence of P.W.1 to P.W.3 did not depose any incriminating evidence against the accused for the offences under which the accused is prosecuted and they were turned hostile. The learned APP sought 4 permission of this court to treat the evidence of P.Ws.1 to 3 as hostile.

Permission granted after perusal of the record and evidence of the witnesses.

Further the learned A.P.P was permitted to put the questions in nature of cross-examination to P.Ws.1 to 3. In such cross-examination the learned APP failed to elicit any incriminating evidence against the accused except giving suggestion and marking of his 161 Criminal Procedure Code statement as in

Ex.P-2 to P-4. On careful perusal of the above nature of evidence, it appears that both parties are compromised the matter outside the court and due to compromise only P.Ws.1 to 3 deposed their evidence contradicting their examination under Section 161 criminal procedure Code. Further the prosecution did not come up with any petition to reopen the evidence of prosecution witnesses to adduce any further evidence. Therefore this court holds that the prosecution failed to prove their case against the accused for the offences under which the accused are prosecuted and the accused are entitled to acquit from this case.

15. In the result, the accused A-1 to A-4 are not found guilty for offence punishable Under Section 143, 452, 353, 427 r/w 34 of Indian Penal Code and

Section 3 of Prevention of Public Property Damage Act and they are acquitted

Under Section 248 (1) Criminal Procedure Code. Accused are set at liberty forthwith. The bail bonds and sureties of the accused shall be in force for a period of 6 months Under Section 437(A) of Criminal Procedure Code. The unmarked non valuable property if any shall be destroyed after lapse of appeal time.

Dictated to the Personal Assistant, directly typed by her, corrected and

pronounced by me in open court, this the 4th day of May, 2015.

N. Sreenivasa Rao

Judicial Magistrate of I Class, Kurnool.

FAC Judicial Magistrate of I Class, Nandikotkur

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

P.W.1: Vishnuvardhan Reddy

P.W.2: K.Swamy Reddy

P.W.3: P.Rajeswara Rao - None –

EXHIBITS MARKED

FOR PROSECUTION: FOR DEFENCE:

Ex.P.1 : Complaint by P.W.1 - Nil – 5

Ex.P.2 : 161 Cr.P.C statement of P.W.1

Ex.P.3 : 161 Cr.P.C statement of P.W.2

Ex.P.4 : 161 Cr.P.C statement of P.W.3

M.Os. Marked :

- Nil –

Sd/ N.S

JFCM, KNL.

FAC JFCM., NDK

6

CALENDAR AND JUDGMENT.

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS:

NANDIKOTKUR.

Calendar Case No.28/2013

Date of offence.:06.06.12 Date of complaint.:06.06.12 Date of apprehension of accused:06.06.12 & 09.06.12 Date of release on bail.:13.06.12 Date of commencement of trial.:19.08.14 Date of close of trial.:16.04.15 Date of sentence or order.:04.05.15 Explanation.: ----

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

Father’s Religio Occupa Ag S.No Name Residence name n tion e Pikkili P.Chinna ValmikiNagar, 37

1.Hindu-- Venkateswarlu SaavaraiahNandikotkur Townyrs 59 Shaik Basheer GandhiNagar,

2.S.Nabi SahebMuslim yrs Miah Nandikotkur Town

KummariVeedhi, 48 Shaik Osman Shaik

3.MuslimPagidyalaRoad, yrs Basha Hussain Sa Nandikotkur Town BRR Nagar, Kurnool 45 Prathakota

4.Swamydas--Road,Nandikotkur yrs Lazarus Town

Offence.: Unlawful assembly, assault, Criminal force to deter public servant from discharge of his duty and mischief.

Section of Law : Under Section 143, 452, 353, 427 r/w 34 of Indian Penal

Code and Section 3 of Prevention of Public Property Damage Act

Finding. : Accused is not found guilty.

Sentence or order: In the result, the accused A-1 to A-4 are not found guilty for offence punishable Under Section 143, 452, 353, 427 r/w 34 of Indian Penal Code and Section 3 of Prevention of Public Property Damage Act and they are acquitted Under Section 248 (1) Criminal Procedure Code. Accused are set at liberty forthwith. The bail bonds and sureties of the accused shall be in force for a period of 6 months Under Section 437(A) of Criminal Procedure Code. The unmarked non valuable property if any shall be destroyed after lapse of appeal time.

Sd/- N. Sreenivasa Rao

Judicial Magistrate of I Class, Kurnool.

FAC Judicial Magistrate of I Class, Nandikotkur

Copy submitted to the Hon’ble Chief Judicial Magistrate, Kurnool.

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS:NANDIKOTKUR.

Present: Sri N.Srinivasa Rao, M.A, B.L.,

Judicial Magistrate of I Class, Kurnool.

FAC Judicial Magistrate of I Class, Nandikotkur

Monday, the 4 th day of May, 2015

Calendar Case No.125/2014

Between:

State: Rep., by Sub Inspector of Police,

J Bangla Police Station. ...Complainant.

- And –

Shaik. Rafi S/o Mabu Saheb, aged 33 years, R/o J Bangla village and Mandal.….Accused.

This case came on this day before me for final hearing in the presence of learned Sr.A.P.P for prosecution and Sri N.Ramakrishnaiah, Advocate for accused and having perused the material this court delivered the following:

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

The Sub Inspector of Police, Jupadu Bungalow Police Station filed charge sheet in Cr.No.74/2013 under Section 324 of Indian Penal Code against the accused.

2. The brief facts of the prosecution case are as follows:

L.W.1 Shaik Mohammad Salam and accused are residents of Jupadu

Bungalow Village and both are eking out by running chicken centers very near to each of them. While so on 08.09.2013 at about 14.00 hours L.Ws.2 to 5 Bommineni Sreenivasulu, Golla Krishna, Vaddempudi Venkateswarlu and

Shaik Khaja were present at the chicken center of L.W.1 Shaik Mohammad

Salam to take chicken. At that time the accused went there and picked up quarrel with L.W.1 as he is selling chicken Rs.140/- only but the accused selling Rs.160/- so none were came to the shop of accused and that L.W.1 caused loss to him and saying so accused tried to beat him with pattudu stick and as he put his right hand across to the stick, he sustained bleeding injuries over his right hand and nose. On seeing L.Ws.2 to 5 rescued him from the hands of accused.

3.On the report of L.W.1, a case in Cr.No.74/2013 for the offence

U/Sec.324 of Indian Penal Code was registered in Jupadu Bungalow Police

Station and investigated into. On 30.09.2013 LW.7 Sub Inspector of Police arrested the accused and sent him for remand to judicial custody. L.W6

Medical Officer treated the injured L.W.1 and he had opined that the injuries 2 are simple in nature. After completion of investigation Police filed charge sheet.

4.On perusal of the charge sheet and other documents filed by the police, this case is taken on file under Section 324 of Indian Penal Code against the accused.

5. On appearance of the accused, copies of this case were furnished to accused as contemplated under Section 207 Criminal Procedure Code.

6.The accused were examined Under Section 239 Criminal Procedure

Code and he denied the committing of offence. Hence a Charge under

Section 324 Indian Penal Code against the accused and the contents of the charge were read over, explained to the accused in Telugu to which he pleaded not guilty and claimed for trial.

7.During the course of trial, the Prosecution examined P.W.1 to P.W.3,

Exs.P1 to P4 were marked. The evidence of other witnesses were given up by the prosecution, as the material witnesses were turned hostile.

8. After completion of Prosecution side evidence the accused examination

Under Section 313 Criminal Procedure Code dispensed with, as there is no incriminating material deposed by the prosecution witnesses against the accused.

9.Heard arguments on both sides and considered the evidence of P.W.1 to P.W.3, coupled with Exs.P1 to P4 and other material evidence in the record.

10. The point for determination is: Whether the prosecution proved

the guilt of the accused for offence punishable Under Section 324 of

Indian Penal Code beyond all reasonable doubt?

11.POINT:

In support of their contention the Prosecution examined P.W.1 Shaik

Md.Salam and he deposed that he did not sustain any injuries and Police obtained his signature on blank paper at police station. He does not know the contents of the complaint and that Ex.P.1 is the signature on the complaint shown to him. He did not lodge any complaint against the accused, Police did not examined him.

12.P.W.2 B.Srinivasulu deposed that he did not witness any incident. He does not know P.W.1 and how P.W.1 sustained injuries. He does not know anything about the case and that Police did not examined him. P.W.3 3

V.Venkateswarlu deposed that he do not know anything about this case and

Police did not examine him.

13.On careful perusal of the evidence of P.W.1 to P.W.3 did not depose any incriminating evidence against the accused for the offences under which the accused is prosecuted and they were turned hostile. The learned APP sought permission of this court to treat the evidence of P.Ws.1 to 3 as hostile.

Permission granted after perusal of the record and evidence of the witnesses.

Further the learned A.P.P was permitted to put the questions in nature of cross-examination to P.Ws.1 to 3. In such cross-examination the learned APP failed to elicit any incriminating evidence against the accused except giving suggestion and marking of his 161 Criminal Procedure Code statement as in

Ex.P-2 to P-4. On careful perusal of the above nature of evidence, it appears that both parties are compromised the matter outside the court and due to compromise only P.Ws.1 to 3 deposed their evidence contradicting their examination under Section 161 criminal procedure Code. Further the prosecution did not come up with any petition to reopen the evidence of prosecution witnesses to adduce any further evidence. Therefore this court holds that the prosecution failed to prove their case against the accused for the offences under which the accused is prosecuted and the accused ise entitled to acquit from this case.

14. In the result, the accused is not found guilty for offence punishable

Under Section 324 of Indian Penal Code and he is acquitted Under Section 248 (1) Criminal Procedure Code. Accused is set at liberty forthwith. The bail bonds and sureties of the accused shall be in force for a period of 6 months

Under Section 437(A) of Criminal Procedure Code. The unmarked non valuable property if any shall be destroyed after lapse of appeal time.

Dictated to the Personal Assistant, directly typed by her, corrected and

pronounced by me in open court, this the 4th day of May, 2015.

Sd/- N. Srinivasa Rao,

Judicial Magistrate of I Class, Kurnool.

FAC Judicial Magistrate of I Class, Nandikotkur 4

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

P.W.1: Shaik Md.Salam

P.W.2: B.Srinivasulu - None –

EXHIBITS MARKED

FOR PROSECUTION: FOR DEFENCE:

Ex.P.1 : signature of P.W.1on the report - Nil –

Ex.P.2 : 161 Cr.P.C statement of P.W.1

Ex.P.3 : 161 Cr.P.C statement of P.W.2

Ex.P.4 : 161 Cr.P.C statement of P.W.3

M.Os. Marked : –Nil -

Sd/- N.S.R.

JFCM, KNL.

FAC JFCM., NDK

5

CALENDAR AND JUDGMENT.

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS:NANDIKOTKUR.

Calendar Case No.28/2013

Date of offence.:06.06.12

Date of complaint.:06.06.12

Date of apprehension of accused:06.06.12 & 09.06.12

Date of release on bail.:13.06.12

Date of commencement of trial.:19.08.14

Date of close of trial.:16.04.15

Date of sentence or order.:04.05.15

Explanation.: ----

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

Father’s Occupat

S.No Name Religion Residence Age

name ion

Pikkili P.Chinna ValmikiNagar, 37

1.Hindu-- Venkateswarlu SaavaraiahNandikotkur Townyrs 59 ShaikBasheer GandhiNagar,

2.S.Nabi SahebMuslim yrs Miah Nandikotkur Town KummariVeedhi, 48 ShaikOsman Shaik Hussain

3.MuslimPagidyalaRoad, yrs Basha Sa Nandikotkur Town BRR Nagar, Kurnool 45 Prathakota

4.SwamydasRoad,Nandikotkur yrs Lazarus Town

Offence.: Voluntarily causing hurt

Section of Law : 324 of Indian Penal Code

Finding. : Accused is not found guilty.

Sentence or order: In the result, the accused is not found guilty for offence punishable Under Section 324 of Indian Penal Code and he is acquitted Under

Section 248 (1) Criminal Procedure Code. Accused is set at liberty forthwith.

The bail bonds and sureties of the accused shall be in force for a period of 6 months Under Section 437(A) of Criminal Procedure Code. The unmarked non valuable property if any shall be destroyed after lapse of appeal time.

Sd/- N. Srinivasa Rao,

Judicial Magistrate of I Class, Kurnool.

FAC Judicial Magistrate of I Class, Nandikotkur Copy submitted to the Hon’ble Chief Judicial Magistrate-Prl. Senior Civil

Judge, Kurnool.

Copy to Superintendent of Police, Kurnool

Dis No.