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CC No.37 of 2020
IN THE COURT OF THE III ADDITIONAL JUDICIAL MAGISTRATE OF FIRST
CLASS AT MAHABUBNAGAR
On this Wednesday, the 10th day of April, 2024
PRESENT:- Ms. NIHARIKA JUTTUR,
III Addl. Judicial Magistrate of First class, Mahabubnagar.
CC No.37 of 2020
(Cr. No.190 of 2019 of P.S., II Town, Mahabubnagar)
BETWEEN:-
State represented by the Sub-Inspector of Police, P.S., II Town, Mahabubnagar.
.… Complainant A N D
MD. Ismail Khan, S/o Abdullah Khan, Age: 49 years, Caste: Muslim, Occ: RTC Bus Driver, R/o H.No.1-6-611, Near Fire Station, Municipal Quarters, Narayanpet.
.... Accused
1. Section of Law: 304-A, 338 of IPC
2. Plea of Accused: Pleaded not guilty
3. Finding of the Court: Found guilty
4. Result: In the result, accused is found guilty and he is convicted under section 255(2) of Cr.P.C. for the offences under section 304-A, 338 of IPC. Accused is sentenced to undergo simple imprisonment for a period of six (6) months for the offence
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under section 304-A of IPC and he shall pay fine of Rs.1,000/-, further to undergo simple imprisonment for a period of one (1) month for the offence under section 338 of IPC. The punishment imposed for the offences under sections i.e. 304-A, 338 of IPC shall run concurrently.
Accused in default of payment of fine of
Rs.1,000/-,shallundergoSimple
Imprisonment for a period of (10) days.
-o0o-
This case is coming before me on 02-04-2024 for final hearing in the presence of the Learned Asst. Public Prosecutor for the Complainant/State and of Sri. N.P.Venkatesh, Advocate for the accused, upon hearing their arguments and having stood over for consideration, this Court delivered the following:-
:: J U D G M E N T ::
1.The Sub-Inspector of Police, P.S., II Town, Mahabubnagar filed charge sheet against the accused in Cr. No. 190 of 2019 for the offence punishable under Section 304-A, 338 of the Indian Penal Code (in short “the IPC”).
2. The case of the prosecution in brief is that, LW1/Bhumi Mahesh lodged report on 22.09.2019 stating that his wife Bhumi Krishnamma along with their son by name Rahul aged about 2 years, on 22.09.2019 at about 08.45 AM had come down to Mahabubnagar for medical check up in
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Mahabubnagar Government Hospital and as she was not aware where the
Government Hospital is located, she was proceeding from Ashok Talkies
Chowrasta, in the meanwhile, the RTC bus bearing No.TS06Z0180 belonging to Narayanpet Bus Depot and was taking a turn at Ambedkar
Chowrasta to proceed towards Hyderabad road and the bus driver had driven the bus at a high speed in a negligent manner and hit his wife from behind, as a result Krishnamma sustained severe bleeding injuries and fell on the road and his son Rahul also sustained injuries to his knees and back.
LW1 stated that a person who was present at accident spot took the mobile phone of his wife and called one of the person in her contact list who inturn informed to LW1 about the accident. LW1 further stated that on receiving the said information he along with PW4 immediately rushed to the place of accident and by the time his wife was shifted to hospital for treatment. LW1 stated that the doctors have informed to take her to
Hyderabad for better treatment and while they were taking the injured to hospital, Krishnamma died due to injuries. LW1 further stated that later he came to know the name of bus driver as MD. Ismail Khan and further requested to take necessary action against the accused.
3.Basing on the report lodged by LW1, PW10 registered a crime and issued FIR No.190 of 2019 for the offence under section 304-A, 337 of
IPC and took up the investigation. During the course of investigation,
PW10 examined and recorded the statement of a PW1 at police station. On 23.09.2019, PW10 visited Government General Hospital, Mahabubnagar and found the dead body of deceased Krishnamma, examined the dead
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body minutely, got photographed the same and conducted inquest panchnama in the presence of PW1 and PW4 and subjected the dead body for autopsy. During the course of Inquest, PW10 examined and recorded the statements of PW3, PW8, PW9. On 23.09.2019, PW10 visited scene of offence panchnama, prepared CDF and drawn rough sketch by securing the presence of PW2 and LW7/Ryakam Krishnaiah. After first aid, the injured
Rahul @ Raghavulu was shifted to SVS Hospital, Mahabubnagar from
Government Hospital, Mahabubnagar for better treatment.
4.On 23.09.2019, PW10 issued 41-A Cr.P.C. notice to accused.
Further, PW10 collected the copy of RC, Route permit and TSRTC Statistical and Ticket Accountal Record (STAR) No.22299543 of RTC Bus
No.TS06Z0180 from the RTC authorities for the purpose of investigation.
On 23.09.2019, PW10 addressed a letter to the Motor Vehicle Inspector,
Mahabubnagar to visit the II Town PS, Mahabubnagar and inspect the crime vehicle i.e. RTC Bus No.TS06Z0180 for any mechanical defects of the vehicle and report. On 24.09.2019, PW7 inspected the crime vehicle and issued releasing order, as such, PW10 released the bus and handed over to
Narayanpet RTC Depot authorities. After inspecting the crime vehicle, PW7 issued a report in which she opined that there is no mechanical defect to the vehicle. Further, PW5 issued PME report of deceased Krishnamma in which she opined that the cause of death was due to “Haemorhagic shock as a result of injury to abdomen and pelurise associated with other injuries”. Further, PW6 who treated injured Rahul and later on the medical treatment reports of SVS Hospital, Mahabubnagar issued wound certificate
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in which it was opined that the he sustained simple and grievous injuries, as such PW10 altered the section of law from 304-A, 337 of IPC to 304-A, 338 of IPC. On completion of investigation PW10 filed charge-sheet against accused for the offence under section 304-A, 338 of IPC.
5.This Court took cognizance for the offence punishable under
Section 304-A, 338 of IPC against accused.
6.On appearance of the accused, copies of documents relating to the case were furnished to him, as required under Section 207 Cr.P.C. The accused was examined under Section 251 of Cr.P.C., accusation for the offences punishable under Section 304-A, 338 of IPC are read over and explained to the accused in his vernacular language, for which accused pleaded not guilty and claimed to be tried.
7.In order to establish the guilt of the accused, the prosecution examined PW1 to PW10 and got marked Ex. P1 to Ex. P10 before this court.
8.After the completion of trial, accused was examined under Sec.
313 Cr.P.C. with the incriminating evidence found against him, to which he denied the same and reported no defence evidence.
9.Arguments of the Learned APP for the State treated as heard and heard the Learned Defence Counsel for the accused.
10. Now the point for determination is:
Whether the prosecution has established the guilt of the accused for the offence punishable under Sec. 304- A, 338 of IPC, beyond reasonable doubt ?
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POINT :
11.It is the case of LW1 that on 22.09.2019 at about 08.45 AM deceased Krishnamma along with his son Rahul came to Mahabubnagar for medical check-up in Government Hospital, Mahabubnagar and as she was not aware where the Government Hospital is located, Krishnamma was proceeding from Ashok Talkies Chowrasta, in the meanwhile, the RTC bus bearing No.TS06Z0180 was taking a turn at Ambedkar Chowrasta, whereas, the driver of the bus drove the RTC bus at a high speed in a negligent manner and hit deceased from behind as such she sustained severe bleeding injuries and fell on the road and his son Rahul sustained injuries to his knees and back and they were shifted to Government
Hospital, Mahabubnagar for treatment. LW1 further stated that the doctors have informed to take her to Hyderabad for better treatment and while they were taking the injured to hospital, Krishnamma died due to injuries. LW1 further stated that later he came to know the name of bus driver as MD. Ismail Khan. PW1 lodged report before police II Town,
Mahabubnagar on 22.09.2019 for taking necessary action against accused.
12.Basing on report lodged by LW1, PW10 registered a case and issued FIR No.190 of 2019 for the offences under section 304-A, 337 of IPC.
On completion of investigation PW10 filed charge-sheet against accused by citing 12 witnesses. From witnesses examined before this court PW1 and
PW are panch witnesses for inquest panchnama and scene of offence panchnama respectively, PW3 is eye witness, PW4 is panch witness for inquest panchnama, PW5 and PW6 are Medical officers, PW7 is the Motor
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Vehicle Inspector, PW8 and PW9 are the circumstantial witnesses, PW10 is the investigating officer. As police reported and filed the death certificate of LW1/Bhumi Mahesh and LW7/Ryakam Krishnaiah, this court closed the evidence of LW1 and LW7.
13.Let us examine from the evidence available on record, to see whether the prosecution could prove the accusation levelled against accused. This is a road traffic accident which was reported by LW1/Bhumi
Mahesh, the facts of the case as stated in Ex. P1 report are that wife of LW1 i.e. Krishnamma has came to Mahabubnagar on 22.09.2019 for her medical check-up to Government Hospital, Mahabubnagar and while she was proceeding from Ashok Talkies Chowrasta, meanwhile, a bus bearing
No.TS06Z0180 belonging to Narayanpet Bus Depot was taking a turn at
Ambedkar Chowrasta and hit the wife of LW1 as such she sustained severe bleeding injuries and died while she was being shifted to hospital for better treatment. The prosecution in this case got examined PW1 to PW10, out of whom the evidence of PW1 and PW2 is not helpful to the case of prosecution. PW1 is the panch witness for inquest panchnama dt.23.09.2019 and PW2 is the panch witness for CDF dt.22.09.2019. PW1 and PW2 did not support the case of prosecution as such the learned APP sought the permission of the court for declaring PW1 and PW2 as hostile witnesses and accordingly permitted. When PW1 and PW2 were subjected to cross examination by learned APP no incriminating material was found against accused from the testimonies of PW1 and PW2. As such the evidence of PW1 and PW2 is not helpful to the case of prosecution.
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14.The prosecution has cited PW3 as eye witness who deposed that he is a government employee and on 22.09.2019 at about 08.30 AM while stopped his car at Ambedkar Chowrasta signal, he had seen a lady with a baby boy and crossing the road, in the meanwhile, an RTC bus which was proceeding at high speed from New Bus stand was taking turning at
Ambedkar Chowrasta dashed the woman who was crossing the road and the bus ran over the left side of the body of woman. PW3 further deposed that and he got down from his car and informed about the accident to police through dial 100 and shifted the injured to hospital for treatment in an auto. PW3 deposed that while she was undergoing treatment he noticed a mobile phone in possession of injured as such he contacted one of the person in contact list of injured phone and informed about the accident to the family members of injured. PW3 deposed that he came to know the injured that she died while undergoing treatment. PW3 further deposed that on enquiry he came to know the name of the driver of the crime vehicle as MD. Ismail Khan. PW3 further deposed that he had seen the bus driver immediately after the occurrence of accident and further identified the person standing in the dock of the court hall as the one who is responsible for the accident and death of injured. During cross examination, PW3 denied that he had not stated before police that RTC Bus was taking turn near Ambedkar Chowrasta in his 161 Cr.P.C. statement.
PW3 admits that vehicles cannot move at a high speed at the scene of offence, however, adds that accused drove the crime vehicle at high speed in a rash and negligent manner and caused the accident. PW3 denied that
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as he know the deceased person, he had come to court to depose evidence without knowing the facts of the case. PW3 deposed that he did not shown any document to police as he attended the office on the alleged date of incident. PW3 denied all other suggestions made by the learned counsel
for accused that accused did not commit any accident. PW3 denied as the
day of accident was Sunday and being holiday as there is no scope of PW3 going to office as such the question of PW3 witnessing the accident does not arise.
15.PW4 deposed that about 3 years back LW1 came to him and informed that his wife Krishnamma met with an accident at Ambedkar
Chowrasta, Mahabubnagar and that PW4 accompanied LW1 and by that time they reached the hospital, the wife of LW1 died. PW4 further deposed that police conducted inquest panchnama over the deceased dead body in his presence and Ex. P3 is the inquest panchnama dt.23.09.2019. During cross examination, PW4 admits that he had signed on Ex. P3 after police have written the contents and that he do not know the contents of Ex. P3 panchnama, however denied that he is deposing false.
16.PW5 who is the Medical Officer who conducted autopsy over the deceased deposed that on 23.09.2019. she conducted autopsy examination over the deceased Krishnamma in between 11.10 AM to 12.10
PM and she found Anti Mortem injuries which are mentioned in column
No.9 of Ex. P4 PME report dt.23.09.2019. The cross examination of PW5 are merely suggestions and no contrary answers were elicited. PW6 is the
Doctor who examined Bhumi Rahul who is son of LW1 and deceased
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Krishnamma and found the injuries as in Ex. P5 wound certificate. During cross examination, PW6 denied that he did not conduct medical examination on injured by name Rahul and Ex. P5 wound certificate was prepared at the instance of police.
17.PW7 who had inspected the crime vehicle, on examining the crime vehicle had issued Ex. P6 MVI report in which he opined that the accident occurred not due to any mechanical defects. During cross examination, PW7 denied that Ex. P6 MVI report prepared at the instance of police. PW8 and PW9 are circumstantial witnesses who deposed that about four years back Krishnamma along with her child were crossing the road at
Ambedkar Chowrasta, Mahabubnagar, at that time, an RTC bus which was proceeding at high speed dashed Krishnamma as such she had fallen down and sustained injuries. PW8 and PW9 further deposed that LW1 called them over phone and informed about the accident. Further PW8 and PW9 deposed that the name of the driver of the crime vehicle as MD. Ismail
Khan. PW8 and PW9 during cross examination admits that they did not eye witness the accident.
18.PW10 who is investigating officer deposed that LW1/Bhumi
Mahesh lodged Ex. P7 report and basing on the contents of it, he registered
Ex. P8 FIR vide Cr. No.190/2019 under section 304-A, 337 of IPC. PW10 further deposed that on 23.09.2019 he visited Government Hospital,
Mortuary and conducted Ex. P3 inquest panchnama in the presence of PW1 and PW4 and also visited conducted scene of offence panchnama and prepared Ex. P9 CDF dt.23.09.2019. PW10 further deposed that he
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collected the Route permit of TSRTC, statistical and ticket accountal record of RTC bus bearing No. TS06Z0180. Ex. P10 is the Statistical and ticket accountal record. PW10 deposed that after collecting all relevant documents his investigation reveals that accused is responsible for accident and death of deceased and injuries to Rahul. During cross examination, PW10 admits that the scene of offence is a busy area and surrounded by several shops and also fruit vendors. PW10 admits that except PW3 he did not examine other eye witness from the scene of offence. PW10 further deposed that there are no CCTV cameras available at the scene of offence. PW10 deposed that PW3 did not state before him that he can identify the driver of the crime vehicle and he had seen the driver of the crime vehicle at the time of accident. PW10 further deposed that he came to know the driver of the crime vehicle as MD. Ismail Khan.
PW10 also admits that PW3 is a government employee and the day of accident was Sunday. PW10 denied as PW3 is a government employee and there is no chance that of he going to office on the Sunday and that
PW3 is a planted eye witness for the purpose of present case. PW10 denied that Ex. P10 document did nor pertain to the crime vehicle and the same is created for the purpose of this case and further denied that accused is not responsible for the accident and death of deceased. PW10 further denied that accused did not commit any offence and he has falsely implicated in the present case. PW10 further denied that he did not examine any witnesses nor visited the scene of offence for preparing CDF nor conducted inquest panchnama over the dead body of deceased and
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that he had made table investigation for the purpose of filing charge sheet.
19.LW1/Bhumi Mahesh in this case lodged Ex. P7 report before police, but however he was not examined before this court as police in this case submitted and filed death certificate of LW1 on 08.12.2023 and as
LW1 died, his evidence was closed. PW10 is the investigating officer of the case who had received the report from LW1 and registered Ex. P8 FIR. The report lodged by LW1 was marked through PW10 as Ex. P7. The oral evidence of PW8 and PW9 reveals that Krishnamma died in an accident occurred at Mahabubnagar and her son sustained injuries. Though, PW8 and PW9 did not eye witnessed to the accident, it is an admitted fact by
PW8 and PW9 that deceased Krishnamma died in an accident. The oral evidence of PW8 and PW9 put together with Ex. P3 inquest panchnama dt.23.09.2019 and the oral evidence of PW5 who conducted autopsy over the deceased had given report i.e. Ex. P4 PME report discloses that
Krishnamma died in an accident.
20.As Krishnamma died in the accident and it is the allegation of the prosecution that accused is the driver of the crime vehicle, the burden lies upon the prosecution to establish the identity and so also rash or negligent act committed by the accused. So far as, the identity of the driver of the crime vehicle is concerned in Ex. P7 report which was lodged by PW1, it discloses the name of the driver of the crime vehicle as MD.
Ismail Khan and also the registration number of crime vehicle as
TS06Z0180. PW10 who is the investigating officer to prove the vehicle with which accident was occurred got marked Ex. P10 which is statistical and
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ticket accountal record. From Ex. P10 it can be ascertained that the crime vehicle i.e. TS06Z0180 was being driven by MD. Ismail Khan who is accused herein and it was proceeding from Narayanpet. Thus, the contention in Ex. P7 report that crime vehicle is bus bearing No.TS06Z0180 can be ascertained from Ex. P10 statistical and ticket accountal record.
Ex. P10 further reveals that the name of the driver of crime vehicle as MD.
Ismail Khan. Besides prosecution showing the identity of the driver of the crime vehicle with the help of Ex. P10, the prosecution also relied on the oral evidence of PW3. PW3 is the only eye witness in the case. As seen from the evidence deposed by PW3, he had categorically deposed that while he was in car proceeding near Ambedkar Chowrasta and stopped near the signal, where he noticed that a female along with his baby boy were crossing the road, meanwhile, the RTC bus which was taking turn at
Ambedkar Chowrasta was driven at high speed and dashed the said woman. PW3 in his evidence further deposed that he had seen the driver of the crime vehicle at the time of accident and further deposed that the person who was standing in the dock of the court hall was the driver of the crime vehicle on the date when PW3 was deposing evidence was the person who drove the crime vehicle on the date of accident. On clear reading of the oral evidence of PW3, he had categorically deposed that he had eye witnessed the accident and said accident was caused due to the rash driving of the accused. Though, PW3 was subjected to cross examination at length by learned counsel for accused no much contrary answers were elicited from the evidence of PW3 and his evidence remained
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unshaken and trustworthy.
21.The learned counsel though argued that as the day of accident being Sunday and PW3 being government employee, there is no scope of
PW3 witnessing the accident as the offices will be kept closed on Sundays.
It is the ground which is taken by learned counsel for accused for testing the veracity deposed by PW3 did not in any way shaken the evidence of
PW3 and no contrary material was elicited from the evidence of PW3 with regard to the identity of accused. Thus the prosecution in this case is successful in establishing the identity of the driver of the crime vehicle.
22.Now the question is whether the prosecution is also able to prove the rash or negligent act committed by the accused in driving the crime vehicle i.e. RTC Bus and causing the accident and death of deceased.
For this purpose the prosecution again falls back to the evidence of PW3.
PW3 in addition to identifying the driver of the crime vehicle as accused herein, further deposed that the crime vehicle was driven at a very high speed in rash manner by accused while taking turn at Ambedkar chowrastha. The learned counsel during cross examination of PW3 had suggested that the scene of offence being the busy area there is no scope of vehicles moving at high speed, for which PW3 though admitted that vehicles move slowly at the scene of offence, but he further added that inspite of busy area accused driven the RTC bus i.e. crime vehicle at high speed due to which the said accident was occurred. From the above discussion, it only probablises that accused drove the crime vehicle at a high speed even in a busy area and which act amounts to rashness as it hit
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Krishnamma who was proceeding along with her son from Ashok Talkies
Chowrasta dashed her from her behind and resulted in her death while being shifted to hospital. The evidence of PW3 is trustworthy for proving the act of rashness by the accused in driving the crime vehicle. Thus the prosecution in this case is successful in establishing the identity as well as rash act committed by the accused in driving the crime vehicle which resulted in accident and death of deceased.
23.From the contents of Ex. P1 report, it is seen that due to rash driving of accused, LW1’s son also sustained bleeding injuries. In support of the said allegation, prosecution got examined PW6 who conducted medical examination on minor B.Rahul and issued Ex. P5 wound certificate.
As per Ex. P5 wound certificate, the injured Rahul sustained injuries on his lower back, right thigh and crush injury on right foot and injuries sustained are grievous in nature. Thus, the prosecution is also successful in proving that Rahul sustained grievous injuries due to the said accident from the oral evidence of PW6 and Ex. P5 wound certificate. Furthermore, the evidence of PW7 who is motor vehicle inspector discloses that accident occurred not due to any mechanical defects goes to show that the crime vehicle is in fit condition even when accident occurred which is for the reason of rash driving of the vehicle and resulted in road traffic accident and death of Krishnamma. Learned counsel during arguments submitted that PW3 evidence is not corroborated with the evidence of any other witness. Undisputedly, PW3 is eye witness to the accident and his evidence is wholly reliable and trustworthy and inspires confidence of court
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as his evidence was not shaken when subjected to cross examination. On a careful study of the evidence of prosecution, there is nothing which would shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. The prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent.
Thus from the discussion made above it can held that prosecution in this case have proved the accusation against accused for the offense under section 304-A, 338 of IPC beyond all reasonable doubt. Accordingly point is answered in favour of prosecution.
24. In the result, accused is found guilty and he is convicted under section 255(2) of Cr.P.C. for the offence under section 304-A, 338 of
IPC.
Dictated to Stenographer, transcribed by him, corrected and pronounced
by me in the Open Court on this the 10 th day of April, 2024.
Sd/-
III Addl. Judicial Magistrate of First Class, Mahabubnagar.
Hearing on quantum of sentence:
Heard accused on quantum of sentence. Accused submitted that he is aged about 54 years, his wife underwent bypass surgery and having four girl children who are totally dependents on him. Accused further submitted that he is suffering from ill-health and thus prayed this court to take a lenient view in awarding sentence.
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Hence, considering the facts of the case and also considering the situation as enumerated by the accused, this Court is inclined to impose a sentence of simple imprisonment for a period of six (6) months for the offence under section 304-A of IPC and he shall pay fine of
Rs.1,000/-, further to undergo simple imprisonment for a period of one (1) month for the offence under section 338 of IPC. The punishment imposed for the offences under sections i.e. 304-A, 338 of IPC shall run concurrently.
Accused in default of payment of fine of Rs.1,000/-, shall undergo Simple
Imprisonment for a period of (10) days. The beneficial provision of
Probation of Offenders Act cannot be extended in the present case as the offence is one which is punishable under section 304-A IPC. A copy of the judgment shall be given to the accused as per section 353 Cr.P.C. r/w Rule 72 of Criminal Rules of Practice and Circular Orders 1990. As the accused was not remanded to judicial custody even a single day after registering the crime or during the course of trial, therefore, set-off of remand period under section 428 of Cr.P.C. is not invoked.
The accused is informed that he got a right of appeal to prefer against this Judgment before the Hon'ble Prl. District and Sessions Judge,
Mahbubnagar.
Sd/-
III Addl. Judicial Magistrate of First Class, Mahabubnagar.
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APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR THE PROSECUTION: FOR THE DEFENCE:
PW1:Md. Sabir Pasha- NONE - PW2:P. Srinivasulu PW3:S. Vijay Kumar PW4:G. Yellaiah Swamy PW5:Dr. Parvathi PW6:Dr. Mirza Mujtaba Baig PW7:K. Sai Krishnaveni PW8:Narsamma PW9:Chennamma PW10:Pentoji
EXHIBITS MARKED
FOR THE PROSECUTION: FOR THE DEFENCE:
Ex.P1:Signature of PW1 on inquestpanchnama- NONE - dt.23.09.2019 Ex.P2:Signature of PW2 on CDF dt.23.09.2019 Ex.P3:Inquestpanchnama dt.23.09.2019 Ex.P4:PME report, dt.23.09.2019
Ex.P5:WoundCertificate, dt.22.09.2019 Ex.P6:MVI Report
Ex.P7:Report dt.22.09.2019
Ex.P8:FIR
Ex.P9:CDF dt.23.09.2019
Ex.P10:Statisticalandticket
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accountal record
MATERIAL OBJECTS
-Nil-
Sd/-
III Addl. Judicial Magistrate of First Class, Mahabubnagar.