Smt. P. Annie Rose Christian

1

IN THE COURT OF THE XIV ADDL. CHIEF METROPOLITAN

MAGISTRATE :: AT HYDERABAD

PRESENT:SMT. P. ANNIE ROSE CHRISTIAN,

XIV ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD.

Monday, the 01st day of April, 2019

C.C. No. 667/2017

Between :

The State of Telangana, represented by the Station House Officer, P.S. Panjagutta, Hyderabad …… Complainant

And

A1) Makkena Srinivasa Rao, S/o Veera Swamy, Aged: 42 years, Occ: Agriculture, R/o Makkenavaripalem village, Sanathamagulur Mandal, Prakasham District

A2) Makkana Jagadish, S/o Satyanarayana, Aged: 24 years, Occ: Agriculture, R/o Makkenavaripalem village, Sanathamagulur Mandal, Prakasham District (absconding) [Note: Accused No.2 is shown absconding and hence the present case is proceeded against accused No.1 only] …… Accused

This case is coming on before me for final hearing in the presence of learned Assistant Public Prosecutor for the Complainant and of Sri G. Kondal Rao, Sri D. Mohan Rao, Sri G. Srinu, Advocates

for the accused and after perusing the case records and upon hearing

the arguments on both sides, this Court made the following:-

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

The Sub-Inspector of Police, P.S. Panjagutta, Hyderabad filed charge sheet against the accused No.1 and 2 in Crime No. 853/2016 for the offence punishable under sections 323, 341, 384, 506 read with 34 of the Indian Penal Code.

2.The cognizance of offence was taken on file under sections 323, 341, 384, 506 read with 34 of the Indian Penal Code against the accused No.1.

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3.On appearance of accused No.1, relevant copies of documents were furnished to him as required under section 207 of Cr.P.C.

4.The accused No.1 was examined under section 239 Cr.P.C. He denied the accusation levelled against him. After hearing the learned

Assistant Public Prosecutor and the Defence Counsel, a charge under sections 323, 341, 384, 506 read with 34 of the Indian Penal Code has been framed against the accused No.1, read over and explained to him in vernacular, who pleaded not guilty to the said charge and claimed to be tried.

5.In the course of the prosecution side evidence Pws.1 to 4 were examined and Exs.P1 to P6, were marked. The summons issued on

Lw.3/Narsinga Rama Krishna was returned unserved and hence his evidence was closed.

6.After closure of the prosecution side evidence, the accused No.1 was examined under section 313 Cr.P.C., with regard to the incriminating evidence appearing against the accused No.1 in the evidence of prosecution witnesses, to which he denied and reported no defence evidence.

7.Heard arguments.

8.The prayer of the prosecution is that the accused No.1 and 2 beat the de facto complainant-D. Venkat Rao with hands and kicked him with legs and when his friend-Lw.2/Akshay Krishna interfered to rescue him, they also beat Lw.2/Akshay Krishna and they extorted two rings from the de facto complainant and also cash of Rs. 8,000/- 3 and forcibly obtained the signatures of Lw.1/D. Venkat rao on some stamp papers and recorded his voice.

9.Later, A1 and A2 took Lw.1/D. Venkat Rao in their car and threatened him with dire consequences to kill and finally, they left the complainant at KPHB, Kukatpally, from there the complainant reached to his house and later took treatment in a hospital. Hence the accused No.1 along with accused No.2 are punishable under sections 323, 341, 384, 506 read with 34 of the Indian Penal Code.

10.The facts of the prosecution case in nutshell are as follows:-

The accused No.1 is the father-in-law of de facto complainant-

Devineni Venkat Rao. There are family disputes between

Lw.1/D.Venkat Rao and his wife who is the daughter of accused No.1 and accordingly, on 15.09.2016 the accused No.1 along with his family members came to Hyderabad to meet his daughter and called his son-in-law i.e., Lw.1/D. Venkat Rao to discuss about the family disputes, but he replied that he was at Ameerpet.

11.Having known about the presence of Lw.1/D. Venkat Rao at

Nagarjuna Community Hall, Ameerpet, the accused No.1 and 2 came there with an angry mood, beat the complainant-D. Venkat Rao by giving punches and kicked him with legs forcibly and when his friend

Lw.2/Akshay Krishna interfered and tried to save the complainant-

D.Venkat Rao, they also beat Lw.2/Akshay Krishna.

12.Thereafter, the accused No.1 and 2 took Lw.1/D. Venkat Rao in their car and confined him in a house where they abused him in filthy language saying as “GOLLA NA KODUKA” and the accused No.1 4 and 2 also extorted his two rings and cash of Rs. 8,000/- and forcibly obtained his signatures on a stamp paper by mentioning some relatives names of his father and recorded his voice and threatened

Lw.1/D. Venkat Rao with dire consequences to kill him if he gives police complaint. Finally, they left Lw./D.Venkat Rao at KPHB,

Kukatpally and he reached his house through an auto and on the next day of committing the offence, Lw.1/D. Venkat Rao went to a hospital and took treatment. On 29.11.2016 Lw.1/D. Venkat Rao lodged complaint at police station for taking necessary action against the accused No.1 and 2 as per law.

13.Basing on the above complaint, a case was registered in crime

No. 853/2016 under sections 323, 341, 506 and 384 of IPC and investigated into the case. During the course of investigation,

Lw.5/P. Nagaraj Goud, S.I. of Police recorded the statement of the

Lw.1/de facto complainant-Devineni Venakt Rao and Lw.2/Akshay

Krishna and visited the scene of offence and conducted scene of offence panchanama and drafted rough sketch in the presence of panch witnesses Lw.3/Narsinga Rama Krishna and Lw.4/Kadavakalu

Mararji.

14.Notices under section 41-A Cr.P.C. was served on the accused

No.1. After completion of investigation, charge sheet was filed for the offence under sections 323, 341, 384, 506 read with 34 of the Indian

Penal Code against the accused No.1 showing the accused No.2 was absconding and prays the Hon'ble Court to punish the accused as per law. Hence the case.

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15.On behalf of the prosecution Pws.1 to 4 were examined

PW1:D. Venkat Rao Defacto complainant

PW2: K. Mararji, Panch witness

PW3:Akshay Krishna,Eye witness

PW4:P. Nagaraj Goud, S.I. of Police/ Investigating Officer

16.Now, the point for determination is :-

(i)“Whether the prosecution could prove that the accused No.1 along with accused No.2, in furtherance of their common intention, voluntarily caused hurt to Pw.1/D. Venkat Rao beyond all reasonable doubt or not?”

(ii)“Whether the prosecution could prove that the accused No.1 along with accused No.2, in furtherance of their common intention, wrongfully restrained Pw.1/D. Venkat Rao beyond all reasonable doubt or not?”

(iii)“Whether the prosecution could prove that the accused No.1 along with accused No.2, in furtherance of their common intention, extorted two rings and cash of Rs. 8,000/- from

Pw.1/D.Venkat Rao, beyond all reasonable doubt?”

(iv) “Whether the prosecution could prove that the accused No.1 along with accused No.2, in furtherance of their common intention, criminally intimidated the Pw.1/D. Venkat Rao with dire consequences that the accused would kill him beyond all reasonable doubt or not?” 6

17.POINT NO.1:The evidence of Pw.1/D. Venkat Rao goes to show that on 15.09.2016 from morning the accused No.1 was calling him and asked him to send his daughter along with him. Later at 06:00 P.M. when he went to the house, he found his house was locked and later, he went to Pw.2/Akshay Krishna who was staying in the hostel and through his phone he informed the accused that he was near community hall. When himself and his friend Pw.3/Akash

Krishna were taking turn near community hall the accused along with one person were there.

18.Subsequently he came to know the other person as “Rajesh” and when he reached near to them some persons attacked on him from his behind and he fell down and noticed that accused and other persons also beat him and his friend was shouting. The accused and others dragged him to the car, meanwhile his friend brought one constable and tried to save him, but the accused succeeded in their attempt and took him in a car to the house situated backside of

Saradhi studio and the accused kept him there from 09:00 P.M. to 03:00 A.M. on 16.09.2016.

19.The evidence of Pw.3/Akshay Krishna goes to show that on 15.09.2016 Pw.1 came to his room to Sri Sai Boys Hostel, Nagarjuna

Nagar, Ameerpet and told him that his father-in-law/accused called him to talk with him on some issues and they both went to Nagarjuna community hall as accused called Pw.1 to come there and they were going by walk to the community hall. Pw.1 was walking 10 meters ahead of him and when he was walking through turning on the road, he observed that Pw.1 and his father-in-law were in an altercation 7 and he went there and his father-in-law told him that Pw.1 was harassing his wife, due to which she sustained miscarriage.

20.Meanwhile two or three relatives of the accused came there and when they were about to beat Pw.1 he stopped them and they hit him and took away Pw.1 and they slapped him on his face. He saw one police constable coming there and sought his help and he also tried to stop father-in-law of Pw.1 and his relatives attacking Pw.1 and when they did not listen to him, that constable dialled 100 and informed police and before the police came there Pw.1 was taken away in a car by the accused and others.

21.As discussed above, it is the version of Pw.1 that accused and some others threatened him, beat him and abused him in filthy language. The evidence of Pw.2 as discussed above is in contradiction to the evidence of Pw.1 as he clearly deposed that two or three relatives of the accused came there and when they were about to beat

Pw.1, he stopped him. Pw.1 also deposed that accused abused him in filthy language as “Golla Na Koduka”, but the evidence of Pw.1 is also contradiction to the complaint averments.

22.The evidence of Pw.1 further goes to show that on the next day of the incident his parents took him to hospital and he suffered back pain for two months and later, he was admitted in Sunshine hospital, but the prosecution failed to file any Accident Register or any other

Medical Report to show that Pw.1 underwent treatment for back pain for two months and that he also took treatment in Sunshine hospital.

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23.On the other hand, the evidence of Pw.1 does not disclose that the accused and his relatives slapped Pw.1 on his face. On the other hand, the evidence of Pw.1 further goes to show that as his parents and his brothers were afraid as the accused engaged rowdy sheeters he did not file the complaint, but after one month at the advise of his relatives as the accused obtained his signatures on white papers, he lodged the complaint.

24.The evidence of Pw.1 as discussed above is also in contradiction to the complaint averments as the complaint averments goes to show that the accused threatened him that he would kill him if he lodge complaint against him. In view of the contradictory evidence of Pws.1 and 3 and there is absolutely no documentary evidence on the record to show that Pw.1 suffered back pain for two months and took treatment at Sunshine hospital. Pw.2/panch for scene of offence observation panchanama/Ex.P5 turned hostile and failed tosupport the prosecution case. Hence in view of the above discussion, I opine that the prosecution failed to prove that the accused No.1 along with accused No.2 in furtherance of their common intention, voluntarily caused hurt to Pw.1.

25.POINT NO.2: Though the evidence of Pws.1 and 3 goes to show that Pw.1 was dragged into the car and was taken to the house situated backside of the Saradhi studio, but Pw.1 failed to depose the address of the house in which he was confined and on the other hand, in the cross-examination by the learned Defence Counsel Pw.1 clearly deposed that he do not know the owner of the house in which he was confined by the accused. As Pws.1 and 3 failed to depose the 9 details of the house where he was confined and in the cross- examination by the learned Defence Counsel, Pw.4/P. Nagaraju, the

Investigation officer also deposed that he did not conduct any panchanama at the house where Pw.1 was confined and that he did not collect the particulars as to the ownership or possession of the said house. Hence in view of the above discussion, I opine that the prosecution failed to prove that the accused No.1 along with accused

No.2 in furtherance of their common intention, wrongfully restrained

Pw.1.

26.POINT NO.3: As discussed in point No.1, Pw.1 deposed that the persons, who were at the house where Pw.1 was confined, took/extorted two gold rings and also cash of Rs. 8,000/-, but prosecution failed to recover the gold rings and cash of Rs. 8,000/- and there is no whisper in the evidence of Pw.4, the Investigation

Officer with regard to the extortion of gold rings and cash of

Rs.8,000/-. On the other hand, Pw.1 in the cross-examination by the learned Defence Counsel deposed that he did not handover any receipt of the gold to the police and he admitted that he did not state the denomination of Rs. 8,000/- cash to the police. Hence in view of the above discussion, I opine that the prosecution failed to prove that accused No.1 along with accused No.2, in furtherance of their common intention extorted two gold rings and cash of Rs. 8,000/- from Pw.1.

27.POINT NO.4: The evidence of Pw.1 goes to show that accused threatened him with dire consequences, but there is no whisper in the evidence of Pw.3 that accused threatened Pw.1 with dire 10 consequences. In the cross-examination by the learned Defence

Counsel, Pw.1 admitted that a crime was registered against him at

Santhamavuluru P.S. of Prakasham District and in cross-examination by the learned Defence Counsel, Pw.3 admitted that there are disputes between Pw.1 and his wife. As discussed above in points

No.1 and 2 the evidence of Pws.1 and 3 is in contradiction and hence contradictory evidence of prosecution witnesses is fatal to the case of prosecution.

28.Therefore, in the light of the above discussion as admitted by

Pws.1 and 3 that there are disputes between Pw.1 and the accused

No.1 and Pw.1 clearly admitted that a case was filed against him in

Santhamavuluru P.S. of Prakasham District. As admitted by Pw.1 there is a delay of 2½ months in lodging the complaint. The reasons submitted by Pw.1 in his complaint as well as in his 161 Cr.P.C.

statement is contradiction to the evidence of Pw.1 deposed before the

Court. In view of the contradictory evidence of Pws.1 and 3, the prosecution failed to prove that accused No.1 along with accused

No.2, in furtherance of their common intention, criminally intimidated

Pw.1 with dire consequences.

29.Therefore in the light of the above discussion, I opine that the prosecution failed to prove the guilt of the accused No.1 beyond all reasonable doubt and the benefit of doubt, if any, should be given in favour of the accused No.1.

30. In the result, the Accused No.1 is found not guilty for the offence under sections 323, 341, 384, 506 read with 34 of the Indian 11

Penal Code and accordingly, he is acquitted under section 248(1)

Cr.P.C. for the said offence. Bail bonds of accused No.1, if any, shall stand cancelled subject to section 437-A of Cr.P.C. The unmarked non valuable property, if any, shall be destroyed after expiry of appeal time. Accused No.1 is directed to appear before the Appellate

Authority if his presence is required before the Appellate Authority.

Accused No.1 is further directed to execute a self bond for Rs. 5,000/- (Rupees Five thousand only).

Dictated to the Stenographer, transcribed and typed by him,

corrected and pronounced by me in the open court on this the 01st day of April, 2019.

Sd/-

Smt. P. Annie Rose Christian

XIV ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

PW1 – D. Venkat Rao, (complainant) - None - PW2 – K. Morarji, (panch witness) PW3 – Akshay Krishna, (witness) PW4 – P. Nagaraju, (S.I. of Police/IO)

EXHIBITS MARKED

Ex.P1 – Complaint dated 29.11.2016 - Nil - Ex.P2 – Signatures of Pw.2 on the scene of offence panchanama Ex.P3 - Signatures of Pw.2 on the Rough sketch Ex.P4 - First Information Report dated 29.11.2016 Ex.P5 – Scene of offence observation panchanama

dated 30.11.2016

Ex.P6 – Rough sketch

MATERIAL OBJECTS MARKED

- Nil -

Sd/-

Smt. P. Annie Rose Christian

XIV ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

// TRUE COPY //

1

IN THE COURT OF THE XIV ADDL. CHIEF METROPOLITAN

MAGISTRATE :: AT HYDERABAD

PRESENT:SMT. P. ANNIE ROSE CHRISTIAN,

XIV ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD.

Wednesday, the 03rd day of April, 2019

C.C. No. 806/2014

Between :

The State of Telangana, represented by the Station House Officer, P.S. Panjagutta, Hyderabad …… Complainant

And

A1) Devineni Basava Narendra Babu @ Ravindra Devamani, S/o Sheshagiri Rao, Aged: 57 years, Occ: Business, R/o Plot No. 8, M.I.E. Hafeezpet, Miyapur, Hyderabad

A2) Jayanthi, (absconding) A3) Shankar, (absconding) [Note: A2 and A3 are shown absconding and hence the present case is proceeded against A1 only) …… Accused

This case is coming on before me for final hearing in the presence of learned Assistant Public Prosecutor for the Complainant and of Sri L. Madhu Sekhar, Sri B. Srinivas, Advocates for the accused No.1 and after perusing the case records and upon hearing the arguments on both sides, this Court made the following:-

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

The Sub-Inspector of Police, P.S. Panjagutta, Hyderabad filed charge sheet against the accused No.1 in Crime No. 33/2014 for the offence punishable under sections 354-A, 354(i)(iii), 380, 506 read with 34 of the Indian Penal Code.

2.The cognizance of offence was taken on file under sections 354-A, 354(i)(iii), 380, 506 read with 34 of the Indian Penal Code against the accused No.1.

2

3.On appearance of accused No.1, relevant copies of documents were furnished to him as required under section 207 of Cr.P.C.

4.The accused No.1 was examined under section 239 Cr.P.C. He denied the accusation levelled against him. After hearing the learned

Assistant Public Prosecutor and the Defence Counsel, a charge under sections 354-A, 354(i)(iii), 380, 506 of the Indian Penal Code has been framed against the accused No.1, read over and explained to him in vernacular, who pleaded not guilty to the said charge and claimed to be tried.

5.In the course of the prosecution side evidence Pws.1 to 4 were examined and Exs.P1 to P3, were marked. The summons issued on

Lw.4/Chettajallu Venkat Rao was returned unserved stating as he vacated the house and hence his evidence was closed.

6.After closure of the prosecution side evidence, the accused No.1 was examined under section 313 Cr.P.C., with regard to the incriminating evidence appearing against the accused No.1 in the evidence of prosecution witnesses, to which he denied and reported no defence evidence.

7.Heard arguments.

8.The prayer of the prosecution is that the accused No.1, who is the owner of the flat situated at Navajyothi Apartmentrs, Sangeeth

Nagar, Somajiguda, Hyderabad where defacto complainant/

Smt.Hemasree along with her family members are residing as tenants, used to harass defacto complainant/Smt.Hemasree by disconnecting 3 the electricity supply. Further in the absence of the complainant, the accused No.1 with the assistance of accused No.2 and 3 committed theft of clothes, cash and other household articles.

9.Once the accused No.1 along with his friends came to her house in drunken condition at about 10:00 P.M. during the absence of her husband and outraged her modesty and threatened her with dire consequences. Hence the accused No.1 along with accused No.2 and 3 are punishable under sections 354-a, 354(i)(iii), 380, 506 read with 34 of the Indian Penal Code.

10.The facts of the prosecution case in nutshell are as follows:-

The accused No.1 is the owner of a flat in Navajyothi Apartments,

Sangeeth Nagar, Somajiguda, Hyderabad where defacto complainant/Smt. Hemasree along with her family are residing as tenants. The accused No.1 used to harass the complainant by removing the doors of the house and by disconnecting the electricity supply. Further in the absence of the defacto complainant in the house, the accused No.1 committed theft of clothes, cash and other household articles. Later he disconnected electricity supply to her flat and took away the motor. Once the accused No.1 along with his friends came to her house in drunken condition at about 10:00 P.M.

during the absence of her husband and misbehaved with her.

11.On 12.12.2013 the defacto complainant went to her native place along with her family and returned on 10.01.2014, she found the electricity connection to her flat was disconnected again and the motor was also taken away by accused No.1 without any intimation 4 and when she questioned the accused No.1 about the same, he threatened her with dire consequences that he would spoil her life and reputation in the society. Accused No.2 and 3 who are the associates of accused No.1 also involved by supporting the acts of the accused No.1. On 10.01.2014 Lw.1/Smt. Hemasree Addala lodged complaint at police station for taking necessary action against the accused No.1 and others as per law.

12.Basing on the above complaint, a case was registered in crime

No. 33/2014 under sections 354-A, 354(i)(iii), 380 read with 34 of IPC and investigated into the case. After completion of investigation, charge sheet was filed for the offence under sections 354-a, 354(i)(iii), 380, 506 read with 34 of the Indian Penal Code against the accused

No.1 showing the accused No.2 and 3 absconding and prays the

Hon'ble Court to punish the accused as per law. Hence the case.

13.On behalf of the prosecution Pws.1 to 4 were examined

PW1:Smt. Hemasree Defacto complainant/victim

PW2: A. Suryachander Rao, Husband of Pw.1/circumstantial witness

PW3:Smt. C. Jaya Mohan,Eye witness

PW4:B. Mansingh, S.I. of Police/ Investigating Officer

14.Now, the point for determination is :-

(i)“Whether the prosecution could prove that the accused No.1 along with other accused persons, sexually harassed Pw.1/Smt.Hemasree by outraging her modesty beyond all reasonable doubt or not?” 5

(ii)“Whether the prosecution could prove that the accused No.1 along with other accused persons, physically contacted and making advances involving unwelcome and explicit sexual overtures on Pw.1/Smt. Hemasree by outraging her modesty beyond all reasonable doubt or not?”

(iii)“Whether the prosecution could prove that the accused No.1 along with other accused persons, committed theft of cash, clothes and other household articles from the house of

Pw.1/Smt.Hemasree, beyond all reasonable doubt?”

(iv) “Whether the prosecution could prove that the accused No.1 along with other accused persons, criminally intimidated the Pw.1/

Smt.Hemasree with dire consequences beyond all reasonable doubt?”

15.POINT NO.1:Pw.1/Smt. Hemasree was examined in chief on 17.03.2016 and as the Defence Counsel was absent the case was called on the same day at 11:30 A.M., 12:00 noon and again at 01:30

P.M. and on three occasions the Defence Counsel was absent and when the accused was asked to cross-examine the witness he reported as no cross-examination and hence her cross was treated as

Nil. Petition under section 311 Cr.P.C. was filed on 28.03.2016 and the same was allowed. In spite of giving sufficient opportunity

Pw.1/Smt. Hemasree failed to appear before the Court and to secure the presence of witness. NBW was also issued and subsequently as 6

Pw.1 failed to appear before the Court, the evidence of Pw.1 was eschewed from consideration.

16.The evidence of Pw.2/A. Suryachander Rao goes to show that they have taken the residential flat for rent and the rent was fixed at

Rs. 6,000/- and they also entered into Lease Agreement. They paid

Rs. 2,00,000/- as advance and they also paid monthly rents and after some days the accused demanded them to vacate the flat as they want to put some office and they demanded to return the advance, but the accused without returning the advance amount got committed theft of Lease Agreement from their house through others in his absence, subsequently, he came to know the same.

17.The evidence of Pw.2/A. Suryachander Rao further goes to show that on one day in the year 2013 the accused brought another four persons during night hours to his house and they were in drunken state and they also used filthy language towards Pw.1/Smt. Hemasree and his children in his absence. He was informed about the same through Pw.1 and his children through phone. Subsequently the accused also took away electricity meter in his absence and caused troubles to them without returning the amount of Rs. 2,00,000/-. As discussed above, the evidence of Pw.2/A. Suryachander Rao is hearsay in nature and is of no use to the case of prosecution. As

Pw.1/Smt. Hemasree's evidence is eschewed from consideration, there is no material on the record to prove that the accused No.1 along with others outraged her modesty.

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18.POINT NO.2:As discussed above in point No.1, as

Pw.1/Smt. Hemasree's evidence is eschewed from consideration, there is no material on the record to prove that the accused No.1 along with other accused, physically contacted and made advances involving unwelcome and explicit sexual overtures on Pw.1/Smt. Hemasree by outraging her modesty.

19.POINT NO.3: As discussed in points No.1 and 2, the evidence of Pw.2/A. Suryachander Rao goes to show that they have taken the residential flat for rent and the rent was fixed at Rs. 6,000/- and they also entered into Lease Agreement. They paid Rs. 2,00,000/- as advance and they also paid the monthly rents and after some days the accused demanded them to vacate the flat as they want to put some office and they demanded to return the advance, but the accused without returning the advance amount committed theft of

Lease Agreement from their house through others in his absence and subsequently, he came to know the same.

20.The evidence of Pw.2/A. Suryachander Rao goes to show that on one day in the year 2013 the accused brought another four persons during night hours to his house and they were in drunken state and they also used filthy language towards Pw.1/Smt. Hemasree and his children in his absence. He was informed about the same through

Pw.1 and his children through phone and subsequently the accused also took away electricity meter in his absence and caused troubles to them without returning the amount of Rs. 2,00,000/-.

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21.In the cross-examination by the learned Defence Counsel,

Pw.2/A. Suryachander Rao identified his signature on a letter confronted to him by the Defence Counsel which was marked as

Ex.D1. Ex.D1 is an undertaking to vacate the house by the end of 31.03.2013 and it is also mentioned that two months advance was paid by them which has to be adjusted towards rent for February and

March, 2013. He also deposed that Ex.D1 contains the signature of

Pw.1/Smt. Hemasree. Pw.2/A. Suryachander Rao also deposed that he was not present at the time of demolition of the said house and came to know that the said house was demolished by G.H.M.C.

22.As discussed above, the evidence of Pw.2/A. Suryachander Rao is self contradictory as admitted by him. The contents of Ex.D1 clearly goes to show that they paid only two months advance which was to be adjusted towards rent of February and March, 2013 as per the undertaking to vacate the house by the end of 31.03.2013 mentioned in Ex.D1. Hence the contention of Pw.2/A. Suryachander

Rao that they have paid Rs. 2,00,000/- advance to the accused is not taken into consideration. With regard to the demolition of the house in cross-examination by the learned Defence Counsel

Pw.2/A.Suryachander Rao deposed that he came to know that the house was demolished by GHMC and this part of evidence is also in contradiction to the evidence deposed in chief examination that on 09.01.2017 the accused demolished his house in his absence by keeping all his articles in a room.

23.On the other hand, it is the contention of Pw.2/A. Suryachander

Rao that accused committed theft of Lease Agreement from his house 9 through others in his absence, but the Pw.4/Investigation Officer in the cross-examination by the learned Defence Counsel admitted that

Pw.2/A. Suryachander Rao did not state before him that

Pw.2/A.Suryachander Rao and accused entered into the Lease

Agreement and that he paid Rs.2,00,000/- as advance and the rent was fixed at Rs. 6,000/- and they paid monthly rent.

24.After some days the accused demanded them to vacate the flat as they want to put some office and that they demanded to return the advance, but the accused without returning the advance amount committed theft of Lease Agreement from his house through others.

As discussed above, Pw.2/A. Suryachander Rao omitted to state

before the Investigation Officer that the Lease Agreement was

committed theft in their house and he paid Rs. 2,00,000/- as advance and the rent was fixed at Rs. 6.000/- as admitted by

Pw.4/Investigation Officer.

25.Pw.3/Jaya Mohan clearly deposed that she does not know anything about the case and the police did not examine her. Pw.3 turned hostile and failed to support the prosecution case. Hence in view of the above discussion, I opine that the prosecution failed to prove that the accused No.1 committed theft of cash, clothes and other household articles from the house of Pw.1/Smt. Hemasree.

26.POINT NO.4:The prosecution alleged that the accused along with others threatened Pw.1 with dire consequences. The evidence of Pw.1/Smt. Hemasree is eschewed from consideration. As discussed above, the evidence of Pw.2 is hearsay in nature and Pw.3 10 turned hostile, hence there is no material on the record to prove that the accused No.1 along with others criminally intimidated

Pw.1/Smt.Hemasree with dire consequences. Hence the prosecution failed to prove that the accused No.1 along with others criminally intimidated Pw.1/Smt. Hemasree with dire consequences.

27.Therefore in the light of the above discussion, I opine that the prosecution failed to prove the guilt of the accused No.1 beyond all reasonable doubt and the benefit of doubt, if any, should be given in favour of the accused No.1.

28. In the result, the Accused No.1 is found not guilty for the offences under sections 354-A, 354(i)(iii), 380 and 506 of the Indian

Penal Code and accordingly, he is acquitted under section 248(1)

Cr.P.C. for the said offences. Bail bonds of accused No.1, if any, shall stand cancelled subject to section 437-A of Cr.P.C. The unmarked non valuable property, if any, shall be destroyed after expiry of appeal time. Accused No.1 is directed to appear before the Appellate

Authority if his presence is required before the Appellate Authority.

Accused No.1 is further directed to execute a self bond for Rs. 5,000/- (Rupees Five thousand only).

Dictated to the Stenographer, transcribed and typed by him,

corrected and pronounced by me in the open court on this the 03rd day of April, 2019.

Sd/-

Smt. P. Annie Rose Christian

XIV ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

11

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

PW1 – Hemasree, (complainant/victim) - None - PW2 – A. Surya Chandram, (circumstantial witness/ husband of Pw.1) PW3 – Jaya Mohan, (eye witness) PW4 – B. Man Singh, (S.I. of Police/IO)

EXHIBITS MARKED ON BEHALF OF PROSECUTION

Ex.P1 – Complaint dated 10.01.2014 Ex.P2 – 161 Cr.P.C. statement of Pw.3 dt. 20.01.2014 Ex.P3 - First Information Report dated 11.01.2014

EXHIBITS MARKED ON BEHALF OF DEFENCE

Ex.D1 – Signature of Pw.2 in a letter undertaking to vacate the house by the end of 31-03-2013 dt. 05.01.2013 Ex.D2 – Certified copy of F.I.R. in crime No. 455/2013 of P.S. Panjagutta dated 26.06.2013

MATERIAL OBJECTS MARKED

- Nil -

Sd/-

Smt. P. Annie Rose Christian

XIV ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

// TRUE COPY //

1

IN THE COURT OF THE XIV ADDL. CHIEF METROPOLITAN

MAGISTRATE :: AT HYDERABAD

PRESENT:SMT. P. ANNIE ROSE CHRISTIAN,

XIV ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD.

Wednesday, the 03rd day of April, 2019

C.C. No. 806/2014

Between :

The State of Telangana, represented by the Station House Officer, P.S. Panjagutta, Hyderabad …… Complainant

And

A1) Devineni Basava Narendra Babu @ Ravindra Devamani, S/o Sheshagiri Rao, Aged: 57 years, Occ: Business, R/o Plot No. 8, M.I.E. Hafeezpet, Miyapur, Hyderabad

A2) Jayanthi, (absconding) A3) Shankar, (absconding) [Note: A2 and A3 are shown absconding and hence the present case is proceeded against A1 only) …… Accused

This case is coming on before me for final hearing in the presence of learned Assistant Public Prosecutor for the Complainant and of Sri L. Madhu Sekhar, Sri B. Srinivas, Advocates for the accused No.1 and after perusing the case records and upon hearing the arguments on both sides, this Court made the following:-

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

The Sub-Inspector of Police, P.S. Panjagutta, Hyderabad filed charge sheet against the accused No.1 in Crime No. 33/2014 for the offence punishable under sections 354-A, 354(i)(iii), 380, 506 read with 34 of the Indian Penal Code.

2.The cognizance of offence was taken on file under sections 354-A, 354(i)(iii), 380, 506 read with 34 of the Indian Penal Code against the accused No.1.

2

3.On appearance of accused No.1, relevant copies of documents were furnished to him as required under section 207 of Cr.P.C.

4.The accused No.1 was examined under section 239 Cr.P.C. He denied the accusation levelled against him. After hearing the learned

Assistant Public Prosecutor and the Defence Counsel, a charge under sections 354-A, 354(i)(iii), 380, 506 of the Indian Penal Code has been framed against the accused No.1, read over and explained to him in vernacular, who pleaded not guilty to the said charge and claimed to be tried.

5.In the course of the prosecution side evidence Pws.1 to 4 were examined and Exs.P1 to P3, were marked. The summons issued on

Lw.4/Chettajallu Venkat Rao was returned unserved stating as he vacated the house and hence his evidence was closed.

6.After closure of the prosecution side evidence, the accused No.1 was examined under section 313 Cr.P.C., with regard to the incriminating evidence appearing against the accused No.1 in the evidence of prosecution witnesses, to which he denied and reported no defence evidence.

7.Heard arguments.

8.The prayer of the prosecution is that the accused No.1, who is the owner of the flat situated at Navajyothi Apartmentrs, Sangeeth

Nagar, Somajiguda, Hyderabad where defacto complainant/

Smt.Hemasree along with her family members are residing as tenants, used to harass defacto complainant/Smt.Hemasree by disconnecting 3 the electricity supply. Further in the absence of the complainant, the accused No.1 with the assistance of accused No.2 and 3 committed theft of clothes, cash and other household articles.

9.Once the accused No.1 along with his friends came to her house in drunken condition at about 10:00 P.M. during the absence of her husband and outraged her modesty and threatened her with dire consequences. Hence the accused No.1 along with accused No.2 and 3 are punishable under sections 354-a, 354(i)(iii), 380, 506 read with 34 of the Indian Penal Code.

10.The facts of the prosecution case in nutshell are as follows:-

The accused No.1 is the owner of a flat in Navajyothi Apartments,

Sangeeth Nagar, Somajiguda, Hyderabad where defacto complainant/Smt. Hemasree along with her family are residing as tenants. The accused No.1 used to harass the complainant by removing the doors of the house and by disconnecting the electricity supply. Further in the absence of the defacto complainant in the house, the accused No.1 committed theft of clothes, cash and other household articles. Later he disconnected electricity supply to her flat and took away the motor. Once the accused No.1 along with his friends came to her house in drunken condition at about 10:00 P.M.

during the absence of her husband and misbehaved with her.

11.On 12.12.2013 the defacto complainant went to her native place along with her family and returned on 10.01.2014, she found the electricity connection to her flat was disconnected again and the motor was also taken away by accused No.1 without any intimation 4 and when she questioned the accused No.1 about the same, he threatened her with dire consequences that he would spoil her life and reputation in the society. Accused No.2 and 3 who are the associates of accused No.1 also involved by supporting the acts of the accused No.1. On 10.01.2014 Lw.1/Smt. Hemasree Addala lodged complaint at police station for taking necessary action against the accused No.1 and others as per law.

12.Basing on the above complaint, a case was registered in crime

No. 33/2014 under sections 354-A, 354(i)(iii), 380 read with 34 of IPC and investigated into the case. After completion of investigation, charge sheet was filed for the offence under sections 354-a, 354(i)(iii), 380, 506 read with 34 of the Indian Penal Code against the accused

No.1 showing the accused No.2 and 3 absconding and prays the

Hon'ble Court to punish the accused as per law. Hence the case.

13.On behalf of the prosecution Pws.1 to 4 were examined

PW1:Smt. Hemasree Defacto complainant/victim

PW2: A. Suryachander Rao, Husband of Pw.1/circumstantial witness

PW3:Smt. C. Jaya Mohan,Eye witness

PW4:B. Mansingh, S.I. of Police/ Investigating Officer

14.Now, the point for determination is :-

(i)“Whether the prosecution could prove that the accused No.1 along with other accused persons, sexually harassed Pw.1/Smt.Hemasree by outraging her modesty beyond all reasonable doubt or not?” 5

(ii)“Whether the prosecution could prove that the accused No.1 along with other accused persons, physically contacted and making advances involving unwelcome and explicit sexual overtures on Pw.1/Smt. Hemasree by outraging her modesty beyond all reasonable doubt or not?”

(iii)“Whether the prosecution could prove that the accused No.1 along with other accused persons, committed theft of cash, clothes and other household articles from the house of

Pw.1/Smt.Hemasree, beyond all reasonable doubt?”

(iv) “Whether the prosecution could prove that the accused No.1 along with other accused persons, criminally intimidated the Pw.1/

Smt.Hemasree with dire consequences beyond all reasonable doubt?”

15.POINT NO.1:Pw.1/Smt. Hemasree was examined in chief on 17.03.2016 and as the Defence Counsel was absent the case was called on the same day at 11:30 A.M., 12:00 noon and again at 01:30

P.M. and on three occasions the Defence Counsel was absent and when the accused was asked to cross-examine the witness he reported as no cross-examination and hence her cross was treated as

Nil. Petition under section 311 Cr.P.C. was filed on 28.03.2016 and the same was allowed. In spite of giving sufficient opportunity

Pw.1/Smt. Hemasree failed to appear before the Court and to secure the presence of witness. NBW was also issued and subsequently as 6

Pw.1 failed to appear before the Court, the evidence of Pw.1 was eschewed from consideration.

16.The evidence of Pw.2/A. Suryachander Rao goes to show that they have taken the residential flat for rent and the rent was fixed at

Rs. 6,000/- and they also entered into Lease Agreement. They paid

Rs. 2,00,000/- as advance and they also paid monthly rents and after some days the accused demanded them to vacate the flat as they want to put some office and they demanded to return the advance, but the accused without returning the advance amount got committed theft of Lease Agreement from their house through others in his absence, subsequently, he came to know the same.

17.The evidence of Pw.2/A. Suryachander Rao further goes to show that on one day in the year 2013 the accused brought another four persons during night hours to his house and they were in drunken state and they also used filthy language towards Pw.1/Smt. Hemasree and his children in his absence. He was informed about the same through Pw.1 and his children through phone. Subsequently the accused also took away electricity meter in his absence and caused troubles to them without returning the amount of Rs. 2,00,000/-. As discussed above, the evidence of Pw.2/A. Suryachander Rao is hearsay in nature and is of no use to the case of prosecution. As

Pw.1/Smt. Hemasree's evidence is eschewed from consideration, there is no material on the record to prove that the accused No.1 along with others outraged her modesty.

7

18.POINT NO.2:As discussed above in point No.1, as

Pw.1/Smt. Hemasree's evidence is eschewed from consideration, there is no material on the record to prove that the accused No.1 along with other accused, physically contacted and made advances involving unwelcome and explicit sexual overtures on Pw.1/Smt. Hemasree by outraging her modesty.

19.POINT NO.3: As discussed in points No.1 and 2, the evidence of Pw.2/A. Suryachander Rao goes to show that they have taken the residential flat for rent and the rent was fixed at Rs. 6,000/- and they also entered into Lease Agreement. They paid Rs. 2,00,000/- as advance and they also paid the monthly rents and after some days the accused demanded them to vacate the flat as they want to put some office and they demanded to return the advance, but the accused without returning the advance amount committed theft of

Lease Agreement from their house through others in his absence and subsequently, he came to know the same.

20.The evidence of Pw.2/A. Suryachander Rao goes to show that on one day in the year 2013 the accused brought another four persons during night hours to his house and they were in drunken state and they also used filthy language towards Pw.1/Smt. Hemasree and his children in his absence. He was informed about the same through

Pw.1 and his children through phone and subsequently the accused also took away electricity meter in his absence and caused troubles to them without returning the amount of Rs. 2,00,000/-.

8

21.In the cross-examination by the learned Defence Counsel,

Pw.2/A. Suryachander Rao identified his signature on a letter confronted to him by the Defence Counsel which was marked as

Ex.D1. Ex.D1 is an undertaking to vacate the house by the end of 31.03.2013 and it is also mentioned that two months advance was paid by them which has to be adjusted towards rent for February and

March, 2013. He also deposed that Ex.D1 contains the signature of

Pw.1/Smt. Hemasree. Pw.2/A. Suryachander Rao also deposed that he was not present at the time of demolition of the said house and came to know that the said house was demolished by G.H.M.C.

22.As discussed above, the evidence of Pw.2/A. Suryachander Rao is self contradictory as admitted by him. The contents of Ex.D1 clearly goes to show that they paid only two months advance which was to be adjusted towards rent of February and March, 2013 as per the undertaking to vacate the house by the end of 31.03.2013 mentioned in Ex.D1. Hence the contention of Pw.2/A. Suryachander

Rao that they have paid Rs. 2,00,000/- advance to the accused is not taken into consideration. With regard to the demolition of the house in cross-examination by the learned Defence Counsel

Pw.2/A.Suryachander Rao deposed that he came to know that the house was demolished by GHMC and this part of evidence is also in contradiction to the evidence deposed in chief examination that on 09.01.2017 the accused demolished his house in his absence by keeping all his articles in a room.

23.On the other hand, it is the contention of Pw.2/A. Suryachander

Rao that accused committed theft of Lease Agreement from his house 9 through others in his absence, but the Pw.4/Investigation Officer in the cross-examination by the learned Defence Counsel admitted that

Pw.2/A. Suryachander Rao did not state before him that

Pw.2/A.Suryachander Rao and accused entered into the Lease

Agreement and that he paid Rs.2,00,000/- as advance and the rent was fixed at Rs. 6,000/- and they paid monthly rent.

24.After some days the accused demanded them to vacate the flat as they want to put some office and that they demanded to return the advance, but the accused without returning the advance amount committed theft of Lease Agreement from his house through others.

As discussed above, Pw.2/A. Suryachander Rao omitted to state

before the Investigation Officer that the Lease Agreement was

committed theft in their house and he paid Rs. 2,00,000/- as advance and the rent was fixed at Rs. 6.000/- as admitted by

Pw.4/Investigation Officer.

25.Pw.3/Jaya Mohan clearly deposed that she does not know anything about the case and the police did not examine her. Pw.3 turned hostile and failed to support the prosecution case. Hence in view of the above discussion, I opine that the prosecution failed to prove that the accused No.1 committed theft of cash, clothes and other household articles from the house of Pw.1/Smt. Hemasree.

26.POINT NO.4:The prosecution alleged that the accused along with others threatened Pw.1 with dire consequences. The evidence of Pw.1/Smt. Hemasree is eschewed from consideration. As discussed above, the evidence of Pw.2 is hearsay in nature and Pw.3 10 turned hostile, hence there is no material on the record to prove that the accused No.1 along with others criminally intimidated

Pw.1/Smt.Hemasree with dire consequences. Hence the prosecution failed to prove that the accused No.1 along with others criminally intimidated Pw.1/Smt. Hemasree with dire consequences.

27.Therefore in the light of the above discussion, I opine that the prosecution failed to prove the guilt of the accused No.1 beyond all reasonable doubt and the benefit of doubt, if any, should be given in favour of the accused No.1.

28. In the result, the Accused No.1 is found not guilty for the offences under sections 354-A, 354(i)(iii), 380 and 506 of the Indian

Penal Code and accordingly, he is acquitted under section 248(1)

Cr.P.C. for the said offences. Bail bonds of accused No.1, if any, shall stand cancelled subject to section 437-A of Cr.P.C. The unmarked non valuable property, if any, shall be destroyed after expiry of appeal time. Accused No.1 is directed to appear before the Appellate

Authority if his presence is required before the Appellate Authority.

Accused No.1 is further directed to execute a self bond for Rs. 5,000/- (Rupees Five thousand only).

Dictated to the Stenographer, transcribed and typed by him,

corrected and pronounced by me in the open court on this the 03rd day of April, 2019.

Sd/-

Smt. P. Annie Rose Christian

XIV ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

11

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

PW1 – Hemasree, (complainant/victim) - None - PW2 – A. Surya Chandram, (circumstantial witness/ husband of Pw.1) PW3 – Jaya Mohan, (eye witness) PW4 – B. Man Singh, (S.I. of Police/IO)

EXHIBITS MARKED ON BEHALF OF PROSECUTION

Ex.P1 – Complaint dated 10.01.2014 Ex.P2 – 161 Cr.P.C. statement of Pw.3 dt. 20.01.2014 Ex.P3 - First Information Report dated 11.01.2014

EXHIBITS MARKED ON BEHALF OF DEFENCE

Ex.D1 – Signature of Pw.2 in a letter undertaking to vacate the house by the end of 31-03-2013 dt. 05.01.2013 Ex.D2 – Certified copy of F.I.R. in crime No. 455/2013 of P.S. Panjagutta dated 26.06.2013

MATERIAL OBJECTS MARKED

- Nil -

Sd/-

Smt. P. Annie Rose Christian

XIV ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

// TRUE COPY //

IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE

NAMPALLY CRIMINAL COURTS, HYDERABAD.

Present : Smt. P. Annie Rose Christian, Chief Metropolitan Magistrate, Hyderabad. Dated this the 23rd day of July’ 2019.

C.C.No. 2169 of 2019

Between :

State represented by The Prohibition and Excise Sub-Inspector, Excise Charminar, Hyderabad.

…Complainant. And :

V. Yellam S/o V. Yellaiah , Age 59 years, H.No. 18-1-337/A/26, Rajivgandhinagar, Uppuguda, Hyderabad.

...Accused.

This case is coming on 19-07-2019 for final hearing before me in the presence of Assistant Public Prosecutor for Prosecution and of Sri Rakesh Pathak, Advocate for accused, and the matter having been stood over for consideration till this day, the Court delivered the following:

J U D G M E N T

1. The Prohibition and Excise Sub-Inspector, Excise Charminar, Hyderabad filed charge sheet against the accused for the offence under Section 7 (A) r/w 8 (e) of

A.P. Prohibition Act, in Cr. No. 308/2015-16 of Excise Charminar, Hyderabad.

2. The cognizance of offence was taken on file under section 7 (A) r/w 8 (e) of A.P. Prohibition Act, against the accused.

3. On appearance of accused, relevant copies of documents were furnished to the accused as required under section 207 of Cr.P.C.

4. Accused was examined under Section 239 Cr.P.C., and upon hearing a charge was framed under section 7 (A) r/w 8 (e) of A.P. Prohibition Act, against accused 2 and was read over and explained to him in Telugu, for which he denied the offence and pleaded not guilty and claimed to be tried.

5. In the course of the prosecution side evidence, P.W. 1 was examined and

Ex.P.1 to P.3 were marked.

6.Police filed report stating that the whereabouts of A. Kishore Kumar and

M. Prashanth are not known, hence their evidence was closed.

7. After closure of the prosecution side evidence, accused was examined under section 313 Cr.P.C., with regard to the incriminating material appearing against the accused in the evidence of prosecution witnesses, to which he denied. And accused reported no defence evidence.

8. Heard arguments.

9. The prayer of the prosecution is that the accused was found in possession of two plastics bag containing 1150 illicit distilled liquor sachets. Hence the accused is punishable under section 7 (A) and 8 (e) of A.P. Prohibition Act.

10. The facts of the prosecution case in nutshell are as follows:-

On 06-09-2015 at about 4.30 P.M the accused was found in possession of 1150 illicit distilled liquor sachets each containing 100 ml in two plastic bags infront of

H.No. 18-1-337/A/26, Rajiv Gandhinagar, Uppuguda, Hyderabad and on seeing the

Excise Officials the accused tried to escape from the scene of offence, but they caught hold of him .

11.M. Satyanarayana /Prohibition and Excise Sub-Inspector along with panchas went to the said place and on searching they found two more plastic bags under a stone and in total four plastic and containing 1150 illicit distilled liquor sachets 3 each containing 100 ml . On local enquiry it is revealed that the name of the accused was Vasupula Yellam S/o V. Yellaiah R/o A. Anil Goud S/o Kistaiah Goud, H.No. 18-1- 337/A/26, Rajiv Gandhinagar, Uppuguda, Hyderabad. M. Satyanarayana /Prohibition and Excise Sub-Inspector had drawn two samples of illicit distilled liquor each containing three liquor sachets and seized the samples and remaining contraband under cover of panchanama in the presence of panchas A. Kishore Kumar and M. Prashanth .

Seized property brought to Excise Police Station and one sample was sent to chemical analysis for report. Remaining property was deposited before Deputy

Commissioner. Excise, Hyderabad for confiscation.

12. Basing on the Panchanama a case was registered in crime no. 308/2015-16 under Section 7 (A) r/w 8 (e) of A.P. Prohibition Act. Hence the case.

13. Now, the point for determination is:

Whether the prosecution could prove that accused was in possession of illicit distilled liquor beyond all reasonable doubt or not?

14. Point:- The evidence of PW.1/M. Satyanarayana/Prohibition and Excise Sub-

Inspector, goes to show that on 06-09-2015 at about 4.30 P.M he received reliable information and himself along with his staff members and panchas by name A. Kishore

Kumar and M. Prashanth proceeded to Rajeev Gandhi Nagar, Uppuguda and found one person in open place along with two plastic bags . On seeing the Excise Officials the accused tried to escape from the scene of offence. But they caught hold the accused.

15. The evidence of PW1/M. Satyanarayana/ Prohibition and Excise Sub-Inspector further goes to show that on enquiry the accused informed that his name was V.

Yellaiah and he was selling the illicit distilled liquors. He recovered two plastic bags 4 from him. Accused further revealed that he kept another two bags under a stone beside his house. Later they seized the said bags also. In total four bags containing 1150 illicit distilled sachets each containing 100 ml. The four bags containing 1150 illicit distilled liquor sachets were seized in the presence of panchas A. Kishore Kumar and M.

Prashanth under cover of panchanama.

16. The evidence of PW1/M. Satyanarayana/ Prohibition and Excise Sub-Inspector further goes to show that he had drawn two samples out of 1150 illicit distilled liquor sachets and arrested the accused. He brought the said property along with the accused to the Police Station.

17. Basing on the panchanama/Ex P2 he registered a case in Cr.No. 308/2015-16 for the offence u/Sec 7(A) r/w 8(e) of AP Prohibition Act and got issued FIR/Ex P1.

During the course of investigation he has sent one sample to the chemical analysis.The chemical analyst sent a report /Ex P3 and the analyst opined that the sample is illicit distilled liquor and unfit for human consumption and he further deposed that the remaining property was deposited before the Excise Deputy Commissioner of Police for destruction.

18. In the cross examination by the learned defence counsel , PW1/M. Satyanarayana deposed that he did not enquire the consumer who purchased liquor sachets from the accused. He further deposed that he did not seize any sale proceeds from the accused.

He deposed that the panchas A. Kishore Kumar and M. Prashanth are not the residents of the locality . He did not examine the persons who are residing nearby scene of offence .

5

19. As discussed above the prosecution failed to examine the pancha witnesses to prove the seizure of illicit distilled liquor . In the absence of evidence of panch witnesses the evidence of PW1/M. Satyanarayana cannot be taken into consideration as inadmissible and hit by section 25 of the Indian Evidence Act.

20. Basing on the evidence on the record this court relies upon the observations of the

Honourable High Court in the following cases.

In a case law S.Babu Saheb @ Babu

Vs

State of A.P. reported in 2010 (1) ALT (Crl.) 32 (A.P) where in at paragraphs Nos.22 to 27 the Honourable High Court observed that

22) There are other reasons for disbelieving the testimony of PWs.1 and 2. Admittedly, there was another mediator by name B. Janakiramaiah and three other excise officials who accompanied PW.2. Neither the other mediator nor the excise officials were examined in this case. The prosecution has not assigned specific reasons for not examining those witnesses. For the reaons of not making efforts to take independent respectable local mediator, the evidence of PW.1 loses it’s credibility. If we exclude the evidence of PW.1, there remains the evidence of PW.2 only.

23) This court in Mudavath Mothia’s case (2 supra), observed that the seizure proceedings drafted also cannot be considered in view of the bar under sections 25 and 27 of Indian Evidence Act and section 161 of Cr.P.C.

24) It was also observed that when the excise officials are entrusted with the investigation of cognizable offence, they become equal to the police officials. When once they become equal to police officials, the confession recorded by them in the proceedings become inadmissible.

6

Therefore, Ex.P-5, seizure panchanama, is hit by sections 25, 27 of the Indian Evidence Act, 1872 and section 161 of Cr.P.C.

25) There is another circumstance in this case i.e., the delay in sending the sample to the chemical examination. Admittedly, the seizure of the sample was made on 8.8.1997. According to PW.2, he had sent the sample to the Chemical Examiner on 11.11.1997. He has not explained as to why he could not sent the sample bottle to the chemical examination till 11.11.1997.

26) The other lacuna pointed by the learned counsel

for the petitioner is that though the charge sheet

is filed for the offence under section 34(a) of the A.P.Excise Act, the lower court proceeded against the accused for the offence under section 8 (b) (ii) of the A.P. Prohibition Act. The other point raised is that PW.2 had drawn sample from only one bottle.

27) The evidence let in by the prosecution must create confidence and must be reliable. Since no efforts were made to take independent mediator in this case, it appears that it is not desirable to convict the accused on the evidence of PWs.1 and 2. The court below did not consider the importance of taking local respectable independent mediators, hence their judgments resulted in miscarriage of justice and liable to be set aside. In the circumstances, it appears that there is no need to consider the other points referred above, raised by the learned counsel for the petitioner.

23.The observations of the Honourable High Court in the above cited case are aptly applicable to the case on hand. Hence, I opine that the prosecution failed to prove the guilt of the accused for the offence under Section 7 (A) r/w 8 (e) of A.P. Prohibition Act.

7

24. In the result, the accused is found not guilty for the offence under Section 7 (A) r/w 8 (e) of A.P. Prohibition Act, and accordingly he is acquitted under Section 248(1) Cr.P.C., for the said offence. The bail bonds of the accused shall stand cancelled.

The unmarked case property if any shall be destroyed after expiry of appeal time.

Accused is directed to appear before the appellate authority if his presence is required

before the appellate authority. Accused is further directed to execute a self bond for

Rs.5,000/- (Rupees Five thousand only).

Dictated to the Stenographer Grade-II, corrected and pronounced and signed by me in

the open court on this the 23rd day of July, 2019.

CHIEF METROPOLITAN MAGISTRATE

HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution : For Defence :

P.W.1: M. Satyanarayana NIL

DOCUMENTS MARKED

For Prosecution : For Defence :

Ex.P.1- FIR is marked by PW1 dt 06-09-2015 NIL

Ex.P.2- Panchanama marked by PW1 dt 06-09-2015

Ex.P.3- FSL report marked by PW1 dt 07-09-2015

MATERIAL OBJECTS MARKED

NIL

CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

CALENDER OF CASES TRIED BY CHIEF METROPOLITAN MAGISTRATE : HYD. FORM NO: 71/72 OF CRL. RULES OF PRACTICE

CALENDER AND JUDGMENT

C.C.NO. 2169 of 2019

Date of offence: 06-09-2015 Date of report/complaint : 06-09-2015 Taking cognizance : 05-02-2019 Furnishing copies to the accused : 30-04-2019

Plea of the accused : 04-06-2019

Examination U/Sec.313 Cr.P.C. : 21-06-2019

Date of apprehension of accused : 06-09-2015

Date of Release on bail : 18-06-2015

Date of Commencement of trial : 18-07-2019

Date of Close of Trial : 18-07-2019

Date of Judgment : 23-07-2019

Name of the Complainant : Prohibition and Excise Sub-Inspector,

Station Charminar, Hyderabad.

Name of the accused : V. Yellam

Explanation for delay: No delay / Due to non production of witnesses by the prosecution. Offence under Section : 7(A) r/w 8(e) of AP Prohibition Act

Finding : Found not guilty Result : In the result, the accused is found not guilty for the offence under Section 7 (A) r/w 8 (e) of A.P. Prohibition Act, and accordingly he is acquitted under Section 248(1) Cr.P.C., for the said offence. The bail bonds of the accused shall stand cancelled. The unmarked case property if any shall be destroyed after expiry of appeal time. Accused is directed to appear before the appellate authority if his presence is required before the appellate authority. Accused is further directed to execute a self bond for Rs. 5,000/- (Rupees Five thousand only).

CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

To: The Hon'ble I Addl., Metropolitan Sessions Judge, Hyderabad.

Dis.No. /CMM/2019 Date :

IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE

NAMPALLY CRIMINAL COURTS, HYDERABAD.

Present : Smt. P. Annie Rose Christian, Chief Metropolitan Magistrate, Hyderabad. Dated this the 23rd day of July’ 2019.

C.C.No. 2356 of 2019

Between :

State represented by The Prohibition and Excise Sub-Inspector, Excise Charminar, Hyderabad.

…Complainant. And :

A. Anil Goud, S/o Kistaiah Goud, R/o H.No. 1-4-65, Errakunta, Ranga Reddy Dist.

...Accused.

This case is coming on 19-07-2019 for final hearing before me in the presence of Assistant Public Prosecutor for Prosecution and of M/s Aavula Prabhakar Reddy, Advocate for accused, and the matter having been stood over for consideration till this day, the Court delivered the following:

J U D G M E N T

1. The Prohibition and Excise Sub-Inspector, Excise Charminar, Hyderabad filed charge sheet against the accused for the offence under Section 7 (A) r/w 8 (e) of

A.P. Prohibition Act, in Cr. No. 317/2015-16 of Excise Charminar, Hyderabad.

2. The cognizance of offence was taken on file under section 7 (A) r/w 8 (e) of A.P. Prohibition Act, against the accused.

3. On appearance of accused, relevant copies of documents were furnished to the accused as required under section 207 of Cr.P.C.

4. Accused was examined under Section 239 Cr.P.C., and upon hearing a charge was framed under section 7 (A) r/w 8 (e) of A.P. Prohibition Act, against accused 2 and was read over and explained to him in Telugu, for which he denied the offence and pleaded not guilty and claimed to be tried.

5. In the course of the prosecution side evidence, P.W. 1 was examined and

Ex.P.1 to P.3 were marked.

6.Police filed report stating that the whereabouts of A. Kishore Kumar and

M. Prashanth are not known, hence their evidence was closed.

7. After closure of the prosecution side evidence, accused was examined under section 313 Cr.P.C., with regard to the incriminating material appearing against the accused in the evidence of prosecution witnesses, to which he denied. And accused reported no defence evidence.

8. Heard arguments.

9. The prayer of the prosecution is that the accused was found in possession of two plastics bag containing 500 illicit distilled liquor sachets. Hence the accused is punishable under section 7 (A) and 8 (e) of A.P. Prohibition Act.

10. The facts of the prosecution case in nutshell are as follows:-

On 10-09-2015 at about 4.00 P.M the accused was found in possession of 500 illicit distilled liquor sachets each containing 100 ml in two plastic bags at open place, beside Government Quarters, Near Church, Ghouse Nagar, Vombay Colony,

Bandlaguda, Hyderabad and on seeing the Excise Officials the accused ran away leaving the said bags.

11.M. Satyanarayana /Prohibition and Excise Sub-Inspector along with panchas went to the said place and on search they found two plastic bags containing 500 illicit distilled liquor sachets each containing 100 ml . On local enquiry it were revealed that the ran away accused was A. Anil Goud S/o Kistaiah Goud, R/o H.No. 1-4- 3 65, Errakunta, Saroornagar. M. Satyanarayana /Prohibition and Excise Sub-Inspector has drawn two samples of illicit distilled liquor each containing three liquor sachets and seized the samples and remaining contraband under cover of panchanama in the presence of panchas A. Kishore Kumar and M. Prashanth . Seized property was brought to Excise Police Station and one sample was sent to chemical analysis for report. Remaining property was deposited before Deputy Commissioner. Excise,

Hyderabad for confiscation.

12. Basing on the Panchanama a case was registered in crime no. 317/2015-16 under Section 7 (A) r/w 8 (e) of A.P. Prohibition Act. Hence the case.

13. Now, the point for determination is:

Whether the prosecution could prove that accused was in possession of illicit distilled liquor beyond all reasonable doubt or not?

14. Point:- The evidence of PW.1/M. Satyanarayana/Prohibition and Excise Sub-

Inspector, goes to show that on 10-09-2015 at about 4.00 P.M, on receiving reliable information himself along with his staff members and panchas by name A. Kishore

Kumar and M. Prashanth proceeded to Vombay Colony, Ghouse Nagar, Bandlaguda,

Hyderabad and found one person in open place along with two plastic bags . On seeing the Excise Officials the accused escaped from the scene of offence.

15. The evidence of PW1/M. Satyanarayana/ Prohibition and Excise Sub-Inspector further goes to show that he seized the said bags in the presence of said panchas under cover of panchanama. On verification they found 500 illicit distilled liquor sachets each containing 100 ml in the said bag. He has drawn two samples out of 500 illicit distilled liquor sachets . On enquiry he came to know that the said persons name was A.

Anil Goud . He brought the property to the police station .

4

16. Basing on the panchanama/Ex P2 he registered a case in Cr.No. 317/2015-16 for the offence u/Sec 7(A) r/w 8(e) of AP Prohibition Act and got issued FIR/Ex P1.

During the course of investigation he has sent one sample to the chemical analysis. He came to know that the accused voluntarily surrendered before the Court on 20-06-2016.

He received the chemical analyst report /Ex P3 and analyst opined that the sample is illicit distilled liquor and unfit for human consumption. The remaining property was deposited before the Excise Deputy Commissioner of Police for destruction.

17. In the cross examination by the learned defence counsel , PW1/M. Satyanarayana deposed that he did not enquire the consumer who purchased liquor sachets from the accused. He deposed that the panchas A. Kishore Kumar and M. Prashanth are not the residents of the locality . He did not examine the persons who are residing nearby scene of offence . Police filed report stating that whereabouts of A. Kishore Kumar and

M. Prashanth are not known , hence their evidence was closed.

18. As discussed above the prosecution failed to examine the panch witnesses to prove the seizure of illicit distilled liquor . In the absence of evidence of panch witnesses the evidence of PW1/M. Satyanarayana cannot be taken into consideration as inadmissible and hit by section 25 of the Indian Evidence Act.

19. Basing on the evidence on the record this court relies upon the observations of the

Honourable High Court in the following cases.

In a case law S.Babu Saheb @ Babu

Vs

State of A.P. reported in 2010 (1) ALT (Crl.) 32 (A.P) where in at paragraphs Nos.22 to 27 the Honourable High Court observed that 5

22) There are other reasons for disbelieving the testimony of PWs.1 and 2. Admittedly, there was another mediator by name B. Janakiramaiah and three other excise officials who accompanied PW.2. Neither the other mediator nor the excise officials were examined in this case. The prosecution has not assigned specific reasons for not examining those witnesses. For the reaons of not making efforts to take independent respectable local mediator, the evidence of PW.1 loses it’s credibility. If we exclude the evidence of PW.1, there remains the evidence of PW.2 only.

23) This court in Mudavath Mothia’s case (2 supra), observed that the seizure proceedings drafted also cannot be considered in view of the bar under sections 25 and 27 of Indian Evidence Act and section 161 of Cr.P.C.

24) It was also observed that when the excise officials are entrusted with the investigation of cognizable offence, they become equal to the police officials. When once they become equal to police officials, the confession recorded by them in the proceedings become inadmissible.

Therefore, Ex.P-5, seizure panchanama, is hit by sections 25, 27 of the Indian Evidence Act, 1872 and section 161 of Cr.P.C.

25) There is another circumstance in this case i.e., the delay in sending the sample to the chemical examination. Admittedly, the seizure of the sample was made on 8.8.1997. According to PW.2, he had sent the sample to the Chemical Examiner on 11.11.1997. He has not explained as to why he could not sent the sample bottle to the chemical examination till 11.11.1997.

26) The other lacuna pointed by the learned counsel

for the petitioner is that though the charge sheet

is filed for the offence under section 34(a) of the A.P.Excise Act, the lower court proceeded against the accused 6 for the offence under section 8 (b) (ii) of the A.P. Prohibition Act. The other point raised is that PW.2 had drawn sample from only one bottle.

27) The evidence let in by the prosecution must create confidence and must be reliable. Since no efforts were made to take independent mediator in this case, it appears that it is not desirable to convict the accused on the evidence of PWs.1 and 2. The court below did not consider the importance of taking local respectable independent mediators, hence their judgments resulted in miscarriage of justice and liable to be set aside. In the circumstances, it appears that there is no need to consider the other points referred above, raised by the learned counsel for the petitioner.

23.The observations of the Honourable High Court in the above cited case are aptly applicable to the case on hand. Hence, I opine that the prosecution failed to prove the guilt of the accused for the offence under Section 7 (A) r/w 8 (e) of A.P. Prohibition Act.

24. In the result, the accused is found not guilty for the offence under Section 7 (A) r/w 8 (e) of A.P. Prohibition Act, and accordingly he is acquitted under Section 248(1) Cr.P.C., for the said offence. The bail bonds of the accused shall stand cancelled.

The unmarked case property if any shall be destroyed after expiry of appeal time.

Accused is directed to appear before the appellate authority if his presence is required

before the appellate authority. Accused is further directed to execute a self bond for

Rs.5,000/- (Rupees Five thousand only).

Dictated to the Stenographer Grade-II, corrected and pronounced and signed by me in

the open court on this the 23rd day of July, 2019.

CHIEF METROPOLITAN MAGISTRATE

HYDERABAD.

7

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution : For Defence :

P.W.1: M. Satyanarayana NIL

DOCUMENTS MARKED

For Prosecution : For Defence :

Ex.P.1- FIR is marked by PW1 dt 10-09-2015 NIL

Ex.P.2- Panchanama marked by PW1 dt 10-09-2015

Ex.P.3- FSL report marked by PW1 dt 21-09-2015

MATERIAL OBJECTS MARKED

NIL

CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

CALENDER OF CASES TRIED BY CHIEF METROPOLITAN MAGISTRATE : HYD. FORM NO: 71/72 OF CRL. RULES OF PRACTICE

CALENDER AND JUDGMENT

C.C.NO. 2356 of 2019

Date of offence: 10-09-2015 Date of report/complaint : 10-09-2015 Taking cognizance : 05-02-2019 Furnishing copies to the accused : 28-03-2019

Plea of the accused : 02-05-2019

Examination U/Sec.313 Cr.P.C. : 18-07-2019

Date of apprehension of accused : 20-06-2016

Date of Release on bail : 18-06-2015

Date of Commencement of trial : 18-07-2019

Date of Close of Trial : 18-07-2019

Date of Judgment : 23-07-2019

Name of the Complainant : Prohibition and Excise Sub-Inspector,

Station Charminar, Hyderabad.

Name of the accused : A. Anil Goud

Explanation for delay: No delay / Due to non production of witnesses by the prosecution. Offence under Section : 7(A) r/w 8(e) of AP Prohibition Act

Finding : Found not guilty Result : In the result, the accused is found not guilty for the offence under Section 7 (A) r/w 8 (e) of A.P. Prohibition Act, and accordingly he is acquitted under Section 248(1) Cr.P.C., for the said offence. The bail bonds of the accused shall stand cancelled. The unmarked case property if any shall be destroyed after expiry of appeal time. Accused is directed to appear before the appellate authority if his presence is required before the appellate authority. Accused is further directed to execute a self bond for Rs. 5,000/- (Rupees Five thousand only).

CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

To: The Hon'ble I Addl., Metropolitan Sessions Judge, Hyderabad.

Dis.No. /CMM/2019 Date :