Smt.p. Annie Rose Christian

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS S.KOTA

Present : Smt.P.Annie Rose Christian,

Judicial Magistrate of First Class, Kothavalasa.

FAC/ Judicial Magistrate of First Class, S.Kota

Friday, this the 07th day of October,2016

C.C.No.34 of 2015 Between :

State represented by The Sub Inspector of police, Jami Police Station.

…Complainant. And :

A-1) Kasireddi Appalanarasayya, S/o.late Kittayya, aged 63 years, K.Velama caste, Main Road, Balarampuram village, Jami Mandal.

A-2) Kasireddi Gowrinaidu, S/o.Appalanarasayya, aged 30 years, K.Velama caste, Main Road, Balarampuram village, Jami Mandal.

..Accused

This case is coming on 16.09.2016 for final hearing before me in the presence of Assistant Public Prosecutor for Prosecution and Sri. B.Demudu, Advocate for accused/A1 and A2, 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 Sub-Inspector of Police, Jami police station filed charge sheet against the A1 and A2 for the offence under sections 324 IPC and 323 IPC r/w 34

IPC., in Crime No.188/2014 of Jami Police Station.

2. The cognizance of offence was taken on file under sections 324 IPC and 323 IPC r/w 34 IPC., against the A1 and A2.

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

4. A1 and A2 were examined under Section 239 Cr.P.C., and upon hearing a charge was framed under sections 324 IPC and 323 IPC r/w 34 IPC., against A-1 and A-2, and was read over and explained to them in Telugu, for which the they denied the offence and pleaded not guilty and claimed to be tried.

5. In the course of the prosecution side evidence P.Ws. 1 to 9 were examined and Ex.P.1 to Ex.P.9 and MOs.1 and 2 i.e, two sticks were marked. The evidence of Ganivada Ramesh was given-up by the Assistant Public Prosecutor, hence his evidence was closed. Hence, prosecution evidence was closed.

6.After closure of the prosecution side evidence, A1 and A2 were 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 they denied. And accused reported no defence evidence.

7.At the stage of arguments i.e, on 09-09-2016 the Assistant Public

Prosecutor filed a petition under section 216 Cr.P.C., vide Crl.M.P.No.2185/2016 to alter charges and the same was allowed. And on 09.09.2016 A1 and A.2 and examined under section 216 Cr.P.C, upon hearing charges were framed for the offences under section 324 and 506(1) IPC against A.1 and A.2 and read over and explained to them in Telugu to which they denied and reported no defence evidence.

8.They submitted that they do not wish to recall, re-summon or re- examine any witnesses. They further submitted that they does not want to further examine any other witnesses and they does not need an opportunity for a new trial.

The defence counsel filed a memo stating that he does not want to cross examine the prosecution witnesses and does not wish to recall, re-summon any witnesses and that he does not need an opportunity for new trial.

2

9. Heard arguments.

10. The prayer of the prosecution is that A.1 and A.2 voluntarily caused hurt to de-facto complainant/Polipereddi Apparao with dangerous weapons i.e sticks and caused injuries. And threatened him with dire consequence. Hence A-1 and A-2 are liable for punishment under sections 324 IPC and 323 IPC r/w 34 IPC.

11. The facts of the prosecution case in nutshell are as follows:- On 22.12.2014 at about 17.00 hours defacto complainant/Polipereddy Apparao went to chicken shop of Vempadapu Govindha to buy chicken, and A.1 and A.2 pounced upon him armed with sticks and beat defacto complainant/ Polipereddy Apparao with sticks and hands in black and blue.

12. As a result defacto complainant/Polipereddy Apparao sustained bleeding injury on head and also sustained injuries on his body. Defacto complainant/Polipereddy Apparao became unconscious and Paturu Narayanarao rushed there, called 108 ambulance and shifted defacto complainant/ Polipereddy

Apparao to District Head Quarter Hospital, Vizianagaram and admitted him.

13. Basing on the statement of defacto complainant/Polipereddy Apparao a case was registered in Cr.no.188/2014 under sections 324 IPC and 323 IPC r/w 34 IPC of Jami police station. And on 16.12.2014 notice under section 41(a)

Cr.P.C. was served on the A1 and A2 and released them. Hence the case.

14.Now, the point for determination is:

Whether the prosecution could prove that A.1 and A.2 voluntarily caused hurt to de-facto complainant/Polipereddi Apparao with dangerous weapons i.e sticks and caused injuries. And threatened him with dire consequence beyond all reasonable doubt or not?

3

15.Point:- The evidence of PW.1/Polipireddy Apparao goes to show that on 10.12.2014 at about 4.30 pm after obtaining permission he came outside the

Bheemasingi sugar factory. At that time Kasireddy Simhachalam Naidu pelted stones against him near the village. And he did not sustain any injuries and he left the place and went to buy chicken at factory.

16. A1 and A2 along with Kasireddy Simhachalam Naidu came to his chicken shop of Vempadapu Govinda and when he was buying the chicken,

Kasireddy Simhachalam naidu beat him on his left side of the head with iron rod.

And A1 and A2 beat him with sticks, A1 beat him on the right side of the ribs and

A2 beat him on his head and he sustained bleeding injuries and became unconscious after receiving the injuries.

17. PW.5/Koyya Seetharam, PW.7/Paturi Narayanarao, and one

Karidemudu came to the chicken shop and on seeing them A1, A2 and Kasireddy

Simhachalam Naidu left the scene of offence. And he regained conscious on 11.12.2014 and on 10.12.2014 the statement was recorded at hospital. In cross examination by the learned defence counsel PW.1/Polipireddy Apparao admitted that there is enmity with accused.

18. PW.1/Polipireddy Apparao also admitted that there are land disputes with the accused. And next day morning his statement was recorded at the hospital. And he was unconscious on the date of incident at the hospital. The evidence of PW.2/Vempadapu Govindha, PW.3/Allada Lingamurthy and

PW.7/Patnuri Narayanarao goes to show that they does not know case facts and they does not know the accused. And that police did not examine them.

19.The evidence of PW.4/Jami Ravi goes to show that he does not know accused and he does not know who beat PW.1 / Polipireddy Apparao. The 4 evidence of PW.5/Koyya Seetharam goes to show that police seized stick on the next day of offence at Kumaram Sugar factory junction. And police observed the place of offence at chicken centre.

20. PW.5/Koyya Seetharam signed on the scene observation report in the afternoon. And that he was alone present at the time of observation of scene of offence. The evidence of PW.6/B.Satyasrinivas goes to show that on 10.12.2014 at about 7.45 pm he examined P.Apparao and found the following injuries.

(1) 2x ½ x ½ cms Laceration over right forehead.

(2) 1x ½ x ½ cms Laceration over left ear.

(3) 2 x 6 cms patterned sub coetaneous hemorrhagitous below left ear on neck.

(4) 4 x 6 cms abrasion with adema of left hand just below elbow.

(5) 2 x ½ cms abrasion over the right chest.

21. PW.6/B.Satyasrinivas opined that all the injuries are simple in nature and issued wound certificate/Ex.P5. In the cross examination by the learned defence counsel he deposed that injured was in conscious state at the time of medical examination.

22. The evidence of PW.8/V.Satyam goes to show that he recorded the statement of PW.1/Polipireddy Apparao on 10.12.2014 in the presence of duty doctor at head quarters hospital, Vizianagaram. And that he did not mention the time of recording the statement. In the cross examination by the learned defence counsel he deposed that PW.1/Polipireddy Apparao was in conscious state at the time of recording the statement.

23. The evidence of PW.9/M.Prasanth Kumar/Investigation Officer is procedural in nature. In cross examination by the learned defence counsel he 5 deposed that PW.1/Polipireddy Apparao was in conscious state when he went to hospital. And he also admitted that there are disputes between PW.1/Polipireddy

Apparao and accused.

24. As discussed above, PW.2, PW.3, PW.4 and PW.7 failed to support the prosecution case. The only evidence that is to be scrutinized is the evidence of

PW.1/Polipireddy Apparao. As discussed above

P.W.1/Polipereddi Apparao deposed before court that :

Kasireeddi Simhachalam Naidu beat him on his left side of the head with iron rod.

P.W.1/Polipereddi Apparao stated before Investigation officer during investigation that:

Kasireddi Simhachalam Naidu beat him with wooden piece like stick on his head and on the left shoulder and he sustained bleeding injury.

P.W.1/Polipereddi Apparao deposed before court that:

A.1 and A.2 beat him with sticks. A.1 beat him on his right side ribs. A.2 beat him on his head and he sustained bleeding injury and became unconscious after receiving injuries. And regained conscious on the next day in the hospital on 11.12.2014.

P.W.1/Polipereddi Apparao stated before Investigation officer during investigation that:

A.1 beat him with another stick on his left ear and he sustained bleeding injury. And A.2 beat him same stick on his back and also on his both the elbows and he sustained contusion injuries.

25.As discussed above, the evidence of PW.1/Polipireddy Apparao is self contradictory in nature and his evidence is also in contradiction to the evidence of 6

PW.6/B.Satyasrinivas/ Medical Officer. It is the version of PW.1 /Polipireddy

Apparao that after he sustained bleeding injury, he became unconscious and he regained conscious on the next day in the hospital i.e., 11.12.2014.

26. But as per the evidence of PW.6/B.Satyasrinivas/medical Officer,

PW.8/B.Satyam and PW.9/M.Prasanth Kumar/Investigation Officer,

PW.1/Polipireddy Apparao was also in conscious state at the time of recording the statement/Ex.P1 and at the time of medical examination and also when

PW.9/M.Prasanth Kumar/Investigation Officer visited the hospital.

27. As per the evidence of PW.1/Polipireddy Apparao his statement was recorded on 11.12.2014, but as per statement/Ex.P1 it goes to show that on 10.12.2014 the statement/Ex.P1 was recorded. Hence, the date of which the statement of PW.1/Polipireddy Apparao was recorded is in question. On the other hand, as per the charge sheet averments the date of incident is 22.12.2014.

28. Furthermore, as per the evidence of PW.5/Koyya Seetharam scene of offence is chicken centre. And as per his evidence stick was seized from Kumaram sugar factory junction. Hence, prosecution failed to prove the seizure of the stick.

And Ex.P8/Rough sketch does not disclose the scene of offence as chicken centre.

And PW.1/Polipireddy Apparao in cross examination by the learned defence counsel admitted that there is enmity with the accused. Andthere are also land disputes with the accused.

29. PW.9/M.Prasanth Kumar/Investigation Officer in cross examination by the learned defence counsel also admitted that there are disputes between

PW.1/Polipireddy Apparao and accused. Hence, it is clear that there is enmity between PW.1/Polipireddy Apparao and accused.

30.Enmity is a double edged weapon and it no doubt often provides 7 motive for false implications, and thus, the evidence should be scrutinized carefully. In appreciating the evidence against the accused the prime duty of the

Court firstly to ensure that the evidence is legally admissible. When the witnesses who speak to it are credible and have no interest in implicating the accused or have ulterior motive.

31.In order to judge the credibility of the witnesses the Court is not confined to whether each witnesses have deposed or to the demeanor of the witnesses but it is open to look into the surrounding circumstances as well as the probabilities so that it may be able to form a correct idea and the trustworthiness of the witnesses.

32.The correct method of appreciating and assessing the evidence of witnesses is by scrutinizing the evidence on merits and it is only when a doubt arises whether the witness is in fact deposing the truth or not, the necessity would arise to investigate into the possible reason for his conduct and what could have motivated the same, such as intimate interest in the person on whose behalf he had come to the court to give evidence or strong enmity or ill-will prevailing between the witnesses and the person against whom he had come to give evidence.

33.More so, when a case rests upon the evidence of solitary witness, the law is well settled that it must be un-impeachable, true trustworthy, free from doubt and must be put in the category of wholly reliable. Then only such evidence needs no corroboration. As discussed above, the independent witness failed to support the prosecution case.

34.Basing on the evidence on the record this court relies on the observation of the Honourable Supreme Court in the following case laws.

8

Tahsildar Singh and another

vs

The State of Uttar Pradesh reported in 1959 SCR supl.(2) 875 observed at pages 902 to 905 as follows 902 are expected to be included in the statement

before the police by a person who is giving a

narrative of what 'he saw, on the ground that they relate to important features of the incident about which the deposition is made."A similar view was expressed in Mohinder Singh v. Emperor (1), Yusuf Mia v. Emperor (2), and State of M.P. v. Banshilal Behari (3).

Reliance is placed by the learned Counsel for the appellants on a statement of law found in " Wigmore on Evidence ", Vol. III, 3rd Edn., at p. 725. In discussing under the head " what amounts to a Self-contradiction ", the learned author tersely describes a self-contradiction in the following terms:

"............ it is not a mere difference of statement that suffices; nor yet is an absolute oppositeness essential; it is an inconsistency that is required."

The learned author further states, at p. 733 : " A failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the non-existence of the fact."

The said statement is no doubt instructive, but it cannot be pressed into service to interpret the provisions of s.162 of the Code of Criminal Procedure. In America, there is no provision similar to s. 162 of the Code. It is not, therefore, permissible, or even possible, to interpret the provisions of a particular Act, having regard to stray observations in a text-book made in a different context. It is not necessary to multiply cases. The two conflicting views may be briefly stated thus: (i) omissions, unless by necessary implication be deemed to be part of the statement, cannot be used to contradict the statement made in the witness- 9 box; and (ii) they must be in regard to important features of the incident which are expected to be included in the statement made beforethe police. The first proposition not only carries out the intention of the legislature but is also in accord with the plain meaning of the words used in the section.

The second proposition not only stretches (1) A.I.R. 1932 Lah. 103. (2) A.I.R. 1938 Pat.

579. (3) A.I.R. 1936 M.P. 13.

903 the meaning of the word " statement " to a breaking point, but also introduces an uncertain element, namely, ascertainment of what a particular witness would have stated in the circumstances of a particular case and what the police officer should have recorded. When the section says that the statement is to be used to contradict the subsequent version in the witness-box, the proposition brings in, by construction, what he would have stated to the police within the meaning of the word " statement ". Such a construction is not permissible.

From the foregoing discussion the following propositions emerge: (1) A. statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness-box and for no other purpose; (2) statements not reduced to writing by the police officer cannot be used for contradiction; (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases: (i) when a recital is necessarily implied from the recital or recitals found in the statement ; illustration: in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witness -box he says that he saw A and C 10 stabbing B at the same point of time; in the statement before the police the word " only " can be implied, i.e., the witness saw A only stabbing B; (ii) a negative aspect of a positive recital in a statement; illustration: in the recorded statement before the police the witness says that a dark man stabbed B, but in the witness-box he says that a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that be was not of fair complexion; and

(iii) when the statement before the police and that before the Court cannot stand together; illustration: the witness says in the recorded 904 statement before the police that A after stabbing B ran away by a northern lane, but

in the Court he says that immediately after

stabbing he ran away towards the southern lane; as he could not have run away immediately after the stabbing, i.e., at the same point of time, towards the northern lane as well as towards the southern lane, if one statement is true, the other must necessarily be false. The aforesaid examples are not intended to be exhaustive but only illustrative. The same instance may fall under one or more heads. It is for the trial Judge to decide in each case' after comparing the part or parts of the statement recorded by the police with that made in the witness-box, to give a ruling, having regard to the aforesaid principles, whether the recital intended to be used for contradiction satisfies the requirements of law.

The next point is what are the omissions in the statement before the police which the learned Sessions Judge did not allow the accused to put to the witnesses for contradicting their present version. The learned Counsel for the appellants contends that the accused intended to put to the witnesses the following omissions, but they did not do so as the learned Sessions Judge disallowed the two questions put to P. W. 30 and made a considered order giving his reasons for doing so, and that the learned Counsel thought it proper not to put the same questions or other questions in regard to 11 omissions to P. W. 30 or to the other witnesses that followed him. The said omissions are: (1) The warning by the members of the gang on their arrival to the audience at the music party not to stir from their places; (2) the presence of a gas lantern; (3) the chase of Bharat Singh by the assailants; (4) the scrutiny of the dead bodies by the gang; and (5) the return of the gang in front of the house of Bankey. The learned Counsel for the respondent contests this fact and argues that only two omissions, namely, the presence of a gas-lantern and the scrutiny of the dead bodies by the gang, were put in the cross-examination of P. W. 30 and no other omissions were put to him or any other witness, and that indeed the order 905 of the learned Sessions Judge did not preclude him from putting all the omissions to the witnesses and taking the decision of the Judge on the question of their admissibility. (downloaded matter)

And

35. Lakshmi Singh and others etc.,

Vs

State of Bihar reported in AIR 1976 Supreme Court 2263 wherein the Honourable Supreme observed at para 14 as follows.

14. There is yet another important circumstance which completely falsifies the evidence of the eyewitnesses. All the eye witnesses have consistently deposed that after the deceased Chulhai Singh was assaulted by Lakshmi Singh and fell down the appellants Chhathu Singh and Ramprasad Sah assaulted him with lathis. Yet the medical evidence of Dr.Ramadhar Singh shows that there was only one solitary injury on the person of the deceased Chulhai Singh and that was on the abdomen. No other injury of any kind was found by the doctor on any part of the body of Chulhai Singh. The absence of lathi injuries on the person of 12

Chuylhai Singh completely falsifies the evidence of the eye witnesses on a most material point. Mr. U.P.Singh appearing for the State tried to explain way this important lacuna on the ground that the inquest report show that there were some sort of injuries on the back of the body of the deceased Chulhai Singh which may have disappeared by the time the doctor examined the deceased Chulhai Singh. We are however, unable to agree with this somewhat far fetch explanation. It was for the prosecution to corroborate the evidence of the eyewitnesses through expert evidence of the doctor and if no lathi injuries were found it was affirmatively for the prosecution to give reasons for the same. No question was however, put to the doctor in re-examination that if the deceased had received lathi blows the injuries could have disappeared by the time the doctor examined the deceased. Moreover, the inquest report also does not show any particular physical injury on the person of chulhai Singh but merely mentions a swollen injury on the back which may be due to the fact that the deceased Chulhai Singh fell down after receiving the bhala blow. The Sub Inspector was not an expert on the subject and his observation in the inquest report is absolutely valueless. Thus in short, so far as the deceased Chulhai Singh is concerned the ocular evidence is totally incosnsitent with the medical evidence with respect to the assault by Chhathu Singh and Ramprasad Sah. If this matter is false, there is no guarantee that the other assault deposed to by the eye witnesses was also not false.

36.As discussed above the evidence of PW.1/Polipireddy Apparao is in contradiction to the 161 Cr.P.C., statements made before the Investigating Officer during the investigation. And the evidence of PW.1/Polipireddy Apparao is also in contradiction to the evidence of PW.6/B.Satyasrinivas/Medical officer.

Contradictory evidence effects credibility of the witness.

13

37. So, the evidence of PW.1/Polipireddy Apparao appears to be untrustworthy and cannot be taken into consideration. As discussed above the observations of the Honourable Supreme Court in the above cited cases are aptly applicable to the case on hand.

38. Therefore, in view of the observations of the Honourable Supreme

Court in the above cited cases, I opine that the prosecution failed to prove the guilt of the A1 and A2 beyond all reasonable doubt and the doubt if any shall be given in favour of the A1 and A2.

39. In the result, A1 and A2 are found not guilty for the offence under sections 324 and 506(1) IPC and accordingly they are acquitted under section 248 (1) Cr.P.C., for the said offences. The bail bonds of the A1 and A2 shall stands cancelled. MOs.1 and 2 shall be destroyed after appeal time is over. A1 and A2 are directed to appear before the appellate authority if their presence is required before the appellate authority. A1 and A2 are further directed to execute a self bond for

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

Typed to my dictation, corrected and pronounced by me in open Court, this the 07th day of October,2016.

Sd/-P.Annie Rose Christian

Judicial Magistrate of First Class,

Kothavalasa. FAC/ Judicial Magistrate of First Class, S.Kota.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution : For Defence : NONE

P.W.1 : Polipereddi Apparao

P.W.2 : Vempadapu Govindha

P.W.3 : Allada Linga Murthy

P.W.4 : Jami Ravi

P.W.5 : Koyya Seetharam

P.W.6: Dr.B.Sri Satya Srinivas

P.W.7: Paturu Narayana Rao 14

P.W.8: V.Satyam

P.W.9: M.Prasanth Kumar

DOCUMENTS MARKED

For Prosecution :

Ex.P.1- Statement marked by PW.1, dated: 10.12.2014.

Ex.P.2 - 161(3) Cr.P.C., statement of PW.2, dated: 10.12.2014.

Ex.P.3 - 161(3) Cr.P.C., statement of PW.3, dated: 10.12.2014.

Ex.P.4 - 161(3) Cr.P.C., statement of PW.4, dated:10.12.2014.

Ex.P.5 – Wound certificate marked by PW.6, dated:10.12.2014.

Ex.P.6 - 161(3) Cr.P.C., statement of PW.7, dated: 10.12.2014.

Ex.P.7 - FIR is marked PW.1, dated: 11.12.2014.

Ex.P.8- Rough sketch is marked by PW.9, dated: 11.12.2014.

Ex.P.9- Scene observation report marked by PW.9, dated: 11.12.2014.

For Defence : Nil

MATERIAL OBJECTS MARKED

MO.1: Stick

MO.2: Stick

Sd/- P.Annie Rose Christian

Judicial Magistrate of First Class,

Kothavalasa. FAC/ Judicial Magistrate of First Class, S.Kota.

15

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS

KOTHAVALASA

Present : Smt. P. Annie Rose Christian,

Judicial Magistrate of First Class,

Kothavalasa

Monday, this the 24th day of April’2017

C.C.No.90 of 2015

Between :

State represented by The Sub Inspector of Police, Vallampudi Police Station. …Complainant

And :

Punyboina Suresh, S/o.late Srinu, aged 23 years, caste Mudhiraj, Thungapadu village, Miryalaguda Mandal, Nalgonda District. Driver of Innova bearing No. AP 24 AS 2727.

...Accused.

This case is coming on 19.04.2017 for final hearing before me in the presence of Assistant Public Prosecutor for Prosecution and of Sri D.Siva Prasad, 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 Sub-Inspector of Police, Vallampudi Police Station filed charge sheet against the accused in Crime No.152/2014 for the offence under sections 338 Indian Penal Code.

2. The cognizance of offence was taken on file under sections 338

Indian Penal Code against the accused.

3. On appearance of accused, relevant copies of documents were furnished to the accused as required under section 207 of Criminal Procedure

Code.

4. Accused was examined under Section 251 Criminal Procedure Code, and the substance of accusation the offence under section 338 Indian Penal Code and was read over and explained to the accused in Telugu, the accused denied the offence and pleaded not guilty and claimed to be tried.

5. In the course of the prosecution side evidence P.Ws.1 to 11 were examined and Ex.P.1 to P.9 were marked.

6. After closure of the prosecution side evidence, accused was examined under Section 313 Criminal Procedure Code with regard to the incriminating evidence appearing against the accused 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 accused drove Innova bearing

No.AP 24 AS 2727 in a rash and negligent manner and dashed the motor cycle bearing No.AP 31 CS 5054 belonging to Allu Anil Kumar due to which accident occurred. And in the said accident Allu Anil Kumar sustained fracture injury on his right knee and right foot. And Gurrapu Ravi Kumar who was the pillion rider also sustained injuries on his right thigh. Hence the accused is liable for punishment under section 338 Indian Penal Code.

9.The facts of the prosecution case in nutshell are as follows:- On 26.12.2014 morning defacto complainant/Allu Anil Kumar and his friends namely

Gurrapu Ravi Kumar, Bandaru Kanakaraju and Pampana Naveen and some others went to Punyagiri. After visiting the same they were returning to their village.

2

Defacto complainant/Allu Anil Kumar and Gurrapu Ravi Kumar were proceeding to Visakhapatnam on defacto complainant/Allu Anil Kumar motor cycle bearing

No. AP 31 CS 5054.

10.When they reached Paturu village out skirts at about 18.00 hrs at that time accused driver of Innova bearing No. AP 24 AS 2727 came in a rash and negligent manner and dashed motor cycle of defacto complainant/Allu Anil Kumar and Gurrapu Ravi Kumar and they fell on the road. And defacto complainant/Allu

Anil Kumar received fracture injury on his right knee and bleeding injury on his right foot.

11.Gurrapu Ravi Kumar received fracture injury on his right thigh.

Bandaru Kanakaraju and Pampana Naveen and other friends who were also proceeding to Visakhapatnam shifted them CHC, S.Kota for treatment. Later they were referred to King George hospital for better treatment. But Gurrapu Ravi

Kumar was admitted in Annapoorna Nursing home, Visakhapatnam for better treatment.

12.Basing on the statement of defacto complainant/Allu Anil Kumar a case was registered in crime No.152/2014 under section 338 Indian Penal Code and investigated into the case. On 30.12.2014 police served 41(a) Criminal

Procedure Code notice on the accused and released him. Hence the case.

13.Now, the point for consideration is:

1) Whether the prosecution could prove that defacto complainant/Allu Anil Kumar and Gurrapu Ravi Kumar sustained grievous injuries in the alleged accident or not?

2)Whether the prosecution could prove that accused drove Innova bearing No. AP 24 AS 2727 in a rash or negligent manner due to which accident occurred and in the said accident defacto complainant/Allu Anil Kumar and Gurrapu Ravi Kumar sustained grievous injuries beyond all reasonable doubt or not?

3

14.Point No. 1) Whether the prosecution could prove that defacto complainant/Allu Anil Kumar and Gurrapu Ravi Kumar sustained grievous injuries in the alleged accident or not?

The evidence of PW.1/Allu Anil Kumar/injured goes to show that about one year ago himself PW.2/Ravi Kumar, PW.3/Kanakaraju, PW.4/P.Naveen, went to Punyagiri on two motor bicycles. And from Punyagiri they started at 4.30 pm to Visakhapatnam. On one bike himself and PW.2/Ravi Kumar were proceeding and on other bike PW.3/Kanakaraju, and PW.4/P.Naveen were proceeding to Visakhapatnam.

15.PW.1/Allu Anil Kumar was the rider of the bike and PW.2/Ravi

Kumar was the pillion rider. And when they reached Paturu village at about 5.30 pm one car proceeding in opposite direction to them dashed their motor bike. As a result, accident occurred. In the said accident PW.1/Allu Anil Kumar sustained fracture injury to his right leg. And PW.2/Ravi Kumar also sustained fracture injury to his right leg.

16.The accused is the driver of the car, and number of the car is AP 24

AS 2727. PW.1/Allu Anil Kumar evidence further goes to show that they were

proceeding on the left side of the road. And PW.3/Kanakaraju and PW.4/P.Naveen who were also proceeding to Visakhapatnam immediately shifted them to S.Kota hospital. And from S.Kota hospital he was shifted to Annapoorna hospital,

Visakhapatnam.

17.From there PW.1/Allu Anil Kumar was shifted to King George hospital, Visakhapatnam where he was treated for one month. PW.2/Ravi Kumar was treated at Annapoorna hospital, Visakhapatnam. His statement was recorded at

S.Kota hospital. And number of the bike is AP 31 SC 5054. The evidence of 4

PW.2/Ravi Kumar goes to show that about two years ago himself, and PW.1/Allu

Anil Kumar went to Punyagiri on the bike of PW.1/Allu Anil Kumar.

18.PW.3/Bandaru Kanakaraju and PW.4/Pampana Naveen also came to

Punyagiri on other bike. After visiting the temple Punyagiri, again they were returning to Visakhapatnam. And PW.1/Allu Anil Kumar was the rider of the bike and he was the pillion rider. And PW.3/Kanakaraju and PW.4/Pampana Naveen

Kumar were also proceeding along with them on another bike.

19.When PW.1/Allu Anil Kumar and PW.2/G.Ravi Kumar reached

Paturu village at about 5.00 pm one Innova vehicle coming in opposite direction in high speed dashed their motor cycle, due to which accident occurred. In the said accident PW.2/G.Ravi Kumar sustained fracture injury to his right thigh and

PW.1/Allu Anil Kumar also sustained fractured injury to his right leg. And that accused was the driver of the Innova vehicle.

20.After the accident, PW.1/Allu Anil Kumar and PW.2/G.Ravi Kumar went to Kothavalasa government hospital and from there they were shifted to

Annapoorna hospital, where he was treated for two weeks. The evidence of

PW.3/Bandaru Kanakaraju and PW.4/Pampana Naveen Kumar goes to show that on 26.12.2014 themselves and PW.1/Allu Anil Kumar and PW.2/Ravi Kumar went to Punyagiri on two bikes.

21.After visiting Punyagiri PW.1 to PW.4 were returning to

Visakhapatnam and when they reached Paturu village at about 5.00 pm accident occurred. At the time of accident the motor bike of PW.1/Allu Anil Kumar and

PW.2/Ravi Kumar was proceeding before their bike. When the bike of PW.1/Allu

Anil Kumar and PW.2/Ravi Kumar reached Paturu village one Innova vehicle proceeding from Visakhapatnam dashed their bike due to which accident occurred.

5

22.In the said accident PW.1/Allu Anil Kumar and PW.2/Ravi Kumar sustained injuries to their right leg. Accused is the driver of Innova car. Later

PW.1/Allu Anil Kumar and PW.2/Ravi Kumar were shifted to S.Kota government hospital from there PW.1/Allu Anil Kumar was taken to King Geroge hospital,

Visakhapatnam and PW.2 / Ravi Kumar was shifted to Annapoorna hospital,

Visakhapatnam for treatment.

23.The evidence of PW.8/R.Dileep Kumar/Medical Officer goes to show that he examined PW.1/Allu Anil Kumar and found the following injuries.

1) Lacerated wound on right knee joint.

2) Multiple abrasions on the left leg.

His evidence further goes to show that patient was referred to Orthopedic doctor

K.G.H., Visakhapatnam. As per the x-ray and opinion given by Orthopedic doctor,

PW.1/Allu Anil Kumar sustained :

1) Fracture right femur

2) Fracture of both bones of right leg.

Basing on the ward opinion given by Orthopedic doctor K.G.H., Visakhapatnam.

1) Fracture lateral condoyle right femur

2) Fracture of both bones of right leg.

He opined that injuries were grievous in nature and issued wound certificate/Ex.P5.

24.The evidence of PW.11/L.V.V.Prasad/Radiogist goes to show that on 27.12.2014 he gave opinion on five x-rays of PW.1/Allu Anil Kumar as follows:

1) X-ray of right thigh with hip, with knee shows fracture of right femur.

2) X-ray of right leg, with knee with ankle shows fracture of both bones of right leg.

3) X-ray of right foot with ankle, no bone injury.

6

4) X-ray pelvis with both hips, no bone injury.

5) X-ray of left thigh with hip with knee, no bone injury.

His evidence further goes to show that five x-rays were taken in four films/Ex.P9.

Basing on the x-ray films he gave opinion and basing on his opinion

PW.8/R.Dileep Kumar/Medical Officer issued wound certificate/Ex.P5.

In the cross examination by the learned defence counsel

PW.11/L.V.V.Prasad/Radiologist admitted that a written report regarding his opinion basing on the x-ray will be sent to the concerned doctor, who referred the patient. He also admitted that he did not file the copy of the opinion given by him in respect of x-rays/Ex.P9 sent to the doctor.

25. The evidence of PW.10/A.Sirish/Medical Officer goes to show that on 26.12.2014 he examined PW.2/G.Ravi Kumar and found the following injury:

Right distal femur fracture with compound wound.

PW.10/A.Sirish/Medical Officer opined that the injury is grievous in nature and he issued wound certificate/Ex.P8. In the cross examination by the learned defence counsel he admitted that he did not file x-ray before the court to show that PW.2/G.Ravi Kumar sustained fracture injury. PW.10/A.Sirish/Medical

Officer also admitted that the contents of wound certificate/Ex.P8 does not disclose the treatment given by him to PW.2/G.Ravi Kumar.

26.As discussed above, it is the contention of PW.1 to PW.4, that PW.1 and PW.2 sustained injuries in the accident occurred at Paturu village, as one

Innova dashed the bike of PW.1/Allu Anil Kumar. And the evidence of

PW.8/R.Dileep Kumar/Medical Officer and PW.11/L.V.V.Prasad/Radiologist goes to show that PW.1/Allu Anil Kumar sustained grievous injuries.

7

27. In support of the contention of PW.8/R.Dileep Kumar/Medical

Officer, Ex.P5/ wound certificate is filed. In support of the contention of

PW.11/L.V.V.Prasad/Radiologist, that five x-rays [four films/Ex.P9] are filed. As admitted by PW.11/L.V.V.Prasad/Radiologist the opinion given by him basing on which Ex.P5/wound certificate was issued by PW.8/R.Dileep Kumar/Medical

Officer was not filed before the Court.

28.Hence, the prosecution failed to file the opinion of

PW.11/L.V.V.Prasad/Radiologist basing on which wound certificate/Ex.P5 was issued by PW.8/R.Dileep Kumar/Medical Officer. It is the contention of

PW.10/A.Sirish/Orthopedician that PW.2/G.Ravi Kumar sustained grievous injury and he issued wound certificate/Ex.P8.

29. As admitted by PW.10/A.Sirish/Orthopedician, x-rays were not filed

before Court to show that PW.2/G.Ravi Kumar sustained fracture injury of right

distal femur. And in the absence of x-ray report the contention of

PW.10/A.Sirish/Orthopedician cannot be taken into consideration. And in the absence of the opinion given by PW.11/L.V.V.Prasad/Radiologist the contents of wound certificate/Ex.P5 that PW.1/Allu Anil Kumar sustained grievous injuries cannot be taken into consideration.

30. Therefore, prosecution failed to prove that PW.1/Allu Anil Kumar and

PW.2/G.Ravi Kumar sustained grievous injuries. Hence, this point is accordingly answered.

31.Point No.2) Whether the prosecution could prove that accused drove Innova bearing No. AP 24 AS 2727 in a rash or negligent manner due to which accident occurred and in the said accident defacto complainant/Allu Anil Kumar and Gurrapu Ravi Kumar sustained grievous injuries beyond all reasonable doubt or not?

8

The evidence of PW.1/Allu Anil Kumar as discussed in point no.1 goes to show that the accident occurred at Paturu village, as Innova van bearing

No. AP 24 AS 2727 coming in the opposite direction dashed his motor cycle bearing No. AP 31 SC 5054. And the evidence of PW.2 to PW.4 goes to show that accident occurred as one Innova van dashed the bike of PW.1/Allu Anil Kumar due to which accident occurred.

32.In the cross examination by the learned defence counsel PW.1/Allu

Anil kumar and PW.2/G.Ravi Kumar admitted that Visakhapatnam to S.Kota road is a busy road. And PW.4/P.Naveen admitted that scene of offence is a busy locality. PW.1/Allu Anil Kumar in cross examination deposed that after the accident he lost consciousness. PW.3/B.Kanakaraju, in cross examination deposed that after the accident he reached the scene of offence.

33.PW.3/B.Kankaraju also deposed that after the accident accused did not stop the vehicle and proceeded further and stopped the vehicle at distance one kilometer. PW.4/P.Naveen in cross examination by the learned defence counsel deposed that after the accident he reached the scene of offence. And that he saw the accused at the scene of offence and again in the court hall. And that he cannot say the number of the Innova vehicle.

34.The evidence of PW.3/B.Kanakaraju and PW.4/P.Naveen is in contradiction with regard to the presence of the accused at the scene of offence after the accident. The evidence of PW.5/M.Apparao and PW.6/Kodi Ammathalli goes to show that they does not know any case facts. PW.5/M.Apparao and

PW.6/Kodi Ammathalli failed to support the prosecution case. The evidence of

PW.9/V.Balaji Rao/Investigation Officer is procedural in nature.

9

35. As discussed above, the evidence of PW.1 to PW.4 goes to show that

Innova dashed against motor cycle of PW.1/Allu Anil Kumar as a result accident occurred. And PW.1 to PW.4 categorically identified the accused as the driver of

Innova. But their evidence does not disclose that accused drove the vehicle in a rash or negligent manner. On the other hand, PW.2 to PW.4 failed to depose the number of the Innova.

36.Furthermore, the complaint/Ex.P1 averments and FIR/Ex.P6 does not disclose the name of the accused. The evidence of PW.1/Allu Anil Kumar and

PW.2/G.Ravi Kumar does not disclose that they saw the accused at the time of accident. On the other hand, PW.1/Allu Anil Kumar in cross examination deposed that after the accident he lost consciousness.

37.The evidence of PW.1 to PW.4 is in contradiction to their 161

Criminal Procedure Code, statements made before Investigation Officer during investigation. As PW.1 to PW.4 failed to state the name of the accused before the

Investigation Officer during investigation. PW.1 to PW.4 did not state before police that they can identify the accused and identification particulars of the accused. And there is no evidence on the record to show how PW.1 to PW.4 identified the accused.

38.The evidence of identifying the accused person at the trial for the first time, is, from its very nature inherently is of a week character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances the complainant or the witness came to pick out the particular accused person and details of the part which he allegedly played in the crime in question with reasonable particularity.

10

39.As discussed above, the name of the accused was not specifically mentioned in FIR and no identification parade was held. And as discussed above

PW.1/Allu Anil Kumar deposed that soon after the accident he lost consciousness.

Hence, how PW.1/Allu Anil Kumar identified the accused as the driver of the crime vehicle is in question.

40.As discussed above, the evidence of PW.3/B.Kanakaraju and

PW.4/P.Naveen is in contradiction with regard to the presence of the accused at the scene of offence after the accident. Though the holding of identification proceedings is not substantive evidence, but they are used for corroboration purpose for believing that the person brought before the court was the real person involved in the commission of crime.

41.During the investigation of crime the police agency is required to hold identification parade for the purpose of enabling the witnesses to identify the person alleged to have committed the offence, particularly when such person was not previously not known to the witness or informant.

42.The absence of test identification may not be fatal if the accused is known or sufficiently described in the complaint leaving no doubt in the mind of the court regarding his involvement. Identification parade may also not be necessary in a case where the accused persons are arrested at the spot. Conducting test identification parade is a rule of prudence which is required to be followed in the cases where the accused is not known to the witnesses or complainant.

43.Furthermore, in a criminal case, the amount and decree of negligence is the determining factor and there must be mensrea in the criminal negligence also. In order to establish criminal liability facts must be such that the negligence 11 of the accused sent the case beyond the matter of compensation and showed such disregard for life and safety of others.

44. More so, in order to impose criminal liability on the accused it must be found as fact that accident was entirely or atleast mainly, due to rash or negligence on the part of the driver. Hence, as discussed above, the prosecution failed to prove that due the rash or negligence act of the accused the accident occurred. Hence, this point is accordingly answered.

45.Basing on the evidence on record this court relies on the observations of following case law.

The Honourable High Court of Judicature Andhra Pradesh at Hyderabad Piginarayi Rangarao

Vs.

The State of A.P. reported in L.C.2009(10) A.P.320 wherein the Honourable High Court observed at paragraph 16 as follows

16)According to PW.3-Modadugu Srinivasa Rao, after the accident, the lorry was stopped near the place of accident and the driver ran away, PW.4-Thatikonda Venkateswarlu, deposed that after the incident, the lorry covered a small distance and was stopped and the accused ran away. Of course, PWs.1, 3 and 4 deposed that accused drove the lorry at the time of accident. The circumstances that there was no prior acquaintance between the witnesses and accused and the fact that the lorry was stopped at a distance of 20 or 25 feet from the place of accident and the driver after stopping the lorry, ran away from the place of accident, show that the witnesses had no opportunity to have a good look at the accused. In such circumstances, it is obligatory on the part of the investigating officer to elicit the descriptive particulars of the accused from the witnesses and to hold test identification parade, which would establish the case of the prosecution beyond all reasonable doubt. When a witness, who had no prior acquaintance with the accused and who had seen the accused for the first time, for a few seconds, states to the police that he can identify 12 the accused, the investigating officers should take steps for holding the test identification parade, wherein the given case, the witnesses had considerable time and opportunity to observe the offender, the situation would be different. When the witnesses identified the accused in the test identification parade and also

before the Court, then there may not be any

doubt to accept the evidences of such witnesses with regard to the identify of the accused and the same establishes the identify of the accused. The primary object of holding a test identification parade is to enable the witnesses to identify the persons involved in the offence, who were not previously known to them. This serves the purpose of saying the bonbafides of the witnesses and when the same corroborates, the testimony in the Court, can be safely accepted. However, each case has to be decided on its own facts and circumstances. Thus, the important facts is, whether the witnesses had an opportunity to see the accused or not.

46.The observations of the Honourable High Court in the above cited cases are aptly applicable to the case on hand.

47.Hence, in the circumstances of the case, in the light of above observations of the Honourable High Court I opine that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt and the doubt if any should be given in favour of the accused. Hence, accused is entitled for acquittal.

48.In the result, accused is found not guilty for the offence under section 338 Indian Penal Code and accordingly he is acquitted under Section 255(1)

Criminal Procedure Code, for the said offence. The bail bonds of the accused shall stand cancelled. The unmarked non valuable 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).

13

Typed to my dictation, corrected and pronounced by me in open Court, this the 24th day of April’ 2017.

Sd/-Smt.P.Annie Rose Christian,

Judicial Magistrate of First Class,

Kothavalasa.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution : For Defence : NONE

P.W.1 : Allu Anil Kumar

P.W.2 : Gurrapu Ravi Kumar

P.W.3 : Bandaru Kanka Raju

P.W.4 : Pampana Naveen

P.W.5 : Munuru Appa Rao

P.W.6 : Kodi Ammathalli

P.W.7 : V.Sravya

P.W.8 : R.Dileep Kumar

P.W.9 : V.Balaji Rao

P.W.10 : A.Sirish

P.W.11 : L.V.V.Prasad

DOCUMENTS MARKED

For Prosecution :

Ex.P.1: Statement marked by PW.1, dated:-26.12.2014.

Ex.P.2: 161 (3) Cr.P.C., statement of PW.5, dated:- 27.12.2014.

Ex.P.3: 161 (3) Cr.P.C., statement of PW.6, dated:- 27.12.2014.

Ex.P.4: M.V.I. Report marked by PW.7, dated:-30.12.2014.

Ex.P.5: Wound Certificate of PW.1/Allu Anil Kumar marked by PW.8, dated:- 13.03.2015.

14

Ex.P.6: Original FIR marked by PW.9, dated:- 26.12.2014.

Ex.P.7: Rough sketch marked by PW.9, dated: 27.12.2014.

Ex.P.8: Wound certificate of PW.2/G.Ravi Kumar marked by PW.10, dated:-30.12.2014.

Ex.P.9: Four (x-rays) films marked by PW.11, dated:27.12.2014.

For Defence : NIL.

MATERIAL OBJECTS MARKED

NIL

Sd/-Smt.P.Annie Rose Christian,

Judicial Magistrate of First Class,

Kothavalasa.

15 16

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS

KOTHAVALASA

Present : Smt. P. Annie Rose Christian,

Judicial Magistrate of First Class, Kothavalasa.,

Thursday, this the 20th day of April’ 2017

C.C.No.473 of 2016

Between :

State represented by The Prohibition and Excise Inspector, Kothavalasa.

…Complainant. And :

Sabbavarapu Suridemudu, S/o.Demudu, aged 36 years, r/o.Santhapalem village, Kothavalasa Mandal.

...Accused.

This case is coming on 20.04.2017 for final hearing before me in the presence of Assistant Public Prosecutor for Prosecution and of Sri. Y.G.Naidu, 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 Inspector of Police, Prohibition and Excise, Kothavalasa Police

Station, filed charge sheet against the accused for the offence under section 34 (a) of A.P. Excise Act, in Crime No.29/2014-15 of Kothavalasa Police Station.

2. The cognizance of offence was taken on file under 8 (b) (ii) 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 Criminal Procedure Code and upon hearing a charge was framed under Section 8 (b) (ii) of A.P. Prohibition Act, against accused, and was read over and explained to the accused in Telugu, for which the accused denied the offence and pleaded not guilty and claimed to be tried.

5. In the course of the prosecution side evidence of P.Ws. 1 to 3 were examined and Ex.P.1 to P.3 and M.O.1 (three sample bottles) were marked. As

PW.1 to PW.3 were examined the evidence of G.Yerrunaidu and G.Sudharsan

Kumar were closed by Court. Hence, prosecution evidence was closed.

6.After closure of the prosecution side evidence, accused was examined under section 313 Criminal Procedure Code 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.

7. At the stage of arguments, the learned Assistant Public prosecution filed petition under section 311 Criminal Procedure Code to recall G.Yerrunaidu.

And the petition is allowed. And police filed death certification of G.Yerrunaidu, hence, his evidence was closed.

8.Heard arguments.

9. The prayer of the prosecution is that the accused was found in possession of liquor bottles, without permit and license. Hence the accused is punishable under section 34 (a) of A.P. Excise Act.

10. The facts of the prosecution case in nutshell are as follows:- On 03.05.2014 at about 6.15 am K.Balakrishna, G.Sudharsan Kumar, K.Rambabu and

T.Raghavaiah were conducting patrolling to detect the excise offenders at Rega 2 village of L.Kota Mandal. At that time, one Tata Ac vehicle was proceeding towards quarry junction at Rega village.

11.On suspicion the excise officials stopped the vehicle but the vehicle was not stopped at that place. Immediately excise officials chased the vehicle and vehicle was stopped at about 100 yards near quarry junction. Then G.Sudharshan

Kumar identified the accused, when accused was ran away. T.Raghavaiah verified the Tata Ac vehicle and found three gunny bags with IML bottles.

12.Later T.Raghavaiah deputed K.Balakrishna to secure the mediators.

And he brought one mediator i.e., G.Yerrunaidu/Village Revenue Officer. And in presence of G.Yerrunaidu, T.Raghavaiah verified three gunny bags and identified the IML of Gold Race whisky each bottle containing 180 ml. He opened the dash board and identified “C” book, driving license xerox, insurance copy and paid fine amount receipt of traffic police.

13.T.Raghavaiah verified the “C” book and found Sabbavarapu

Suridemudu, S/o.Demudu, r/o.Gavarapalem and verified insurance copy and checked the driving license number is DLRA 031447392010 issued on 12.08.2010 valid upto 27.12.2022. And G.Sudharshan Kumar identified the accused as the person who ran away.

14.Excise officials verified three gunny bags, and found that the bags contained 160+160+97= 417 bottles. T.Raghavaiah has drawn three sample bottles from each bag and affixed identification slips duly signed by the accused and excise officials. T.Raghavaiah seized the property under the cover of occurrence report.

3

15.Basing on the occurrence report a case was registered in crime

No.29/2014-15 under section 34 (a) of A.P. Excise Act. On 19.05.2014 the accused was sent to Honourable Court for judicial custody. Hence the case.

16. Now, the point for determination is:

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

17.Point:- The evidence of PW.1/T.Raghavaiah and PW.2/K.Balakrishna goes to show that on 03.05.2014 at about 06.15 am themselves and other excise officials were conducting patrolling and proceeding from Musiram village to Rega village and reached quarry junction. At that time they noticed one Tata Ac goods vehicle bearing No.AP 31 TT 5432 coming in their opposite direction to them.

18.On seeing them the van was turned towards quarry sand load and the persons in the van opened the doors of the van and escaped from the van. The excise officials tried to arrest the accused but in vain. Later PW.1/T.Raghavaiah deputed PW.2/K.Balakrishna to secure the mediators. Accordingly

PW.2/K.Balakrishna secured G.Yerrunaidu/Village Revenue Officer.

19.Later excise officials checked the vehicle and noticed that the keys of the vehicle were left in the van and they also checked the dash board and noticed the license, insurance and C book and also driving license. After verifying the driving license he opined that the accused was the driver of the vehicle.

20.Excise officials also inspected Tata Ac van and noticed three gunny bags containing liquor bottles. On verification of three gunny bags they found 417

Gold Race liquor bottles each 180 ml. They also noticed EAL numbers and batch numbers of liquor bottles. And PW.1/T.Raghavaiah lifted one sample from each gunny bag for chemical analysis.

4

21.Excise officials affixed identification slips on the sample bottles and himself and other excise officials and G.Yerrunaidu assigned on the identification slips. They seized 160 bottles from one bag, 160 bottles from second bag and 97 bottles from third bag. And they seized all the bottles and van under the cover of mediators report and brought the property and vehicle to the police station.

22.Basing on the mediators report PW.1/T.Raghavaiah registered a case in crime No.29/2014-2015 under section 34(a) of AP.Excise Act and got issued

FIR. During the course of investigation, PW.1/T.Raghavaiah sent the samples to the analyst for analysis. The evidence of PW.3/M.Venkatarao goes to show that he received the analyst report and analyst opined that the samples are Substandard

Indian liquor and Indian liquor.

23.In the cross examination by the learned defence counsel

PW.2/K.Balakrishna admitted that scene of offence is a busy locality. And

PW.3/M.Venkatarao admitted that there is a delay of thirty days in sending the samples to the chemical analyst. As discussed above, it is clear that no mediators were present at the time of drafting the occurrence report, seizing the property and lifting the samples.

24.Excise official is a police official and confession made by the accused

before the police official is in-admissible and is hit by section 25 and 27 of the

Evidence Act. As discussed above in the cross examination by the learned defence counsel PW.2/K.Balakrishna admitted that scene of offence is a busy locality. As discussed above, it is clear that excise officials failed to secure independent mediators at the scene of offence at the time of seizure of the property and lifting the samples.

5

25.Hence, it appears that police officials have not complied with the required conditions. Every effort has to be made to secure the local respectable mediators. On perusal of Ex.P3/analysis report, samples of the liquor bottle was received by the chemical analyst on 06.06.2014 and the samples were seized on 03.05.2014. Hence, there is a delay in sending the samples to the chemical analyst.

26.Furthermore, the prosecution failed to explain the reasons for the delay in sending the samples to the chemical analyst. The evidence of

PW.1/T.Raghavaiah and PW.2/K.Balakrishna goes to show that they found 417

Gold Race whisky bottles in three gunny bags. And seized all the bottles but has drawn only three bottles as samples for the purpose of chemical analysis. The other bottles were not sent to chemical analysis.

27.It is the duty of prosecution to prove by sending the other bottles also to the chemical analyst to find out as to whether other bottles contained alcohol or spurious liquor. But in the present case the prosecution has not sent the other bottles also to the chemical analyst and that has prejudiced the case of the prosecution. As discussed above PW.3/M.Venkatarao admitted that there is a delay of thirty days in sending the samples to the chemical analyst. Hence the delay is fatal to the prosecution.

28.Basing on the evidence on the record this court relies upon the observations of the Honourable Supreme Court and Honourable High Court in the following cases.

In the land mark judgment Aghno Nagesia

Vs

State of Bihar reported in 1966 SCR (1) 134 6 where in at pages 142 and 143.

Their Lordships observed as follows regarding the admissibility of the content of Discovery and Recovery which is obtained during police custody of the accused.

142) Section 27 distinctly contemplates that an information leading to a discovery may be a part of the confession of the accused and thus, fall within the purview of ss. 24, 25 and 26 Section 27 thus shows that a confessional statement admitting the offence may contain additional information as part of the confession. Again, s. 30 permits the Court to take into consideration against a co-accused a confession of another accused affecting not only himself but the other co-accused. Section 30 thus shows that matters affecting other persons may from part of the confession.

If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by s. 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of s. 25 is lifted by s. 27. Our attention is not drawn to any decision of this Court or of the Privy Council on the question whether apart from s. 27, a confessional first information report given by an accused is receivable in evidence against him. Decisions of the High Courts on this point are hopelessly conflicting. They contain all shades of opinion ranging from total exclusion of the confession to total inclusion of all admissions of incriminating facts except the actual commission of the crime. In Harji v. Emperor(1) and Noor Muhammad v. Emperor(2), the Lahore High Court held that the entire confessional first information report was inadmissible in evidence. In 7

Emperor v. Harman Kisha (3), the Bombay High Court held that the entire confessional report dealing with events on the night of the offence was hit by s. 25, and it could not be said that portions of it dealing with the motive and the opportunity were not parts of the confession. In King Emperor v. Kommoju Brahman(1), the Patna High Court held that no part of the confessional first information report was receivable in evidence, the entire report formed a single connected story and no part of it had any meaning or significance except in relation to the whole, and it would be wrong to extract parts of the statement and treat them as relevant. This case was followed (1) A.I.R. 1918 Lah. 69.

(2) (1925) 90 I.C. 148. (3) [1935] I.L.R. 59 Dom. 120. (4) I.L.R. 119401 Patna, 301, 308, 314. 143) in Adimoola Padayachi v. State (1), and the Court admitted only the portion of the confessional first information report which showed it was given by the accused and investigation had started thereon. In State of Rajasthan v. Shiv Singh (2) the Court admitted in evidence the last part of the report dealing with the movements of the accused after the commission of the offence, but excluded the other parts of the statement including those .relating to motive and opportunity.In Legal Remembrancer v. Lalit Mohan Singh Roy(3), the Calcutta High Court admitted in evidence the narrative of the events prior to the night of the occurrence disclosing the motive of the offence. This case was followed by the Nagpur Court in Bharosa Ramdayal v. Empe- ror(4). In Kartar Singh v. State (5), the Court admitted in evidence the introductory part and the portion narrating the motive and the opportunity. In Ram Singh v. The State(6), the Rajasthan High Court held that where it is possible to separate parts of the first information report by an accused from that in which he had made a confession, that 8 part which can be so separated should be admitted in evidence, and on this view, admitted a part of the report relating to motive and subsequent conduct including the statement that the accused had left the deceased lying wounded and breathing in the tibari and there was no hope of her surviving and he had come having covered her with a cloth. In Lachrymose Mundane v. The State of Bihar (7) , the Patna High Court admitted in evidence portions of the first information report relating to the motive, the opportunity and the entire narrative of events before and after the crime. This case was followed in the judgment under appeal. Some of the decided cases took the view that if a part of the report is property severable from the strict confessional part, then the severable part could be tendered in evidence. We think that the separability test is misleading, and the entire confessional statement is hit by s. 25 and save and except as provided by s. 27 and save and except the formal part identifying the accused as the maker of the report, no part of it could be tendered in evidence. We think, therefore, that save and except parts 1, 15 and 18 identifying the appellant as the maker of the first information report and save and except the portions coming within the purview of s. 27, the entire first information report must be excluded from evidence.(down loaded matter) a n d

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 9 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 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.

10

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.

29.The observations of the Honourable Supreme Court and Honourable

High Court are aptly applicable to the case on hand.

30.Hence, in the circumstances of the case, in the light of above observations of the Honourable Supreme Court and Honourable High Court I opine that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt and the doubt if any should be given in favour of the accused.

31.In the result, the accused is found not guilty for the offence under section 8 (b) (ii) of A.P. Prohibition Act,, and accordingly he is acquitted under

Section 248(1) Criminal Procedure Code for the said offence. The bail bonds of the accused shall stand cancelled. M.O.1 [three sample bottles] 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).

Typed to dictation, corrected and pronounced by me in open Court, this the 20th day of April’ 2017.

11

Sd/-Smt.P.Annie Rose Christian,

Judicial Magistrate of First Class,

Kothavalasa.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution : For Defence : NONE

P.W.1 : T.Raghavaiah

P.W.2 : K.Balakrishna

P.W.3 : M.Venkatarao

DOCUMENTS MARKED

For Prosecution :

Ex.P.1- Mediators report marked by PW.1, dated:-03.05.2014.

Ex.P.2- F.I.R. is marked by PW.1, dated:- 03.05.2014.

Ex.P.3- Analysis Report is marked by PW.3, dated:-24.06.2014.

For Defence : Nil

MATERIAL OBJECTS MARKED

M.O.1 : Three Sample Bottles

Sd/-Smt.P.Annie Rose Christian,

Judicial Magistrate of First Class,

Kothavalasa.

12 13

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS

KOTHAVALASA

Present : Smt. P. Annie Rose Christian,

Judicial Magistrate of First Class, Kothavalasa.,

Tuesday, this the 25th day of April’2017

C.C.No.366 of 2016

Between :

State represented by the Prohibition and Excise Inspector, Kothavalasa Police Station.

…Complainant. And :

Pasupureddy Srinivasarao, S/o.Sannibabu, aged 38 years, caste by Telaga, r/o.Santhapeta village, L.Kota Mandal, Vizianagaram District.

...Accused.

This case is coming on 19.04.2017 for final hearing before me in the presence of Assistant Public Prosecutor for Prosecution and of Sri.N.Sreerama Murthy, 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 Inspector, Kothavalasa Police Station, filed charge sheet against the accused for the offence under Section 34 (a) of A.P.

Excise Act, in Crime No.113/2014-2015 of Kothavalasa Police Station.

2. The cognizance of offence was taken on file under 8 (b) (i) 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 Criminal Procedure

Code.

4. Accused was examined under Section 239 Criminal Procedure Code and upon hearing a charge was framed under section 8 (b) (i) of A.P. Prohibition

Act, against accused, and was read over and explained to the accused in Telugu, for which the accused denied the offence and pleaded not guilty and claimed to be tried.

5. In the course of the prosecution side evidence P.Ws. 1 and 2 were examined and Ex.P.1 to P.3 and M.O.1 (two sample bottles) were marked. The evidence of P.Kurmarao, K.Appalaraju, B.Sridhar, P.V.S.Ramaraju and

M.Venkatarao were given-up by the Assistant Public Prosecutor, hence their evidence was closed. Hence, prosecution evidence was closed.

6.After closure of the prosecution side evidence, accused was examined under section 313 Criminal Procedure Code 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.

7. Heard arguments.

8. The prayer of the prosecution is that the accused was found in possession of liquor bottles, without permit and license. Hence the accused is punishable under section 34 (a) of A.P. Excise Act.

9. The facts of the prosecution case in nutshell are as follows:- On 29.07.2014 at about 08.00 hours B.Hari Kiran Kumar, P.Kurmarao, K.Appalaraju,

B.Sridhar, P.V.S.Ramaraju were conducting route watch to detect the excise 2 offenders at Santhapeta village of Kothavalasa Mandal. At that time the accused was in possession of one polythene bag containing IML bottles.

10.On seeing the excise officials accused got perturbed and tried to ran away. Immediately excise officials surrounded and caught hold the accused. On questioning the accused revealed that the polythene bag contained IML bottles.

Immediately P.V.S.Ramaraju arrested the accused and deputed B.Hari Kiran

Kumar to secure the mediators but in vain.

11.P.V.S.Ramaraju verified the polythene bag and found that the bag contained 09 NIP bottles of Gold prestige whisky each 180 ml, and 03 NIP bottles of Officer choice whisky 180 ml (total 12 NIP bottles). But the EAL numbers of the said bottles were torn and each bottle contained for sale in A.P only”.

12.On questioning the accused, he revealed his name, address and source of IML bottles. Then P.V.S.Ramaraju has drawn one sample bottle of Gold Race prestige whisky and one sample bottle of Officers choice whisky and affixed identification slips duly signed by the excise officials and accused. Since the possession of IML bottles without license is an offence.

13.After explaining the grounds of arrest, accused was taken into custody under the cover of occurrence report and transferred the case to the Station House

Officer, Kothavalasa. And M.Vijayalaxmi registered a case and sent the accused to the Honourable Court for judicial custody. Hence the case.

14.Now, the point for determination is:

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

3

15.Point:- The evidence of PW.1/B.Harikiran Kumar goes to show that on 29.07.2014 at about 8.00 am himself and other excise officials were conducting route watch at Santhapeta village to detect the excise offenders. At that time they noticed accused coming in their opposite direction with one polythene bag. On seeing them he tried to ran away and they surrounded and caught hold him.

16.On interrogation, accused revealed his name, address and also informed that the polythene bag contained liquor bottles. Later P.V.S.Ramaraju deputed him to secure the mediators but in vain. On verification, polythene bag contained 09-Gold Race prestige whisky bottles each 180 ml, and 03-Officers

Choice reserve whisky bottles each 180 ml.

17.The evidence of PW.1/B.Hari Kiran Kumar further goes to show that P.V.S.Rama Raju has drawn one sample from each brand for the purpose of chemical analysis. And affixed identification slips on the sample bottles and himself, other excise officials and accused signed on the identification slips affixed on the sample bottles. After explaining the grounds of arrest accused was arrested.

18.An occurrence report was drafted at the scene of offence. Later they brought the accused, record and property to the police station. The evidence of

PW.2/M.Vijayalaxmi goes to show that she received case property, record and accused from PW.1/B.Hari Kiran Kumar.

19.Basing on the occurrence report she registered a case in

Cr.No.113/2014-2015 under section 34(a) of A.P. Excise Act. Later

PW.2/M.Vijayalaxmi served notice under section 41(a) Criminal Procedure Code on the accused and released the accused.

20.During the course of investigation, PW.2/M.Vijayalaxmi sent the samples to the analyst for analysis and analyst opined that the samples are liquor.

4

The evidence of PW.2/M.Vijayalaxmi further goes to show that after obtaining permission from the Deputy Commissioner, Visakhapatnam she destroyed the remaining property.

21.PW.1/B.Hari Kiran Kumar admitted that scene of offence is a busy locality. And PW.2/M.Vijayalaxmi also admitted that there is a delay of six days in sending the samples to the chemical analyst. As discussed above, it is clear that no mediators were present at the time of drafting the occurrence report, seizing the property and lifting the samples.

22.Hence, confession made by the accused before the police official is in- admissible and is hit by section 25 and 27 of the Evidence Act. As discussed above PW.1/B.Hari Kiran Kumar admitted that scene of offence is a busy locality.

It is clear that excise officials failed to secure independent mediators at the scene of offence at the time of seizure of the property and lifting the samples.

23.It appears that excise officials have not complied with the required conditions. Every effort has to be made to secure the local respectable mediators.

On the other hand the evidence of PW.2/M.Vijayalaxmi goes to show that after obtaining permission from the Deputy Commissioner, Visakhapatnam she destroyed the remaining property.

24.PW.2/M.Vijayalaxmi failed to file the destruction proceedings before the Honourable Court in support of her contention. On perusal of Ex.P3/analysis report, samples of the liquor bottles was received by the chemical analyst on 05.08.2014 and the samples were seized on 29.07.2014. Hence, there is a delay in sending the samples to the chemical analyst.

25.Furthermore, the prosecution failed to explain the reasons for the delay in sending the samples to the chemical analyst. The evidence of PW.1/B.Hari 5

Kiran Kumar goes to show that they found 09-Gold Race prestige whisky bottles each 180 ml, and 03-Officers Choice reserve whisky bottles each 180 ml in a polythene bag.

26.Excise officials seized all the bottles but has drawn only one bottle from each brand for the purpose of chemical analysis. The other bottles were not sent to chemical analysis. It is the duty of prosecution to prove by sending the other bottles also to the chemical analyst to find out as to whether other bottles contained alcohol or spurious liquor.

27.But in the present case the prosecution has not sent the other bottles also to the chemical analyst and that has prejudiced the case of the prosecution. As discussed above PW.2/M.Vijayalaxmi admitted that there is a delay of six days in sending the samples to the chemical analyst.

28.Basing on the evidence on the record this court relies upon the observations of the Honourable Supreme Court and Honourable High Court in the following cases.

In the land mark judgment Aghno Nagesia

Vs

State of Bihar reported in 1966 SCR (1) 134 where in at pages 142 and 143.

Their Lordships observed as follows regarding the admissibility of the content of Discovery and Recovery which is obtained during police custody of the accused.

142) Section 27 distinctly contemplates that an information leading to a discovery may be a part of the confession of the accused and thus, fall within the purview of ss. 24, 25 and 26 Section 27 thus shows that a confessional statement admitting the offence may contain additional information as part of the confession. Again, s. 30 permits the 6

Court to take into consideration against a co-accused a confession of another accused affecting not only himself but the other co-accused. Section 30 thus shows that matters affecting other persons may from part of the confession.

If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by s. 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of s. 25 is lifted by s. 27. Our attention is not drawn to any decision of this Court or of the Privy Council on the question whether apart from s. 27, a confessional first information report given by an accused is receivable in evidence against him. Decisions of the High Courts on this point are hopelessly conflicting. They contain all shades of opinion ranging from total exclusion of the confession to total inclusion of all admissions of incriminating facts except the actual commission of the crime. In Harji v. Emperor(1) and Noor Muhammad v. Emperor(2), the Lahore High Court held that the entire confessional first information report was inadmissible in evidence. In Emperor v. Harman Kisha (3), the Bombay High Court held that the entire confessional report dealing with events on the night of the offence was hit by s. 25, and it could not be said that portions of it dealing with the motive and the opportunity were not parts of the confession. In King Emperor v. Kommoju Brahman(1), the Patna High Court held that no part of the confessional first information report was receivable in evidence, the entire report formed a single connected story and no part of it had any meaning or significance except in relation to the whole, and it would be wrong to extract parts of the statement and treat them 7 as relevant. This case was followed (1) A.I.R. 1918 Lah. 69.

(2) (1925) 90 I.C. 148. (3) [1935] I.L.R. 59 Dom. 120. (4) I.L.R. 119401 Patna, 301, 308, 314. 143) in Adimoola Padayachi v. State (1), and the Court admitted only the portion of the confessional first information report which showed it was given by the accused and investigation had started thereon. In State of Rajasthan v. Shiv Singh (2) the Court admitted in evidence the last part of the report dealing with the movements of the accused after the commission of the offence, but excluded the other parts of the statement including those .relating to motive and opportunity.In Legal Remembrancer v. Lalit Mohan Singh Roy(3), the Calcutta High Court admitted in evidence the narrative of the events prior to the night of the occurrence disclosing the motive of the offence. This case was followed by the Nagpur Court in Bharosa Ramdayal v. Empe- ror(4). In Kartar Singh v. State (5), the Court admitted in evidence the introductory part and the portion narrating the motive and the opportunity. In Ram Singh v. The State(6), the Rajasthan High Court held that where it is possible to separate parts of the first information report by an accused from that in which he had made a confession, that part which can be so separated should be admitted in evidence, and on this view, admitted a part of the report relating to motive and subsequent conduct including the statement that the accused had left the deceased lying wounded and breathing in the tibari and there was no hope of her surviving and he had come having covered her with a cloth. In Lachrymose Mundane v. The State of Bihar (7) , the Patna High Court admitted in evidence portions of the first information report relating to the motive, the opportunity and the entire narrative of events before and after the crime.

8

This case was followed in the judgment under appeal. Some of the decided cases took the view that if a part of the report is property severable from the strict confessional part, then the severable part could be tendered in evidence. We think that the separability test is misleading, and the entire confessional statement is hit by s. 25 and save and except as provided by s. 27 and save and except the formal part identifying the accused as the maker of the report, no part of it could be tendered in evidence. We think, therefore, that save and except parts 1, 15 and 18 identifying the appellant as the maker of the first information report and save and except the portions coming within the purview of s. 27, the entire first information report must be excluded from evidence.(down loaded matter) a n d

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 9 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 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 10 above, raised by the learned counsel for the petitioner.

29.The observations of the Honourable Supreme Court and Honourable

High Court are aptly applicable to the case on hand.

30.Hence, in the circumstances of the case, in the light of above observations of the Honourable Supreme Court and Honourable High Court I opine that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt and the doubt if any should be given in favour of the accused.

31.In the result, the accused is found not guilty for the offence under section 8 (b) (i) of A.P. Prohibition Act, and accordingly he is acquitted under section 248(1) Criminal Procedure Code for the said offence. The bail bonds of the accused shall stand cancelled. M.O.1 [two sample bottles] 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).

Typed to dictation, corrected and pronounced by me in open Court, this the 25th day of April’ 2017.

Sd/-Smt.P.Annie Rose Christian,

Judicial Magistrate of First Class,

Kothavalasa.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution : For Defence : NONE

P.W.1 : B.Hari Kiran Kumar

P.W.2 : M.Vijayalaxmi 11

DOCUMENTS MARKED

For Prosecution :

Ex.P.1- Occurrence report is marked by P.W.1, dated:- 29.07.2014.

Ex.P.2- F.I.R. is marked by PW.2, dated:- 29.07.2014.

Ex.P.3- Analysis Report is marked by PW.2, dated:-19.08.2014.

For Defence : Nil

MATERIAL OBJECTS MARKED

M.O.1 : Two Sample Bottles

Sd/-Smt.P.Annie Rose Christian,

Judicial Magistrate of First Class,

Kothavalasa.

12 13

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS

KOTHAVALASA.

Present : Smt.P.Annie Rose Christian,

Judicial Magistrate of First Class, Kothavalasa.,

Tuesday, this the 25th day of April’2017

C.C.No.18 of 2017

Between :

State represented by the Prohibition and Excise Inspector, Kothavalasa Police Station.

…Complainant. And :

Ganthakora Kannamnaidu, S/o.Appalanaidu, aged 38 years, caste by T.Kapu, r/o. Devada village, Kothavalasa Mandal.

...Accused.

This case is coming on 13.02.2017 for final hearing before me in the presence of Assistant Public Prosecutor for Prosecution and of Sri.M.Krishna Murthy, 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 Inspector, Kothavalasa Police Station, filed charge sheet against the accused for the offence under Section 34 (a) of A.P.

Excise Act, in Crime No.26/2015-2016 of Kothavalasa Police Station.

2. The cognizance of offence was taken on file under 8 (b) (i) 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 Criminal Procedure

Code.

4. Accused was examined under Section 239 Criminal Procedure Code and upon hearing a charge was framed under section 8 (b) (i) of A.P. Prohibition

Act, against accused, and was read over and explained to the accused in Telugu, for which the accused denied the offence and pleaded not guilty and claimed to be tried.

5. In the course of the prosecution side evidence P.Ws. 1 and 2 were examined and Ex.P.1 to P.3 and M.O.1 to M.O.3 were marked. The evidence of

Ch.S.Padmanabha Rao, B.Ramu, P.V.S.Ramaraju and M.Venkatarao were given- up by the Assistant Public Prosecutor, hence their evidence was closed. Hence, prosecution evidence was closed.

6.After closure of the prosecution side evidence, accused was examined under section 313 Criminal Procedure Code 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.

7. Heard arguments.

8. The prayer of the prosecution is that the accused was found in possession of liquor bottles, without permit and license. Hence the accused is punishable under section 34 (a) of A.P. Excise Act.

9. The facts of the prosecution case in nutshell are as follows:- On 26.04.2015 at about 7.00 pm K.Simhachalam, Ch.S.Padmanabha Rao, B.Ramu, and P.V.S.Ramaraju were conducting route watch to detect the excise offenders at

Viyyampeta village of Kothavalasa Mandal. At that time the accused was in possession of one polythene bag containing IML bottles. On seeing them accused got perturbed and tried to ran away.

2

10.Immediately excise officials surrounded and caught hold the accused.

On questioning the accused revealed that the polythene bag contained 05 Gold

Race prestige whisky bottles each 180 ml, 01- Officers choice reserve whisky bottle 90 ml DIP in the polythene bag. Immediately P.V.S.Ramaraju arrested the accused and deputed K.Simhachalam to secure the mediators but in vain.

11.Then P.V.S.Ramaraju questioned the accused, and accused revealed his name, address and source of IML. Then P.V.S.Ramaraju has drawn three samples from each brand and affixed identification slips duly signed by the excise officials and accused. Since the possession of IML is an offence, the entire event was incorporated into an occurrence report by P.V.S.Ramaraju. Basing on the occurrence a case was registered in Cr.No.26/2015-2016 under Section 34 (a) of

A.P. Excise Act. Hence the case.

12. Now, the point for determination is:

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

13.Point:- The evidence of PW.1/K.Simhachalam goes to show that on 26.04.2015 at about 7.00 pm himself and other excise officials were conducting route watch at Ramalingapuram road of Viyyampeta village to detect the excise offenders. At that time they noticed accused coming in their opposite direction with one polythene bag. On seeing them accused tried to ran away and they surrounded and caught hold him.

14.On interrogation accused revealed his name, address and also informed that that the polythene bag contained liquor bottles. Later

P.V.S.Ramaraju deputed him to secure the mediators but in vain. On verification, polythene bag contained 05-Gold Race whisky bottles each 180 ml,01-Officers 3 choice whisky bottles each 180 ml and 03-Officers choice whisky bottles each 90 ml.

15.The evidence of PW.1/K.Simhachalam further goes to show that

P.V.S.Ramaraju has drawn one sample from each brand for the purpose of chemical analysis. And affixed identification slips on the sample bottles and himself, other excise officials and accused signed on the identification slips affixed on the sample bottles. After explaining the grounds of arrest accused was arrested.

16.An occurrence report was drafted at the scene of offence. Later they brought the accused, record and property to the police station. The evidence of

PW.2/M.Vijayalaxmi goes to show that she received case property, record and accused. Basing on the occurrence report a case in Cr.No.26/2015-2016 under section 34(a) of A.P. Excise Act was registered. Later PW.2/M.Vijayalaxmi served notice under section 41(a) Criminal Procedure Code on the accused and released him.

17.During the course of investigation, PW.2/M.Vijayalaxmi sent the samples to the analyst for analysis and analyst opined that the samples are Indian liquor. The evidence of PW.2/M.Vijayalaxmi further goes to show that after obtaining permission from the Deputy Commissioner, Visakhapatnam she destroyed the remaining property. PW.1/K.Simhachalam admitted that scene of offence is a busy locality.

18.PW.2/M.Vijayalaxmi also admitted that there is a delay of sixteen days in sending the samples to the chemical analyst. As discussed above, it is clear that no mediators were present at the time of drafting the occurrence report, seizing the property and lifting the samples. Hence, confession made by the 4 accused before the police official is in-admissible and is hit by section 25 and 27 of the Evidence Act.

19.As discussed above PW.1/K.Simhachalam admitted that scene of offence is a busy locality. Hence, it is clear that excise officials failed to secure independent mediators at the scene of offence at the time of seizure of the property and lifting the sample. Hence, it appears that excise officials have not complied with the required conditions. Every effort has to be made to secure the local respectable mediators.

20.On the other hand the evidence of PW.2/M.Vijayalaxmi goes to show that after obtaining permission from the Deputy Commissioner, Visakhapatnam she destroyed the remaining property. But PW.2/M.Vijayalaxmi failed to file the destruction proceedings before the Honourable Court in support of her contention.

On perusal of Ex.P3/analysis report, sample of the liquor bottles were received by the chemical analyst on 12.05.2015 and the samples were seized on 26.04.2015.

21.Hence, there is a delay in sending the samples to the chemical analyst.

Furthermore, the prosecution failed to explain the reasons for the delay in sending the samples to the chemical analyst. The evidence of PW.1/K.Simhachalam goes to show that they found 05-Gold Race whisky bottles each 180 ml, 01-Officers choice whisky bottles each 180 ml and 03-Officers choice whisky bottles each 90 ml in a polythene bag.

22.Excise officials seized all the bottles but has drawn only one bottle as sample from each brand for the purpose of chemical analysis. The other bottles were not sent to chemical analysis. It is the duty of prosecution to prove by sending the other bottles also to the chemical analyst to find out as to whether other bottles contained alcohol or spurious liquor.

5

23.But in the present case the prosecution has not sent the other bottles also to the chemical analyst and that has prejudiced the case of the prosecution. As discussed above PW.2/M.Vijayalaxmi admitted that there is a delay of sixteen days in sending the samples to the chemical analyst.

24.Basing on the evidence on the record this court relies upon the observations of the Honourable Supreme Court and Honourable High Court in the following cases.

In the land mark judgment Aghno Nagesia

Vs

State of Bihar reported in 1966 SCR (1) 134 where in at pages 142 and 143.

Their Lordships observed as follows regarding the admissibility of the content of Discovery and Recovery which is obtained during police custody of the accused.

142) Section 27 distinctly contemplates that an information leading to a discovery may be a part of the confession of the accused and thus, fall within the purview of ss. 24, 25 and 26 Section 27 thus shows that a confessional statement admitting the offence may contain additional information as part of the confession. Again, s. 30 permits the Court to take into consideration against a co-accused a confession of another accused affecting not only himself but the other co-accused. Section 30 thus shows that matters affecting other persons may from part of the confession.

If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by s. 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is 6 receivable in evidence except to the extent that the ban of s. 25 is lifted by s. 27. Our attention is not drawn to any decision of this Court or of the Privy Council on the question whether apart from s. 27, a confessional first information report given by an accused is receivable in evidence against him. Decisions of the High Courts on this point are hopelessly conflicting. They contain all shades of opinion ranging from total exclusion of the confession to total inclusion of all admissions of incriminating facts except the actual commission of the crime. In Harji v. Emperor(1) and Noor Muhammad v. Emperor(2), the Lahore High Court held that the entire confessional first information report was inadmissible in evidence. In Emperor v. Harman Kisha (3), the Bombay High Court held that the entire confessional report dealing with events on the night of the offence was hit by s. 25, and it could not be said that portions of it dealing with the motive and the opportunity were not parts of the confession. In King Emperor v. Kommoju Brahman(1), the Patna High Court held that no part of the confessional first information report was receivable in evidence, the entire report formed a single connected story and no part of it had any meaning or significance except in relation to the whole, and it would be wrong to extract parts of the statement and treat them as relevant. This case was followed (1) A.I.R. 1918 Lah. 69.

(2) (1925) 90 I.C. 148. (3) [1935] I.L.R. 59 Dom. 120. (4) I.L.R. 119401 Patna, 301, 308, 314. 143) in Adimoola Padayachi v. State (1), and the Court admitted only the portion of the confessional first information report which showed it was given by the accused and investigation had started thereon. In State of Rajasthan v. Shiv Singh (2) the Court admitted in evidence the last part of the report dealing with the movements of the accused after the commission of the 7 offence, but excluded the other parts of the statement including those .relating to motive and opportunity.In Legal Remembrancer v. Lalit Mohan Singh Roy(3), the Calcutta High Court admitted in evidence the narrative of the events prior to the night of the occurrence disclosing the motive of the offence. This case was followed by the Nagpur Court in Bharosa Ramdayal v. Empe- ror(4). In Kartar Singh v. State (5), the Court admitted in evidence the introductory part and the portion narrating the motive and the opportunity. In Ram Singh v. The State(6), the Rajasthan High Court held that where it is possible to separate parts of the first information report by an accused from that in which he had made a confession, that part which can be so separated should be admitted in evidence, and on this view, admitted a part of the report relating to motive and subsequent conduct including the statement that the accused had left the deceased lying wounded and breathing in the tibari and there was no hope of her surviving and he had come having covered her with a cloth. In Lachrymose Mundane v. The State of Bihar (7) , the Patna High Court admitted in evidence portions of the first information report relating to the motive, the opportunity and the entire narrative of events before and after the crime.

This case was followed in the judgment under appeal. Some of the decided cases took the view that if a part of the report is property severable from the strict confessional part, then the severable part could be tendered in evidence. We think that the separability test is misleading, and the entire confessional statement is hit by s. 25 and save and except as provided by s. 27 and save and except the formal part identifying the accused as the maker of the report, no part of it could be tendered in evidence. We think, therefore, that save and except parts 1, 15 and 18 identifying the appellant as the maker of the first 8 information report and save and except the portions coming within the purview of s. 27, the entire first information report must be excluded from evidence.(down loaded matter) a n d

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. 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 9 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.

25.The observations of the Honourable Supreme Court and Honourable

High Court are aptly applicable to the case on hand.

26.Hence, in the circumstances of the case, in the light of above observations of the Honourable Supreme Court and Honourable High Court I opine that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt and the doubt if any should be given in favour of the accused.

10

27.In the result, the accused is found not guilty for the offence under section 8 (b) (i) of A.P. Prohibition Act, and accordingly he is acquitted under section 248(1) Criminal Procedure Code for the said offence. The bail bonds of the accused shall stand cancelled. M.O.1- [One Gold Race sample bottle 180 ml],

M.O.2- [One Officers choice sample bottle 180 ml], and M.O.3- [One Officers choice sample bottle 90 ml], 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).

Typed to dictation, corrected and pronounced by me in open Court, this the 25th day of April’ 2017.

Sd/-Smt.P.Annie Rose Christian,

Judicial Magistrate of First Class,

Kothavalasa.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution : For Defence : NONE

P.W.1 : K.Simhachalam

P.W.2 : M.Vijayalaxmi

DOCUMENTS MARKED

For Prosecution :

Ex.P.1- Occurrence report is marked by P.W.1, dated:- 26.04.2015.

Ex.P.2- F.I.R. is marked by PW.2, dated:- 26.04.2015.

Ex.P.3- Analysis Report is marked by PW.2, dated:-26.06.2015.

For Defence : Nil

MATERIAL OBJECTS MARKED

M.O.1- One Gold Race sample bottle 180 ml

M.O.2- One Officers choice sample bottle 180 ml 11

M.O.3- One Officers choice sample bottle 90 ml

Sd/-Smt.P.Annie Rose Christian,

Judicial Magistrate of First Class,

Kothavalasa.

12