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IN THE COURT OF I ADDL. JUDL. MAGISTRATE OF FIRST CLASS,
KADAPA.
Present :Smt. P.Bhanu Sai,
II Addl. Judl. Magistrate of I Class, Kadapa,
FAC. I Addl. Judl. Magistrate of First Class, Kadapa.
Monday, this the 4th day of November, 2019.
C.C.No.1233 of 2019.
Between ;
State Represented by Sub Inspector of Police, Kadapa II Town PS. … Complainant And ;
Shaik Mahammad Hussain, 39 years, S/o late Mahaboob Hussain, Muslim, D.No.14/356-1- 1, Kummarikunta, Kadapa city. … Accused
This case came up on 01.11.2019 before me for final hearing in the presence of learned Senior Assistant Public Prosecutor for the State and Sri P. Chandra Guptha, Advocate for the accused and after hearing and upon perusing the record, this Court delivered the following ;-
J U D G M E N T
This is a case filed by the State, represented by the Sub Inspector of Police, Kadapa II Town PS against the accused for the offence punishable u/Sec.411 of the Indian Penal Code (for brevity 'IPC').
2.In brief, the case of the prosecution as per contents of the charge sheet is that, on 21.08.2013 at 6.00 pm, Pw.1 along with his family members went to Tadipatri for the inauguration of granite factory belongs to his brother-in-law Rajasekhar duly locking his house. Later, on the next day at 6.00 pm, Pw.1 and his family returned to the house and noticed the main door locks were broken and the doors were opened. The lock to the compound grill door is intact. Immediately, he 2 went into the house and found that the iron safe in bed room was opened and thereby committed theft of silver glasses (big), small glasses, Jamon cups, tiffin plates and chembu whih were made off silver, gold ear studs, one pair bangles and bracelet and escaped with booty. Hence, basing on the report of Pw.1/B.Chandrasekhar, a case in
Crime No.122/2013 for the offences u/Secs.457 and 380 of IPC has been registered by the investigating officer/Pw.6 and took up investigation. Pw.6 visited the scene of offence, examined the witnesses, recorded their 161 statements and prepared rough sketch of the scene of offence. Later, Pw.7 verified the investigation of Pw.6 and resumed further investigation.
3.Similarly, on 25.05.2014 at about 8.00 pm, Pw.2 along with his family members went to their relative’s house situated at Lingampalli village of Sidhout Mandal. Later, night at about 7.30 pm, one Sale
Singh/Lw.6 who residing on the upstairs of his house telephoned to
Pw.2 and informed that his house locks were broken and doors were opened. On that Pw.2 rushed to his house along with Lw.5/Jinka
Subhadra and found the locks were broken. On suspicion, Pw.2 went inside the house and committed theft of (1) Nallala chain wg. about 30 gms, 2.Thalibottu sarudu wg. about 28 gms, 3.Gold necklace wg. about 12 gms, worth Rs.49,000/- and escaped with booty. Hence, basing on the report of Pw.2, a case in Crime No.80/2014 for the offences u/Secs.457 and 380 of IPC has been registered by the investigating officer/Pw.8 and took up investigation. Pw.8 visited the scene of offence, examined the witnesses, recorded their 161 statements and prepared rough sketch of the scene of offence. Later, Pw.7 verified the investigation of Pw.8 and resumed further investigation.
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4.Likewise, on 25.07.2014 night 9.00 pm, Pw.3/J.Siva
Ramakrishnaiah along with his family members went to Dr.
Subhakrishna Children Hospital situated at Sankarapuram, Kadapa due to their children ill-health. Pw.3 admitted his chidlren in the hospital and stay there in the night. On 26.07.2014 morning, the tenant/Lw.9
M.Narendra Kumar noticed that the house locks are broken, immeidately Lw.9 came to Pw.3 and informed that some unknown offenders break the main door lock and opened. Immediately, Pw.3 went into their house and found theft of (1) one gold black beed chain wg. about 25 gms, 2. one gold kaddi wg. about 20 gms, 3. gold kasulu wg. about 20 gms, 4. two silver deepalu, 5.silver kumkuma barine and escaped with booty. Hence, basing on the report of Pw.3/J.Siva
Ramakrishnaiah, a case in Crime No.107/2014 for the offences u/Secs.457 and 380 of IPC has been registered by the investigating officer/Pw.9 and took up investigation. Pw.9 visited the scene of offence, examined the witnesses and prepared scene observation panchanama in the presence of mediators. Later, Pw.8 verified the investigation of Pw.9 and resumed further investigation.
5.During the course of further investigation on 14.09.2018 at 4.00 pm, the another investigating officer/Pw.5 arrested the accused in the presence of mediators/Pw.4 and Lw.11 C.S.Fazal Ali and during the interrogation, the accused voluntarily confessed about his involvement in this case and other cases of Kadapa I Town PS, II Town PS, Taluk PS and Chinnachowk PS and seized one gold bracelet wg about 12.160 gms, one silver glass wg. about 78 gms concerned in Cr.No.122/2013, further seized one white stones gold necklace wg. about 20.880 gms, one gold chain wg. about 15.500 gms concerned in Cr.No.80/2014, 4 further seized one gold black beed chain wg. about 38.650 gms, 2 nos.
gold kaasulu wg. about 2.240 gms concerned in Cr.No.107/14 along with other stolen properties connected to other crimes. Later, Pw.7 obtained P.T. warrant from this court and produced the accused before this court on 06.10.2018 in the said three crimes. Thereafter, Pw.7 got conducted property identification proceedings through Pw.4 over the seized property with Pws.1 to 3, respectively, on the respective dates under cover of respective identification proceedings. Thus, after completion of the investigation, the accused was charge sheeted.
6.Cognizance of the case was taken on file against the accused for the offence u/Sec.411 of IPC and issued summons to the accused.
7.On production of the accused from the Central Prison, Kadapa, copies of relevant documents were furnished to him as contemplated u/Section 207 Cr.P.C. When the accused was examined u/Sec.239 of
Cr.P.C and framed a charge for the offence u/Sec.411 of IPC, read over and explained to the accused in Telugu, to which he denied, pleaded not guilty and claimed to be tried and reported no means to engage counsel, hence this court appointed Legal Aid Counsel for accused to defence his case.
8.During the trial, the prosecution has examined Pws.1 to 9 and got marked Exs.P1 to P13 and M.Os.1 to 3.
9.After completion of the evidence from the side of the prosecution, the accused was examined u/Sec.313 Cr.P.C, for the every incriminating evidence made against him from the evidence of prosecution in Telugu 5 to which he denied the same and reported no defence evidence.
Accordingly, the defence side evidence was closed.
10.Heard the arguments from both sides and perused the entire material brought on record.
11.Now the points for determination are ;-
1. Whether Pws.1 to 3 are the respective owners of M.Os.1 to 3 gold ornaments ?
2. Whether M.Os.1 to 3 along with other gold ornaments were committed in theft from the respective houses of Pws.1 to 3 in the absence of their family members ?
3. Whether M.Os.1 to 3 gold ornaments were recovered from the possession of the accused during course of investigation?
4. Whether the accused possessed M.Os.1 to 3 stolen properties soon after they were committed in theft from the respective houses of Pws.1 to 3 without any account/explanation ?
5. Whether the evidence of Pws.4 and 5 can be held as sufficient and substantive to believe the seizure of the stolen properties made from the possession of the accused ?
6. Whether the State is able to prove the offence leveled against the accused beyond all reasonable doubt ? and
7. To what relief ?
12.In order to prove the case of the prosecution, learned Sr. APP has chosen to examine 9 witnesses out of 16 cited in the charge sheet.
Pws.1 to 3 are said to be respective owners of the stolen properties including M.Os.1 to 3 and first informants. Pw.4 is said to be one of the mediators for the seizure mahazar and the person who conducted property identification proceedings over the seized properties with
Pws.1 to 3. Pw.5 is the Inspector of Police who said to have been 6 arrested the accused and seized M.Os.1 to 3 along with other stolen properties from the possession of the accused under cover of mahazar in the presence of mediators. Pws.6, 8, 9 are S.I. of Police who registered the Crime Nos.122/2013, 80/2014, 107/2014 and partly investigated the cases, Pw.7 is another S.I. of Police who produced the accused on PT warrant and filed club charge sheet respectively.
Learned A.P.P on behalf of the State has given up the remaining cited witnesses in this case.
13.Apart from the oral evidence on behalf of the prosecution the following documents and material objects got marked. Exs.P1 to P3 are the reports of Pws.1 to 3, Ex.P4 is the relevant portion relating to the seizure of the properties in the mahazar dt:14.9.2018 (certified copy),
Exs.P5 to P7 are the property identification proceedings, Ex.P8 is the
F.I.R. in Cr.No.122/2013, Ex.P9 is the rough sketch, Ex.P10 is the F.I.R. in
Cr.No.80/2014, Ex.P11 is the rough sketch, Ex.P12 is the F.I.R. in
Cr.No.107/2014, Ex.P13 is the rough sketch. M.O.1 is one gold bracelet, one silver glass, M.O.2 is one gold necklace, one gold chain, M.O.3 is one gold black beeds chain and gold kasulu.
14.No oral and documentary evidence has been adduced on behalf of the defence. The defence of the accused is one off denial of the case of the prosecution.
15.While advancing the arguments on behalf of the prosecution, learned Sr. A.P.P submitted that since Pws.1 to 3 have categorically stated that they are the owners of the stolen properties and stolen properties including M.Os.1 to 3 were committed in theft from their 7 houses in the absence of all the house mates and since no cross examination is made on behalf of the defence over Pws.1 to 3, the evidence of Pws.1 to 3 is sufficient to believe the ownership of Pws.1 to 3 on M.Os.1 to 3 respectively. The further argument of learned APP is that since Pw.5/investigating officer has categorically stated that he has the seized stolen properties involved in 53 cases which were committed in and around Kadapa City including the present crime and since it is supported by the independent mediator/Pw.4, the prosecution has established the seizure of M.Os.1 to 3 made from the possession of the accused beyond all reasonable doubt. With these submissions, learned
APP finally sought to convict the accused.
16.Per contra, learned counsel for the accused argued that the accused is an innocent and he is falsely implicated in this case by the police for statistical purpose. The further argument of the defence counsel is that as Pws.1 to 3 identified the stolen ornaments in the police station and not before the VRO in MRO office, the identification made by Pws.1 to 3 over the seized property cannot be believed. The another argument of the defence counsel is that since Pw.4 is a VRO and he did not obtain written permission from the MRO to accompany the police and present at the time of seizure, the evidence of Pw.4 cannot be believed. The next argument of the defence counsel is that since there is an inconsistency elicited between the evidence of Pws.4 and 5 as to the time of information about the offender received and the team of Pw.5 reaching the place of apprehension, the evidence of Pws.4 and 5 cannot be believed. It is the further argument of the defence counsel that as the served summons on the mediators are not filed
before the court, the contention of the investigating officer and Pw.4
8 cannot be believed that written summons were served on the mediators before seizure of the properties.
17.The defence counsel further argued that as the seized articles are not containing ID slips, the evidence of Pws.4 and 5 about seizure of the stolen property and the material instruments used in break opening the locks and iron safes cannot be believed. It is the further argument of the defence counsel that Pw.5 did not seize and produce the white colour bag in which the stolen properties were carried and since iron rod and other material instruments which were allegedly seized from the possession of the accused are openly available in the open market, since there is no material showing that the investigating officer carried the crime records to the place of apprehension and noted the particulars of the crimes in the seizure mahazar, the evidence of Pws.4 and 5 cannot be believed. The defence counsel further argued that the accused never confessed about the offence and never possessed the stolen properties as alleged and it is a false case foisted against the accused. The last argument of the defence counsel is that though the place of apprehension is in the busy locality and there was every possibility to secure local respectables, Pw.5 did not secure the local respectables and hence the seizure made by Pw.5 in the presence of
Pw.4 and another mediator cannot be believed. With these submissions the defence counsel finally sought to acquit the accused from this case.
18.Points Nos.1 and 2:- Since the points Nos.1 and 2 are interrelated, they are taken up together for the sake of convenience and discussion.
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As could be seen from the entire evidence let in before the court on behalf of the prosecution and cross examination made on behalf of the defence over the prosecution witnesses, it is noticed that there is no denial from the defence about the ownership of Pws.1 to 3 on
M.Os.1 to 3 respectively and M.Os.1 to 3 along with other gold ornaments were committed in theft from the respective houses of
Pws.1 to 3 in the absence of the family members on the respective dates. Further, as per contents of Ex.P1 report and Ex.P8 F.I.R, the offence said to have been occurred between night on 21.08.2013 and the criminal law was set into motion basing on the report given by the first informant/Pw.1 on 23.08.2013 at 7.00 pm. The further contents of the Ex.P1 report and Ex.P8 FIR speak that in the absence of the family members of Pw.1, some unknown offenders entered into his house by break open the locks and committed theft of (1) silver big glasses, 2.silver small glasses, 3.silver Jamon cups, 4. silver Tiffin plates, 5.silver
Chembu, one pair of gold ear studs, one pair of bangles, one gold bracelet, all worth Rs.45,000/-.
19.Further, as per contents of Ex.P2 report and Ex.P10 F.I.R, the offence said to have been occurred on the night of 25.05.2014 and the criminal law was set into motion basing on the report given by the first informant/Pw.2 on 26.05.2014 at 2.00 pm. The further contents of the
Ex.P2 report and Ex.P10 FIR speak that in the absence of the family members of Pw.2, some unknown offenders entered into his house by break open the locks and committed theft of gold ornaments worth
Rs.49,000/-.
20.Furthermore, as per contents of Ex.P3 report and Ex.P12 F.I.R, the offence said to have been occurred on the night of 25.07.2014, and the 10 criminal law was set into motion basing on the report given by the first informant/Pw.3 on 26.07.2014 at 11.45 am. The further contents of the
Ex.P3 report and Ex.P12 FIR speak that in the absence of the family members of Pw.3, some unknown offenders entered into his house by break open the locks and committed theft of (1) one gold black beed chain wg. about 25 gms, 2.one gold kaddi wg. about 20 gms, 3.gold kasulu wg. about 20 gms, 4.two silver deepalu, 5.silver kumkuma barine, total worth Rs.48,000/-.
21.Moreover, in support of the contents of Ex.P1 report, the author of the report that is Pw.1 claimed before the court during the evidence that on 21.08.2013 he along with his wife and children by locking the door went to Tadipatri and on 23.08.203 they returned to Kadapa at 7.00 am, and found by break opening the lock that some unknown offenders entered into their house and break opened iron safe and committed theft of gold bangles, ear studs, bracelet and ring, and silver chembu, silver glass, 6 silver jamoon cups. Immediately he lodged report. Ex.P1 is his report. About a year ago, police called him to MRO office, there he identified bracelet and one silver glass (M.O.1). Later he has taken Mo.1 towards interim custody from the court.
22.Further, in support of the contents of Ex.P2 report, the author of the report that is Pw.2 claimed before the court during the evidence that on 26.05.2014 he along with his family members by locking the house went to Anjaneyaswamy Tirunall at Lingampalli and on the same day night at 8.00 pm, they returned to the house and found by break opening the lock that some unknown offenders entered into their house and break opened iron safe and committed theft of gold stones neck 11 lace, one sarudu, one black beads chain. Immediately he lodged report.
Ex.P2 is his report. About a year ago, police called him to RDO office, there he identified one necklace and one chain (M.O.2). Later he has taken Mo.2 towards interim custody from the court.
23.Furthermore, in support of the contents of Ex.P3 report, the author of the report that is Pw.3 claimed before the court during the evidence that from 23.07.2014 he along with other family members were staying in Children Hospital, for providing treatment to their children and on 25.07.2014 early morning Lw.9/M.Narendra Kumar came to the hospital and informed that their house locks were broken, and some theft had occurred. He returned to the house and found that some unknown offenders committed theft of gold black beads chain, gold kasulu, gold bar, silver deepams-2, and a cash of Rs.26,000/-. Immediately he lodged report. Ex.P3 is his report. About a year ago, police called him to
PS and received black beads chain, kasulu (M.O.3). Later, he has received the same from the court towards interim custody.
24.Thus, on perusal of the entire of Pws.1 to 3, it is observed that though, Pws. 1 to 3 have narrated the evidence in support of the contents of Exs.P1 to P3 reports about stolen of the gold and silver ornaments including M.Os.1 to 3 during the absence of their family members from their houses and ownership of M.Os.1 to 3 respectively, no cross examination is made over Pws.1 to 3 on behalf of the defence on any aspect. Hence, the evidence of Pws.1 to 3 is remained unchallenged one. Further, though, there is a delay in lodging Exs.P1 to
P3 reports by Pws.1 to 3, there is no cross examination on any aspect including the delay over Pws.1 to 3 from the defence. Hence, the delay 12 in lodging the reports which is not disputed by the defence, cannot be considered as significance to consider the versions of Pws.1 to 3 stated in Exs.P1 to P3 and during the evidence before the court about the theft of M.Os.1 to 3 from their respective houses.
25.Furthermore, in support of the evidence of Pw.1, Pw.6/Shaik Abdul
Rasheed, S.I. of Police, deposed that on 23.08.2013 at 7.00 pm, while he was present in the police station, Pw.1 went to the police station and presented Ex.P1 report, basing on the same he registered the crime, examined the witnesses, recorded their 161 statements, visited the scene of offence and drafted rough sketch of the scene of offence. So also, Pw.8 and Pw.9/the Sub Inspectors of Police, in support of the evidence of Pws.2 and 3, deposed that on 26.05.2014 at 2.00 pm and 26.07.2014, basing on the reports of Pws.2 and 3 respectively, they registered the crimes, examined the witnesses and drafted rough sketches of the scene of offences. It is the further evidence of Pw.7, after recovery of the properties in the said three Crimes, he got conducted property identification proceedings through VRO over the seized property with the owners of the property.
26.Though Pws.6, 8 and 9 were subjected to cross examination on behalf of the defence, there is no denial from the defence about theft of
M.Os.1 to 3 and other ornaments from the houses of Pws.1 to 3 and lodging the reports by Pws.1 to 3 in the police station soon after commission of the thefts. Further, though it was suggested and elicited from Pws.6, 8 and 9 that Pws.1 to 3 did not enclose bills or photograph of stolen property along with reports, it cannot be considered as a discrepancy since it is not suggested to Pws.1 to 3 and no cross 13 examination is made on any aspect including ownership of Pws.1 to 3 on M.Os.1 to 3 respectively. Moreover, the contents of Exs.P9, 11 and
P13 rough sketches are also corroborated and supported the evidence of Pws.1 to 3, 6, 8 and 9 about the location of the concerned scene of offences.
27.More so, in respect of conducting identification of the stolen properties, Pw.4 deposed that on 24.09.2018 at 4.15 pm, 5.00 pm and 29.09.2018 at 3.30 pm respectively, he conducted property identification proceedings at MRO office by calling Pws.1 to 3 with the properties sent by police and by securing similar type of ornaments through his VRA from a gold shop, mixed both items, called Pws.1 to 3 and asked them to identify the stolen property if any found, for which
Pws.1 to 3 identified the respective ornaments (M.Os.1 to 3) which were sent by the police as that of the stolen properties under cover of
Exs.P5 to P7 identification proceedings, respectively.
28.As stated supra, Pws.1 to 3 clearly narrated that after recovery of the stolen properties, they were called by the police and got identified the recovered properties as stolen property. However, no cross examination is made on any aspect over Pws.1 to 3. Therefore, no dispute about the identity of the property stolen from the respective houses of Pws.1 to 3 on the respective dates from the defence. Hence, there is no discrepancy elicited among the evidence of Pws.1 to 3,
Pws.4 and 7 about the place of conducting identification proceedings over the seized property with Pws.1 to 3 and the number of similar articles secured and mixed with the recovered articles during property identification proceedings.
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29.Thus, through the evidence of Pws.1 to 3, 4, 6, 8, 9 and documents Exs.P1 to P3, P4 to P7, P8 to P13, the State has proved beyond all reasonable doubt that Pws.1 to 3 are the owners of M.Os.1 to 3 and other stolen properties respectively and they were committed in theft from the respective houses of Pws.1 to 3 in the absence of the family members on the respective dates. Accordingly, the points are answered in favour of the State and against the defence.
30. Points Nos.3 to 7 :- Since the points Nos.3 to 6 are interrelated, they are taken up together for the sake of convenience and discussion.
In order to substantiate these aspects, learned APP is mainly relying upon the evidence of Pws.4 and 5 and the contents of Ex.P4 mahazar. Admittedly, out of two mediators, one mediator is examined as Pw.4 and another mediator/Lw.11 C.S.Fazal Ali is not examined on behalf of the prosecution and his evidence was given up by the State through its APP on the reason that Pw.4 has been supported the evidence of Pw.5 and contents of seizure mahazar. Further, Pw.4 is a
Revenue Official, working as VRO of Nagarajupalli and Kadapa City by the date of seizing the properties and still he is working as VRO of both revenue villages. Further, Pw.5 is the Inspector of Police and investigating officer who said to have been caught the accused and recovered the stolen properties pertaining to 53 cases involved in and around Kadapa City. Therefore, both witnesses are official witnesses and hence the evidence of Pws.4 and 5 is to be scrutinized with due care and caution. Thus, now it is to be find out whether the evidence of the investigating officer and revenue official/mediator of the seizure mahazar can be relied upon beyond all reasonable doubt.
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31.To strengthen the contents of seizure mahazar and in support of the case of the prosecution, Pw.5 T.V.Satyanarayana/investigating officer deposed that on 14.09.2018, he received an information about the movement of the accused/Shaik Mahammad Hussain, immediately he secured mediators/Pw.4 and Lw.11 C.S.Fazal Ali, through the S.I of police/Amarnadh Reddy, to II Town PS at 8.00 am., then he briefed them and served notices to the mediators. At 8.30 am., he along with his staff, SI of II Town, ASI, 4 HCs, and 7 PCs left in two Govt. Police vehicles along with mediators started and reached Dorralagoreelu at 8.45 am., there, he started vehicle checking. At 9.00 am, the accused came from Machupalli side towards Kadapa on Honda Duo scooty bearing No.AP04 DE 4733, on seeing the police, the accused tried to fled away. But two constables chased, and apprehended him, brought him and produced before him.
32.It is further deposed by this investigating officer that in the presence of mediators, he examined the accused and recorded his confessional statement about commission of 53 house breaking and theft offences concerned in I Town PS, Chinnachowk, Kadapa Taluq and
II Town police stations. The accused further confessed that some of the stolen properties were kept with his possession and some of the properties were handed over to his brother-in-law by name Iliyaz Basha.
Then the accused voluntarily produced the stolen properties which were hided in a white plastic bag under the seat of the Scooty. In the presence of mediators, he opened the said white bag and found 53 plastic covers containing Gold and Silver ornaments and cash of
Rs.1,47,140/-. Then, he verified the said properties with the FIRs which 16 were in the possession of I.D. Party staff who accompanied him at that time and tallied the same with the stolen properties in the said crimes.
33.The further evidence of Pw.5 speaks that the accused produced the implement tools which he used in breaking the house locks ie., one iron rod, 2 chisels, 3 bunch of keys which were kept in a Zip bag under scooty seat cover. In the same bag one Pass port of the accused was also found (M.Os 2 to 5 and Ex.P5 which were produced and marked in
C.C.No.661/2018). Then, he arrested the accused at 4.00 pm., and seized all the Gold ornaments, cash, scooty and other said objects under cover of panchanama in the presence of mediators, brought the accused along with the seized property to the P.S. He obtained the signatures of mediators and affixed I.D. slips on the seized property.
34.In the cross examination of the defence, though it is elicited from
Pw.5 that he did not secure the local inhabitants from the school and the hospital situated nearby the place of apprehension and both the mediators are not belonging to the locality of Doralagoreelu where the properties were seized and though Pw.4 also admitted the same, the evidence of Pw.5 cannot be disbelieved since no enemity or animosity is pleaded and elicited from Pw.5 to book cases much less 53 in number against the accused and to plant the properties in 53 cases recovered else where by leaving the real offender. Moreover, on perusal of the entire evidence of Pw.5, it is observed that the evidence of Pw.5 is confident, trustworthy and credible.
35.Furthermore, the Hon'ble Apex Court, in the cases of State of U.P.
v. Anil Singh, 1988 Supp SCC 686, State, Govt. of NCT of Delhi v. Sunil 17 and another, (2001) 1 SCC 652, Ramjee Rai and others v. State of
Bihar, (2006) 13 SCC 229, has laid down recently in Kashmiri Lal v.
State of Haryana, 2013 AIR SCW 3102 and in Pramod Kumar v. State (GNCT) of Delhi, AIR 2013 S C 3344 held that “There is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinizing the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence.”
36.In the instant case also the testimony of Pw.5/Investigating officer is found to be reliable and trustworthy. Further, it is not the contention of the defence that non securing the local respectables and seizure of the stolen properties made by Pw.5 in the presence of the witnesses secured from distant place causes serious prejudice to the case of the accused. More so, though, Pw.5 did not secure the local respectables as mediators to observe the seizure as per the procedure contemplated under Sec.100 (4) of Cr.P.C., but it is pertinent to mention here that
Sec.100 Cr.P.C. is applicable for closed place of search and admittedly here the search and seizure taken place at a open and public place.
Therefore, the evidence of Pw.5/investigating officer should not be discarded only on the ground that he is the investigating officer and he 18 is always interested in the success of the prosecution. Therefore, Pw.5 should not be dubbed as an interested witness since his evidence is otherwise, trustworthy and credible for acceptance.
37.Furthermore, in support of the evidence of Pw.5, Pw.4/mediator deposed that he knows another panchyathdar/Fazar Ali and he has seen him on the date of seizure and he has also seen the accused. It is the further evidence of Pw.4 that on 14.09.2018 around 7.10 am., S.I of police II Town PS, Kadapa telephoned to him while he was present at his house and requested him to come to II Town PS on the instructions of the C.I of police. Then they sent one constable to Kadapa MRO office and at 8.00am., he went to MRO office. From MRO office he went along with the constable on his bike to II Town PS, Kadapa. By the time he reached the PS the another mediator Fazal Ali was present in the PS.
Then the Inspector of police requested them to acts as mediators in respect of an information received by him about the offenders in stolen cases. Then he served summons to him and another mediator. Around 8.30 am., they followed the Inspector of police, S.I. of police, ASI other staff of II Town PS in their jeep started and while proceeding and crossing Masapet, they reached Dorala Goreelu burial ground, where the police were conducting vehicle check over the vehicles were passing on that day. At that time the accused came on Honda scooty from Machupalli side and on observing the police party, he tried to take back his bike and escaped. But on the instruction of the C.I of police, his staff caught the accused and brought him to the C.I of police. On suspicion over the accused, C.I. of police enquired him and elicited his name and address particulars.
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38.It is the further evidence of Pw.4 that basing on the confession made by the accused, he produced a cover which was hided in scooty dickey and it contains gold, silver articles and a cash of Rs.1,40,000/- and odd approximately. Then the police verified the FIR book which was brought to the said place and noticed that there were 53 cases in which the accused committed theft of the properties. Then the properties produced by the accused weighed individually, packed separately case wise and affixed I.D. slips having the signatures of himself, another mediator and C.I of police on the seized items. Then the accused also produced the instruments which were used for break opening the doors and iron safes to commit thefts ie., 2 chisels, iron rod and 3 bunch of keys hided from scooty dickey. Inspector of police also verified R.C. of scooty and it stands in the name of a lady who is the daughter of the accused. Then the police arrested the accused after informing the grounds of arrest and prepared a mahazar and obtained the signatures of himself, another mediator, the accused, S.I of police, Inspector of police and others in the laptop typed by the Inspector of police and after taking print outs, one copy of mahazar was served on the accused. Then, they returned to the PS along with the accused and properties around 4.30 pm, and then the Constable dropped him at his office.
39.The further evidence of Pw.4 speaks that the ornaments which were recovered from the possession of the accused in their presence are Gold ear studs, rings, bangles, black beed chains, plain chains,
Talibottu Sarudulu, Dollar chains, gold biscuits-2 and also silver articles of plates, bowls, tumblets, anklets, Kadiyalu, Kumkuma Bharinas,
Agarbathi stands, etc. were seized from the accused.
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40.Though, Pw.4 was subjected to cross examination at length on behalf of the defence, the defence failed to shake the credibility of
Pw.4. Further, though it is suggested from the defence to Pw.4 that due to close acquaintance with the II Town S.I. of Police G.Amarnath Reddy he deposed false, Pw.4 denied the same. Furthermore, it is elicited by the defence from Pw.4 that Ex.P4 confessional cum seizure mahazar was got prepared through laptop simultaneously while examining the accused and basing on the narration given by him.
41.As stated supra, the evidence of Pw.4 is fully corroborated and supported the evidence of Pw.5/investigating officer. Moreover, though
Pw.4 is a revenue official, he categorically deposed that on the oral permission from the MRO, he participated in the raid and witnessed the seizure of the stolen properties in 53 crimes made by Pw.5. Further, motive or animosity is also not pleaded and elicited from Pw.4 to speak false against the accused and in support of the evidence of Pw.5, on behalf of the defence. Furthermore, the evidence of Pw.4 is also appearing cogent, credible and trustworthy. Moreover, Pw.4 has narrated the facts from the time of he was picking up by the police from his office and till he was dropping in the office after completion of the seizure and apprehension formalities.
42.Further, it is not the contention of the defence that Pw.4 is a stock mediator to the police and he is habituated to sign on the mahazars prepared by the police to suit their case. Furthermore, the evidence narrated by Pw.4 is also having intrinsic value. Therefore, the veracity of Pw.4 made in support of the evidence of Pw.5 cannot be doubted or discarded merely on the ground that he is not an independent and not 21 inhabitant of the locality where the accused was apprehended and seized the properties.
43.Thus, looking into the above discussion, the evidence of Pws.4 and 5 is enough and sufficient to believe that the accused possessed
M.Os.1 to 3/part of the stolen properties after committing theft of the same from the houses of Pws.1 to 3 and seizure of M.Os.1 to 3 respectively from the possession of the accused on 14.9.2018 under cover of mahazar.
44.The next limb of argument of the defence counsel is that there is inconsistency elicited between the evidence of Pws.4 and 5 as to the time of information received about the offender, the team of Pw.5 reaching the place of apprehension, since written summons on the mediators are not placed before the court, white colour bag in which the accused produced the alleged stolen properties is not seized and placed before the court, seized articles are not containing ID slips and they are available in the open market and since there is no material showing that the investigating officer carried the all crime records to the place of apprehension for noting the crime numbers in the seizure mahazar, the evidence of Pws.4 and 5. As stated supra, as per the specific evidence of Pws.4 and 5 and contents of seizure mahazar, the investigating officer has been seized stolen properties in 53 cases by catching the accused while conducting vehicle check when the accused came on scooty. As per the further evidence of Pws.4 and 5, Pw.5 also seized the scooty stands in the name of the daughter of the accused, passport of the accused and also the tools which were used for break open the locks and iron safes from the possession of the accused.
22
Further, as per the specific evidence of Pws.1 to 3, seized ornaments were given to interim custody of Pws.1 to 3 by the court. Therefore, there is no possibility to keep the identification slips affixed on the seized property.
45.More so, if really Pw.5 did not seize the stolen property from the possession of the accused and planted the same along with other stolen properties against the accused and foisted a false case (we assume for a while but not admitting), how it is possible to secure the scooty of the accused and particularly the passport of the accused.
Moreover, the evidence of Pws.4 and 5 is un-contradicted and it is corroborated to each other. Thus, in the course of seizure of the stolen properties pertaining to 53 cases, certainly some mistakes may occur in preparation of the record and in following the due procedure contemplated under Law. Thus, the inconsistencies argued by the defence counsel cannot be considered as significances and fatal to the case of the prosecution to the extent of the accused gets the benefit of acquittal. Therefore, and in view of the above discussion, all the contentions of defence counsel find no merits and the same cannot be considered to the extent of acquitting the accused.
46.Thus, under these circumstances and in view of the foregoing reasons, without any hesitation, the court safely reached to a conclusion that the seizure of M.Os.1 to 3 made by Pw.5 from the possession of the accused soon after they were committed in theft from the respective houses of Pws.1 to 3 in the presence of Pw.4 and another mediator on 14.9.2018 is believed and relied upon. But, the accused/defence is failed to explain or account for possession of the 23 stolen properties soon after they were committed in theft. Therefore, as per Sec.114 Illustration (a) of the Indian Evidence Act, the court is presumed that the accused is the thief of M.Os.1 to 3 and other seized gold ornaments involved these three crimes in this case. Hence, it is held that the prosecution has successfully proved the charge leveled against the accused beyond all reasonable doubt. Accordingly, the points are answered in favour of the prosecution and against the accused.
47. POINT NO. 7 :- In view of the findings recorded to the Points
Nos.1 to 6, it is held that the accused is liable for conviction.
In the result, the accused is found guilty for the offence punishable u/Sec.411 of IPC and accordingly, he is convicted of the same u/sec.248 (2) of Cr.P.C.
Directly typed to dictation by the Stenographer, corrected and pronounced by me in the open Court this, the 4th day of November, 2019.
Sd/- P.Bhanu Sai,
I Addl. Judl. Magistrate of I Class, Kadapa.
48.When the accused is questioned as to the question of sentence to be imposed against him, the accused submitted that since he is having wife and four children and they are depending on his earnings, he prayed to show mercy. Since the facts proved before the court show that the accused involved in many property theft offences, it is not a fit case to invoke the benevolent provisions under the Probation of
Offenders Act or Sec.360 of Cr.P.C. But by considering the submissions of the accused, age of the accused and nature of the offence and involvement of the accused in similar property theft offences, the court feels that the following sentence would meet the ends of the Justice.
24
49.Hence, the accused is sentenced to undergoRigorous imprisonment for a period of 2 (Two) years for the offence u/Sec.411 of IPC. Remand period undergone by the accused from 06.10.2018 till date is ordered to be set off u/Sec. 428 of Cr.P.C. M.Os.1 to 3 (C.P.R.Nos.51/2019, 53/2019, 54/2019) which are in the interim custody of Pws.1 to 3 shall holds good after expiry of appeal time if no appeal prefers.
50.The accused is informed about his right to prefer appeal against this Judgment before the Hon'ble Court of Sessions and to get free legal aid from the DLSA, Kadapa to prefer appeal if he intends to prefer appeal and if he has no means to engage counsel.
Directly typed to dictation by the Stenographer, corrected and pronounced by me in the open Court this, the 4th day of November, 2019.
Sd/- P.Bhanu Sai,
I Addl. Judl. Magistrate of I Class, Kadapa.
Appendix of Evidence
Witnesses examined for prosecution
Pw.1: B.Chandrasekhar, Pw.2: J.Nagaraju, Pw.3: J.Siva Ramakrishna, Pw.4: Y.Chinnaiah, VRO, Pw.5: T.V.Satyanarayana, C.I. of Police, S.B., Pw.6:Shaik Abdul Rasheed, S.I. of Police, Pw.7: G.Amarnath Reddy, S.I. of Police, Pw.8: G.Murali Mohan Raju, S.I. of Police, Pw.9: Y.Chennakesava, S.I. of Police.
Exhibits marked on behalf of Prosecution
Ex.P1: Report of Pw.1, Ex.P2: Report of Pw.2, Ex.P3: Report of Pw.3, Ex.P4: Relevant portion relating to the seizure of the properties in the mahazar dt:14.9.2018 (certified copy), Exs.P5 to P7: Property identification proceedings, Ex.P8: F.I.R. in Cr.No.122/2013, Ex.P9: Rough sketch, Ex.P10: F.I.R. in Cr.No.80/2014, Ex.P11: Rough sketch, 25
Ex.P12: F.I.R. in Cr.No.107/2014, Ex.P13: Rough sketch.
Witness examined on behalf of the Accused
--Nil-
Exhibits marked for Defence
- Nil -
Material objects marked on behalf of the Prosecution
M.O.1: One gold bracelet, one silver glass, M.O.2: One gold necklace, one gold chain, M.O.3: One gold black beeds chain and gold kasulu.
Sd/- P.Bhanu Sai,
I Addl. J.F.C.M., KADAPA. // True copy //
Sd/- P.Bhanu Sai,
II Addl. Judl. Magistrate of I Class, Kadapa, FAC. I Addl. Judl. Magistrate of I Class, Kadapa.
26
CALENDAR AND JUDGMENT
Calendar and Judgment tried by the I Addl. Judl. Magistrate of First Class, Kadapa.
DATE OF
Offence Report Apprehen- Release Commence- Close of Judg- sion of on bail ment of trial ment 21.08.13 23.08.13 14.09.18 -- 14.08.19 01.11.19 04.11.19 ---------------------------------------------------------------------------------------------------- Calendar and Judgment in C.C.No.1233/2019 on the file of I Addl. Judl.
Magistrate of I Class, Kadapa.
COMPLAINANT:Sub Inspector of Police, Kadapa II Town PS. in Cr.Nos.122/13, 80/14, 107/14
Name of the accused Age Calling Religion Residence With father’s name
Shaik Mahammad Hussain, 39 years, S/o late Mahaboob Hussain, Muslim, D.No.14/356-1-1, Kummarikunta, Kadapa city.
Offence :u/Sec.411 of IPC.
Finding :Accused is found guilty
Sentence : In the result, the accused is found guilty for the offence punishable u/Sec.411 of IPC and accordingly, he is convicted of the same u/sec.248 (2) of Cr.P.C.
When the accused is questioned as to the question of sentence to be imposed against him, the accused submitted that since he is having wife and four children and they are depending on his earnings, he prayed to show mercy. Since the facts proved before the court show that the accused involved in many property theft offences, it is not a fit case to invoke the benevolent provisions under the Probation of Offenders Act or Sec.360 of Cr.P.C. But by considering the submissions of the accused, age of the accused and nature of the offence and involvement of the accused in similar property theft offences, the court feels that the following sentence would meet the ends of the Justice.
Hence, the accused is sentenced to undergoRigorous imprisonment for a period of 2 (Two) years for the offence u/Sec.411 of IPC. Remand period undergone by the accused from 06.10.2018 till date is ordered to be set off u/Sec. 428 of Cr.P.C. M.Os.1 to 3 (C.P.R.Nos.51/2019, 53/2019, 54/2019) which are in the interim custody of Pws.1 to 3 shall holds good after expiry of appeal time if no appeal prefers.
The accused is informed about his right to prefer appeal against this Judgment before the Hon'ble Court of Sessions and to get free legal 27 aid from the DLSA, Kadapa to prefer appeal if he intends to prefer appeal and if he has no means to engage counsel.
Sd/- P.Bhanu Sai,
I Addl. Judl. Magistrate of I Class, Kadapa.
Copy submitted to the Hon'ble I Addl. District Judge, Kadapa.
Dis.No. dt:
// True copy //
Sd/- P.Bhanu Sai,
II Addl. Judl. Magistrate of I Class, Kadapa, FAC. I Addl. Judl. Magistrate of I Class, Kadapa.