P.Bhaskar Rao

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IN THE COURT OF VI ADDL. CHIEF METROPOLITAN MAGISTRATE :

HYDERABAD

Present : Sri P. BHASKARA RAO, VI Addl.Chief Metropolitan Magistrate Hyderabad.

Dated this the 12th day of February, 2016

CC. 540 of 2012

Between: State of A.P. through Inspector of Police, GHR, P.S. CID, Hyderabad …….complainant

And

1. Mallisetty Bhanu Kiran @ Bhanu S/o. late M. Damodar Rao, R/o.H.No.12/249, Sai nagar Colony, Anantapur town(A-1)

2. Vedukala Venkata Madhu Mohan Reddy @ Madhu, S/o. V. keshava Reddy, age 39 years, occ: Business, R/o. Flat No.302, R.R. Towers, Amruthanagar, near Kodigenahally gate, Bangalore City, N/o. Yerllampally (V), Kothakota (PO), Bukkapanam (M) of Anantapur District(A-2)

3. Dantuluri Krishna @ Mangali Krishna, S/o. D. Chintala Rayudu, Age 40 years, Occ: Business, R/o.H.No.4-4-344, Rajapuram Street, Pulivendula town of Kadapa District.(A-3)

4. Mannepalli Venkata Mohan @ Mohan Raj, S/o. M.V. Ramana, Age 43 years, occ: Reserve Sub-Inspector of Police, APSP, R/o. Flat No.303, Kanjarlas MM Classic homes, Street No.2, CZECH colony, Sanathnagar, Hyderabad, N/o. Jagadamba Street, Rayachoti, Kadapa District(A-4)

5. Dr. Neela Srinivas @ Pappu, S/o. N. Padmanabham, age 35 years, Occ: Doctor (BDS), R/o. Flat No.B-III, Jayabheri Silicon Colony, Kondapur, RR District, N/o.HIG-14, AP Housing Board Colony, Sangemesh Nagar, Anantapur Town(A-5)

6. Kopparthy Venkat Surya Srinivasu @ Vasu, S/o. Kopparthy Veera Rao, age 33 years, occ: pvt. Employee, r/o.&N/o. H.No.2-190/2, Ramanpeta, Attili Town of West Godavari District.(A-6)

…...Accused

This case is coming before me for final hearing in the presence of learned Spl. Public Prosecutor for the prosecution and Sri V. Surender Rao, counsel for accused and after having stood over for consideration till this day, the court delivered the following:

J U D G M E N T

The Inspector of Police, GHR, Police Station CID, Hyderabad laid charge sheet against accused in Cr.No.40/2012 to prosecute accused for the offences under Sections u/Secs. 386, 506 r/w 120-B IPC and Sec. 25 (1) (a) and 27 (2) of Arms Act, 1959.

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1. Case of the prosecution in brief is that PW.1 is Chairman and

Pw.3 is executive Director of Max Infra (I) Limited formerly known as G.

Venkat Reddy and company, and has been doing business in civil engineering contracts in the state of A.P. and across India. They got a contract from Government for ‘Handri Neeva Srujala Sravanthi Phase-II’ to exeucting work at Anantpur district. While they were carrying out the work,

A1 who is stated to be staunch follower of Maddelacheruvu Suryanarayana

Reddy @ Suri who was stated to be a factionist from Anantapur District, started giving threatening calls to PW.1 and Pw.3 to pay Rs.50,00,000/- for execution of work. PW.1 initially ignored the threatening calls, as such, A1 along with his associates A2 to A6 approached office of PW.1 situated at

Srinagar Colony, Banjara Hills, Hyderabad in the month of March, 2007 again demanded him to pay money, but as PW.1 did not respond. Again, A1 along with his gang approached PW.1 in the month of January, 2008 and threatened him with dire consequences by placing guns and knives on his table, unable to bear harassment and to purchase peace, PW.1 gave two cheques each for Rs.25 lakhs in favour of A.K. Consultants which was sponsored by A1. A1 encashed the said two cheques through his men and gave some amount to his associates. Not satisfied with, again A1 demanded

PW.1 pay some more amount and also forced him to give sub- contracts to his henchmen on that Pw.1 gave Rs.25 lakhs to A1 by way of cheques which was also encashed by A1. Meanwhile A1 was involved in a murder case and was arrested by the police, then Pw.1 came out and lodged report with CID police along with PW.3, same was registered as a case in

Cr.No.40/2012 u/Secs. 386, 506 r/w 120-B IPC and Sec. 25 (1) (a) and 27 (2) of Arms Act, 1959 and matter was investigated . During the course of investigation, the investigating officer seized bank records and cheques marked as Ex.P1 to Ex.P3 from all the banks and apprehended accused by 3 obtaining PT warrant and seized Rs.7,500/- on the confession of A1 and

Rs.5,000/- on the confession of A3 from one Nayani Srinivasa Rao in the presence of mediators. Investigating officer also seized one Sale deed on the confession of A5 who purchased the said plot with the ransom money on the direction of A1 and one expired Indian passport from A4 and after completion of entire investigation CID police filed charge sheet against A1 to

A6 u/Secs. 386, 506 r/w 120-B IPC and Sec. 25 (1) (a) and 27 (2) of Arms

Act, 1959.

2.The case was taken on file for the offences punishable u/Secs.

386, 506 r/w 120-B IPC and Sec. 25 (1) (a) and 27 (2) of Arms Act, 1959 against accused.

3.After appearance of the accused, copies of all the documents on which the prosecution proposed to place reliance were furnished to them under Section 207 Cr.P.C. Accused were examined under Section 239

Cr.P.C. They denied the accusations. Charges u/Secs. 386, 506 r/w 120-B

IPC and Sec. 25 (1) (1) and 27 (2) of Arms Act, 1959 were framed, read over and explained to accused. They pleaded not guilty and claimed to be tried.

4.During the course of trial, the first complainant M. Phani Kumar was examined as PW.1, the second complainant was examined as PW.3 who jointly gave complaint to the police about the extortion and parting of amounts by accused. PW.2 Accountant in the company of PW.1, who stated about issuance of cheques by PW.1. PW.4 Accounts Manager who prepared

Ex.P1 and Ex.P2 cheques.

PW.5 Manager from Axis Bank stated about encashment of Ex.P3 cheque for Rs. 20 lakhs issued in the name of A1. PW.6 Manager, Axis

Bank who furnished the account opening form in the name of A1 in Axis

Bank and presentation of Ex.P3 cheque for collection. PW.7 Manager from 4

A.P. State Cooperative Bank in which A.K. Consultants has got account in the said account Ex.p1 and Ex.P2 were presented for collection. PW.8

Accounts Manager from Industrial Financial Bank, Somajiguda stated about handing over Ex.P1 and Ex.P2 and statement of accounts of Max Infra (I) Limited to the CID police. PW.9 Nodal Officer from Citi Bank, Begumpet stated that A5 has got account in their bank and he furnished accounts copies of A5 and also deposed about encashment of cheque for Rs. One lakh by A5. Pw.10 Manager, SBH Himayathnagar Branch who furnished cheques deposit form, account opening form in the name of A5 and also gave a cheques for Rs.1,25,000/- deposited by A5 and also furnished credit voucher Ex.P24. PW.11 Branch manager, HDFC Bank who furnished statement of accounts, pertaining to account of A5 in their bank and also

Ex.P26 account opening form.

PW.12 wife of A5, she stated that A1 ran Praman Health Care Services till 2011, later the firm became defunct and her husband issued a cheques for Rs. One lakh on 29-4-2011 and she encashed the same. Pw.13 father of

A5 who acted as introducer for opening of A.K. Consultants at the request of his son A5 and also encashed some cheques given by his son in the name of A.K. Consultants and gave amounts to his son.

PW.14 Senior Manager from Axis Bank, Madhapur Branch and he furnished account details of PW.1 in their branch. PW.15 Sr. Manager from

HDFC Bank who furnished Ex.P35 challan for Rs. One lakh dt. 7-5-2013 in the name of A5.

PW.16 owner of the house at Kondapur, who leased out the same to

A5 for monthly rent of Rs.1,25,000/-. Pw.17 Branch Manager from IDBI

Bank, Basheerbagh Branch who furnished account opening form of A1 in their branch. PW.18 Manager in Abhiruchi foods at Mallipudi, West

Godavari District. He stated that A6 used to work in their company till 2003 and he furnished salary slips of A6 to police.

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PW.19 panch witness for additional confessional statement and seizure report of A3. PW.20 another panch witness for confession-cum- seizure prort of A3 and A5. PW.21 panch witness for confessional-cum- seizure panchanama of A3. PW.22 panch witness for confession and seizure reports of A1 and A3. PW.23 another panch for confession-cum-seizure report of A1 and A3. PW.24 another panch for confession-cum-seizure report of A3. PW.25 another panch for confession-cum-seizure panchanama of A2. PW.26 another panch for confession-cum-seizure for A2. PW.27 another panch for confessional statement and seizure report of A5. PW.28 another panch for confession and seizure report of A4 and A5. PW.29 Sub-

Inspector of Police, CID who recorded statement of PW.18.

PW.30 scientific officer from FSL who examined the questioned bank documents and gave positive report.

PW.31 Senior Executive Officer, CID, Hyderabad who issued FIR.

Pw.32 Inspector of Police, CID, Hyderabad who conducted remaining investigation and filed charge sheet in this case. On the side of prosecution,

Ex.P1 to Ex.P70 and MO.1 to MO.4 are marked. Evidence of remaining witnesses LW.26 Tatikonda Santosh Kumar, Lw.30 K. Raju and Lw.31 M.

Shankar was closed due to non-service of summons by the police.

5.On completion of evidence of prosecution, accused have been examined under section 313 Cr.P.C. Accused denied the incriminating material appearing against them in the evidence of the prosecution witnesses. They did not chose to examine any defence witnesses.

6.Heard arguments of learned Special Public Prosecutor for CID and learned counsel for accused.

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7.Now, the point for determination are :

1) Whether A1 along with A2 to A6 extorted Rs.70 lakhs under Ex.P1 to Ex.P3 cheques by putting PW.1 and Pw.3 in fear of death or grievous hurt?

2) Whether A1 along with A2 to A6 threatened PW.1 and PW.3 with dire consequences to extort money from them?

3) Whether A1 along with A2 to A6 used guns and knives to commit extortion and criminal intimidation against PW1 and PW.3?

4) Whether prosecution proved the guilt against A1 to A6 u/Secs. 386, 506 r/w 120-B IPC and Sec. 25 (1)(a) and 27 (2) of Arms Act, 1959 beyond reasonable doubt?

POINTS 1 and 2:

8.Learned Special Public Prosecution for CID argued that Ex.P1 to

Ex.P3 prove the charges against accused that they extorted money by putting Pw.1 and Pw.3 in fear of death and injury and accused are liable for conviction. On the other hand, learned counsel for accused argued that material witnesses not supported the prosecution fully, mediators also not supported the prosecution case, there is huge delay of 4 ½ years in lodging the report and no weapons etc., are seized from the accused to prove the charges, hence, prayed the court to extend the benefit of doubt to the accused.

9.PW.1 who is star witness to the case of the prosecution, categorically admitted in the cross-examination that money paid to A.K.

Consultants by way of cheques is towards land acquisition and payment towards local ryots. He also categorically admitted that he was never threatened by A1 with dire consequences. He also admitted the theory putforth by accused that there are sub-contractors and he used to maintain the register of sub-contractors but did not hand over the same to the police and even he did not mention the details of sub-contractors in his complaint.

He further admitted that there are disputes between principal contractors 7 and sub-contractors with regard to quality of work and finally admitted that there are disputes between himself and his sub-contractors, since, the work performed by them is not upto the mark. After cross-examination, the prosecution declared PW.1 who is star witness, as hostile and cross- examined him but did not elicit anything from resiling the main story putforth by the prosecution regarding extortion and payment of money to the accused.

10.Pw.2 Accountant though stated in chief-examination about approach by A1 to their office and demanded him for transfer of execution of work but coming to the cross-examination, he stated that he cannot identify the persons who visited office of his boss (PW.1) to take Ex.p1 to Ex.P3. He was also declared as hostile after cross-examination and learned SPP cross- examined him but did not elicit anything for changing his earlier version so, evidence of PW.2 is not useful for want of identification.

11.PW.3 co-complainant and another material witness to the prosecution case was declared as hostile immediately after chief- examination. He also categorically admitted in the cross-examination that

Ex.P1 and Ex.P2 were issued against land acquisition and for payment to ryots and Ex.P3 and Ex.P4 were issued towards sub-contract works., so

Pw.3 also supports the defence theory that those cheques were issued to the accused towards land acquisition and for sub-contract works.

12.PW.4 Accounts Manager was declared as hostile for non- identifying the accused and for not stating the purpose for which those cheques were prepared, though he was cross-examined by learned SPP but nothing was elicited from his evidence to depose falsehood against prosecution.

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13.The other set of witnesses PW.5, PW.6, PW.7, PW.8, PW.9,

PW.10 and Pw.11 are the bank officials who deposed about the encashment of cheques received from the respective branches for which there is no dispute at all as accused did not dispute about receipt of the cheques, but, took plea that they received cheques for different purpose i.e. towards sub- contract works.

14.Pw.12 is wife of A5 who encashed one cheques Ex.p27 for

Rs.one lakh issued by A5. she was also declared as hostile. There is also no other connecting evidence that the said cheque is part of the ransom money.

Pw.13 is father of A5 who introduced A1 and A5 to open A.K. Consultants and drawn some of the cheques given by his son for which there is no dispute at all and plea of accused is also that those cheques were taken towards for some other purpose. Pw.14, Pw.15 also bank officials states about opening of account and issuance, encashment of cheques by wife of

A5 for which there is no dispute.

15.PW.16 owner of the house in which the accused allegedly organized the gang is not proved except lease of the building to A5.

16.PW.17 is another bank official, examined to prove the opening of account by A1 in IDBI Bank managed by A1 for which there is no dispute.

17.PW.18 stated about A6 earlier worked in their company viz.,

Abhiruchi Foods has no relevancy to the charges.

18.The next set of evidence adduced by prosecution is PW.19,

PW.20, PW.21, PW.22, PW.23, PW.24, PW.25, PW.26, PW.27 and PW.28 are all mediators for the confession-cum-seizure panchanamas. Except PW.27, all the mediators were declared as hostile for non-identifying the accused in 9 the Court. Even, PW.27 also not identified the accused, he stated that one person was interrogated by CID police in his presence and he cannot identify the said person, so, his evidence though was not declared as hostile, is not useful to the case of the prosecution. It is settled law that confession before or in the presence of police is not relevant, only the recovery made in pursuance of the disclosure statements are only relevant. The paltry amount of recovery shown in this case is Rs.7,500/- and Rs.5,000/- out of the alleged ransom amount of Rs.70 lakhs that too, from a third person viz.,

Nayani Srinivasa Rao who is not an accused, hence, they are not reliable and admissible in evidence. MO.1 passport, MO.2 Cell phone without call data particulars is of no use and did not give any strength to the case of the prosecution.

19.PW.29 Sub-Inspector of Police, CID who arrested A6 and examined one witness PW.18 and collected salary vouchers of A6 to prove his employment in Abhiruchi foods has no connection or relevancy to the case.

20.PW.30 FSL expert who gave positive report regarding the cheques encashed by accused in which there is no dispute as their contention is that, they have received the cheques for different purpose and it is not ransom amount and their version was also supported by the complainants.

21.PW.31 Executive officer, CID who registered the FIR admitted that though there is huge delay in lodging report but the reasons for lodging the report is not mentioned in the FIR.

22.There remains only the evidence of PW.32 who conducted entire investigation admitted in the cross-examination that he did not collect call data record to prove threatening made by accused by phone to believe 10 prosecution version. The bank statements seized by him not certified as required u/Sec.65-B of Indian Evidence Act, hence, those bank statements ofcourse have no dispute, not legally admissible in evidence. Though this is a case like organized crime of gangsters but he did not conduct test identification parade to establish the identity of accused at the earliest point ot time. If he would have taken proper steps, even if material witnesses subsequently not supported the prosecution case at the trial, this court would have relied on the evidence of test identification parade proceedings.

He also did not investigate thoroughly regarding contracts, work orders, subcontractors, lease etc., to disbelieve the theory advanced by the accused. Defence counsel also elicited discrepancies for picking up mediators from different places without serving summons and also regarding huge delay of 4 ½ years in lodging report, so, evidence of investigating officer is also not clinching to base conviction on his evidence alone.

23.Even assuming for a moment that Ex.P1 to Ex.P3 cheques were obtained by accused as ransom but the other part of the charge that those cheques were obtained by putting complainant in fear of death or injury, is missing, hence, offence u/Sec.386 IPC without all the ingredients required to constitute an offence cannot held as proved.

24.At this juncture, learned counsel for accused draw the attention of the Court to the Judgment in Session Case No.317/2014, rendered by

Hon’ble Metropolitan Sessions Judge, Hyderabad filed against same accused

on similar allegations but same was ended in acquittal. Wherein the Hon’ble

Judge observed that mere opening of account by A1 and deposit of some

cheques issued by PW.3 cannot be taken as basis to conclude the guilt of accused for the alleged offences. When there was sub-contract with A.K.

Consultants, hence, cheques could not stated to have been issued on the 11 threat of accused. This case also filed by CID police against same accused on the same allegations, the firm in whose favour these cheques were drawn viz., A.K. Consultants is also same in this case, though the judgment of

Hon’ble Metropolitan Sessions Judge, Hyderabad has no precedents but can

be taken as one of the circumstances to believe theory advanced by accused that all these cases were booked against these accused one after another, after long gap of 4 ½ years when A1 was apprehended in the murder case of

Maddelacheruvu Suri, therefore, I answer these points against prosecution and in favour of accused.

POINTS 3 and 4:

25.Though, it was alleged that accused used arms viz., pistols and knives to threaten complainant but they were not seized to attract the charge under Arms Act. There is no evidence about the complicity of A2 to

A6 and their involvement. Nobody identified these accused and their role played along with A1, so, absolutely no material against other accused A2 to

A6. It is settled principle of law that when two views are possible, one is that the accused obtained Ex.P1 to Ex.P3 cheques from complainant by threat and the other view that those cheques were given to the accused towards sub-contract works done and for payment to the ryots for acquiring their land, which is favourable to the accused can be taken into consideration.

26.From the foregoing discussion, I hold that as material witnesses not supported the prosecution case, there is huge delay of 4 ½ years in lodging report, non-seizure of ransom amount of Rs.70 lakhs and non- seizure of weapons allegedly used by accused for committing offence, 12 therefore, I hold that prosecution failed to prove the guilt against accused u/Secs. 386, 506 r/w 120-B IPC and Sec. 25 (1) (a) and 27 (2) of Arms Act, 1959 beyond reasonable doubt and these accused are entitled the benefit of doubt, hence, these two paints are answered against prosecution and in favour of accused.

27.In the result, A1 to A6 are found not guilty for the offences u/Secs. 386, 506 r/w 120-B IPC and Sec. 25 (1) (a) and 27 (2) of Arms Act, 1959 and they are acquitted u/Sec.248(1) Cr.P.C. A1 shall be set at liberty if he is not required in any other case. MO.2 to MO.4 shall be confiscated to

State since, the accused did not make any claim over the same. MO.1

Passport shall be returned to A4 after expiry of appeal time.

Dictated to the Stenographer GR-II, transcribed and typed by her,

corrected and pronounced by me in the open court on this the 12th day of February, 2016.

VI ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION : PW.1 Sree Phani Kumar, Complainant PW.2 A. Venkat Rami Reddy, eye witness PW.3 B.V.S.N. Raju, complainant PW.4 K.V. Srinivasa Rao, Accounts Manager PW.5 Dilip C. Babu, Operations Head, Axis Bank PW.6 P. Vedavathi, Operations Manager, Axis Bank PW.7 Ch. John Prasad, Manager, APCOB PW.8 C.VB. Prasada Rao, Manager, Industrial Finance Bank PW.9 Amresh Sri Adhibatla, Nodal Officer, Citi Bank PW.10 P. Prabhakar, Manager, SBH PW.11 K. Shailaja, Manager, HDFC Bank PW.12 Neela Neelima, wife of A5 PW.13 Neela Padmanabham, Father of A5 PW.14 Yathirajam Shiva Teja, Sr. Manager, Axis Bank PW.15 Subgan Radja Krishna, Manager, HDFC Bank PW.16 Vakkanti Venkata Subba Rao, house owner of A5 PW.17 Gobbarakallu Thimmappa, Manager, IDBI Bank PW.18 Sathi Sai Samudra Reddy, Manager, Abhiruchi foods PW.19 G. jagadishwar, Panch witness PW.20 Syed Abdul Rehman, Panch witness Pw.21 K. Ravi, Panch witness PW.22 A. doda Basha, panch witness 13

Pw.23 Sreepada Rameshwar, panch witness PW.24 Mohd. Muneeruddin, panch witness PW.25 B. Anand Singh, panch witness PW.26 Tatikonda Satosh Kumar, panch witness PW.27 K. Anil Kumar, panch witness Pw.28 K. Ramesh Kumar, panch witness Pw.29 E. Dasarath, SI of Police Pw.30 P. Rajani, Scientific officer, FSL Pw.31 K. Ashok Chakravarthi, SEO, CID/IO PW.32 K. Chandrasekhar Reddy, Inspector of Police/IO

FOR DEFENCE: Nil

EXHIBITS MARKED

FOR PROSECUTION : Ex.P1 Cheque dt.15-3-2008 Ex.P2 cheque dt. 25-2-2008 Ex.P3 cheque dt. 26-4-2008 Ex.P4 work order letter dt. 18-11-2006 Ex.P5 report Ex.P6 Sec.161 Cr.P.C. statement of PW.1 Ex.P7 Sec.161 Cr.P.C. statement of PW.2 Ex.P8 Sec.161 Cr.P.C. statement of PW.3 Ex.P9 Sec.161 Cr.P.C. statement of PW.4 Ex.P10 Statement of account of G. Venkatreddy & Co. Ex.P11 copy of account opening form of G. Venkatreddy & Co. Ex.P12 account opening form of A1 Ex.P13 original credit paying slip for Rs.20 lakhs dt. 19-4-2008 Ex.P14 pay slip of dt. 26-2-2008 Ex.P15 pay slip dt. 15-3-2008 Ex.P16 statement of account for A/c. 9443 Ex.P17 account opening form of A.K. Consultants of A5 Ex.P18 partnership deed of A.K. Consultants Ex.P19 Documents in the name of A.K. Consultants Ex.P20 statement of account of Max Infra (I) ltd., Ex.P21 account opening form of A5 Ex.P22 statement of account of A5 Ex.P23 statement of account of A5 Ex.P24 cheque dt. 5-5-2008 Ex.P25 credit voucher for Ex.P24 Ex.P26 account opening form of A5 Ex.P27 cheque dt. 29-4-2008 Ex.P28 Sec.161 Cr.P.C. statement of PW.12 Ex.P29 cheque dt. 18-3-2008 Ex.P30 cheque dt. 24-3-2008 Ex.P31 cheque dt. 17-5-2008 Ex.P32 cheque dt. 15-4-2008 Ex.P33 cheque dt. 28-5-2008 Ex.p34 cheque deposit challan dt. 29-4-2008 Ex.P35 copy of challan Ex.P36 cheque dt. 21-3-2008 Ex.P37 account opening form of A1 Ex.P38 copy of panchanama of A3 Ex.P39 Seizure report Ex.P40 confession-cum-seizure panchanama of A3 Ex.P40-A confession-cum-seizure panchanama of A3 14

Ex.P41 confessional statement of A1 Ex.P42 seizure report Ex.P43 seizure report Ex.P44 seizure report Ex.P45 confessional statement of A3 Ex.P46 seizure report Ex.P47 Panchanama Ex.P48 panchanama Ex.P49 sale deed Ex.P50 seizure report Ex.P51 payment voucher receipt Ex.P52 payment voucher dt. 12-9-2011 Ex.P53 payment voucher dt. 9-11-2011 Ex.P54 payment voucher dt. 9-11-2011 Ex.P55 opinion of Pw.30 Ex.P56 Memo Ex.P57 FIR Ex.P58 to Ex.P60 statements Ex.P61 cheque dt. 4-3-2008 Ex.P62 cheque dt. 20-9-2008 Ex.P63 cheque deposit challan Ex.P64 original cheque deposit challan Ex.P65 specimen signature of A1 Ex.P66 specimen signatures of A5 Ex.P67 specimen handwritings of A6 Ex.p68 specimen alphabets of A6 Ex.P69 specimen signatures of A6 Ex.P70 bank statement of Max Infratech (I)

FOR DEFENCE: NIL

MOs MARKED MO.1 Passport of A4 MO.2 Cherry balck colour Mobile phone MO.3 cash of Rs.7,500/- seized from A1 MO.4 cash of Rs.5,000/- seized from A3

VI ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

RL* 15

1

IN THE COURT OF VI ADDL. CHIEF METROPOLITAN MAGISTRATE :

HYDERABAD

Present : Sri P. BHASKARA RAO, VI Addl.Chief Metropolitan Magistrate Hyderabad.

Dated this the 19th day of February, 2016

CC. 325 of 2012

Between: State of A.P. through Inspector of Police, Cyber Crimes P.S. CID, Hyderabad …….complainant

And

Vijay Pawar, S/o. Dhondi Rampawar, aged 30 years, Occ:sales executive at ITW Chemin, Pasha Mailaram, Medak District R/o. H.No.12-400, Plot No.400, P&T Colony, Medipally, Ghatkeshar (M), R.R. District, N/o. Gorevadi (V), Khanapur (Taluq) Sangli District, Maharastra.

…...Accused

This case is coming before me for final hearing in the presence of learned Spl. Public Prosecutor for the prosecution and M/s. N.V. Rao, counsel for accused and after having stood over for consideration till this day, the court delivered the following:

J U D G M E N T

The Inspector of Police, Cyber Crimes, Police Station CID,

Hyderabad laid charge sheet against accused in Cr.No.48/2010 to prosecute him for the offences under Sections u/Secs. 66-D Information Technology (Amendment) Act, 2008, and Sec.403 IPC.

1. Case of the prosecution in brief is that, PW.1 had an account in

ICICI Bank bearing No.015101535138 at Vashi Branch, Navi Mumabi with debit Card facility. On 6-7-2010 while he was in a Hotel at Miyapur X roads, he lost his ATM Card which was kept in his valet, since he already received fresh ATM card with grid security, he did not report the matter to the police immediately under the impression that it will be deactivated after issuance of new Card. Whileso, on 16-7-2010, he received SMS alert that an amount 2 of Rs.6,180/- was deducted from his ICICI bank account, after that, he also received some SMS alerts which are taken place in his account for total amount of Rs.20,235/-. Then, he approached ICICI Bank, reported the matter, later gave a report in Cyber Crimes Police Station, CID which was registered as a case in Cr.No.48/2010 u/Sec.66-D of IT (amendment) Act, and Sec.379 IPC. PW.12 Deputy Superintendent of Police, Cyber Crimes

Police Station took up investigation and obtained bank statement from the bank of PW.1, came to know that the culprit used the stolen debit card to purchase clothes and two cell phones from the shops of PW.2 and PW.7 respectively and she secured IMEI numbers of the said two cell phones with that, to find the user of the said two cell phones by examining Nodal Officers

PW.5 from Airtel and PW.8 TATA Tele Services and finally came to know that accused has been using one of the cell phones bearing No. 9676779898 with

IMEI number 357492031794082 and the other cell phone number 9030090785 with IMEI number 357492032056309 by Pw.3 to whom accused told the same, with that information, PW.12 investigating officer apprehended the accused on 16-11-2010, interrogated him and he confessed the offence before mediators PW.9, LW.10 Anand Sagar and seized one Samsung mobile phone as IMEI No. 357492031794082 from the possession of his wife Sheetal who was staying at Mumbai in the presence of mediators Pw.10 and LW.12 Naveen Kumar. PW.12 also seized another mobile phone bearing No. 9030090785 with IMEI No. 357492032056309 from PW.3 to whom the accused gave one cell phone for clearance of his dues and readymade garments from PW.4 to whom the accused purchased garments towards clearance of his dues in the presence of mediators PW.9 and LW.10 Anand Sagar under separate seizure panchanama on 16-11- 2010. Later, the accused was produced before the Court for remand and after completion of entire investigation, PW.11 Inspector of Police, Cyber 3

Crimes P.S. filed charge sheet against the accused to prosecute him for the offences punishable u/Secs. 66-D Information Technology (Amendment) Act, 2008 and Sec.403 IPC.

2.The case was taken on file for the offences punishable u/Secs.

u/Secs. 66-D Information Technology (Amendment) Act, 2008, and Sec.403

IPC against accused.

3.After appearance of the accused, copies of all the documents on which the prosecution proposed to place reliance were furnished to him under Section 207 Cr.P.C. Accused was examined under Section 239

Cr.P.C. He denied the accusations. Charges u/Secs. 66-D Information

Technology (Amendment) Act, 2008, and Sec.403 IPC were framed, read over and explained to accused. He pleaded not guilty and claimed to be tried.

4.In order to prove the guilt, prosecution cited 14 witnesses but examined only 12 witnesses. PW.1 is the defacto-complainant and victim in this case, he stated about the loss of his ATM Debit Card and illegal transactions made by the culprit from his account to a tune of Rs. 20,235/-.

PW.2 owner of readymade garments stated that in the year, 2010 one person purchased readymade garments from his shop worth Rs.6,180/- and

Rs.1895/- under two bills by using ICICI debit card. PW.3 from whom the accused allegedly taken Rs.5,000/- as hand loan to whom accused gave

MO.1 purple colour Samsung cell phone for clearance of his dues by using the said stolen ATM Card. PW.4 another debtor from whom the accused had taken hand loan of Rs.8,000/- and got purchased MO.2 two pants and MO.3 three shirts for clearance of his dues. PW.5 Nodal officer from Bharathi

Airtel, he furnished call details and ownership particulars of two cell phones numbers 9676779898 and 9866092295 with IMEI numbers. PW.6

Manager, from ICICI Bank who furnished transaction statement to PW.12.

4

Pw.7 owner of cell phone mobile shop, he stated that in the year, 2010 one customer came to his shop purchased two Samsung mobiles marked as

MO.1 and MO.4 by using ICICI bank debit card. PW.8 Nodal Officer from

TATA Docomo, he stated that he furnished call details of cell phone 9030090785 and PW.9 mediator for confession-cum-seizure panchanama of accused. PW.10 panch for seizure of Samsung mobile (MO.4) from the possession of accused. Pw.11 Inspector of Police who filed charge sheet.

Pw.12 Deputy Superintendent of Police, Cyber Crimes Police Station who conduced entire investigation in this case. On the side of prosecution Ex.P1 to Ex.P16 and MO.1 to MO.5 are marked. Evidence of remaining witnesses

LW.10 B. Anand Sagar and LW.12 T. Naveen Kumar were given up, as not necessary.

5.On completion of evidence of prosecution, accused has been examined under section 313 Cr.P.C. Accused denied the incriminating material appearing against him in the evidence of the prosecution witnesses.

He did not chose to examine any defence witnesses.

6.Heard arguments of learned Special Public Prosecutor for CID and learned counsel for accused.

7.Now, the point for determination are :

1) Whether accused cheated PW.1 by impersonation by using computer resource code of debit card of PW.1?

2) Whether the accused has misappropriated a sum of Rs.20,235/- from the account of Pw.1 by using his debit card?

3) Whether prosecution proved the guilt against the accused u/Sec.66-D of Information Technology (Amendment) Act, 2008 and Sec.403 IPC beyond reasonable doubt? POINTS 1 to 3:

8.There is no direct evidence that accused committed theft of debit card of PW.1. PW.1 who is the complainant stated in chief-examination 5 itself that somebody in the hotel stolen his debit card and made withdrawals fraudulently. He further admitted that he had no friendship with the accused. He did not share his secret pin number with anybody. He had no close intimacy with the accused and accused had no access to enter into his room.

9.PW.2 garments shop owner where the culprit swiped the debit card to purchase garments also did not identify the accused. He categorically admitted that he cannot identify the purchaser of the said garments. Likewise, PW.7 mobile shop owner also did not identify the accused. He also admitted that one customer came to the shop and purchased two Samsung mobiles and he cannot remember the person who came to purchase the cell phones to his shop and cannot identify the customer. Generally, in the City almost many shops are having close circuit

Cameras surveillance but CC footage is not collected to connect the accused with the guilt, so, there is no direct evidence available in the record to prove the theft of debit card of PW.1, that is the reason, the investigating officer cleverly deleted Sec.379 IPC and added Sec.403 IPC.

10.Case of the prosecution based on circumstantial evidence that after purchase of two cell phones, accused has given one cell phone to PW.3 who is his creditor towards discharge of his dues taken from him and has given the garments MO.2 and MO.3 to PW.4 towards discharge of his dues.

He himself used another mobile (MO.4). Subsequently, he gave the same to his wife who was staying at Mumbai. The story of prosecution is that, basing on the IMEI numbers collected from the mobile shop owner (PW.7), investigating officer has traced the accused with the help of Nodal officers from Bharti Airtel (PW.5) and TATA Tele Services (PW.8) who are the Service

Providers for the service connection taken by the cell phone users. With the

Call Data Records (CDRs) furnished by the Service Providers, the 6 investigating officer detected the complicity of the accused. Prosecution has marked Ex.P10 invoice dt. 16-7-2010 issued by PW.7 mobile shop owner which shows that customer purchased two Samsung mobiles phones one is purple colour model B3313 having IMEI number 357492032056309 (marked as MO.1) which is seized from PW.3 and another Samsung Cell phone Jade green colour having IMEI No.357492031794082 (MO.4) seized from accused. But, the CDR list filed by the prosecution marked as Ex.P12 wherein IMEI Number for the cell phone MO.1 is mentioned as 357492032056300 instead of 357492032056309. Likewise, the IMEI number of MO.4 is mentioned as 357492031794080 in Ex.P5 but not 357492031794082. In Ex.P6 also IMEI number is mentioned as 357492032056300 but not 357492032056309, so, the last digit in IMEI numbers are not tallying or matching with Ex.P10 to connect the accused with the guilt. This discrepancy was pointed out by the accused and on that point, he has cross-examined both Service Providers PW.5 and PW.8.

PW.5 gave some explanation with regard to hash(#) value but same is not fortified. Pw.8 another Service Provider admitted that they have furnished full IMEI number, in such a case, there is no chance for mis-matching or any discrepancies.

11.Learned Special Public Prosecutor submitted that probably, there was some typographical mistake in Ex.P10 with regard to the IMEI numbers if that is so, it has to be rectified by calling PW.7 who furnished

IMEI numbers to the police but it was not done, thereby a doubt has been created about the complicity of accused in this case.

12.PW.12 who conducted entire investigation in this case also categorically admitted that the IMEI number used by accused which is referred in Ex.P10 is not tallying with the IMEI number of cell phone number 7 allegedly seized from accused. She also did not enquire with technical people for the said discrepancy regarding IMEI number. Panch witnesses may not have knowledge about IMEI numbers since they are not technical people. She did not record statements of Service Providers PW.5, PW.6 and

PW.8 who are the actual technical people, whose evidence have got some importance in these type of cases. With regard to borrowing of amounts from PW.3 and PW.4 by accused, she admitted that she did not seize any documents, so, borrowing of amounts by accused and repayment to them is not proved. Nowadays no person will lend money without any documents, here also there is doubt that cast upon the story putforth by the accused about his giving articles to PW.3 and PW.4, by using the debit card of PW.1, this story is some what unnatural.

13.PW.9 mediator for the confession and seizure panchanama marked as Ex.P13 and Ex.P14 also admitted that by the time, he reached

CID office, the material objects are there in the custody of police and police stated that they have seized the same from accused, so, he is a mediator for name sake, but nothing was happened in his presence as per his admission in the cross-examination. PW.10 another mediator admitted that he used to repair computers of investigating officer (Smt. Janaki) and accused was outside the cell. Some police personnel also present at that time, the data entry Typist took his signature on the seizure report, therefore, he cannot be termed as independent mediator for Ex.P15 seizure report for MO.4 cell phone.

14.Learned Defence Counsel also elicited from the investigating officer that she has examined all the witnesses by calling them to the CID office, so, investigation is not carried in a proper way. Otherwise, these discrepancies would not have been occurred. These discrepancies and 8 technicalities ultimately go to the very root of the case, because, these offences are technical offences, prosecution has to prove all the technicalities to prove the charges, otherwise, the benefit will goes to the accused as per the cardinal principles of Criminal law. Further, this is a case based on circumstantial evidence prosecution has to prove all the circumstances connecting with the guilt of the accused, missing of any one of the circumstances from the links of chain, the accused is entitled to take benefit of the same.

15.Learned defence counsel also argued in the alternatively that the accused had no intimacy with PW.1 or friendship with him and PW.1 also admitted that he did not share his secret PIN number of debit card with anybody including the accused, therefore, he argued that the accused has no possibility to use the debit card of PW.1, here also, a bonafide doubt has been created on the case. The prosecution has to place relevant transactions made with the said debit card by placing the bank statement or transaction slips available with the bank to know any attempt was made by the culprit in order to know the secret PIN number but no material was placed before the Court to believe that accused only used the said debit card by making some attempts before the transactions are made successful, therefore, the arguments advanced by learned defence counsel has some force in the absence of any material collected by the investigating officer in this case.

16.From the foregoing discussion, I hold that, as IMEI numbers furnished by PW.7 under Ex.P10 is not tallying with the CDRs containing cell phones used by accused and also PW.3 to whom one cell phone was allegedly given by accused and that the investigation officer in these technical offences found to be defective, therefore, I hold that 9 prosecution in this case failed to prove the guilt against accused u/Sec.66-D of Information Technology (Amendment) Act, 2008 and Sec.403 IPC beyond reasonable doubt and the accused is entitled the benefit of doubt.

17.In the result, the accused is found not guilty for the offences u/Sec.66-D of Information Technology (Amendment) Act, 2008 and Sec.403

IPC and he is acquitted u/Sec.248(1) Cr.P.C. Bail bonds of accused shall stand cancelled. MO.1 to MO.4 shall be confiscated to State and MO.5 shall be destroyed after appeal time is over.

Dictated to the Stenographer GR-II, transcribed and typed by her,

corrected and pronounced by me in the open court on this the 19th day of February, 2016.

VI ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION : PW.1 R. Brijesh, Complainant PW.2 Tejas, circumstantial witness PW.3 Anand Kumar Gaiqwad, circumstantial witness PW.4 Sushant Patil, Circumstantial witness PW.5 Deepak Kumar, Nodal officer, Bharathi Airtel PW.6 Ranga Chary, Manager, ICICI Bank PW.7 Rajgopal Malu, circumstantial witness PW.8 B. china Ramaiah, Nodal Officer, TATA Docomo PW.9 M. Sreenivasa Rao, panch witness PW.10 Perni suresh, Panch witness PW.11 J. Narender Goud, Inspector of Police/IO PW.12 Janaki, Dy. Supt., of Police

FOR DEFENCE: Nil

EXHIBITS MARKED

FOR PROSECUTION : Ex.P1 report Ex.P2 and Ex.p3 ICICI Bank Swipe receipts Ex.P4 customer application form of accused Ex.P5 Call details of mobile 9676779898 Ex.P6 Call details of mobile 9866092295 Ex.P7 Account opening form Ex.P8 Statement of account Ex.P9 swipe receipt Ex.P10 invoice dt. 18-7-2010 10

Ex.P11 photostat copy of customer application form Ex.P12 CDR list of 9030090785 Ex.P13 Panchanama dt. 16-11-2010 Ex.P14 seizure report dt. 17-11-2010 Ex.P15 Seizure report Ex.P16 FIR

FOR DEFENCE: NIL

MOs MARKED MO.1 Purple colour Samsung cell phone MO.2 two pants MO.3 three shirts MO.4 Samsung green mobile MO.5 Airtel Sim Card

VI ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

RL* 11

1

IN THE COURT OF VI ADDL. CHIEF METROPOLITAN MAGISTRATE :

HYDERABAD

Present : Sri P. BHASKARA RAO, VI Addl. Chief Metropolitan Magistrate, Hyderabad.

Dated this the 18th day of February, 2016

CC. 503 of 2005

Between: State through Sub-Inspector of Police, Asif Nagar Police Station, Hyderabad.

…………..Complainant

And

Md. Hameed Ali, S/o. Md. Khazim Ali, Age 26 years, Occ: Driver r/o.H.No.7-141, Ghatkesar, R.R. District. …………….Accused

This case is coming before me for final hearing in the presence of learned APP for the prosecution and Sri T. Suresh, counsel for the accused and after having stood over for consideration till this day, the court delivered the following:

J U D G M E N T

The Sub-Inspector of Police, Asif Nagar Police Station laid charge sheet against accused in Cr.No.70/2005 for the offence under Section 304-A

IPC.

1.The case of the prosecution in brief is that, 12-3-2005, the accused being the driver of goods auto bearing No. AP 28 U 7040 drove the same in a rash and negligent manner along ith LW.2 and dashed the deceased G. Laxmamma at about 5.30 PM opposite Jayabhushan Hospital,

Mehdipatnam,, due to which, the deceased Laxmamma sustained sever head injury on the back side of head and on 16-3-2005 she died while she was undergoing treatment. Thereupon Lw.1 G. Chandraiah, nephew of the deceased Laxmamma lodged a complaint and basing on the said report, the crime in this case was registered by PW.4, Sub-Inspector of Police, examined and recorded the statements of LW.1 G Chandraiah, PW.1, PW.2 and LW.4

M. Narsimha, he visited the scene of offence and that on 13-3-2004, arrested 2 the accused and released him on bail and on 16-3-2005 on receipt of death intimation of G. Laxmamma from Osmania General Hospital, he altered the section of law from 337 IPC to 304-A IPC, conducted inquest over the dead body of the deceased in the presence of LW.5 and Lw.6 and that PW.3 conducted post mortem examination over the dead body of the deceased and issued PME reort opinin that the cause of death is due to “head injury” and after completion of entire investigation, he filed charge sheet in this case.

2.The case was taken on file under Section 304-A IPC. On appearance of accused, copies of documents as required U/s.207 Cr.P.C.

have been furnished to him. When examined under Section 251 Cr.P.C.

accused denied the allegation, he pleaded not guilty.

4.In order to prove the guit the prosecution cited 9 witnesses but examined only 4 witnesses. PW1 is said to be eye witness to the occurrence, but he did not support prosecution case and turned hostile. PW2 owner of the crime vehicle stated that the accused drove the vehicle on the date of occurrence. PW3 Doctor who conducted autopsy over deadbody of the deceased. PW4 S.I.of police, Asifnagar police station who conducted entire investigation of the case and marked Ex.P1 to P6. The evidence of remaining witnesses was closed due to non service of summons by police. on the report filed by police and evidence of LW2, 4 and 5 was closed due to non service of summons by police.

5.On completion of evidence of prosecution, accused has been ex- amined under section 313 Cr.P.C. Accused denied the incriminating materi- al appearing against him in the evidence of the prosecution witnesses. He did not chose to examine any defence witnesses.

6.Heard arguments on either side.

7.Now the points for determination are

1) Whether prosecution proved that accused caused the death of deceased Laxmamma by his rash and negligent driving of auto bearing No. AP 28 U 7040?

2) Whether prosecution proved the guilt against accused under Section 304-A IPC beyond reasonable doubt?

3

POINTS 1 and 2:

8.Accusation against accused is that he drove the crime vehicle bearing No.AP 28 U 7040 on 12-3-2005 at 5.30 p.m. and dashed the deceased Laxmamma while she was crossing the road by driving the vehicle in a rash and negligent manner, due to which deceased succumbed to the injuries in the O.G.H.

9.LW1 Chandraiah who is relative of deceased lodged report in the police station soon after coming to know about the accident. He was not ex- amined before the court. However he is not a witness to the occurrence.

10.PW1 who is said to be direct witness to the occurrence not sup- ported prosecution case turned hostile for the reason of saying that the de- ceased while crossing the road confused in the traffic and fell down due to dash by auto and sustained injury. He also stated at the time of incident ac- cused was driving the auto at a speed of 30 K.M.P.H., which is not at all high speed, he further stated the accused applied breaks to avert the acci- dent, but in vain, this aspect rules out the rashness and negligence on the part of the accused.

11.PW2 owner of the crime vehicle stated that accused was the driver of the goods vehicle on the date of incident, but he does not know as to how the accident was happened. Accused also did not dispute about his identity.

12.PW3 Doctor who conducted Autopsy over dead body of deceased opined that deceased died due to head injury for which there was no dis- pute.

13.There remains only the evidence of investigating officer available on record. As seen from his evidence the I.O. Simply complied some general formalities but did not prepare rough sketch, did not take photographs at 4 the scene of offence to assess the rashness or negligence if any on the part of accused. He also did not get the crime vehicle examined by motor vehicle In- spector which is a big flaw in the investigation. He also did not seize vehicle records to establish identity of accused beyond reasonable doubt.

14.No witness including the investigating officer stated about the rashness or negligence on the part of accused to convict the accused. There is no material in record to prove the essential ingridents of rashness or neg- ligence on the part of accused to prove the offence U/s.304 (A) IPC.

15.From the foregoing discussion, as the defacto complainant (LW1) was not examined by the prosecution and direct witness PW1 not supported prosecution case, therefore I hold that prosecution in this case failed to prove the guilt against accused U/s.304 (A) IPC beyond reasonable doubt and the accused in this case is entitle the benefit of doubt.

16.In the result, the accused is found not guilty for the offence u/Sec.304-A IPC and he is acquitted u/Sec.255(1) Cr.P.C. Bail bonds of accused shall stand cancelled.

Typed to my dictation, corrected and pronounced by me in the open court on this the 18th day of February, 2016.

VI ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION :FOR DEFENCE: PW.1 Syed Ayub, eye witnessNil PW.2 K. Jahangir, owner of goods auto bearing No.AP 28 U 7040 Pw.3 B. Laxmi Prasann, Tutor, OGH PW.4 G. Prasada Rao, SI of Police/IO 5

EXHIBITS MARKED

FOR PROSECUTION : Ex.P1 Sec.161 Cr.P.C. statement of PW.1 Ex.P2 Post Mortem Examination Report Ex.P3 Report Ex.P4 FIR Ex.P5 Alteration memo Ex.P6 Inquest report

FOR DEFENCE: NIL

MOs MARKED NIL

VI ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

RL* 6

1

IN THE COURT OF VI ADDL. CHIEF METROPOLITAN MAGISTRATE :

HYDERABAD

Present : Sri P. BHASKARA RAO VI Addl. Chief Metropolitan Magistrate Hyderabad.

Dated this the 8th day of February, 2016

CC. 348 of 2014

Between: State of A.P. rep. by Proh. & Excise Sub Inspector, Golconda Excise Station, Hyderabad.

…………..Complainant

And

Rajpal Singh, S/o. Ganesh Singh, Age 35 years, R/o.H.No. 9-10-416, Banjara Darwaja, Golconda, Hyderabad …………….Accused This case is coming before me for final hearing in the presence of learned APP for the prosecution and Sri Rakesh Pathak, counsel for the accused and after having stood over for consideration till this day, the court delivered the following:

J U D G M E N T

The Prohibition and Excise Sub-Inspector, Golconda Excise

Station laid charge sheet against the accused in Cr.No.63/2011-12 for the offence under Section 34 (a) of A.P. Excise Act.

1.Case of the prosecution in brief is that, on 23-7-2011 on credible information about illegal possession and sale of IML/Beer at house beating No.9-10-416, Banjara Darwaja, Golconda, Hyderabad,

PW.1 T. Yadaiah, Prohibition and Excise Sub-Inspector along with staff and panch witnesses viz., LW.1 Naresh and LW.2 Syed Jaffer Ali proceeded to the said place and at about 12.30 PM knocked the door of the said house and accused came out from the house and that the excise officials served search memo on the accused and entered into the house and on search, they found (1) Royal Challenge Beer 20 bottles (each 650 ml), (2) Kingfisher strong Beer 15 bottles (each 650 ml), (3) Kingfisher premium Beer 9 bottles 2 (each 650 ml), (4) Haywards 5000 Beer bottles 8 (each 650 ml), (5) Bagpiper whisky 12 bottles (each 180 ml), (6) Original Choice Whisky 8 bottles (each 180 ml), (7) officers Choice Whisky 10 bottles (each 180 ml) totaling 82 bottles. On enquiry, the accused confessed that he procured the above liquor/Beer from different shops and selling them illegally without any valid licence or permit. Thereupon, PW.1, Prohibition and Excise Sub-Inspector drew samples and recovered the remaining contraband under cover of

Panchanama in the presence of panch witnesses. Later, he handed over the case property to LW.4 M.K.A. Azeem, Prohibition and Excise Sub-Inspector who registered the panchanama as a case in Cr.No.63/2011-12 under

Section 34 (a) of A.P. Excise Act. Thereafter, he sent the sample to the chemical examiner. After receipt of chemical examiners report that samples are Indian liquor and beer, LW.4 M.K.A. Azeem filed charge sheet in this case.

2.The above case was taken cognizance for the offence punishable u/Sec. 34 (a) of A.P. Excise Act against the accused. On appearance of accused, copies of documents as required under Section 207 Cr.P.C have been furnished to him. When examined under Section 239 Cr.P.C. he denied the allegations. Charge under section 34 (a) of A.P. Excise Act has been framed, read over and explained to them. He pleaded not guilty and claimed to be tried.

3.In order to prove the guilt, prosecution cited three witnesses but examined only the investigating officer as PW.1. Evidence of mediators viz.,

LW.1 Naresh and LW.2 Syed Jaffer Ali was closed on the memo filed by police stating that they are not available. On the side of prosecution, Ex.P1 to Ex.P3 are marked.

3

4.On completion of evidence of prosecution, the accused has been examined under section 313 Cr.P.C. Accused denied the incriminating material appearing against him in the evidence of the prosecution witnesses.

He did not chose to examine any defence witnesses.

5.Heard arguments on either side.

6.Now the points for determination are

1) Whether prosecution proved the recovery of contraband from the possession of the accused?

2) Whether prosecution proved the guilt against the accused for the offence u/Sec. 34 (a) of A.P. Excise Act beyond reasonable doubt?

POINTS 1 and 2:

7.Prosecution case mostly rests on the evidence of panch witnesses LW.1 Naresh and LW.2 Syed Jaffer Ali said to have present at the time of drafting of panchanama and at the time alleged arrest and seizure of contraband from the possession of the accused. Unfortunately, prosecution failed to examine the panch witnesses and police laid their hands by filing memo stating that their whereabouts are not know. Therefore, non- examination of material witnesses to prove prosecution case is fatal.

8.There remains the only evidence of PW.1 who is Prohibition and

Excise Sub-Inspector who is complainant, so to rely on his evidence there must be independent corroboration and without independent corroboration, it is not safe to rely on the evidence of investigating officer-cum- complainant. The learned counsel for accused also elicited that even the evidence of PW.1 is not trustworthy and reliable. PW.1 failed to take independent and respectable inhabitants of the place of offence. As seen the cross-examination of PW.1, he admitted that though scene of offence is a residential locality, he took the assistance of mediators who are not residents of the said locality, which shows that this case was foisted against 4 the accused with the help of stock mediators and that he did not seize any ownership document, so as to say that accused is the owner of the said house. Therefore, in view of the above infirmities and discrepancies in the investigation and evidence of PW.1, it is highly unsafe to place reliance upon the solitary and interested testimony of PW.1 to base conviction on the accused.

9.From the foregoing discussion, due to non-examination of mediators and Investigating officer, I hold that prosecution failed to prove the guilt against accused, therefore, accused is entitled benefit of doubt.

10.In the result, the accused is found not guilty for the offence u/Sec. 34 (a) of A.P. Excise Act and accordingly they are acquitted u/Sec.248(1) Cr.P.C. Bail bonds of accused shall stand cancelled.

Typed to my dictation by the Stenographer GR-II, corrected and

pronounced by me in the open court on this the 8th day of February, 2016.

VI ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION :FOR DEFENCE: PW.1 T. Yadaiah, P&E SINil

EXHIBITS MARKED

FOR PROSECUTION : FOR DEFENCE : Ex.P1 PanchanamaNil Ex.P2 Crime Occurrence Report Ex.P3 Chemical Analysis Report

MOs MARKED Nil

VI ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

RL* 5

1

IN THE COURT OF VI ADDL. CHIEF METROPOLITAN MAGISTRATE :

HYDERABAD

Present : Sri P. BHASKARA RAO, VI Addl. Chief Metropolitan Magistrate, Hyderabad.

Dated this the 18th day of February, 2016

CC. 261 of 2011

Between: State through Sub-Inspector of Police, Tappachabutra Police Station, Hyderabad.

…………..Complainant

And

Mohd. Razzak @ Mehtab, S/o. Mohd. Abdul Hameed, age 32 years, Occ: Tailoring business, R/o.H.No.13-1- 1235/228, Jhirra, Tappachabutra, Hyderabad. …………….Accused

This case is coming before me for final hearing in the presence of learned APP for the prosecution and Sri Mohd. Wahid, counsel for the accused and after having stood over for consideration till this day, the court delivered the following:

J U D G M E N T

The Sub-Inspector of Police, Tappachabutra Police Station laid charge sheet against accused in Cr.No.03/2011 for the offence under

Section 326 IPC.

1.The case of the prosecution in brief is that, 4-1-2011 at 20.15 hours LW.1 Rasheeda Begum, complainant lodged a complaint stating that her daughter Nusrath Begum’s marriage was performed with the accused about 7 years back, thereafter due to his harassment for dowry, her daughter filed a dowry harassment case against the accused and his family members, due to which, the accused developed grudge against her family and her daughter and that on 30-12-2010 at about 11.00 AM while LW.1

Rasheeda begum along with her sister-in-law (LW.2) was returning to their hosue from Gangabowli, on the way at Mujahednagar, the accused all of sudden attacked over LW.2 with a stick and caused her injuries. Basing on 2 the said report, the crime in this case was registered by PW.2, Sub-Inspector of Police and issued FIR, examined LW.1 Rasheeda Begum, visited the scene of offence, examined LW.2 Afsara begum and PW.1 Shaik Asif Alam and recorded their statements and that on 6-1-2011, he apprehended the accused and on interrogation, the accused confessed this offence and after completion of entire investigation, he filed charge sheet in this case.

2.The case was taken on file for the offence punishable under

Section 326 IPC against accused.

3.On appearance of accused, copies of all the documents on which the prosecution proposed to place reliance were furnished to him under

Section 207 Cr.P.C. Accused was examined under Section 239 Cr.P.C. he denied the accusation. Charge under section 326 IPC has been framed, read over and explained to accused. He pleaded not guilty and claimed to be tried.

4.In order to prove the guilt, prosecution cited 5 witnesses but able to examine only 3 witnesses. PW.1 is the complainant-cum-injured.

PW.2 and PW.3 said to be witnesses to the occurrence. But, all of them were declared as hostile and not supported the prosecution case, therefore, rest of evidence was closed and also failure to serve summon on them.

5.In order to prove the guilt the prosecution cited 6 witnesses but examined only 2 witnesses. PW1 is said to be direct witness to the occurrence, but he did not support prosecution case and turned hostile.

PW2 I.O. Who conducted entire investigation and marked Ex.P1 to P3. The evidence of remaining witnesses LW1 and 3 was closed on the report filed by police and evidence of LW.2, 4 and 5 was closed due to non service of summons by police.

3

6.Heard arguments on either side.

7.Now the points for determination are

1) Whether prosecution proved that accused beat LW.1 Rasheed Begum and caused grievous injuries to her?

2) Whether prosecution proved the guilt against accused under Section 326 IPC beyond reasonable doubt?

POINTS 1 and 2:

8.Charge against accused is that he caused grievous hurt to LW1

Rasheeda Begum but prosecution failed to examine the injured and police filed report stating that LW1 was bedridden due to hip fracture, therefore, non examination of injured is fatal in the case of prosecution.

9.PW1 said to be eye witness to the occurrence but he did not support prosecution case turned hostile and gave death blow to the case of prosecution.

10.PW2 S.I. who completed formalities and filed charge sheet but his evidence is not corroborated either by ocular evidence or medical evid- ence. I.O. also did not seize dangerous weapon allegedly used by accused for committing the offence, therefore offence 326 IPC is not proved in this case.

11.There is no any incriminating material or any supporting materi- al to prove the charge against the accused U/s.326 IPC. Conviction basing on uncorroborated testimony of I.O., in these type of cases is not sustain- able.

12.From the foregoing discussion, as the defacto complainant (LW1) was not examined by the prosecution and direct witness PW1 not supported prosecution case, therefore I hold that prosecution in this case failed to prove the guilt against accused U/s.326 IPC beyond reasonable doubt and the accused in this case is entitle the benefit of doubt.

4

13.In the result, the accused is found not guilty for the offence u/Sec.326 IPC and he is acquitted u/Sec.248(1) Cr.P.C. Bail bonds of accused shall stand cancelled.

Typed to my dictation, corrected and pronounced by me in the open court on this the 18th day of February, 2016.

VI ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION :FOR DEFENCE: PW.1 Shaik Asif Alam, eye witnessNil PW.2 J. Parvathalu, SI of Police/IO

EXHIBITS MARKED

FOR PROSECUTION : Ex.P1 Sec.161 Cr.P.C. statement of PW.1 Ex.P2 Report Ex.P3 FIR

FOR DEFENCE: NIL

MOs MARKED NIL

VI ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

RL* 5 6 7