Smt P.Venkata Padma Lalitha Siva Jyothi

IN THE COURT OF THE XII ADDL.CHIEF METROPOLITAN MAGISTRATE:

HYDERABAD.

PRESENT: Smt P.V. Padma Lalitha Siva Jyothi,

XII ADDL.CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD.

DATED THIS THE 22 nd DAY OF MAY , 2015. C.C.NO. 63 of 2014.

Between: The State Through, The Sub-Inspector of Police ,

PS Nampally, Hyderabad. .... Complainant.

And

A1 K. Vijaya Kumar S/o K. Satyanarayana Aged 27 years , R/o H.No. 11-1-847/A, Afzal Sagar, Seetharam Bagh, Mallepally, Hyderabad. A2 K. Sai Krishna S/o K. Narsing Rao, Aged 20 years, R/o H.No. 11-1-1275, Afzal Sagar, Seetharam Bagh, Mallepally, Hyderabad. A3 S. Gowtham Raj S/o S. Ravi Prakash, Aged 22 years, R/o H.No. 11-1-779, Afzal Sagar, Seetharam Bagh, Mallepally, Hyderabad.

.. Accused.

This case is coming on for final hearing before me, in the presence of Lr. Sr.

A.P.P. for Prosecution and Sri Praveen Dubey and associates , Counsel for the

accused and the matter 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, PS Nampally, Hyderabad filed charge sheet in

Cr.No. 248//2013 Under Section 324 r/w 34 IPC against the accused no 1 to 3 .

2. The case of the prosecution against the accused in brief is that on 17-11-2013 at about 9.15 P.M LW1 Mohd Taufeeq along with his friend Abudi Muneer ie LW2 left the shop towards Asif Nagar, while they are about to cross the signals at Taj Island , Nampally three unknown persons ie A1 to A3 on one two wheeler bearing no. AP 13 AD 7871 cross the signals from opposite direction ie Ek Minar side in a rash and negligent

manner and on a petty quarrel A1 to A3 started beating LW1 and LW2 Mohd Taufeeq

and Abudi Muneer later some more persons joined them and one of them beaten with

stick due to which the said LW1 and LW2 Mohd Taufeeq and Abudi Muneer received

injuries on various parts of the body and LW2 Abudi Muneer found his gold chain

missing from his neck wg about 1.5 tula and basing on the complaint LW14 Md Jahangir registered a case in Cr.No. 248/2013 U/s 334 r/w 34 IPC and he handed over the case file to LW15 K. Satyanarayana for investigation . During the course of investigation LW

15 K. Satyanarayana examined LW1 Mohd Taufeeq and recorded his statement and

visited the Care Hospital, Banjara Hills, Hyderabad and examined LW2 and LW3 Abdul Muneer and Md Akbar and recorded their statement and visited the scene of offence situated at Taj Island X Road and secured the presence of LW4 to LW8 Md Khaja , Bala Dass, S, Narsimha, Md Lateef and A. Praveen Kumar and examined them and recorded

their statements and while the investigation was in progress on 25-11-2013 LW15

received credible information about the presence of A1 at Narayanaguda X Roads ,

Hyderabad and immediately he along with LW13 S. Sanyasi Naidu rushed there and

apprehended A1 and brought him to PS and secured the presence of LW9 and LW10

Abdul Saleem Khan and Mohd Irfan and conducted confessional cum seizure

panchanama of A1 and seized one bike bearing no AP 13 AD 7871 from the possession of A1 under cover of panchanama and affected his arrest and while was the investigation

was in progress LW15 K. Satyanarayana received credible information about the

presence of A2 and A3 at their residence and arrested them and brought them to PS

and on interrogation A2 and A3 confessed the offence and conducted confessional

cum seizure panchanama in the presence of same panchas and seized one wooden

stick from A2 and anther wooden stick from A3 which were used in the commission of the offence and returned to PS and affected their arrest and collected the medical

certificates from LW11 and LW12 Dr M. Bharath Bhushan and Dr Jadhav who gave

opinions that the injuries sustained by LW1 and LW2 are simple in nature and after completion of investigation he filed the charge sheet . Hence the charge .

3. This case was taken cognizance for the offences U/s 324 r/w 34 IPC against the accused no 1 to 3 .

4. On appearance of the accused no 1 to 3 , they were furnished with all the copies of documents as required U/s 207 Cr.P.C .

5. Accused no 1 to 3 were examined U/s 239 Cr.P.C and they denied the

allegations and charge U/s 324 r/w 34 IPC has been framed against the accused

and the charge was read over and explained to them in their vernacular language, for which they denied and pleaded not guilty and claimed to be tried.

6. The prosecution in support of their case got examined PW1 to PW11 and got marked Ex P1 to P8 .

7. After closure of the prosecution evidence, accused no 1 to 3 were examined U/s 313 Cr.P.C on the incriminating evidence available against them , which they denied and reported no evidence on their behalf.

8. Heard arguments on both sides

9. Now the point that arises for determination is whether the prosecution had made out the guilt of the accused for the offence punishable U/s 324 r/w 34 IPC beyond all reasonable doubt?

10. To establish the charge U/s 324 r/w 34 IPC , beyond all reasonable doubt. The case of the prosecution is that on 17-11-2013 at about 9.15 P.M when PW1 and PW4

were coming from Jagadish Market towards Asifnagar and when they reached Taj

Island Signals A1 to A3 came on their motor bike bearing no AP 13 AD 7871 and jumped the red signal and when they questioned them they quarrelled with them and beat them

with hands and sticks and voluntarily caused hurt to them beyond all reasonable

doubt. The case of the prosecution is that on 17-11-2013 at about 9.15 P.M , Pws 1 and PW4 were going on motor bike from Jagadish Market towards Asifnagar and they were crossing the signal at Taj Island A1 to A3 came on their bike bearing no. AP 13 AD 7871 in opposite direction and jumped red signal and when they questioned them they quarrelled with them and beat them with hands and stick and voluntarily caused hurt to them and they sustained injuries and PW4 fell down and then he went to PS Nampaly and gave Ex P1 complaint and LW14 Md Jahangir Khan HC registered a case in Cr.No.

48/2013 U/s 324 IPC and issued FIR to all the concerned and later PW11 received CD file and he had examined and recorded the statements of PW1 and PW4 and visited the scene of offence and he had examined and recorded the statements of PW3, PW6 to PW8 and LW8 Praveen and deputed his staff to apprehend the accused and on 25-11-2013 at about 2.00 P.M, he received credible information and on that he along with his staff proceeded and apprehended A1 at Narayanaguda X Roads and brought him to their PS

and secured the presence of PW5 and PW9 and on interrogation A1 confessed the

offence and he conducted confession cum seizure panchanama of A1 and seized

Honda Dio motor cycle bearing no. AP 13 AD 7871 from the possession of A1 under

cover of panchanama and later he arrested A1 and produced him before the court . On

the same day at about 5.00 P.M he apprehended A2 and A3 at their residents and

brought them to their PS and secured the presence of same panchas and conducted

confession panchanama of A2 and A3 and seized two wooden sticks ie wooden stick

each from the possession of A2 and A3 under cover of panchanama and arrested them and produced them before the court and after completion of investigation he filed the charge sheet.

11. To establish the charge U/s 324 r/w 34 IPC , the prosecution all together got

examined 11 witnesses out of 15 listed witnesses and got marked Ex P1 to P8 .

Ex P1 : is the complaint dt 17-11-2013 Ex P2: is the 161 Cr.P.C statement of PW2 Ex P3 to P5: are the signatures of PW5 on the admissible portion of confession cum seizure panchanama of A1 to A3 Ex P6: is the injury certificate of PW1 issued by PW10 dt 17-11-2013 Ex P7: is the FIR dt 18-11-2013 Ex P8: is the injury certificate of PW4 issued by LW12 Dr Jadhav dt 18-11-2013

12. No oral or documentary evidence was adduced on behalf of the accused.

13. The learned APP submits that the prosecution had established the charge U/s 324 r/w 34 IPC against the accused through the evidence of PW1 to PW11 coupled with Ex P1 to P8 beyond all reasonable doubt. Whereas the learned counsel for the accused no 1 to 3 submits that they did not confess any offence and no panchanama was conducted and nothing was seized from their possession and did only table make investigation .

14. Before discussing the oral testimony of the prosecution witnesses , it is

expedient to read some of the important averments mentioned in Ex P1 complaint

basing on which a case was registered against the accused which is as “ 17-11-2013 at about 9.15 P.M PW1 along with his friend Abdul Muneer ie PW4 left the shop towards Asifnagar while they were about to cross the signal at Taj Island , Nampally three

unknown persons came on two wheeler bearing no AP 13 AD 7871 and crossed the

signal in rash and negligent manner and on a petty matter they bet them and one of them beat him with stick and he sustained injury on various parts of the body and in the meanwhile his friend found the gold chain was missing from his neck . It is further mentioned that they could identify the unknown person if shown to them.

15. PW1/complainant in his evidence stated that on 17-11-2013 at about 9.15 P.M he

along with PW4were going on the motor bike on PW4 from Jagadish market towards

Asifnagar and they stopped their bike at Taj Island Signal and at that time A1 to A3 came on their bike bearing no AP 13 AD 7871 in opposite direction and while they were crossing the signal at Taj Island Signal they abused them and beat them with hands and sticks . He stated that he sustained injuries on both shoulders and PW4 fell down and sustained injury on head and mouth and later they went to PS Nampally and gave Ex P1 complaint and police referred them to Osmania General Hospital and from there they went to Car Hospital , Hyderabad .

16. PW4 who is the injured in his evidence stated that on 17-11-2013 at about 9.30

P.M he along with his friend ie PW1 were going from Jagadish Market towards

Asifnagar and when they reached near Taj Island Signal A1 to A3 came on their motor

bike and jumped on the red signal and when they questioned A1 to A3 about the

same they quarrelled with them and beat him with hands on his both cheeks, mouth and

nose and then he fell down and became unconscious and subsequently he doesnot

know as to what has happened.

17. PW3 who is the direct eye witness to the incident did not support the version of the prosecution and stated that at about four months back in between 9 to 10 P.M when he was at Petrol Bunk, Nampally, some public informed to him that two motor cycles met an accident at cross roads of Nampally . But he did not witness the incident.

18. PW2 is the circumstantial witness and he stated that on 17-11-2013 at about 9.45 P.M when he was at Taj Island he found PW1 and PW4 were crossing the road and A1

to A3 came in opposite direction and beat PW1 and PW4 with hands and sticks and

they sustained injuries. Later PW1 and PW4 went to PS Nampally and he also

accompanied them and PW1 gave complaint to the police and police referred them to OGH and from there they shifted working to Care Hospital.

18. Pws 6 and PW7 are the other direct eye witness to the incident and who are working as HG did not support the version of the prosecution and they stated that on 17- 11-2013 when they were regulating the traffic at Taj Island at about 9.30 P.M two persons came on motor cycle from Taj Island “ T” Junction and three persons came on motor cycle from Ek Minar side in opposite direction and dashed with each other and they quarrelled with each other and some persons gathered and three persons came on the motor bike bet the two persons came on the motor bike and they informed the same to Law and Order police and police came and kept the vehicle by the side of the road . But they had not seen the number of the vehicles as it was night time.

19. PW5 and 9 are the panch witnesses for confession cum seizure panchanama of the accused and they did not support the version of the prosecution and stated that A1

to A3 confessed the offence and the police conducted confession cum seizure

panchanama of A1 to A3. PW5 stated that nothing was seized by the police from the possession of the accused in their presence and PW9 stated that the police seized one RC from one of the accused.

20. PW8 another witness to the incident in his evidence stated that he is working as HC in PS Begumbazar and on 17-11-2013 at about 9.30 P.M he was on Rakshak duty at Taj Island at Nampally and PW7 informed to him that some quarrel at Taj Island at

Nampally and asked them to stop his Rakshak vehicle and on that he went there and by seeing them the persons went away , except one person at about 20 years old and he told that some accident of two wheelers occurred at Taj Island Nampally and they fell down and the riders of one of the vehicle beat him and in the meanwhile the Police

Constable came from Nampally and he handed over the RC and license of the said

accident vehicle to him.

21. PW10 is the Medical Officer who had examined PW1 in his evidence stated that on 17-11-2013 at about 11.15 P.M he had examined aPW1 and found following injury ie shoulder dislocation suspected and he advised the patient for X-ray and basing on the Radiological and DSO Ortho who opined that the injury sustained by PW1 is simple in nature and caused by blunt object . Ex P6 is the injury certificate of PW1. Ex P8 is the injury certificate issued by LW12 Dr Jadhav.

22. PW 11 is the Investigation Officer and his evidence discloses with regard to the issuance of FIR and Investigation.

23. As seen from the record, the accused no 1 to 3 did not cross examine PW1/defacto

complainant/injured and PW2 circumstantial witness and therefore the cross

examination of PW1 and PW2 is recorded as nil. Till date no steps were taken by the

learned defence to cross examine PW1 and PW2 . PW1 categorically stated in his

evidence that the accused A1 to A3 bet him and PW4 with hands and stick while they were crossing the signal at Taj Island and he sustained injury on both his shoulder and

PW4 also sustained injury on head and mouth. The evidence of PW2 who is the

circumstantial witness also categorically stated in his evidence that these accused no 1 to 3 bet PW1 and PW4 with his hands and sticks while they were crossing the road at Taj Island and they sustained injury. The evidence of PW1 and 2 discloses that at the first instance the police shifted PW1 and PW4 to OGH and from there they shifted to Care Hospital.

24. The evidence of PW4 who is another injured and eye witness to the incident also categorically stated in his evidence that A1 to A3 quarelled with them and bet him and

PW1 when they reached near Taj Island Signals and then he fell down and became

unconscious . He stated that A1 to A3 bet them when they questioned them as to why they jumped the red signals at Taj Island Signal . He stated that the scene of offence is a busy area . But at the time of the incident , therewas little public as it happened to be a Sunday.

25. PW3, 6 and 7 who are the direct eye witnesses to the incident did not support the case of the prosecution. PW3 stated that he did not witness the incident and about four months back in between 9.00 to 10.00 P.M when he was at the petrol bunk Nampally

some public informed to him that two motor cycles met with an accident at Cross

Roads of Nampally . But he does not know as to how the accident occurred.

26. The evidence of PW6 discloses that his duty was at Taj Island Signal and by that time he had seen the incident and public gathered there and there was traffic and stated that he could not identify whether A1 to A3 are the said persons who bt the other two persons as it was night time. Where as in the cross examination by the learned Senior APP he admitted that A1 to A3 present in the court hall are the said

persons who came on two wheeler motor cycle and bet the two persons who came on

the other two wheeler motor cycles with wooden sticks .

27. PW7 stated that law and order police took the RC of the vehicle which was fell on the road at the time of the incident and there was traffic jam and they were in duty of regulating the traffic.

28. PW5 and PW9 who are the panch witnesses for confession cum seizure panchanama did not support the version of the prosecution, but the evidence of PW5 discloses that on 25-11-2013 the Nampally police called him and on that he along with

PW9 went to Nampally PS and they found A1 to A3 in the PS Nampally and they

confessed the offence that they bet PW4 with hands and sticks and the SI of Police conducted confession cum seizure panchanama . He further stated that Ex P3 to P5 are

the admissible portion of confession cum seizure panchanamas of A1 to A3. His

evidence further discloses in the cross examination he stated that police only

recorded his statement at that time and he had seen A1 to A3 in PS and he had not witnessed the incident and no panchanama was conducted and nothing was seized in his presence.

29. The evidence of PW9 discloses that on 25-11-2013 in the evening hours when he was in his shop at Abids he received a phone call from PW4 that some body bet him and on that he found PW4 with injuries and police people were also present and they confessed the offence in their presence and police conducted confession cum seizure

panchanama of A1 to A3 and seized one RC from one of the accused . In the cross

examination the learned Senior APP he admitted that on 25-11-2013 in between 3.00 to

7.10 P.M the police called him along with PW5 to PS Nampally and conducted

confession cum seizure panchanama of A1 to A3 and seized one stick from the

possession of A2 and motor cycle bearing no AP 13 AD 7871 from the possession of A1. He admitted that he did not witness the alleged incident. He denied that no

panchanama was conducted and A1 to A3 did not confess any offence and nothing

was seized from their possession in his presence . Though Pws 5 and 9 did not support the case of the prosecution. But the evidence PWs 3 and 4 is corroborated by the evidence of Pws 5 and 9 about the alleged commission of the offence U/s 324 r/w 34 IPC by A1 to A3 .

30. The medical evidence ie the evidence of PW10 is also corroborating with the evidence of Pws 1, 2 and 4 . According to the prosecution the alleged incident occurred

on 17-11-2013 at about 9.15 P.M. The evidence of PW10 coupled with Ex P6 injury

certificate of PW1 discloses that he had examined PW1 on 17-11-2013 at about 11.15 P.M and found the injury ie shoulder dislocation suspected and he advised for X-ray and referred toe Orthopedic Surgeon and basing on the Radiological and DSO Ortho findings he opined that the injury sustained by PW1 is simple in nature and caused by blunt object. Ex P8 injury certificate of PW4 issued by LW12 Dr Jadev discloses that he had examined PW4 on the intervening night of 17/18-11-2013 at about 2050 hours and found contusion on the left upper lip and he opined that the injury sustained by PW4 is

simple in nature and caused by blunt object. The ocular evidence of the injured

persons ie PW1 and pW4 is corroborated by the medical evidence with regard to the injuries sustained by PW1 and PW4.

31. The learned counsel for the accused submits that no scene observation

panchanama was conducted and the Investigation Officer did not make proper

Investigation and no incident occurred as alleged. But nothing is elicited in the evidence of the prosecution witnesses to show that the accused no 1to 3 are in no way concerned with the present case and what is the necessity for Pws 1, 2 and 4 to depose falsehood against the accused before a court of law. Simply because there are latches on the part of the Investigation Officer in conducting Investigation the entire case of the prosecution cannot be drawn out. In a decision reported in State of Rajasthan Vs Kishore (1996 Crl Law Journal 2003 SC) Supreme Court where in it was held that irregularities and illegalities committed by the Investigation Officer during the Investigation will not render prosecution case untrust worthy.

32. Nothing is elicited in the evidence of prosecution witnesses that PW1 and PW4 sustained injuries in some other incident or that they are self implicated and that the accused no 1 to 3 are in no way concerned with the injuries sustained by PW 1 and PW4.

33. When the evidence of PW1 to PW11 coupled with Ex P1 to P8 are put together it is corroborating with each other in respect of material aspects and shows that on 17-11- 2013 at about 9.15 P.M when PW1 and PW4 were crossing the signal at Taj Island there was some quarrel in between them and A1 to A3 and A1 to A3 bet them with hands and

sticks and voluntarily caused hurt to them and they assaulted PW1 and PW4 and

voluntarily caused simple injuries to them .

34. It is a settled law that all omissions and discrepancies will not affect the case of the prosecution . Only material omissions and discrepancies which go against the root

of the prosecution case have to be given weight . The minor discrepancies and

improvements elicited in the evidence of prosecution witnesses are not helpful to the case of the defence to disbelieve the version of the prosecution that the accused no 1 to 3 are in no way concerned with the injuries sustained by PW1 and PW4 and they did not commit the offence U/s 324 r/w 34 IPC .

35. For the reasons set forth in the preceding paragraphs, I am of the considered opinion that the prosecution had clinchingly established that on 17-11-2013 at about 9.15 P.M this accused no1 to 3 with a common intention quarelled with PW1 and PW4 and bet them with hands and sticks and assaulted them and voluntarily caused hurt to them by causing simple injuries to PW1 and PW4 beyond all reasonable doubt.

36. The evidence of PW11 discloses that the Honda Dio motor cycle bearing no. AP 13 AD 7871 seized by him from the possession of A3 was returned to A1 towards interim custody as per the orders in Crl.M.P. No. 5561/13 dt 8-1-2014. Except A1 nobody claimed right over the said unmarked case property ie Honda Dio motor cycle bearing no. AP 13 AD 7871 . Hence the motor cycle ie Honda Dio motor cycle bearing no. AP 13 AD 7871 which was returned to A1 towards interim custody as per the orders in Crl.M.P.No. 5561/13 dt 8-1-2014 shall be made absolute after the expiry of appeal time.

35. In the result, I find that the accused no 1 to 3 are guilty for the offence

punishable Under Section 324 r/w 34 IPC , and accordingly they are convicted as

per the provisions U/s 248(2) Cr.P.C .

Dictated to Personal Assistant, transcribed and typed by her and corrected and

pronounced by me in the open court today on this the 22 nd day of May , 2015.

XII ADDL. CHIEF METROPOLITAN MAGISTRATE:

HYDERABAD.

When I questioned the accused no 1 to 3 with regard to the quantum of sentence

A1 stated that – I am studying B.Com final year. This is the 1 st offence and I may be excused by imposing fine amount .

A2 stated that - I am studying B.A. 2 nd year. This is the 1 st offence and I may be excused by imposing fine amount .

A3 stated that - I am studying B. Sc. final year Computers . This is the 1 st offence and I may be excused by imposing fine amount .

Taking the plea of A1 to A3 into consideration and in view of the facts and

circumstances , I find that it is a fit case to take a lenient view. Hence the accused no 1 to 3 are sentenced to pay a fine amount of Rs 2,000/- each for the offence punishable U/s 324 r/w 34 IPC and in default of payment of fine amount they shall under go SI for a period of Two months each . Total fine amount is Rs 6,000/-. (Rs 2,000/- for each accused)

XII ADDL. CHIEF METROPOLITAN MAGISTRATE:

HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE: PW1 Mohd Toufeeq NIL PW2 Mohd Akbar PW3 Md Khaja PW4 Mohammed Abdul Muneer PW5 Abdul Saleem Khan PW6 K. Baldas PW7 S. Narsimhulu PW8 S.K. Latif Saheb PW9 Mohd Irfan PW10 M. Bharat Bhushan PW11 K. Satyanarayana

DOCUMENTS MARKED

FOR PROSECUTION: FOR DEFENCE: Ex P1 : is the complaint dt 17-11-2013 NIL Ex P2: is the 161 Cr.P.C statement of PW2 Ex P3 to P5: are the signatures of PW5 on the admissible portion of confession cum seizure panchanama of A1 to A3 Ex P6: is the injury certificate of PW1 issued by PW10 dt 17-11-2013 Ex P7: is the FIR dt 18-11-2013 Ex P8: is the injury certificate of PW4 issued by LW12 Dr Jadhav dt 18-11-2013

MATERIAL OBJECTS MARKED

NIL

XII ADDL. CHIEF METROPOLITAN MAGISTRATE:

HYDERABAD.

IN THE COURT OF THE XII ADDL.CHIEF METROPOLITAN MAGISTRATE:

HYDERABAD.

PRESENT: Smt P.V. Padma Lalitha Siva Jyothi,

XII ADDL.CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD.

DATED THIS THE 30 th DAY OF APRIL , 2015.

Sr.No. 4298/14

Between:

Jeetender Kumar Baheti , S/o Sri J.C. Baheti, Age 41 years, Occ: Business, R/o 15-7-28/3,

Begum Bazar, Hyderabad. .... COMPLAINANT .

AND

A1 Pradeep Kumar Agarwal, S/o Late Shyam Sunder Agarwal, Age 38 years, Occ: Business, H.no. 10-3-177, Humayun Nagar, Hyd. A2 Pradeep Kumar Agarwal, S/o Late Balakishan Agarwal, Proprietor of M/s Pradeep designer, Age 38 years, Occ: Business, R/o H.No. 10-3-177, Humayun Nagar, Hyderabad.

..... ACCUSED .

This order is coming on for final hearing before me, in the presence of Lr. Sr.

A.P.P. for Prosecution and Sri B. Sheshu Kumar , Counsel for the Complainant the matter having stood over for consideration, till this day the Court delivered the following:

ORDER

1. This is a private complaint filed U/s 200 Cr.P.C against the accused no 1 and 2 for the offences punishable U/s 420, 195, 419, 120 A and 416 IPC.

2. Heard the counsel for the complainant. Perused the record.

3. The complainant in support of of his case got himself examined as witness no 1 and got marked Ex P1 to P5 .

4. The learned counsel for the petitioner/complainant submits that A1 is the brother- in-law of A2 and that the complainant filed criminal case U/s 138 of NI Act against the accused no 2 in CC.No. 905/2013 on the file of XX ACMM Court , Hyderabad and it was

posted for service of summons to A2 on 6-2-2014 and on that day he was out of

station and his counsel filed vakalath petition U/s 256 Cr.P.C and it was adjourned to 18-2-2014 , again on 18-2-2014 he was out of station and he instructed his counsel to file petition to condone his absence and due to advocates abstaining the courts on 18-2- 2014 his counsel could not file the petition and on that day A1 impersonated as A2 and appeared before the court and he was examined U/s 251 Cr.P.C and it was posted for trial on 14-3-2014 and on that day he came to the court to attend his case and found that

A1 impersonated himself as A2 and on that he filed a memo before the court and

brought the same to the notice of the court and on the instructions of the learned XX ACMM Court an application U/s 340 Cr.P.C was filed to take cognizance against A1 for the offences punishable U/s 420, 195, 419, 120 A and 416 IPC and the said petition was disposed off on merits and discharged A1 and issued NBW against A2.

5. The learned counsel for the accused further submits that taking advantage of similar names A1 appeared before the learned XX th ACMM Court by impersonation by showing the fathers name as different and that A1 in his cross examination U/s 251 Cr.P.C did not deny that he is not the owner of M/s Pradeep Designer and that with an

intention to cheat the complainant as well as the court and also stated that he

received the legal notice issued by the complainant and on that a memo was filed by him and A1 gave reply as well as counter stated that as he received the summons and therefore he appeared before the court.

6. The learned counsel for the complainant further submits that A1 in collusion with A2 cheated him as well as the court by impersonation and committed the offences U/s 420, 195, 419, 120 A and 416 IPC and therefore prays to punish the accused as per law.

7. The complainant in support of his contention relied on Ex P1 to P4. Ex P1 : is the certified copy of complaint dt 30-9-2013 filed U/s 139 NI Act . Ex P2: is the certified copy of memo filed in CC.No. 905/2013 on the file of XX th ACMM, Court , Hyderabad dt 14-3-2014. Ex P3: is the certified copy of examination of the accused no 1 in CC.No. 905/2013

dt 18-3-2014.

Ex P4: is the certified copy of vakalath given by A1 in CC.No. 905/2013. Ex P5: is the certified copy of Order in Crl.M.P. No. 650/2014 in CC.No. 905/2013

dt 23-6-2014 on the file of learned XX th ACMM, Court, Hyderabad.

8. At the stage of inquiry U/s 202 Cr.P.C the court has to consider only whether prima facie case for criminal offence was made out . The important point that is to be

considered is whether the averments mentioned in the complaint and the sworn

statement discloses any case for taking cognizance and whether there is any prima facie case made out for criminal offence against the accused.

9. It is the contention of the complainant that on 18-2-2014 A1 impersonated as A2 and appeared before the court and on 18-2-2014 he was out of station and his counsel filed petition to condone his absence and on 18-2-2014 also he was absent . But his counsel could not file due to advocates abstaining courts and on 14-3-2014 he came

to the court to attend his case and found A1 appeared before the court by

impersonating himself as A2 and immediately he filed memo in CC.No. 905/2013 and brought the impersonation made by A1 to the notice of the court .

10. The complainant in support of his contention relied on Ex P1 to Ex P5. Ex P5 is the certified copy of the complaint filed U/s 200 Cr.P.C in CC.No. 905/13 by the complainant U/s 138 of NI Act against Pradeep Kumar Agarwal S/o of Late Bal Kishan

Agarwal aged about 7 years and the name Bal Kishan Agarwal was rounded and Sri

Shyam Sunder Agarwal was written and the address mentioned as

H.No. 13-1-95/2/A, Aziz Bagh, Seetharam Bagh, Hyderabad and also residing at

2. H.No. 10-3-177, Humayun Nagar, Hyderabad.

3. C/o M/s Pradeep Designer, situated # 21-2-761/2/c,

Near Bhagwat Bai Montessori School, Patel Market , Rikab Gunj, Hyderabad-002.

Ex P2 is the memo filed by the complainant in CC.No. 905/13 stating that the accused no 1 knowingly impersonated as A2 before the court with an intention to cheat the complainant and also the court and prays to take action against A1 . Ex P3 is the examination of the accused U/s 251 Cr.P.C done by the learned 20 th ACMM in CC.No 905/13 . Ex P4 is the Vakaalat given by the accused in the said CC.No. 905/13. Ex P5 is the orders by the learned 16 th Addl Judge/20 th ACMM Hyderabad in M.P. No. 650/14 in 905/13 dt 23-6-2014 wherein it was observed by the learned 20 th ACMM that the court verified the address of the accused prior to furnishing the copies and documents

and the name and address of the accused found to be tallied as furnished by the

complainant and more particularly on 14-3-2014 though the complainant was appeare he did not point out that the person appeared before the court is not original accused,

even though it was claimed in the complaint that he got acquaintance with the

accused.

11. The learned 20 th ACMM further observed in Ex P5 that the person appeared submitted in the open court that he appeared before the court in due obedience of the summons served on the given address and he is an uneducated person and he had no intention either to impersonate or to protect the original accused . Moreover it is the duty of the complainant to identify the accused as it is a private complaint filed by the complainant and the complainant and his counsel should assist the court in proceeding with the case.

12. The averments mentioned in the complaint, sworn statement and the documents relied on by the complainant doesno disclose any prima facie material. It is not the contention of the complainant that there is an observation by the learned 20 th ACMM in Ex P5 that this accused had intention to impersonate A2 or to protect the original accused he appeared before the court.

13. On perusal of the addresses of A1 and A2 mentioned in the complaint it could be seen that they are one and the similar ie they are aged about 38 years and occupation business and residence H.No. 10-3-17, Humayunnagar and only fathers name is different . In Ex P1 Complaint there is correction in the fathers name as Sri Shyam Sunder Agarwal in the place of Bal Kishan Agarwal with initial.

13. In the present complaint the father's name of A2 is late Shyam Sunder Agarwal . Both the said names are reflected in Ex P1 complaint by making correction and by putting initial. It is clearly observed by the learned 20 th ACMM in Ex P5 that the person appeared before the court submitted in the open court that he appeared before the

court in due obedience of summons served on the given address and he is an

uneducated person and he had no intention either to impersonate the accused or to protect the accused.

14. On perusal of the averments mentioned in the complaint, sworn statement of the complainant/witness no 1 coupled with Ex p1 to P5 is put together it could be seen that there is no prima facie material for accusations for the offences U/s 419, 420, 195 and 120 A IPC made out against the accused no 1 and 2 .

15. For the reasons set forth in the proceeding paragraphs and the averments mentioned in the complaint and the statement of the witness coupled with Ex P1 to P5, it appears that no prima facie case for criminal offence was made out against the accused no 1 and 2 for the offences punishable U/s419, 420, 195 and 120 A IPC to proceed further. Therefore I am of the considered opinion that there are no sufficient grounds for proceeding against A1 and A2 . Hence the present case is dismissed U/s 203 Cr.P.C.

Typed to my dictation by the Personal Assistant, corrected and pronounced by

me in the open court today on this the 30 th day of April , 2015.

XII ADDL. CHIEF METROPOLITAN MAGISTRATE:

HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR COMPLAINANT: FOR DEFENCE:

PW1 Jitender Kumar Baheti NIL

DOCUMENTS MARKED

FOR COMPLAINANT: FOR DEFENCE: NIL

Ex P1 : is the certified copy of complaint dt 30-9-2013 filed U/s 139 NI Act . Ex P2: is the certified copy of memo filed in CC.No. 905/2013 on the file of XX th ACMM, Court , Hyderabad dt 14-3-2014. Ex P3: is the certified copy of examination of the accused no 1 in CC.No. 905/2013

dt 18-3-2014.

Ex P4: is the certified copy of vakalath given by A1 in CC.No. 905/2013. Ex P5: is the certified copy of Order in Crl.M.P. No. 650/2014 in CC.No. 905/2013

dt 23-6-2014 on the file of learned XX th ACMM, Court, Hyderabad.

MATERIAL OBJECTS MARKED

NIL

XII ADDL. CHIEF METROPOLITAN MAGISTRATE:

HYDERABAD.

IN THE COURT OF THE XII ADDL.CHIEF METROPOLITAN MAGISTRATE:

HYDERABAD.

PRESENT: Smt P.V. Padma Lalitha Siva Jyothi,

XII ADDL.CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD.

DATED THIS THE 1 st DAY OF MAY , 2015. C.C.NO. 49 of 2015.

Between: The State Through, The Sub-Inspector of Police ,

PS Nampally, Hyderabad.

.. Complainant.

And

A1 Sainath S/o Mahesh, Age 22 years, R/o Footpath, Public Garden, Nampally, Hyderabad N/o Warangal. A2 Sanjay Kumar Panchali, S/o Mahender Kumar Panchali, Age 22 years, R/o Footpath Public Garden, Nampally,

Hyderabad N/o Maharashtra. .. Accused.

This case is coming on for final hearing before me, in the presence of Lr. Sr.

A.P.P. for Prosecution and Sri K. Chandra Shekar , Legal Aid Counsel for the accused the matter 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 of PS Nampally, Hyderabad filed charge sheet in

Cr.No. 258/2014 Under Section 7(A) r/w 8(e) of AP Prohibition Act, 1995 against the accused no 1 and 2 .

2. The case of the prosecution against the accused in brief is that on 22-8-2014 when LW1 V. Sundariah along with his staff ie LW2 Yadagiri HC performing patrolling duty in Rakshak , on the way when they reached near Jangam Basti towards railway foot over bridge Near Nampally Railway Station they found two persons are moving under suspicious manner by walk by carrying two bags on seeing them they tried to escape

and apprehended them and on search they found two bags containing of ID liquor

sachets and on enquiry they disclosed their names ie A1 and A2 and conducted

confessional cum seizure panchanama and they confessed the offence and

apprehended them and seized 200 sachets of ID liquor under cover of panchanama and basing on the complaint LW7 P. Vijay Bhaskar registered a case in Cr.No. 258/14 U/s 7(A) r/w 8(e) of AP Prohibition Act of PS Nampally and took up investigation and during the course of investigation he secured the presence of LW1 to LW5 V. Sundaraih ,

Yadagiri, Azeem, Syed Sirajuddin and Mohd Shaheed examined them and recorded

their statements and on interrogation they confessed the offence and and he

forwarded the seized property ie ID liquor sachets at APFSL, Hyderabad for analysis and report and on his transfer the case file was handed over to LW8 D. Nippun and as per the directions of SHO Nampally, LW8 D. Nippun took the CD file from LW7 P. Vijay Bhasker and gone through the investigation and LW8 collected the APFSL report from

LW6 V.R. Gunasheela wherein she opined that the seized ID liquor sachets are

containing higher alcohols, furfural and organic acids are also found in them and on the basis of results obtained through analysis they are illicit distilled liquor and after completion of investigation he filed charge sheet. Hence the charge.

3. This case was taken cognizance for the offence U/s 7(A) r/w 8(e) of AP Prohibition Act, 1995 against the accused no 1 and 2 .

4. On appearance of the accused , he was furnished with all the copies of documents as required U/s 207 Cr.P.C .

5. Accused no 1 and 2 examined U/s 239 Cr.P.C and they denied the allegations and charge U/s 7(A) r/w 8(e) of AP Prohibition Act, 1995 has been framed against the

accused and the charge was read over and explained to them in their vernacular

language, for which they denied and pleaded not guilty and claimed to be tried.

6. The prosecution in support of his case got examined four witnesses i.e PW1 to PW4 and got marked Ex P1 to P 4 .

7. After closure of the prosecution evidence, the accused no 1 and 2 were examined U/s 313 Cr.P.C on the incriminating evidence available against them , which they denied and reported no evidence on their behalf.

8. Heard arguments on both sides.

9. Now the point that arises for determination is whether the prosecution had made

out the guilt of the accused for the offence punishable U/s 7(A) r/w 8(e) of AP

Prohibition Act, 1995 beyond all reasonable doubt?

10. To establish the charge U/s 7(A) r/w 8(e) of AP Prohibition Act, 1995 , the prosecution has to prove that on 22-8-2014at 6.00 P.M near Nampally Railway Station the accused no 1 and 2 were found in possession of 200 ID liquor sachets in two bags without any valid license or permit and selling the same and the Investigation Officer seized the same from the possession of the accused in the presence of LW4 and LW5 Sirajuddin and Shahid under cover of panchanama beyond all reasonable doubt. The case of the prosecution is that on 22-8-2014 when PW2 along with PW1 and LW3 Azeem were on rakshak duty and when they reached near Jangam Basti towards Railway foot over bridge near Nampally Railway Station and at about 6.00 or 7.30 A.M they found A1 and A2 were moving in suspicious manner by carrying two plastic bag and they tried to escape by seeing them and on that they caught hold them and on verification they found 200 ID liquor sachets in the said two plastic bags of A1 and A2 and in enquiry

they confessed the offence in the presence of LW4 and LW5 Sirahuddin and Shahid

conducted panchanama and seized 200 ID liquor sachets from the possession of the

accused and later produced A1 and A2 before the SHO Nampally along with case

papers, case property and gave Ex P1 complaint and on receipt of the complaint from PW3 from PW2 and PW3 registered a case in Crime No. 258/2014 U/s 7(A) r/w 8(e) of AP Prohibition Act , 1995 and issued COR to all the concerned and PW1 handed over the accused no 1 and 2 and produced them before the court and he handed over the case file to PW4 for further investigation and after completion of investigation he filed the charge sheet .

11. To establish the offence U/s 7(A) r/w 8(e) of AP Prohibition Act 1995 , the prosecution all together got examined four witnesses out of 8 listed witnesses and got marked Ex P1 to P4 . Ex P1: is the complaint dt 22-8-2014 Ex P2: is the admissible portion of confession cum seizure panchanama of the accused dt 22-8-2014 Ex P3: is the COR dt 22-8-2014 Ex P4: is the FSL report dt 10-12-2014

12. No oral or documentary evidence was adduced on behalf of the accused.

13. The learned APP submits that the prosecution had established the charge

against the accused U/s 7(A) r/w 8(e) of AP Prohibition Act 1995, through the

evidence of PW1 to PW4 coupled with Ex P1 to P4 beyond all reasonable doubt.

Whereas the learned counsel for the accused submits that A1 and A2 did not confess

the offence and PW2 did not apprehend them and no panchanama was conducted and

nothing was seized from their possession and they foisted false case against the accused and they are in no way concerned with the present case and the prosecution failed to establish the offence U/s 7(A) r/w 8(e) of AP Prohibition Act 1995 against the accused beyond all reasonable doubt.

14. Before discussing the oral testimony of the prosecution witnesses it is expedient to read some of the important averments mentioned in Ex P1 complaint basing on which a case was registered which is “ on 22-8-2014 PW2 along with his staff were doing petrolling duty in Rakshak and when they reached near Jangam Basti towards Railway foot over bridge near Nampally Railway Station at about 6.00 A.M they found A1 and A2 moving in suspicious manner by walk by carrying bags and they tried to escape by

seeing them and on that they caught hold them and on search they found one bag

containing ID liquor sachets and on enquiry they discloses their names as A1 and A2 and on that they secured the presence of 2 panchas ie LW 4 and LW5 Sirajuddin and Shahid and conducted confession cum seizure and A1 and A2 confessed the ffene and seized 200 sachets from the possession of a1 and A2 under cover of panchanama and drawn four sachets and produced A1 and A2 before the SHO Nampally and gave Ex P1 complaint.

15. The evidence of PW 2 who is the complainant and also the investigation Officer

and the evidence of PW1 Head Constable who assisted PW2 discloses that on 22-8-

2014 when PW2 along with PW1 and LW3 Azeem were on rakshak duty and when they

reached near Jangam Basti towards Railway foot over bridge near Nampally Railway Station and at about 6.00 or 7.30 A.M they found A1 and A2 were moving in suspicious manner by carrying two plastic bag and they tried to escape by seeing them and on that they caught hold them and on verification they found 200 ID liquor sachets in the said two plastic bags of A1 and A2 and in enquiry they confessed the offence in the

presence of LW4 and LW5 Sirahuddin and Shahid conducted panchanama and seized

200 ID liquor sachets from the possession of the accused and later produced A1 and

A2 before the SHO Nampally along with case papers, case property and gave Ex P1

complaint.

16. PW3 and PW4 are the investigation Officers and their evidence discloses with regard to the issuance of FIR and investigation.

17. The evidence of PW1 and PW2 discloses that on 22-8-2014 while they were in rakshak duty they apprehended A1 and A2 while they were moving in suspicious manner and on verification they found 200 ID liquor sachets in two plastic bags of A1 and A2 and on enquiry A1 and A2 confessed the offence and on that they secured the presence

of LW4 and LW4 Sirajuddin and Shahid and conducted panchanama and seized 200 ID

liquor sachets from the possession of the accused under cover of Ex P2 panchanama

and drawn two samples , each containing four sachets from the contraband in the

presence of same panchas. But the evidence of PW1 and PW2 are not corroborated by any cogent evidence . As seen from the record Lws 4 and 5 Sirajuddin and Shahid who are the panch witnesses for confession cum seizure panchanama are not examined by the prosecution and they are given up by the learned APP. Till date no steps were taken by the prosecution to examine the said LW4 and LW5 Sirajuddin and Shahid inspite of giving sufficient ample opportunities.

18. The evidence of PW2 discloses that he is the complainant and also one of the investigation Officer . When the complainant is also one of the Investigation Officer,

his evidence is to be scrutinized carefully as the complainant cannot be an

Investigation officer in a case registered by a police. As per settled law, the

complainant should not be the Investigation Officer against the accused. Even if the complainant's evidence should not be based on his personal knowledge, but the very fact that the complainant received information, which he believed to be true and on the

basis of which he gave report, certainly effects the Investigating person. The

complainant is normally expected to seek the material in support of his complaint. If he himself is the Investigation, entire concept of independent and unbiased investigation would have jeopardized.

19. Except the evidence of PW2 who is the complainant and also one of the

Investigation Officer and PW1 Head Constable who assisted PW2 and PW3 and PW4

who are the investigation Officers and interested witnesses to the case of the

prosecution there is no cogent corroborative evidence on record to establish the seizure of 200 ID liquor sachets from the possession of A1 and A2 in the presence of

LW4 and LW5 Sirajuddin and Shahid under cover of Ex P2 panchanama . The non

examination of LW4 and LW5 Sirajuddin and Shahid who are the panch witnesses for confession cum seizure is certainly fatal to the case of the prosecution.

20. The evidence of PW2 discloses that the scene of offence is a busy locality and there are houses at the scene of offence and there are persons present at the scene of offence at the time of Ex P2 panchanama . But he did not examine any persons at the scene of offence . The investigation Officer also did not examine any independent witnesses to establish the alleged commission of the offence U/s 7(A) r/w 8(e) of AP

Prohibition Act 1995. PW1 stated that he doesnot know how many samples were drawn by PW2 SI of Police. Without there being any cogent corroborative evidence on record, it is highly improbable and unsafe to rely on the sole oral testimony of Pws 1 and to establish the alleged seizure of 200 ID liquor sachets from the possession of A1 and A2 under cover of panchanama.

21. As seen from the record, except PW1 to PW4 who are the police persons there is no cogent corroborative evidence on record to establish that on 22-8-2014 while PW1 and PW2 were on rakshak duty they apprehended A1 and A2 when they were moving in

suspicious manner by carrying plastic bags and conducted panchanama by securing

the presence of LW4 and LW5 Sirajuddin and Shahid and seized 200 ID liquor sachets

from the possession of the accused in the presence of LW and LW5 Sirajuddin and

Shahid under cover of Ex P2 panchanama . Without there being any cogent

corroborative evidence on record it is highly improbable and unsafe to rely on the sole oral testimony of PW1 to PW4 who are the Police persons and interested witnesses to

the case of the prosecution to give conviction to the accused. Under these

circumstances a reasonable doubt arises about the genuineness of the case filed

against the accused .

22. For the reasons set forth in the preceding paragraphs, I am of the considered opinion that the prosecution had failed to establish that on 22-8-2014 , PW1 and PW2

caught hold of A1 and A2 and conducted confession cum seizure panchanama and

seized 200 ID liquor sachets from their possession under cover of Ex P2 pachanama and committed the offences punishable U/s 7(A) r/w 8(e) of AP Prohibition Act, 1995 against the accused beyond all reasonable doubt and therefore benefit of doubt can be given to the accused .

23. Since no property is produced, no property order is passed.

24. In the result, I find that the accused no 1 and 2 are not guilty for the offence punishable Under Section 7(A) r/w 8(e) of AP Prohibition Act, 1995 , and accordingly they are acquitted as per the provisions U/s 248(1) Cr.P.C . The accused no 1 and 2 are set at liberty if they are not required in any other case or cases.

Typed to my dictation by the Personal Assistant, corrected and pronounced by

me in the open court today on this the 1 st day of May , 2015.

XII ADDL. CHIEF METROPOLITAN MAGISTRATE:

HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE: PW1 K. Yadagiri NIL PW2 V. Sundaraiah PW3 P. Vijay Bhasker PW4 D. Nippun

DOCUMENTS MARKED

FOR PROSECUTION: FOR DEFENCE: NIL Ex P1: is the complaint dt 22-8-2014 Ex P2: is the admissible portion of confession cum seizure panchanama of the accused dt 22-8-2014 Ex P3: is the COR dt 22-8-2014 Ex P4: is the FSL report dt 10-12-2014

MATERIAL OBJECTS MARKED

NIL

XII ADDL. CHIEF METROPOLITAN MAGISTRATE:

HYDERABAD.

IN THE COURT OF THE XII ADDL.CHIEF METROPOLITAN MAGISTRATE:

HYDERABAD.

PRESENT: Smt P.V. Padma Lalitha Siva Jyothi,

XII ADDL.CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD.

DATED THIS THE 21 st DAY OF MAY , 2015. C.C.NO. 133 of 2008.

Between: The State Through, The Inspector of Police ,

WCO Team-V, CCS, DD, Hyderabad. .... Complainant.

And

*A1 Osman Hassain Somali S/o Hassain Hassan , Somalia, Aged 26 years, R/o Chandrayangutta, Hyderabad. A2 Syed Hussain S/o Syed Munawar Hussain, Aged 30 years, R/o Chandrayangutta, Hyderabad. *A3 Balram Singh S/o Kallu Singh, Age 41 years R/o Bihar State. A4 Syed Amodi @ Shaik Syed Al-Amodi @ Amodi, S/o Shaik Syed Amodi R/o Chandrayangutta,

Hyderabad. ...... Accused.

(The case against A1 and A3 is split from this case and numbered as CC.NO. 207/2013 and the present case is proceeded against A2 and 4 only . )

This case is coming on for final hearing before me, in the presence of Lr. Sr.

A.P.P. for Prosecution and Sri Abdul Manan and associates , Counsel for the

accused and the matter 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, WCO Team-V, CCS, DD, Hyderabad filed charge sheet

in Cr.No. 161/2003 Under Section 258, 259 r/w 34 IPC against the accused no 1 and 4.

2. The case of the prosecution against the accused in brief is that on receipt of

credible information LW1 A. Yadagiri along with his staff apprehended A1 and A2

near Nampally Criminal Courts , Hyderabad on 28-7-2003 at 9.45 P.M seized two fake non-judicial stamp papers of Rs 500/- and Rs 1000/- denomination from the possession

of A1 and one fake non-judicial stamp paper of Rs 5,000/- denomination from the

possession of A2 under cover of confessional-cum-seizure panchanama in the

presence of LW2 and LW3 A. Srinivas Rao and K. Satyanarayana and LW1 A. Yadagiri handed over A1 and A2 along with the seized non-judicial stamp papers to LW10 S. Basanth Kumar , SI of Police for taking action. Basing on the complaint LW11 A.V. Satyanarayana registered a case in Cr.No. 161/2003 U/s 258, 259 r/w 34 IPC and he had examined and recorded the statement of LW1 A. Yadagiri and took A1 and A2 to police custody and went to Patna of Bihar State along with A1 and arrested A3 who had sent 125 fake non-judicial stamp papers to the address of A2 by courier on the request of A1 to A4 . LW 11 A.V. Satyanarayana recorded the confessional statement of A3 in the

presence of LW4 and LW5 Prabhat Kumar and Dikeshwar and A3 stated that A5 had

arranged 125 fake non- judicial stamp papers to him which he sent to the address of

A2 by courier and he recorded the statement LW6 and returned to Hyderabad from

Patna and remanded A3 and also produced A1 and A2 in the court from police custody and later LW11 A.V. Satyanarayana took A3 to Police custody and went to Kolkota of

West Bengal State along with A3 to apprehend A5 and as their efforts were not

successful they returned to Hyderabad and arrested A4 at Chandrayangutta Police

and was taken for remand in this case through PT warrant and A4 was taken to police

custody and LW11 A.V. Satyanarayana recorded his confessional statement in the

presence of LW7 and LW8 Yousuf Ali Khan and Mohd Wasim and he was produced

before the court and he seized three fake non-judicial stamp papers to Security Press

Nasik for comparison and opinion . The case file was transferred to CCS , Hyderabad for further investigation and LW12 A. Lakshamanna, Inspector of Police re-registered the case in Cr.No. 313/04 U/s 258, 259 IPC of WCO Team-V, CCS for investigation and LW13 B. Gopal , Inspector of Police made efforts to arrest the absconding accused no 5 and a separate charge sheet will be filed as and when A5 is arrested and after completion of investigation he filed the charge sheet . Hence the charge .

3. This case was taken cognizance for the offences U/s 258, 259 r/w 34 IPC against the accused no 1 to 4 . Subsequently the case against A1 and A3 is split from this

case and numbered as CC.NO. 207/2013 and the present case is proceeded against

A2 and 4 only .

4. On appearance of the accused no 2 and 4 , they were furnished with all the copies of documents as required U/s 207 Cr.P.C .

5. Accused no 2 and 4 were examined U/s 239 Cr.P.C and they denied the allegations and charge U/s 258, 259 r/w 34 IPC have been framed against the accused and the charge was read over and explained to them in their vernacular language, for which they denied and pleaded not guilty and claimed to be tried.

6. The prosecution in support of their case got examined PW1 to PW7 and got marked Ex P1 to P7 .

7. After closure of the prosecution evidence, accused no 2 and 4 were examined U/s 313 Cr.P.C on the incriminating evidence available against them , which they denied and reported no evidence on their behalf.

8. Heard arguments on both sides

9. Now the point that arises for determination is whether the prosecution had made

out the guilt of the accused for the offence punishable U/s 258, 259 r/w 34 IPC

beyond all reasonable doubt?

10. To establish the charge U/s 258, 259 r/w 34 IPC , the prosecution has to prove that these accused no 2 and 4 along with others with a common intention were selling fake non-judicial stamp papers of different denominations worth of Rs 3,25,000/- for lesser prices and used the fake non-judicial papers as genuine one knowingly it to be a counterfeit of stamp-issued by the Government and having reason to believe to be counterfeit of stamp issued by the Government for the purpose of revenue and the Investigation Officer recovered Ex P3 three blank non-judicial stamp papers from the

possession of the accused in the presence of LW2 and LW3 Srinivas Rao and K. K.

Satyanarayana and PW2 and LW8 Mohd Wasim under cover of panchanama beyond all

reasonable doubt . The case of the prosecution is that on 28-6-2013 at about 9.00 P.M when he along with his staff were on patrolling duty under the limits of Nampally PS they received credible information about the circulation of fake non judicial stamps and immediately they proceeded to the spot ie Tea Stall in front of Nampally Criminal Courts Complex and waited and in the meanwhile two persons came to the Tea Stall and they identified them and apprehended the accused persons and on enquiry they

revealed their names as A1 and A2 and on physical search they were found in

possession of Rs 1000/- and 500/- fake non judicial stamp papers and A2 is in

possession of Rs 5,000/- denomination fake non judicial stamp papers and again he

secured the presence of LW2 and LW3 Srinivas Rao and K. Satyanarayana and

conducted confession cum seizure panchanama and apprehended them and brought

them to PS Nampally and handed over them to PW5 and gave Ex P1 complaint along

with case papers and on that PW5 registered a case in Cr.No. 161/2003 U/s 258, 259 IPC and issued FIR to all the concerned and handed over the file to PW4 and during

the course of investigation PW4 had examined and recorded the statements of PW1

and arrested A1 and A2 and produced them before the court and visited the scene of offence and from there they went to Barkas and made enquiry about A4 and on 14-9- 2003 after obtaining permission from the Commissioner of Police he forwarded the seized papers it non judicial papers to Nasik for examination and opinion and took

police custody of A1 and A2 and went to Patna and arrested A3 at his office and

brought him to Gandhi Maidan Police Station, Patna and the local Inspector of Police secured the presence of LW4 Prabhat Kumar and LW5 Dikeshwar and on interrogation A3 confessed the offence and he lead them to First Flight Courier Office and there they examined and recorded the statement of LW6 Anil Kumar and produced A3 before the

Chief Judicial Magistrate, Patna and obtained transit warrant and returned to

Hyderabad after producing them before the court and took police custody of A3 and went to Kolkata and made enquiry about A5 . But they could not give any information

and returned to Hyderabad and produced A3 before the court and on 13-2-2004 he

received report from Nasik and they opined the non judicial stamp papers are fake,

forged and fabricated documents and in the meanwhile the police Chandrayangutta

arrested A4 in their crime no. 203/2002 U/s 258, 259 IPC and produced A4 before the court on PT warrant and took police custody of A4 from the court and secured the

presence of PW2 and LW8 Mohd Wasim and on interrogation A4 confessed the

offence and recorded the confessional statement of A4 and produced him before the court and he did not seize any thing from the possession of A4 and later the case file was transferred to CCS , DD, Hyderabad and as per the endorsement made by DCP, DD, Hyderabad , PW6 re-registered the case in Cr.No. 313/2004 U/s 258, 259 IPC and issued FIR to all the concerned and handed over the case file to PW7 and PW7 verified the investigation made by them and found it on correct lines and efforts to apprehend A3 but in vain and after completion of investigation he filed the charge sheet against A1 to A4 by submitting that they will file separate charge sheet against A5 as and when he is apprehended.

11. To establish the charge U/s 258, 259 r/w 34 IPC , the prosecution all together got examined 7 witnesses out of 13 listed witnesses and got marked Ex P1 to P7 . Ex P1 : is the complaint dt 28-7-2003 Ex P2: is the admissible portion of confession cum seizure panchanama of A1 and A2 dt 28-7-2003 Ex P3: is the three blank non judicial stamp papers of Rs 5,000/-, Rs 1,000/- and Rs 500/- Ex P4: is the signature of PW2 on the panchanama of A4 dt 29-3-2004 Ex P5: is the opinion of PW3 dt 6-2-2004 Ex P6: is the FIR dt 29-7-2003 Ex P7: is the FIR dt 19-5-2014

12. No oral evidence was adduced on behalf of the accused and Ex D1 was marked on their behalf. Ex D1: is the certified copy of Judgment in

CC.No. 762/2005 dt 5-8-2011

13. The learned APP submits that the prosecution had established the charge

U/s 258, 259 r/w 34 IPC against the accused through the evidence of PW1 to PW7

coupled with Ex P1 to P7 beyond all reasonable doubt. Whereas the learned counsel for the accused no 2 and 4 submits that they are in no way concerned with the present

case and A1 did not confess any offence and no panchanama was conducted and

nothing was seized from the possession of the accused and they foisted false case against the accused.

14. Before discussing the oral testimony of the prosecution witnesses , it is

expedient to read some of the important averments mentioned in Ex P1 complaint

basing on which a case was registered against the accused which is as “ on 28-7-2003

at about 9.00 P.M when PW1 along with his team were on patrolling they received

credible information that two persons by names Osman Hussain S/o Syed Munwar

Hussain and Syed Amodi S/o Shaik Syed Amodi residents of Barkas are available at Criminal Courts Complex and they are in possession of fake non-judicial stamp papers for the purpose of selling and immediately they proceeded there and waited there near Nampally Courts and at about 9.45 P.M two persons came in Auto near to the hotel and moving in suspicious manner and the informant identified them and gave signal and on that they apprehended them and on interrogation they revealed their names as Osman Hussain S/o Syed Munwar Hussain and Syed Amodi S/o Shaik Syed Amodi residents of

Barkas and on physical search they found them in possession of two fake non

judicial stamp papers of 500/- and 1000/- rupees denomination and he took them into

custody and secured the presence of two mediators and recorded the confessional

cum seizure panchanama of both the accused and seized one counter feet non judicial

papers and two more accused persons namely Balram Singh aged about 40 years and

Syed Amodi aged 35 years are absconding and he produced the said two accused

persons along with seized property before SI of Police , Nampally.

15. The evidence of PW1/complainant discloses that on 28-6-2013 at about 9.00 P.M when he along with his staff were on patrolling duty under the limits of Nampally PS they received credible information about the circulation of fake non judicial stamps and immediately they proceeded to the spot ie Tea Stall in front of Nampally Criminal Courts Complex and waited and in the meanwhile two persons came to the Tea Stall and they identified them and apprehended the accused persons and on enquiry they

revealed their names as A1 and A2 and on physical search they were found in

possession of Rs 1000/- and 500/- fake non judicial stamp papers and A2 is in

possession of Rs 5,000/- denomination fake non judicial stamp papers and again he

secured the presence of LW2 and LW3 Srinivas Rao and K. Satyanarayana and

conducted confession cum seizure panchanama and apprehended them and brought

them to PS Nampally and handed over them to PW5 and gave Ex P1 complaint.

16. PW2 is the panch witness for confession cum seizure panchanama of A4 did not support the version of the prosecution and stated no panchanama was conducted and nothing was seized in his presence.

17. PW3 is the Deputy Works Manager in India Security Press, Nasik Incharge of Forgery Detection Cell in his evidence stated that on 15-9-2003 he received requisition letter along with documents from ACP, Saifabad Division , Hyderabad for examination

of question documents for examination and opinion and initially the said ACP,

Saifabad submited the said requisition letter in Administration Department of India Security Press, Nashik and he received the letter in their department on 15-9-2003 . He

opined that the documents signed by the police are forged one and Ex P5 is the

opinion given by him dt 6-2-2004 .

18. PW4 to 7 are the Investigation Officers and their evidence discloses with regard to the issuance of FIR and investigation.

19. The evidence of PW1 is not corroborated by the evidence of PW2 with regard to the alleged conducting of confession cum seizure panchanama and seizure of Ex P3 blank

non judicial stamp papers from the possession of A1 and A2 under cover of

panchanama. Nothing is elicited in the evidence of PW2 who is the panch witness for

confession cum seizure panchanama and seizure of Ex P3 blank non judicial stamp

papers to show that he is interested in the accused or to discredit his testimony.

20. The evidence of PW3 discloses that he is deposing the evidence only as per the

records. Ex P5 is the opinion given by him dt 6-2-2004 and he opined that the

documents sent by the police ie Ex P3 are forged ones . He stated that he did not mention in Ex P5 about the method and date of examination of documents under Ex P3.

21. PW4 /Investigation Officer admitted in his evidence that the main part of

investigation with PW1 before issuance of Ex P6 FIR. He stated that he had not

examined any persons at the scene of offence. The evidence of PW1 discloses that he seized Ex P3 blank non judicial stamp papers of Rs 5,000/- ; Rs 1,000/- and Rs 500/- from the possession of A1 and A2 under cover of Ex P2 panchanama in the presence of LW2 Srinivas Rao and LW3 K. Satyanarayana who are panch witnesses for confession cum seizure panchanama of A1 and A2 are not examined by the prosecution inspite of giving sufficient ample opportunities and they filed memo along with prayer to close the evidence of LW2 and LW3 Srinivas Rao and K. Satyanarayana as their whereabouts are not known and hence their evidence was closed. Till date no steps were taken by the prosecution to examine LW2 and LW3 Srinivas Rao and K. Satyanarayana who are the

panch witnesses for confession cum seizure panchanama of A1 and A2 . The non

examination of LW2 and LW3 Srinivas Rao and K. Satyanarayana are fatal to the case of the prosecution.

22. The evidence of PW4 who is another Investigation Officer discloses that he produced A4 before the court on PT Warrant and took police custody of A4 from the court and on interrogation A4 confessed the offence and he secured the presence of

PW2 and LW8 Mohd Wasim and recorded the confessional statement of A4 and latest

they produced A4 before the court. He further stated that he did not seize any thing from the possession of A4.

23. As per Section 26 of Indian Evidence Act -confession made by the accused while in custody of police not to be proved against him . Admittedly nothing is seized from

the possession of A4 in pursuance of the confession made by A4. Therefore mere

confession made by A4 without any seizure is inadmissible. More over PW2 who is the

panch witness for confession panchanama of A4 did not support the version of

prosecution and stated that no panchanama was conducted and nothing was seized in his presence and he only identified his Ex P4 signature.

24. The evidence of PW4 discloses that he doesnot know the case pertains to Chandrayanagutta PS relating to A4 was ended in acquittal. Ex D1 is the certified copy of Judgment in CC.No. 762/2005 on the file of Hon'ble CMM, Nampally, Hyderabad

dt 5-8-2011 which discloses that the said case was ended in acquittal of A4 for the

offences punishable U/s 420, 258, 259 r/w 34 IPC and Section 64(c) and 69 (b) of Indian Stamps Act, 1899 . As seen from the record, PW1 is the complainant and also one of the Investigation Officer . When the complainant is also one of the Investigation Officer ,

his evidence is to be scrutinized carefully as the complainant cannot be an

Investigation officer in a case registered by a police. As per settled law, the

complainant should not be the Investigation Officer against the accused. Even if the complainant's evidence should not be based on his personal knowledge, but the very fact that the complainant received information, which he believed to be true and on the

basis of which he gave report, certainly effects the Investigating person. The

complainant is normally expected to seek the material in support of his complaint. If he himself is the Investigation, entire concept of independent and unbiased investigation would have jeopardized.

25. The evidence of PW2 is not corroborated by any cogent evidence to establish the alleged seizure of Ex P3 blank non judicial stamp papers from the possession of the accused under cover of Ex P2 panchanama. The prosecution failed to establish the seizure of Ex P3 from the possession of A2 in the presence of LW2 and LW3 Srinivas

Rao and K. Satyanarayana under cover of Ex P2 panchanama. Admittedly even

according to the prosecution nothing was seized from the possession from the

possession of A4. PW5 /another Investigation Officer in his evidence stated that in Ex P3 stamp papers there is no mention as to who and from whom it was purchased and Ex P1 complaint also does not reveal the same. Ex P3 are only three blank non judicial stamp papers of Rs 5,000/- ; Rs 1,000/- and Rs 500/- .

26. PW7 denied that as per the Investigation there is no case made out against A2 and A4 and without any material witness they foisted false evidence against A2 and A4.

27. When the evidence of Pws 1 to 7 coupled with Ex P1 to P7 is put together it is not

corroborating with each other in respect of material aspects about the alleged

commission of the offences U/s 258 and 259 IPC, that these accused no 2 and 4 were found in possession of Ex P3 fake non judicial stamp papers and the same were seized

from them and A2 and A4 having reason to believe to be counterfeit of the stamp

issued by Government and are selling the same at lesser prises to use them as

genuine and knowing it to be a counterfeit of any stamp issued by the Government for the purpose of revenue and the Investigation Officer recovered the same from their

possession or in pursuance of the confession made by them under cover of

panchanama .

28. For the reasons set forth in the preceding paragraphs, I am of the considered opinion that the prosecution failed to establish the charges U/s 258, 259 r/w 34 IPC against the accused no 2 and 4 beyond all reasonable doubt and therefore benefit of doubt can be given to the accused .

29. In the result, I find that the accused no 2 and 4 are not guilty for the offences punishable Under Section 258, 259 r/w 34 IPC and accordingly they are acquitted as per the provisions U/s 248(1) Cr.P.C . The bail bonds of the accused no 2 and 4 shall stands cancelled after the expiry of appeal time.

Dictated to Personal Assistant, transcribed and typed by her and corrected and

pronounced by me in the open court today on this the 21 st day of May , 2015.

XII ADDL. CHIEF METROPOLITAN MAGISTRATE:

HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE: PW1 A. Yadagiri NIL PW2 Yousuf Ali Khan PW3 Manish Shankar

PW4 A.V. Satyanarayana PW5 S. Basanth Kumar PW6 A. Lakshmanna PW7 B. Gopal

DOCUMENTS MARKED

FOR PROSECUTION: Ex P1 : is the complaint dt 28-7-2003 Ex P2: is the admissible portion of confession cum seizure panchanama of A1 and A2 dt 28-7-2003 Ex P3: is the three blank non judicial stamp papers of Rs 5,000/-, Rs 1,000/- and Rs 500/- Ex P4: is the signature of PW2 on the panchanama of A4 dt 29-3-2004 Ex P5: is the opinion of PW3 dt 6-2-2004 Ex P6: is the FIR dt 29-7-2003 Ex P7: is the FIR dt 19-5-2014

FOR DEFENCE: Ex D1: is the certified copy of Judgment in CC.No. 762/2005

dt 5-8-2011

MATERIAL OBJECTS MARKED

NIL

XII ADDL. CHIEF METROPOLITAN MAGISTRATE:

HYDERABAD.

IN THE COURT OF THE XII ADDL.CHIEF METROPOLITAN MAGISTRATE:

HYDERABAD.

PRESENT: Smt P.V. Padma Lalitha Siva Jyothi,

XII ADDL.CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD.

DATED THIS THE 25 th DAY OF MAY , 2015. C.C.NO. 33 of 2015.

Between:

The State Through, .. Complainant.

The Sub-Inspector of Police, Nampally PS, Hyderabad .

And

N. Rama Swamy S/o N. Buchaiah , Age 34 years, R/o 18-3-505, Hanuman Bowli, Chatrinaka ,

Hyderabad. .. Accused.

This case is coming on for final hearing before me, in the presence of Lr. Sr.

A.P.P. for Prosecution and Sri K. Venkateshwar Rao , Legal Aid Counsel for the

accused and the matter having stood over for consideration, till this day the Court delivered the following:

J U D G M E N T

The Sub-Inspector or Police , Nampally PS, Hyderabad filed charge sheet in

Cr.No. 298/2014 Under Section 338 IPC against the accused. .

2. The case of the prosecution against the accused in brief is that on 2-10-2014 at about 2.00 P.M LW1's N. Suresh brother ie LW2 N. Srinivas Goud was travelling

from Red Hills to AC Guards on two wheeler bearing no AP 9 BF 2413 and when he

reached opposite to SBI , one TATA AS Auto bearing no 11 Y 6478 came from his back side in rash and negligent manner and dashed LW2 N. Srinivas Goud due to which he fell down and received bleeding injuries to his hands, legs and head and immediately he was shifted to Global Hospital for first aid and later he was shifted to Gandhi Hospital for treatment and on 6-10-2014 came to Police Station and lodged complaint against the diver of the auto ie the accused herein. Basing on the complaint LW6 M. Dhanraj registered a case in Cr.No. 298/14 U/s 337 IPC and the case file handed over to LW7 D. Nippun for further investigation and during the course of investigation LW7 D. Nippun secured the presence of LW1 N. Suresh and recorded his statement and visited the scene of offence and caused enquired about the incident but nobody came forward to give information about the incident and he visited the Gandhi Hospital and secured the

presence of LW2 N. Srinivas Goud examined him and recorded his statement and

subsequently he secured the presence of LW3 Kumar examined him and recorded his

statement and he deputed his staff with ionstructions to trace out the crime vehicle bearing no AP 11 Y 6478 and produce before him and on 20-10-2014 the owner of the vehicle ie LW4 S. Arun Kumar produced the driver of the crime vehicle bearing no AP 11 Y 6478 ie the accused and secured the presence of LW4 S. Arun Kumar examined him and recorded his statement and submitted the xerox copies of documents pertaining to the crime vehicle and on enquiry he disclosed his name and descriptive particulars and he confessed the offence and affected the arrest of the accused and released on bail and LW 7 D. Nippun collected the medical certificate from LW5 Dr Sandeep and gave opinion that the injuries sustained by LW2 N. Srinivas Goud are grievous in nature and basing on the opinion of LW5 Dr Sandeep , LW7 D. Nippun altered the section of law to 338 IPC and after completion of investigation he filed the charge sheet . Hence the charge.

3. This case was taken cognizance for the offence U/s 338 IPC against the accused .

4. On appearance of the accused , he was furnished with all the copies of documents as required U/s 207 Cr.P.C .

5. Accused was examined U/s 251 Cr.P.C and the accusations made against him for the offence U/s 338 IPC has been read over and explained to him in his vernacular language, for which he denied and pleaded not guilty and claimed to be tried.

6. The prosecution in support of their case got examined PW1 to PW5 and got marked Ex P1 to P6 .

7. After closure of the prosecution evidence , the accused was examined U/s 313 Cr.P.C on the incriminating evidence available against the accused , which he denied and reported no evidence on his behalf .

8. Heard arguments on both sides.

9. Now the point that arises for determination is whether the prosecution had made

out the guilt of the accused for the offence punishable U/s 338 IPC beyond all

reasonable doubt?

10. To establish the offence U/s 338 IPC , the prosecution has to prove that on 2- 10-2014 at about 2.10 P.M when PW2 was going to Red Hills towards AC Guards on his two wheeler vehicle bearing no. AP 09 BF 2413 and when he reached opposite to SBI ,

the accused being the driver of the crime TATA AS Auto bearing no. AP 11 Y 6478

drove the same in rash and negligent manner and dashed him and fell down on the road and sustained injuries beyond all reasonable doubt. The case of the prosecution is that on 2-10-2014 in the afternoon PW1 received phone call from some persons stating that

his brother PW2 met with an accident and one Tata AC dashed him near SBI , AC

Guards Branch , Nampally and when he reached the scene of offence , but the injured person ie his brother was already shifted to Global Hospital and from there he was shifted to Gandhi Hospital, Secunderabad and found his brother in unconscious stage with grievous injuries and he went to PS Nampally and gave Ex P1 complaint and on receipt of the complaint PW5 registered a case in Cr.No. 298/2014 U/s 337 IPC and issued FIR to all the concerned and he had examined and recorded the statement of PW1 in their PS and later he visited the Gandhi Hospital and examined and recorded

the statement of PW2 and PW3 and later he visited the scene of offence and made

enquiry but no body came forward to give fruitful information about the incident and on 20-10-2014 PW4 the owner of the crime vehicle ie TATA AS Auto bearing no. AP 11 Y

6478 produced the accused before him and he had examined and recorded his

statement and on interrogation the accused confessed the offence and he arrested him and produced before the court and after completion of investigation he filed the charge sheet into the court and he send the memo to the court for altering the section of law from 337 IPC to 338 IPC and LW5 Dr Sandeep issued the injury certificate of PW2 and he gave opinion that the injuries sustained by PW2 are grievous in nature .

11. To establish the offence U/s 338 IPC , the prosecution all together got examined 5 witness out of 7 listed witnesses and got marked Ex P1 to P6 . Ex P1: is the complaint dt 6-10-2014 Ex P2: is the 161 statement of PW3 Ex P3: is the 161 statement of PW4 Ex P4: is the FIR dt 6-10-2014 Ex P5: is the alteration memo Ex P6: is the injury certificate dt 9-12-2014

12. No oral or documentary evidence was adduced on behalf of the accused.

13. The learned APP submits that the prosecution had established the offence U/s 338 IPC against the accused through the evidence of PW1 to PW5 coupled with Ex P1 to P6 beyond all reasonable doubt. Whereas the learned counsel for the accused submits that the accused is in no way concerned with the injuries sustained by PW2 and the police foisted false case against the accused to support the injured person for getting compensation .

14. Before discussing the oral testimony of the prosecution witnesses it is expedient

to read some of the important averments mentioned in ExP1 signature of the PW1/

complainant basing on which case was registered against the accused which is as “

on 2-10-2014 at about 2.00 P.M when PW2 was going on his two wheeler vehicle

bearing no. AP 9 BF 2413 from Red Hills towards AC Guards and when he reached

opposite to SBI, the accused came on his TATA AS bearing no. AP 11Y 6478 in a rash

and negligent manner and dashed him from behind and on that he fell down and

sustained injuries on his head , legs and hands and he was shifted to Global Hospital and from there he was shifted to Gandhi Hospital .

15. The evidence of PW1/defacto /complainant discloses that on 2-10-2014 in the afternoon PW1 received phone call from some persons stating that his brother PW2

met with an accident and one Tata AC dashed him near SBI , AC Guards Branch ,

Nampally and when he reached the scene of offence , but the injured person ie his brother was already shifted to Global Hospital and from there he was shifted to Gandhi

Hospital, Secunderabad and found his brother in unconscious state with grievous

injuries and he went to PS Nampally and gave Ex P1 complaint. Nothing is elicited in the evidence of PW1 to show that that the accused is the driver of the crime vehicle bearing no. AP 11 Y 6478 and that he drove the same in rash and negligent manner and

dashed PW2 from behind and thereby caused grievous injuries to him. There is no

whisper in Ex P1 complaint about the name and identity particulars of the driver of the crime vehicle.

16. PW2 who is the injured did not support the version of the prosecution and stated that he had not seen the driver of the vehicle and could not identify him and he simply stated that in October , 2014 in the afternoon when he was going from Niloufer Hospital towards AC Guards and when he reached near Bank at AC Guards , one Tata

AC dashed him and he fell down and sustained injury on his head and fell

unconscious.

17. PW3 and PW4 who are the eye witnesses to the incident did not support the version of the prosecution . PW3 stated that he had not seen the driver of the auto and further stated that on 2-10-2014 at about 2.00 P.M he received a phone call from one

person stating that their employee by name N. Srinivas Goud ie PW2 met with an

accident while he was going on motor bike near SBI Bank, Bazarghat Branch and he was shifted to Global Hospital and immediately he went to Global Hospital and found the said Srinivas Goud ie PW2 with head injury and on the same day he was shifted to

Gandhi Hospital . He further stated that he doesnot know even the number of the

crime vehicle.

18. PW4 in his evidence has stated that he does not know the anything about the facts of the case and simply stated that he is the owner of the auto bearing no AP 11 Y 6748 and that the said vehicle never involved in any accident .

19. PW5 is the Investigation Officer and his evidence discloses with regard to the issuance of FIR and Investigation. According to the prosecution the alleged incident occurred on 2-10-2014 . Whereas Ex P1 complaint was given on 6-10-2014 and there is a delay of four days in giving the complaint.

20. It is essential that delay in lodging the complaint should be satisfactorily explained . But going through the evidence on record, it could be seen that the said delay has not been properly explained by the prosecution.

21. PW1 /complainant and PW2 /injured both are the residents of Hyderabad and nothing is elicited in their evidence about the reasons for delay in giving Ex P1 complaint . Under these circumstances the delay in lodging the complaint is certainly fatal to the case of the prosecution . In run over cases it is for the prosecution to establish the identity and rash and negligent driving on the part of the driver of the vehicle . But here in the present case, the prosecution failed to establish that this accused was the driver of the crime vehicle ie. TATA AS bearing no. AP 11Y 6478 and

that he drove the same in rash and negligent manner and dashed PW2 while he was

going from Niloufer Hospital towards AC Guards and caused grievous injuries to him.

22. PW2 who is the injured and PW3 and 4 are the direct eye witness to the incident did not identify that this accused was the driver of the crime vehicle and that he drove

the same in rash and negligent manner and dashed PW2 while he was going from

Niloufer Hospital towards AC Guards and thereby caused grievous injuries to him. None of the eye witnesses or the injured identified that this accused was the driver of the crime vehicle and that he drove the same in rash and negligent manner and thereby caused grievous injuries to PW2.

23. When the evidence of PW1 to PW5 coupled with Ex P1 to P6 is put together , it is not corroborating with each other in respect of material aspects and the prosecution failed to establish that on 2-10-2014 at about 2.10 P.M when PW2 was going to Red Hills towards AC Guards on his two wheeler vehicle bearing no. AP 09 BF 2413 and when he reached opposite to SBI , the accused being the driver of the crime TATA AS Auto bearing no. AP 11 Y 6478 drove the same in rash and negligent manner and dashed him and fell down on the road and thereby caused grievous injuries to him beyond all reasonable doubt .

24. For the reasons set forth in the preceding paragraphs, I am of the considered opinion that the prosecution failed to establish the commission of the offence U/s 338 IPC by this accused beyond all reasonable doubt and therefore benefit of doubt can be given to the accused .

25. In the result, I find that the accused is not guilty for the offence punishable Under Section 338 IPC and accordingly he is acquitted as per the provisions U/s 255(1) Cr.P.C . The bail bonds of the accused shall stands cancelled after the expiry of appeal time .

Typed to my dictation by the Personal Assistant, corrected and pronounced by

me in the open court today on this the 25 th day of May , 2015.

XII ADDL. CHIEF METROPOLITAN MAGISTRATE:

HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE: PW1 N. Suresh NIL PW2 N. Srinivas Goud PW3 B.N. Kumar PW4 S. Arun Kumar PW5 D. Nippun

DOCUMENTS MARKED

FOR PROSECUTION: FOR DEFENCE: Ex P1: is the complaint dt 6-10-2014 NIL Ex P2: is the 161 statement of PW3 Ex P3: is the 161 statement of PW4 Ex P4: is the FIR dt 6-10-2014 Ex P5: is the alteration memo Ex P6: is the injury certificate dt 9-12-2014

MATERIAL OBJECTS MARKED

NIL

XII ADDL. CHIEF METROPOLITAN MAGISTRATE:

HYDERABAD.

IN THE COURT OF THE XII ADDL.CHIEF METROPOLITAN MAGISTRATE:

HYDERABAD.

PRESENT: Smt P.V. Padma Lalitha Siva Jyothi,

XII ADDL.CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD.

DATED THIS THE 21 st DAY OF MAY , 2015 C.C.NO. 12 of 2015 .

Between:

The State Through, .. Complainant.

The Sub-Inspector of Police, PS Nampally, Hyderabad .

And

B. Anil @ Batrula S/o B. Nageshwar Rao, Age 19 years, R/o Wadder Bazar, Ramakrishna Puram, Chintrakani,

Khammam. .... Accused.

This case is coming on for final hearing before me, in the presence of

Lr. Sr. A.P.P. for Prosecution and Sri Chandra Shekar , Legal Aid Counsel for the accused and the matter 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 , PS Nampally, Hyderabad filed charge sheet in

Cr.No. 126/2014 Under Section 507 IPC against the accused .

2. The case of the prosecution against the accused in brief is that LW1 C. Kousalya is a Doctor by profession and LW2 Dr A.S. Murthy is her husband and LW1

Dr Kousalya is the user of phone bearing no 9490316838 and the accused is the

resident of Khammam Dist and is the user of mobile having IMEI No.

91133565093894, 91133565093895 and with IMEI number he used different contact

numbers ie 9160343173, 8790893643, 9492092572, 81430976693, 9490081521,

9963987440, 8885273043, 8179099019, 9542849529 and about one year back LW1 Dr

Kousalya was receiving call to her mobile number 9490316838 from various numbers

from the accused at different timings and also sending messages and the accused

was causing her a lot of mental agony and disturbing her daily routine duties and her personal life and basing on the complaint LW5 D. Nippun registered a case in Cr.No. 126/2014 U/s 507 IPC and took up investigation and during the course of investigation LW5 D. Nippun secured the presence of LW1 Dr Kousalya and LW2 Dr A.S. Murthy and

examined recorded their statements and collected the CDs of accused using the

mobile numbers having different IMEI numbers and obtained the Tower location of

said IMEI and found that presently the accused is using the number bearing no

9542849529 at Ramakrishnapuram , Khamman and accordingly he deputed his staff ie LW3 and 4 P Suresh and Ch Appalanaidu , Police Constables for apprehension of the accused and the deputed staff apprehended the user of phone bearing nos 9542849529

bearing no IMEI Number 911335655093894, 9113356093695 at Ramakrishnapuram ,

Khamman and on enquiry he disclosed his descriptive particulars and voluntarily

confessed the offence stating that about a year back accidentally he dialed one unknown number and it got connected to one aunty ie LW1 Dr Kousalya and he saved her name as aunty in his phone and since then he is called her with different numbers

of phones (without their knowledge) he contacted her and after completion of

investigation he filed the charge sheet . Hence the charge .

3. This case was taken cognizance for the offence U/s 507 IPC against the accused .

4. On appearance of the accused , he was furnished with all the copies of documents as required U/s 207 Cr.P.C .

5. Accused was examined U/s 239 Cr.P.C and he denied the allegations and the

accusations made against the accused U/s 507 and the same has been read over

and explained to him in his vernacular language, for which he denied and pleaded not guilty and claimed to be tried.

6. The prosecution in support of his case got examined PW1 to PW3 and got marked Ex P1 and P2 .

7. After closure of the prosecution evidence, accused was examined U/s 313 Cr.P.C on the incriminating evidence available against him , which he denied and reported no evidence on his behalf.

8. Heard arguments on both sides.

9. Now the point that arises for determination is whether the prosecution had made

out the guilt of the accused for the offences punishable U/s 507 IPC beyond all

reasonable doubt?

10. To establish the offences U/s 507 IPC , the prosecution has to prove that these accused committed the offence of criminal intimidation by making phone calls to PW1 from various phone numbers in different timings and send the messages to her by taking precautions to conceal his name and address and disturbed her daily routine

duties and her personal life by using anonymous communications by making

precautions about her name and abode beyond all reasonable doubt . The case of the

prosecution is that PW1 has been receiving phone calls and messages from about

eight unknown different mobile numbers by saying good morning, good night and in the form of “poem” disturbing her daily duties and she suffered mental agony and her

mobile number is 9490316838 and on that she gave Ex P1 complaint and on receipt

of complaint PW3 made GD entry and as the offence is non cognizable offence he

filed requisition before the court to accord permission to register the case and accordingly permission was accorded and registered a case in Cr.No. 120/2014 U/s 507 IPC and issued FIR to all the concern and he had examined and recorded the statements of PW1 and LW2 AS Murthy in their PS and filed requisition before the service provider

and collected the call details of the accused mobile phone bearing numbers

9542849529, 9160343173, 8790893643, 9492092572 and traced out the accused as per the call details collected by him and he deputed his staff ie LW3 P. Suresh , Police Constable and PW2 to apprehend the accused persons and they served the notice on the

accused and collected the celkon phone from the accused and after completion of

Investigation he filed the charge sheet into the court.

11. To establish the offences U/s 507 IPC , the prosecution all together got examined 5 witnesses out of 3 listed witnesses and got marked Ex P1 and Ex P2 and MO1 Ex P1 : is the complaint dt 3-4-2014

Ex P2: is the FIR dt 7-4-2014 MO1: is the Celkon mobile

12. No oral or documentary evidence was adduced on behalf of the accused .

13. The learned APP submits that the prosecution had established the offence

Under Section 507 IPC a gainst the accused , through the evidence of PW1 to PW3

coupled with Ex P1 and P2 beyond all reasonable doubt. Whereas the learned counsel

for the accused submits that the accused did not commit any offence and he did not

make any phone calls to PW1 and no panchanama was conducted and nothing was

seized and they falsely implicated this accused in this case at the instance of the superior officers.

14. Before discussing the oral testimony of the the prosecution witnesses, it is

expedient to read some of the important averments mentioned in Ex P1 complaint

basing on which a case was registered against the accused which is as “ for the past one year , PW1 has been receiving calls from various numbers from a unknown caller at different timings and she suffered lot of mental agony and said calls disturbing her daily routine duties and her personal life and that she has been receiving the calls to

her mobile number 9490316838 from unknown caller numbers from mobile nos:

9160343173; 8790893643 ; 9492092572 ; 8143097693 ; 9490081521 ; 963997440 ;

8885273043 ; 8179099019 ; 9542849529 and prays to take necessary action.

15. The evidence of PW1/defacto complainant discloses that she has been receiving

phone calls and messages from about eight unknown different mobile numbers by

saying good morning, good night and in the form of “poem” disturbing her daily duties and she suffered mental agony and her mobile number is 9490316838 and on that she gave Ex P1 complaint.

16. PW1 in her evidence stated that she drafted the Ex P1 complaint in PS Nampally and stated that she did not give any proof to the police to show that the mobile numbers 9490316838 belongs to her at the time of giving Ex P1 complaint . She stated that she did not mention in Ex P1 complaint and not stated before the police specifically the

wordings of the messages and the words used by the alleged unknown caller. She

admitted that she did not state before the police and not mentioned in Ex P1 complaint that she received the messages from the unknown caller as good morning, good night and in the form of poem.

17. The evidence of PW3/Investigation Officer discloses that he did not collect any proof to show that the mobile bearing no 9490316838 belongs to PW1. PW3 in his chief examination he stated that he traced out the accused as per the call details collected by him relating to the mobile phone bearing nos: 9542849529 ; 9160343173 ; 8790893643 and 9492092572 and that the accused is using the different numbers . But he stated that he had not filed the call details alleged to be collected by him from the service providers for the reasons best known to him. He stated that he has also not

examined the service providers of the mobile numbers of the accused and PW1. He

stated that the four mobile numbers ie 9542849529 ; 9160343173 ; 8790893643 and

9492092572 belongs to the accused. But he did not file any proof to show that the said

four mobile numbers belongs to the accused. PW3 admitted that PW1 did not state

before him and not mentioned in Ex P1 complaint that she has been receiving the phone

calls and messages from eight unknown mobile numbers by saying good morning;

good night in the form of poem and disturbed her daily duty and she suffered mental agony and further admitted that PW1 did not state before him the particulars of the messages alleged to be received by her . She stated that he had not examined any independent witnesses in this case. As seen from the record MO1 is the celkon alleged to be seized by the Investigation Officer. But he stated that his Investigation reveals that he recovered only Micromax and stated that by mistake they mentioned as Micromax instead of celkon .

18. PW2 is the Police Constable who apprehended the accused and served notice U/s 41 (A) Cr.P.C . He stated that he did not state before the police about the names and particulars of the elders in whose presence they made enquiry with the accused. He stated that they traced out the particulars of the accused and the accused saved the mobile number of PW1 in his mobile in the name of aunty and when they called the

number saved by the accused as aunty it belongs to the complainant herein. PW3

admitted that PW2 did not state before him that the accused saved the mobile number of PW1 in his mobile phone in the name of aunty and admitted that PW1 did not state

before him that he had taken the photograph of the accused and they did not file any

proof to show that they deputed LW3 P. Suresh, PC to apprehend the accused. He

stated that he had not examined any independent witnesses in this case. PW3 further

admitted that PW2 did not state before him about the make of the mobile phone

recovered by him.

19. When the evidence of PW1 to PW3 coupled with Ex P1 and P2 and MO1 is put together , it is not corroborating with each other in respect of material aspects about the

alleged commission of the offence U/s 507 IPC by this accused. The material

omissions , discrepancies elicited in the evidence of Pws 1 to 3 gives a reasonable doubt about the genuineness of the case filed against the accused. The Investigation Officer even though he filed requisition before the service provider and collected call

details of the accused alleged mobile phone four numbers : 9542849529 ;

9160343173 ; 8790893643 and 9492092572, he did not file the call details of the accused mobile phone and not even filed any proof to show that the said four mobile phones details belongs to the accused and that he made phone calls and send the messages

to PW1 and that the mobile number bearing no. 9490316838belongs to PW1. The

prosecution did not rely on any cogent evidence to show that the mobile phone bearing

no. 9490316838 belongs to PW1 and that the four mobile numbers ie 9542849529 ;

9160343173 ; 8790893643 and 9492092572 belongs to the accused and this accused

send the messages and made the phone calls to the mobile phone number of PW1 by

taking precautions to conceal his name or abode and disturbed the daily routine work of PW1 and her personal life and committed criminal intimidation by making anonymous communications by concealing his name and particulars . The prosecution failed to establish the seizure of MO1 from the possession of the accused and that the said mobile belongs to the accused. Without there being any cogent corroborative evidence on record , it is highly improbable and unsafe to give conviction to the accused , basing on the sole oral testimony of PW1 and the Investigation Officer which is not of trust worthy in respect of material aspects about the alleged commission of the offence U/s 507 IPC by this accused.

20. For the reasons set forth in the preceding paragraphs, I am of the considered opinion that the prosecution failed to establish the offence U/s 507 IPC against the accused beyond all reasonable doubt and therefore benefit of doubt can be given to the accused.

21. The evidence of PW3/Investigation Officer discloses that he seized the MO1 celkon mobile from the possession of the accused. Since no body claimed right over MO1 , it shall be put in court auction and the sales proceeds shall be confiscated to the state after the expiry of appeal time.

22. In the result, I find that the accused is not guilty for the offence punishable U/s 507 IPC and accordingly he is acquitted as per the provisions U/s 255(1) Cr.P.C . The bail bonds of the accused shall stands cancelled after the expiry of the appeal time .

Dictated to Personal Assistant, transcribed and typed by her and corrected and

pronounced by me in the open court today on this the 21 st day of May , 2015.

XII ADDL. CHIEF METROPOLITAN MAGISTRATE:

HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE : PW1 Dr Kousalya Chakravathy NIL PW2 Ch Appala Naidu PW3 D. Nippun

DOCUMENTS MARKED

FOR PROSECUTION: FOR DEFENCE : NIL

Ex P1 : is the complaint dt 3-4-2014 Ex P2: is the FIR dt 7-4-2014

MATERIAL OBJECTS MARKED

MO1: is the Celkon mobile

XII ADDL. CHIEF METROPOLITAN MAGISTRATE:

HYDERABAD.