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IN THE COURT OF THE XIII ADDL CHIEF METROPOLITAN MAGISTRATE
(MAHILA COURT) : HYDERABAD
PRESENT:SMT. P. VIJAYA DURGA,
XIII ADDL CHIEF METROPOLITAN MAGISTRATE,
HYDERABAD.
Dated this the 9th day of April, 2018
C.C. No. 630/2010 Between:
The State of Telangana represented through The Sub-Inspector of Police,
WPS,CCS,DD, Hyderabad. ... Complainant
AND
B.D. Jagan Mohana Chary, S/o. B. Dhananjaya Chary, aged : 35 years, Occ : Pvt. Service, R/o. Plot No. 40, Vivekananda Colony, Chinthal Bazar, Bollaram,
Secunderabad. ....Accused
This case is having come up before me for final hearing on 09-0-2018 in the presence of Asst. Public Prosecutor and Sri B. Srinivasa Chary and his associates, Counsel for the accused and the matter having heard and stood over for consideration till this day, this Court delivered the following :
J U D G M E N T
1. The State through the Sub-Inspector of Police, WPS,CCS,DD, Hyderabad has laid charge sheet against the accused in Cr.No. 327/2009 for the offence U/Secs.
498-A,406 and 506 of IPC and Sections 4 and 6 of Dowry Prohibition Act.
2.The gist of the prosecution case is as follows:
The case of the prosecution is that themarriage of LW-1 N. Madhuri, the defacto complainant cum victim was performed with accused on 21-08-2008 at Vishwa
Brahmana Community, Sanjeeva Reddy Gardens, Bollaram, Secunderabad and at the time of the marriage on the demand of accused, her parents gave cash of Rs. 2 lakhs, 15 tulas gold, furniture worth Rs. 50,000/-, clothes worth Rs. 23,000/-, three gold rings, silver and other items towards dowry and after marriage, she joined accused at her matrimonial house at Bollaram and since then he started harassing her and subjected her to mental and physical cruelty on the instigation of his family members and due to his harassment, she left her job in HDFC Bank and that he insisted her to bring
additional dowry from her parents and when she refused, he used to abuse her and bet
her and during the month of February, 2009, he demanded her to bring Rs. 5 lakhs on the pretext of purchasing a house at Karimnagar and when she expressed inability, he
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threatened her with dire consequences and necked her out of the house with wearing apparel to bring additional dowry and on that she lodged a report against accused for taking necessary action against him.
3.Based on the complaint, the police registered the same and investigated into the case. During the course of investigation, the Investigation officer recorded the statements of complainant, witnesses and collected material documents from the victim and after completion of investigation police filed charge sheet against the accused. Thus, the facts and evidence collected established that the accused committed the offence as stated supra.
4.Upon considering the case of the prosecution, this court took cognizance for the offence under Sections 498-A,406 and 506 of IPC and Sections 4 and 6 of Dowry Prohibition Act against the accused.
5.On appearance of the accused, copies of the documents were supplied to him as required U/Sec.207 Cr.P.C. Accused was examined U/Sec.239 Cr.P.C and charges U/Secs. 498-A and 406 of IPC and Sections 4 and 6 of Dowry Prohibition Act were framed, particulars read over and explained to him. Accused denied the same and pleaded not guilty and claimed to be tried.
6.To prove its case, prosecution has examined P.Ws.1 to 4 and Exs.P-1 to 18 were marked and Ex.D-1 is marked on behalf of defence.
7.After completion of prosecution evidence, accused was examined under
Section 313 Cr.P.C, on the incriminating material available on record was offered to him seeking his explanations. Accused denied the evidence.
8.Heard arguments on both sides. Perused the record.
9.Now the points for determination are :
1. Whether the victim was subjected to cruelty and harassment both mentally and physically for want of additional dowry by the accused under Section 498-A IPC as contended by the prosecution?
2. Whether the accused entrusted with dowry and dowry articles of the victim and converted to personal use and misappropriated it, and committed criminal breach of trust under Section 406 IPC as contended by the prosecution ?
3. Whether the accused demanded for dowry from the victim or her family members under Section 4 of D.P. Act as contended by the prosecution?
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4. Whether the accused received and retained the articles and amount towards dowry from the family members of the victim under Section 6 of the D.P Act as contended by the prosecution? For the purpose of convenience and to avoid duplicity all points are answered together.
POINT Nos.1 to 4:
10. The charge framed under Section 498-A IPC. The definition of Sec. 498- A of IPC is - “Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.” Explanation :- For the purposes of this section, “cruelty” means - (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman ; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
12.The charge framed under Section 4 of Dowry Prohibition Act, 1961. The definition is : “If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be any dowry he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extent to two years and with fine which may extend to ten thousand rupees.”
13.The charge framed under Section 6 of Dowry Prohibition Act, 1961. The definition is : “If any person fails to transfer any property as required by sub-section (1) within the time limit specified therefor, or as required by sub-section (3) he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years or with fine or with both. (which shall not less than five thousand rupees, but which may extend to ten thousand rupees).”
14.Admittedly, the marriage of PW-1 was performed with A-1 on 21-08-2008 at Sanjeeva Reddy Gardens, Bolaram. At the time of the marriage, on demand of the accused, her parents gave Rs. 2 lakhs cash, 15 tulas gold, Rs. 50,000/- worth furniture, Rs. 23,000/- for clothes and other items towards dowry and the accused received the same. PW-1 also states that her parents bore all the expenses of the marriage and she also admits that her parents presented Rs. 2 lakhs cash, 15 tulas gold, Rs. 50,000/- worth furniture, Rs. 23,000/- for clothes as per the demand. Pws. 2 and 3 are parents of PW-1. They also states in their evidence that they presented Rs. 2 lakhs cash, 15 tulas gold and Rs. 23,000/- for clothes and Rs. 42,000/- for furniture and 3 gold rings and other house hold articles were given to the accused on their demand at the time of the marriage.
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15.PW-1 stated that she has no evidential proof with regard to the presentation of dowry, gold and furniture and defence counsel given a suggestion that the said cash and gold, furniture and clothes not given to the accused and the same is denied by PW-1. PW-1 filed some photographs and PW-2 also filed Ex.P-10 gold receipt issued by Chandana Brothers, Ameerpet, Hyderabad, dt. 18-11-2007 and also filed
Ex.P-11 gold receipts issued by Chandana Brothers, Ameerpet, Hyderabad, dt. 08-09- 2008 paid through cash. Ex.P-12 Gold receipt issued by R.S. Brothers, Ameerpet,
Hyderabad, dt. 20-07-2008, amount paid through Credit Card. Ex.P-13 Gold receipt issued by J.C. Brothers, Ameerpet, Hyderabad, dt. 29-08-2008 in the name of PW-2.
16.The prosecution argued as per Ex.P-10 to P-13 gold receipts disclsoes with regard to the presentation of the gold. With regard to the presentation of the cash of Rs. 2 lakhs, PW-2 stated that he had taken a loan from the office to that effect, he filed Ex.P-14 Annual statement issued by the Chief Accounts Officer of Chief
Engineer Office of A.P. Telecom Civil Zone, Hyderabad, dt. 20-06-2008 containing two papers.
17.On verification of Ex.P-14 issued by the GPF, it discloses that in the month of October, 2017 i.e., 10 months prior to the marriage of PW-1 with accused.
The prosecution stated that all the documents under Ex.P-10 to P-13 i.e., gold receipts i.e., annual statement, the presentation of the articles to the accused. As seen from the said Exs.P-10 to P-13 gold purchase receipts on different dates. Ex.P-14 withdrawl amount in the month of October, 2007 discloses withdrawal of the amount of Rs. 3 lakhs. But these does not confirm the presentation of these articles and cash to the accused. No single document filed i.e., photographs, videos and any other document filed by the prosecution to prove with regard to the presentation of these articles and cash to the accused on the date of the marriage. Moreover, except the mother and father of PW-1, no other independent witness was examined by the prosecution or the
Investigation officer to support the case of PW-1 with regard to the presentation of these articles and cash to the accused and also demand of dowry.
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18.The evidence of PW-1 and PW-2 discloses that prior to the marriage, they enquired about the accused after satisfaction only, they will perform the marriage of PW-1 with accused. PW-1 filed some documents with regard to Ex.P-2 colour xerox application form submitted by the accused before Sri Lalitha Marriage Consultancy.
Ex.P-4 is the MBA Certificate of PW-1 and Ex.P-5 marks memo of PW-1 and they stated that PW-1 completed MBA. The prosecution further stated that the accused cheated
PW-1 and family members with regard to qualification and has not completed MBA and they filed Ex.P-2 colour xerox copy of the application form submitted by the accused before Sri Lalitha Marriage Consultancy and it discloses that the accused completed B.Com, PGDGM and there is a correction and added MBA with different ink. The Court cannot rely on this document to show that accused cheated PW-1 without examining Sri Lalitha Marriage Consultancy whether accused given his particulars because there is a correction in the qualification of the accused and added
MBA.
19.PW-1 stated that on the next day of the marriage, accused and her in- laws started harassing for additional dowry in the month of September, 2008, he has recorded all the discussions held in between her and him in the bed room and that was placed before the family members. She further stated that on 06-11-2008 prior to her birthday, accused and her mother-in-law made galata and beaten her indiscriminately thrown her on the ground, snatched away her mobile and broken.
Accused always demanding her Rs. 10,000/-, Rs. 20,000/-, Rs. 25,000/- Rs. 50,000/- and Rs. 5 lakhs and knowing this her father and her brother came to her in-laws house and tried to convince the accused but he did not listen. On that day, Madhusudhan, brother of her father-in-law was present.
20.PW-2 is the father of PW-1 stated that on 22-08-2008 accused demanded to perform Odibiyam function immediately otherwise take away her daughter and demanded furniture to him. He performed the odibiyam function as per their wish and also purchased furniture worth Rs. 42,000/- and given to them on 25-08-2008. PW-3 mother of PW-1, she stated that she did not state anything with regard to the alleged harassment dt. 22-08-2008. PW-1 stated in different version. She stated that accused
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demanded additional dowry. But her father is examined as PW-2. He stated different versions that they demanded to perform Odibiyam function. Accordingly, he performed the Odibiyam function as per their wish and property worth of Rs.
42,000/- . PW-2 further stated that on 06-11-2008 just one day before of her daughters birthday there was galata tool place after knowing that himself and his son went to their son, they found that her daughter was beaten indiscriminately in the room and her mobile was broken and made efforts to convince accused, but he was adamant. In the process, they have to remain in their house at night. Mr. Madhusudhana Chary,
B. Dhanunjaya Chary, father of the accused was present in the house. On the next day on 07-11-2008 when they started moving out for duties the gate was locked by Smt.
Subhadramma i.e., mother of the accused and they were not allowed to go out. On 07-11-2008 she was not allowed to go to the office and locked the gate. They continued the same galata. Her father, brother and Madhusudhan have not attended the office on that day. PW-1 stated that accused demanded amounts and Rs. 5 lakhs.
After knowing the same, her father and her brother came to her in-laws house. But
PW-2 did not state about the demand of additional dowry amount of Rs. 5 lakhs and demand of amounts of Rs. 10,000/-, Rs. 20,000/-, Rs. 25,000/- and Rs. 50,000/-.
21.The mother of PW-1 who is examined as PW-3, she stated in different version of 06-11-2008, they received a phone call from the father of the accused and accused beat PW-1. Immediately, her husband and went to the house of the accused and her husband and her son went to the house of the accused and accused did not allow PW-1 and her husband and son to go outside of the house and they locked the main doors. The entire night a quarrel took place. Accused detained her husband,
PW-1 and her son till the next day 12 PM and they did not allow PW-1 and her husband to attend job. Accused used to raise a dispute with regard to the petty issues. But no complaint was lodged by PW-1 nor PW-2 before the police and Pws. 2 and 3. They did not state with regard to the demand of additional dowry of Rs. 5 lakhs by the accused.
22.PW-2 stated that in the month of September, 2008, her daughter fell ill in their house but the accused did not care for her health, she was suffering with high fever and lost her voice due to cough, so he took her daughter and brought to his
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house and gave her treatment in MAA hospital, Begumpet and filed prescription of
MAA hospital before this court under Ex.P-6.
23.The prosecution has relied on some Judgments reported in AIR 2004
Supreme Court 1708 in between Nallam Veera Satyanandam and others,
Appellants v. Public Prosecutor, High Court of A.P., Respondents. There can be no reason to disbelieve the contents of said earlier statement merely because it is not in conformity with the prosecution case as to the harassment meted out to the victim. The Courts would have to examine the evidentiary value of said statement on its own merit and unless there is material to show that the statement made is inherently improbable and the same was made by the victim either under pressure from outside source or because of her physical and mental condition, the same cannot be rejected as untrue or unreliable.
24.Also relied upon another Judgment in AIR 2014 Supreme Court 817 in between Surinder Singh v. State of Haryana. Section 2 of the Dowry Prohibition Act, 1961, states that dowry means any property or valuable security given or agreed to be given either directly or indirectly one party to a marriage to the other party to the marriage at or before or at any time after the marriage in connection with the marriage of the said party. Sufficient quantity of dowry was not given and that transaction was sought to be completed by asking for more money after the marriage for the business of the appellant. This demand has a connection with the marriage. As such it constitutes dowry.”
25.Also relied upon another Judgment reported in between Chaudhari Ramjibhai Narasangbhai v. State of Gujarat and others. A witness can be contradicted with a contrary version in his earlier statement but not with those contained in the statements of other witnesses.”
26.Also relied upon another Judgment reported in betweenModinsab Sasimsab Kanchagar v. State of Karnataka and another. In this case, the Court held that the accused demanded for Rs. 10,000/- for Society loan made by the appellant, thus, may not be a demand in connection with dowry but is certainly an unlawful demand for a property or valuable security and there is clear evidence of the prosecution to show that the deceased was subjected to harassment by the appellant on account of her failure to meet the aforesaid demand of Rs. 10,000/-. “
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27.The defence counsel stated that Ex.P-6 does not have date and name mentioned as Miss Madhuri and the same was issued before marriage. PW-1 except filing of this document, she did not state that she suffered with cold and fever in the month of September, 2008 and she has taken treatment.
28.PW-3 who is the mother of PW-1 stated that in the month of September, 2008, PW-1 suffered with ill health, fever, cold and cough. The family members of the accused did not give medical assistance to PW-1. They took back PW-1 to their house and gave treatment in Meghana Hospital. As per the evidence of PW-2, they gave treatment in MAA Hospital. But PW-3 who is the mother of PW-1, stated that they provided treatment to PW-1 in Meghana Hospital. As seen from Ex.P-6, there is no date and name as mentioned as Miss Madhuri M. On perusal of this document, the dates mentioned in the medical prescription under Ex.P-6 is dt. 22-09-2008 and 04-10- 2008. It is mentioned in different ink pen and this document also does not disclose when initially PW-1 taken treatment without examining the Doctor who has given the treatment to PW-1, the Court cannot come to conclusion and cannot rely on this document to show that PW-1 has taken treatment.
29.PW-1 further stated that on 04-11-2008, Gruhapravesam was performed in the upstairs portion without her presence and it was not informed to her. On 23-02-2009, her mother-in-law demanded Rs. 5 lakhs when she refused to give, she asked her to leave to her parents house. At that time, the accused was present but he kept silent. He beat her indiscriminately when she ran into the bedroom, he beat her, when she came out to the hall, he beat her in front of all the family members. Her mobile was taken so that she could pass any message to her parents. When her parents tried to call, her mobile was switched off. They may call to land line. Her father-in-law informed about the galata has taken place. Her parents rushed and questioned the accused. Then, accused beat her father stating that she is her wife, he can do as he like and they did not allow to go out. PW-2 made a call to 108, then they were allowed at 9.30 PM. Since then, she is residing in her parents and demanded amounts, never provided her proper food, harassed her by not allowing her to go to office. On 22-02-2009, accused her Rs. 5 lakhs for the construction of a house at
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Karimnagar. When she refused, he beat her indiscriminately in front of all the family members. She kicked her with leg on her back, due to the harassment, she filed a complaint.
30.PW-2 stated that on 22-02-2009, Sri B. Dhanunjay Chary demanded fruits for the Shivaratri festival as a customary to honour, they have purchased fruits and handed over them in the house. On 23-02-2009 Shivaratri festival day, herself and her wife went to Keesara Siva Kshetram for darshan and came back at 6.30 PM, when they contacted her daughter, they were not getting, they have telephoned to their land line number then the father of the accused informed galata has taken place again.
Herself, her son and her wife went to their house and discussed the galata. Himself, his son and his wife went to their house and discussed the galata. The accused was very adamant and he was not in a position to hear their words, then he asked him why he is beating his daughter every now and then. Accused uttered that she is his wife and do he beat as he like, who are you to question. Then he protested, he again beaten him also on the eye part. After receiving blow, his eye was swollen. The photo copy of the eye and prescription of the doctor were submitted to the Court under Ex.P-8 and
Ex.P-9. The original prescription of PW-2 is dt. 24-02-2009.
31.PW-3 who is the mother of PW-1 also stated that on 23-02-2009, they went to Keesara for darshan and came back at 6.30 PM. Then they tried to contact
PW-1, but they are not getting the phone. Immediately, they telephoned to land line, the father of the accused lifted the phone and informed that a galata has taken place and they demanded Rs. 5 lakhs cash. On that day, accused did not allow them to their house. Her daughter asked them to take back her to their house by weeping. When her husband questioned the accused about the beatings to PW-1, accused also beat her husband and he sustained injury on his eye and the spectacles of her husband are also broken and there is no alternative, they called 108 ambulance and 100. In the meanwhile, they allowed them to go out. On 01-05-2009, accused and his uncle came to their house and threatened them to face dire consequences, in case PW-1 not returned to their house.
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32.On 26-05-2009, PW-1 gave a complaint to the police and he further stated that on 05-07-2009, accused and his sister came to their house and quarrelled with them. Immediately he informed to the police over phone. On 26-07-2009, they approached the DCP. PW-2 did not state that father of the accused demanded
additional dowry of Rs. 5 lakhs without examining the doctor who has given the
treatment and issued Ex.P-9 the prescription. The Court cannot come to conclusion that PW-2 sustained injuries one eye and he has taken treatment in Aditya Netralaya,
Lakdi-ka-pul, Hyderabad. Ex.P-8 is also two photographs with CD and did not obtain the date, month and year.
33.Before filing this case, PW-1 filed O.P.No. 987/2009 under Ex.D-1 before the Hon'ble Family Court, Hyderabad and the same was dismissed on 31-12-2009 observing that on the sole testimony of PW-1 as contradictory without any cogent reasons or evidence, the marriage cannot be observed on flimsy grounds. PW-1 filed some SMS prints message under Ex.P-17 from cell phone of PW-1 to her mother on different dates in the year 2009-11 and after filing of the case i.e., in the year 2013 and not produced the cell phone from which cell phone to which cell phone PW-1 sent these messages and also filed Ex.P-15 voice recorded CD conversation of accused and
PW-1 and marked to subject to objection that the voice is not of accused and also filed
Ex.P-16 SMS print messages from phone to PW-1 to PW-2 on different occasions on 07- 11-2008, 03-12-2008 and 13-12-2008. Here also PW-1 did not file any cell phone through which cell phone to which cell phone, the said messages were sent by PW-1.
Moreover, those documents are not handed over to the police during investigation.
They filed before the Court during evidence.
34.PW-4 is the Investigation officer. He registered the case and recorded the statements of the witnesses and LW-4 Asst. Commissioner of Police received complaint from PW-1. Basing on the complaint, he registered a case. She also admits that except Exs.P-1 and P-2, LW-4 did not hand over any case file to her and hence, she cannot say any counselling was held between PW-1 and the accused at the time of receiving the complaint. Basing on the complaint and statements of the witnesses, she filed charge sheet against A-1 and also stated that PW-1 and other witnesses not
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informed to her during investigation that they are holding some documents and they will file later or at the time of trial. The defence counsel stated that all documents under Ex.P-3 and P-17 are incorporated for the purpose of this case.
35.Under the above discussion, the prosecution has miserably failed to prove the guilt of the accused for the offence under Section 498-A of IPC and Sections 4 and 6 of Dowry Prohibition Act. The points are answered accordingly.
POINT NO. 2 :
36.The charge framed under Section 406 of IPC. The definition is : “Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both.”
There is no evidence with regard to the entrustment of dowry and dowry articles by PW-1 to the accused and they converted for their personal use and misappropriated and committed criminal breach of trust. Hence, the prosecution has miserably failed to establish the guilt of the accused for the offence under Section 406 of IPC. The point is answered accordingly.
37.In the result, the accused is found not guilty for the offence under
Sections 498-A and 406 of IPC and also Sections 4 and 6 of Dowry Prohibition Act and accordingly he is acquitted under Section 248(1) Cr.P.C. The bail bonds of the accused shall stands cancelled after expiry of appeal time.
Partly dictated and partly typed to my dictation by the Stenographer Grade-II, corrected and pronounced by me in the open court on this the 9th day of April, 2018.
XIII ADDL. CHIEF METROPOLITAN MAGISTRATE
HYDERABAD.
APPENDIX OF EVIDENCE: WITNESSES EXAMINED FOR: PROSECUTION:DEFENCE:
PW-1 : Smt. N. Madhuri, -Nil- defacto complainant / victim
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PW-2 : N. Vishwanatham, Father of PW-1. PW-3 : Smt. N. Suguna, Mother of PW-1. PW-4 : Smt. Vijaya Kumari, WSI of Police, Investigation officer and filed charge sheet.
EXHIBITS MARKED FOR: PROSECUTION:
Ex.P1 : Complaint of PW-1. Ex.P2 : Colour Xerox copy of the application form submitted by the accused
before Sri Lalitha Marriage Consultancy.
Ex.P3 : Colour Xerox copy of the application submitted by PW-1 before the Sri Lalitha Marriage Consultancy. Ex.P4 : Provisional M.B.A Certificate of PW-1. Ex.P5 : M.B.A. Marks memo of PW-1 (Original) Ex.P6 : Doctor prescription of PW-1 issued by MAA hospital private Limited, Lakdikapul, Hyderabad. Ex.P7 : Quotation proforma invoice of DAMRO furniture private limited of Banjara hills show room dt. 25-08-2008 along with receipt (3 papers). Ex.P8 : Two photographs with CD. Ex.P9 : Original prescription of Aditya Netralaya, Lakdikapul, Hyderabad, dt. 24-02-2009. Ex.P10 : Gold receipt issued by Chandana Brothers, Ameerpet, Hyderabad, dt. 18-11-2007, Amount was paid through Debit card of ICICI Bank. Ex.P11 : Gold receipt issued by Chandana Brothers, Ameerpet, Hyderabad, dt. 08-09-2008, paid through cash. Ex.P12 : Gold receipt issued by R.S.Brothers, Ameerpet, Hyderabad, dt. 20-07-2008, amount paid through Credit card. Ex.P13 : Gold receipt issued by J.C. Brothers, Ameerpet, Hyderabad,
dt. 29-08-2008 in the name of PW-2.
Ex.P14 : Annual Statement of PW-2 issued by the Chief Accounts Officer of Chief Engineer office of A.P. Telecom Civil Zone, Hyderabad,
dt. 20-06-2008 contains 2 papers.
Ex.P15 : Voice recorded CD. (the conversation between accused and PW-2) Ex.P16 : SMSs print outs (Messages) from phone No. 9866205109 of PW-1 to mobile phone no. 9490214299 of PW-2 on three different dates 07-11-2008 and 13-12-2008 (Along with CD with certificate under 65-B of I.E. Act) Ex.P17 : SMSs print outs (Messages) from the mobile phone of A-1(A1 phone no. 9052099982) to the cell phone of PW-1. Ex.P18: FIR in Cr.No. 327/2009.
DEFENCE:
Ex.D-1 : Order copy in O.P. No. 987/2009.
MATERIAL OBJECTS MARKED FOR:
Nil
XIII ADDL. CHIEF METROPOLITAN MAGISTRATE
HYDERABAD
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