II Addl.J.F.C.M., Kadapa 1 C.C.No.490 of 2018
IN THE COURT OF THE II ADDITIONAL JUDICIAL MAGISTRATE OF FIRST
CLASS, KADAPA.
Present: Sri R.ASHOK KUMAR,
Spl. Judl. Magistrate of I Class for Prohibition and Excise Offences, Kadapa FAC II Addl. Judicial Magistrate of First Class, Kadapa.
Monday, this the twenty fifth (25th)day of March, 2019.
C.C.No.490/2018
Between: State Represented by The SubInspector of Police, Kadapa Taluk Police station.
...Complainant
And
1.Shaik Mahammad Hussain, aged about 39 years, S/o.Late Mahaboob Hussain, Residents of D.No.14/35611, Kummarikunta, Kadapa city.
2.Shaik Ilias Basha, aged about 28 years, S/o.Late Mahaboob Basha, Residents of D.No.10/24A, Khaleel Nagar, Kadapa city. …A.1 & A.2
This case coming on for final hearing before me on 20.03.2019 in the presence of learned Asst. Public Prosecutor for the State / Complainant and of
Sri P.Chandra Guptha, Legal Aid Counsel for A.1 and Sri S.Balaji, Advocate for
A.2, after hearing both sides, this court delivered the following:
J U D G M E N T
The SubInspector of Police, Kadapa Taluk Police Station has filed charge sheet against A.1 & A.2 in Crime No.279/2017 & 291/2017 of Kadapa 2
Taluk Police Station for the offence under sections 457, 380 of Indian Penal
Code.
2. The brief facts of the prosecution case are as follows:
i) On 10.08.2017, P.W.2 and her family members left to Kuwait having locked their house and returned on 28.09.2017. Having returned home, they found the doors of their house, iron safe break opened and on verification, found missing of 1 pair of gold ear studs weighing 1 ½ tulas, 1 pair of small gold ear studs weighing ¾ tula, 1 pair of gold mateelu weighing ½ tula, 1 gold ring weighing ½ tula, 1 small gold ring weighing 3 gms, all gold ornaments weighing 35.5 gms, worth Rs.60,000/, upon which, she approached the police and lodged report.
ii) On 19.09.2017, P.W.1 and her family members left to Nellore and returned on 21.09.2017 and having returned home, she found the doors of her house break opened and on verification, found missing of 1 gold Jadabilla weighing 8 gms,1 pair of gold jumkeelu weighing 12 gms, 1 pair of gold champasaralu weighing 8 gms, 1 pair of silver anklets along with pistholu weighing 20 tulas, all worth Rs.64,000/, upon which, she lodged report to the police.
Both the cases were registered and investigated into by P.W.5 and later, P.W.6, having taken up investigation, produced A.1 & A.2 on execution of
PT warrant and filed charge sheet on completion of investigation.
iii) During the course of investigation in Cr.No.97/2017 of II Town
P.S., Kadapa, on 14.09.2018, P.W.7, having received credible information,
II Addl.J.F.C.M., Kadapa 3 C.C.No.490 of 2018 secured the presence of P.W.3 and C.Fazal Ali as mediators and proceeded to
Doralagoreelu area on KadapaMachupalli road, where A.1 was found coming on a scooter in suspicious circumstances and on interrogation, he confessed about the commission of theft in this case besides confessing commission of theft in various other cases and while confessing so, produced some of the gold and silver ornaments which were committed theft by him, which included some of the gold ornaments that were committed theft in the respective houses of P.Ws.1 & 2. During the course of such confession, A.1 also confessed that some of the stolen articles were handed over to his brotherinlaw A.2. Having seized those ornaments along with the said scooter, P.W.7 arrested A.1 in the presence of mediators under a cover of panchanama drafted on the spot.
iv) On 21.09.2018, during the course of investigation in
Cr.No.97/2017 of II Town Police station, Kadapa, having received credible information, P.W.7 secured the presence of P.W.3 and S.Madhusudhana Murthy as mediators, secured the staff and proceeded to the area where Fisheries
Department office is situate, where they found A.2 trying to flee away on seeing the police and having apprehended him, he was interrogated, upon which, he confessed that he has received some of the stolen ornaments from A.1 and while confessing so, produced those ornaments from his pant pocket. The same were seized and A.2 was arrested under a cover of panchanama drafted on the spot in the presence of mediators.
v) Later, identification parades were conducted by P.W.4, wherein,
P.Ws.1 & 2 identified some of their stolen articles among other similar articles.
4
Having obtained PT warrant from the court, P.W.6 produced A.1 &
A.2 before the court and they were remanded to Judicial custody.
3.Cognizance is taken for the offences under section 457, 380 of Indian Penal Code against A.1 & A.2.
4.On appearance of A.1 and A.2, copies of the documents have been furnished to them as contemplated under Section 207 Code of Criminal
Procedure.
5. A.1 and A.2 are examined under section 239 of Code of
Criminal Procedure, charges under sections 457, 380 or 411 of Indian Penal
Code against A.1 and Section 411 of Indian Penal Code against A.2 are framed, read over and explained the contents to them in Telugu, for which, they pleaded not guilty and claimed to be tried.
6.During the course of trial, the prosecution examined seven witnesses i.e., P.Ws.1 to 7 and got exhibited P.1 to P.10 and M.Os.1 to 6. The evidence of Shaik Shamivulla, Shaik Ismail, Shaik Ghouse Peer,
E.Nagalakshumma, Shaik Jameela (L.Ws.2, 3, 5 to 7), Sathna Madhusudhan
Murthy (L.W.9) and Chabuk Savar Fajal Ali (L.W.10) was given up by the learned Assistant Public Prosecutor.
7. Heard both sides.
8. The learned Assistant Public Prosecutor argues that with the evidence adduced, the prosecution succeeded in proving the guilt of the accused for the offences alleged against them.
9. Per contra, the learned defence counsel argues that the
II Addl.J.F.C.M., Kadapa 5 C.C.No.490 of 2018 prosecution utterly failed to bring home the guilt of the accused beyond all reasonable doubt.
10. Now the points for determination are that:
1. Whether theft occurred in the respective houses of P.Ws.1
& 2 in relation to M.Os.1 to 6 and other articles?
2. Whether A.1 & A.2 were found in possession of those stolen articles M.Os.1 to 6 at the place, on the date as averred by the prosecution ?
3. Whether the prosecution is able to prove the guilt of
the accused beyond all reasonable doubt?
11. POINT No.1: Whether theft occurred in the respective
houses of P.Ws.1 & 2 in relation to M.Os.1 to 6 and other articles ?
The evidence of P.W.1 is that on 19.09.2017, having left to Nellore along with her family members, she returned on 21.09.2017 and having returned home, she found the doors of her house break opened and on verification, found missing of ear hangings, a pair of matees, Jadabilla and silver anklets etc, in all, gold ornaments weighing 28 gms, upon which, she lodged report in Taluk P.S., Kadapa and later, participated in the identification parade conducted by the Village Revenue Officer, wherein, she identified
M.Os.1 & 2 among similar articles.
12. The evidence of P.W.2 is that on 10.08.2017, having left to
Kuwait along with her family members, having locked their house, she returned on 28.09.2017. Having returned home, they found the doors of their house, iron safe break opened and on verification, found missing of a pair of big ear studs, a pair of small ear studs, a pair of matees and two gold rings, all weighing 35.500 gms, worth Rs.60,000/, upon which, she lodged report in Taluk P.S., Kadapa 6 and later, participated in the identification parade conducted by the Village
Revenue Officer, wherein, she identified M.Os.3 to 6 among similar articles.
13. The evidence of P.W.4 is that at the request of police, he conducted two identification parades, one on 03.10.2018 and another on 04.10.2018, wherein, P.Ws.1 & 2 identified their respective properties among other similar articles.
14. The evidence of P.W.5 is that, having received the respective reports of P.Ws.1 & 2, he registered cases in Cr.Nos.279/2017 & 291/2017 on respective dates, visited the respective houses of P.Ws.1 & 2, observed them and prepared rough sketch.
15. The evidence of P.W.6 is that having assisted P.W.7 in arresting
A.1 on 14.09.2018, he completed investigation in this case and filed charge sheet.
The evidence of P.Ws.1 & 2 as well as P.Ws.4 & 5 is not seriously challenged by the accused. Even the evidence of P.Ws.1 & 2 is not that these accused have committed theft in their house but it was done by some unknown offenders.
So, there is no controversy as to the commission of theft in the houses of P.Ws.1 & 2, but by unknown offenders.
16. Point No. 2): Whether A.1 & A.2 were found in possession of
those stolen articles M.Os.1 to 6 at the place, on the date as averred by the
prosecution ?
It is the evidence of P.W.7, the then Inspector of police, Kadapa
Urban Circle, supported by the evidence of P.W.6, the police officer, who
II Addl.J.F.C.M., Kadapa 7 C.C.No.490 of 2018 assisted him in arresting A.1 and filed charge sheet in this case, by the evidence of P.W.3, the panchayatdar that during the course of investigation in
Cr.No.97/2017 of II Town Police station, Kadapa, on 14.09.2018, having received credible information, he secured the presence of P.W.3 and C.S.Fazal
Ali as mediators and proceeded to a place near Doralagoreelu, reached the said place at about 8:45 a.m. and while checking vehicles, at about 9:00 a.m., found
A.1 coming on Honda Dio scooter, who tried to flee away on seeing the police, he was apprehended and on enquiry, he confessed about commission of house breaking and theft in houses in various areas within the limits of I Town police station, Chinnachowk police station, Kadapa Taluk police station and II Town police station including the offence in Cr.No.97/2017 of Kadapa II Town police station. While confessing so, he produced some of the gold and silver ornaments from out of the dickey under the seat of his scooter. A.1 also confessed about handing over some of the stolen properties to his brotherinlaw A.2. Having seized the same, P.W.7 also seized the said scooter, implements produced by
A.1 stating that they were used for house breaking, arrested A.1 under a cover of panchanama drafted on the spot in the presence of mediators and A.1 was produced before the concerned court for Judicial custody.
17. On 21.09.2018, during the continuance of investigation in
Cr.No.97/2017 of II Town Police station, Kadapa, having received credible information, P.W.7 secured the presence of P.W.3 and S.Madhusudhana Murthy as mediators, secured the staff and proceeded to the area where Fisheries
Department office is situate, where they found A.2 trying to flee away on seeing 8 the police and having apprehended him, he was interrogated, upon which, he confessed that he has received some of the stolen ornaments from A.1 and while confessing so, produced those ornaments from his pant pocket. The same were seized and A.2 was arrested under a cover of panchanama drafted on the spot in the presence of mediators.
18. It is the challenge of the learned defence counsel that there are several discrepancies in the evidence of P.Ws.3, 6 & 7 with regard to the time at which P.W.3 was secured, that the summons said to have been served on P.W.3 and another mediator requesting them to act as mediators, were not produced
before the court and argues that the Investigating Officer P.W.7 has not
followed the required procedure laid down under section 100(4) of Criminal
Procedure Code since he failed to secure the local residents of Doralagoreelu area as mediators and the mediators i.e., P.W.3 and another are not residents of that area.
19. At this juncture, it is felt necessary to see what section 100(4) of Criminal Procedure Code requires. Sec.100(4) Criminal Procedure Code reads thus:
“100. Persons in charge of closed place to allow search:
(1) Whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein. (2) …...... (3) …...... (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in
II Addl.J.F.C.M., Kadapa 9 C.C.No.490 of 2018 writing to them or any of them so to do. ….................”
So, as can be seen from section 100(1) coupled with section 100(4) of Criminal Procedure Code, the presence of two or more independent and respectable inhabitants of that locality where search is to be conducted, is required only when the search is being conducted in a closed premises.
20. In the present case, apparently, search is not conducted in any closed premises and it is in an open place. So, there is no such requirement for the presence of any mediator during the course of proceedings and P.W.7 seems to have secured the presence of mediators as an abundant caution.
So, the contention of the learned defence counsel that the provisions of section 100(4) Criminal Procedure Code is not followed, does not carry any weight.
21. Coming to the alleged confessional statement of A.1 before
P.W.7 in the presence of P.W.3 that he committed house breaking and theft, it is not admissible in evidence having been hit by section 25 of Indian Evidence Act and the only portion of his confessional statement admissible before the court is, that portion which led to discovery of certain other fact and in the present case, the portion of his statement, which led to recovery of some of the stolen articles from under the seat of the scooter, which was within the exclusive knowledge of
A.1. The cross examination by the learned defence counsel failed to shake the evidence of P.Ws.3, 6 & 7 as to the said recovery of stolen articles from A.1.
22.The learned defence counsel also contends that the implements like iron rod, bunch of keys said to have been used by A.1, were not 10 placed before the court and thereby prosecution failed to prove its case against the accused.
As rightly contended by the learned defence counsel, those implements said to have been seized from the possession of A.1, were not produced before the court and it is the contention of the learned Assistant
Public Prosecutor that those properties were produced before another court and hence, could not be produced before this court.
This court is not convinced with the contention of the learned defence counsel. This is a case where the direct involvement of A.1 in commission of theft in the respective houses of P.Ws.1 & 2, is not established in view of the evidence of P.Ws.1 & 2 that theft was committed by unknown offender. So, the only charge remained to be proved by the prosecution is, section 411 of Indian Penal Code for which, these implements said to have been used by A.1, are not required.
23. Coming to the arrest of A.2 and recovery of some of the stolen articles from his possession near Fisheries Department office on 21.09.2018, same is the contention of the learned counsel for A.2 that the Investigating
Officer did not choose to secure the local inhabitants of that area as mediators and thereby section 100(4) of Criminal Procedure Code is not strictly followed.
24. This point was already answered during the discussion as to the recovery of property from the possession of A.1. Same analogy can be applied to the recovery of property from the possession of A.2 on 21.09.2018 also. Here also, no search is conducted within any closed premises and property was
II Addl.J.F.C.M., Kadapa 11 C.C.No.490 of 2018 recovered from the possession of A.2 having been produced by him from out of his pant pocket consequent to his confessional statement and the Investigating
Officer had no knowledge as to the availability of those stolen articles in the pant pocket of A.2 until it was produced by him. So, that portion of confessional statement which led to discovery of some of the stolen articles from A.2, is proved by the prosecution, consequent to the failure of the accused to shake the evidence of P.Ws.3, 6 & 7.
25.Now, as provided under section 114 of Indian Evidence Act, it is presumed that A.1 and A.2 who were in possession of stolen goods, have either committed theft of the said goods or have received those goods, knowing them to be stolen and it is for the accused to account for those goods, which were found in their possession. A.1 & A.2 failed in accounting for the goods found in their possession. Consequently, prosecution succeeded in proving that
A.1 & A.2 have dishonestly received or retained M.Os.1 to 6 knowing that they are stolen though could not prove that A.1 committed theft of those properties personally.
26. Point No.3): Whether the prosecution is able to prove the guilt of the accused beyond all reasonable doubt?
Having failed in proving that A.1 has committed house breaking by night in order to commit theft and has committed theft, prosecution succeeded in proving the offence of dishonestly receiving or retaining stolen property by
A.1 & A.2 knowing it to be stolen.
27. In the result, A.1 is found not guilty for the offences under 12 sections 457 & 380 Indian Penal Code and he is acquitted under section 248(1) of Criminal Procedure Code for the said offences. A.1 & A.2 are found guilty for the offence Under section 411 of Indian Penal Code and they are convicted under section 248(2) of Criminal Procedure Code.
Typed to my dictation to the Personal Assistant, corrected and
pronounced by me in the open court dated this the 25th day of March, 2019.
Sd/R.Ashok Kumar Spl. Judicial Magistrate of First Class for Prohibition and Excise offences, Kadapa FAC II Addl. Judicial Magistate of First class, Kadapa.
When enquired as to the quantum of sentence, A.1 & A.2 pleaded mercy of the court stating that they are the sole breadwinners of their respective family and sentencing them to severe punishment would affect the livelihood of their family members. Considering the gravity of the offence where these accused are found in possession of stolen property involved in several offences, this court finds no reason to show a lenient view. Any how, considering the future of the family members of A.1 & A.2, A.1 & A.2 are
sentenced to suffer Rigorous imprisonment for Two years and to pay a fine
of Rs.1,000/ each and in default of payment of fine, they shall suffer
simple imprisonment for one month each. The remand period already undergone by A.1 from 04.10.2018 till today and the remand period undergone by A.2 from 04.10.2018 to 27.10.2018 shall be set off under section 428 of
Criminal Procedure Code against the sentence of imprisonment. The sentence of imprisonment of A.1 in this case shall run concurrently with the sentence of
II Addl.J.F.C.M., Kadapa 13 C.C.No.490 of 2018 imprisonments in C.C.Nos.583/2018, 488/2018, 593/2018, 484/2018, 517/2018, 594/2018, 511/2018, 596/2018, 485/2018, 489/2018 and 491/2018 and the sentence of imprisonment of A.2 in this case shall run concurrently with the sentence of imprisonments in C.C.Nos.488/2018, 583/2018, 593/2018 and 484/2018. M.Os.1 & 2 already handed over to P.W.1 and M.Os.3 to 6 already handed over to P.W.2 shall be retained by them after lapse of appeal time. A.1 is notified of his right to utilize the services of Legal
Services Authority in the appellate court, if required.
Typed to my dictation to the Personal Assistant, corrected and
pronounced by me in the open court dated this the 25th day of March, 2019.
Sd/R.Ashok Kumar Spl. Judicial Magistrate of First Class for Prohibition and Excise offences, Kadapa FAC II Addl. Judicial Magistate of First class, Kadapa.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED ON BEHALF OF
PROSECUTION:DEFENCE:
P.W.1: Shaik MuneeraNone
P.W.2: Shaik Shahida
P.W.3: Y.Chinnaiah, Village Revenue Officer
P.W.4: M.Chandra Sekhar, Village Revenue Officer
P.W.5: N.Raja Rajeswara Reddy, the then S.I.
P.W.6: G.Amarnath Reddy, the then Sub Inspector
P.W.7: T.V.Satyanarayana, Inspector of police 14
DOCUMENTS MARKED FOR PROSECUTION
Ex.P.1 : Report of P.W.1 dt.21.09.2017
Ex.P.2: Report of P.W.2 dt.04.10.2017
Ex.P.3: Certified copy of panchanama dt.14.09.2018 at 9:00 a.m.
Ex.P.4: Certified copy of panchanama dt.21.09.2018 at 4:00 p.m.
Ex.P.5: Panchanama dt.03.10.2018
Ex.P.6: Panchanama dt.04.10.2018
Ex.P.7: First Information Report in Cr.No.279/2017 of Kadapa Taluk P.S.
Ex.P.8: Rough sketch
Ex.P.9: First Information Report in Cr.No.291/2017 of Kadapa Taluk P.S.
Ex.P.10: Rough sketch
DOCUMENTS MARKED FOR DEFENCE
NIL
MATERIAL OBJECTS
M.O.1: Pair of Champasaralu
M.O.2: Pair of Jumkeelu
M.O.3: Pair of Matees
M.O.4: Pair of gold plain ear studs
M.O.5: Pair of small ear studs
M.O.6: Set of two gold rings
Id/ R.A.K.
Spl. JFCM, for P & E, KDP
FAC II AJFCM, KDP.
II Addl.J.F.C.M., Kadapa 15 C.C.No.490 of 2018
CALENDAR AND JUDGMENT
District : KADAPA
Calendar and Judgment tried by Sri R.Ashok Kumar Spl. Judicial First Class Magistrate for Prohibition and Excise offences, Kadapa FAC II Addl. Judicial Magistrate of First Class, Kadapa. Date of
ApprehensionRelease onCommenceClose of OffenceReportJudgment of accusedbailment of trialtrial 20/2109'172109'17 0410'18 2710'18 0512'182003'192503'19 1008'17 to (A.1 & A.2)(A.2) 0410'17 2809'17
Calendar and Judgment in C.C. No.490 of 2018 on the file of II Addl. Judicial
Magistrate of First Class, Kadapa.
Complainant : The SubInspector of police, Kadapa Taluk Police station
Cr. Nos.279/2017 & 291/2017.
Age Calling ReligionResident Name of the accused with father's name
1. Shaik Mahammad Hussain,39CoolieMuslim Residents of S/o.Late Mahaboob Hussainyrs D.No.14/35611, Kummarikunta, Kadapa city.
2. Shaik Ilias Basha28BusinessMuslimResidents of S/o.Late Mahaboob BashayrsD.No.10/24A, Khaleel Nagar, Kadapa city.
Offence: Under section 457, 380 or 411 of Indian Penal Code
Finding : A.1 is found not guilty for the offences U/s.457, 380 of IPC and A.1 & A.2 are found guilty for the offence U/s.411 of IPC.
Sentence : A.1 is acquitted U/s.248(1) of Criminal Procedure Code for the offences U/s.457, 380 of Indian Penal Code. A.1 & A.2 are convicted
U/s.248(2) of Criminal Procedure Code for the offence u/s.411 of
Indian Penal Code. They are sentenced to suffer Rigorous 16 imprisonment for Two years and to pay a fine of Rs.1,000/ each and in default of payment of fine, they shall suffer simple imprisonment for one month each. The remand period already undergone by A.1 from 04.10.2018 till today and the remand period undergone by A.2 from 04.10.2018 to 27.10.2018 shall be set off under section 428 of Criminal Procedure Code against the sentence of imprisonment. The sentence of imprisonment of A.1 in this case shall run concurrently with the sentence of imprisonments in
C.C.Nos.583/2018, 488/2018, 593/2018, 484/2018, 517/2018, 594/2018, 511/2018, 596/2018, 485/2018, 489/2018 and 491/2018 and the sentence of imprisonment of A.2 in this case shall run concurrently with the sentence of imprisonments in
C.C.Nos.488/2018, 583/2018, 593/2018 and 484/2018. M.Os.1 & 2 already handed over to P.W.1 and M.Os.3 to 6 already handed over to P.W.2 shall be retained by them after lapse of appeal time.
A.1 is notified of his right to utilize the services of Legal Services
Authority in the appellate court, if required.
Remarks : NIL
Explanation for the delay : NIL
Sd/ R.Ashok Kumar Spl. Judicial Magistrate of First Class for Prohibition and Excise offences, Kadapa FAC II Addl. Judicial Magistate of First class, Kadapa.
From The II Addl. Judicial First Class Magistrate Court, Kadapa.
Copy submitted to
The Hon'ble 1st Additional District & Sessions Judge, Kadapa.
The Hon'ble Secretary, District Legal Services Authority, Kadapa.
Dis. No.