Sri R. Ashok Kumar

IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF I

CLASS :: GUDUR.

Present:- R.Ashok Kumar

Addl. Judicial Magistrate of I Class, Gudur.

Wednesday, the tenth (10th) day of August, 2022.

M.C No. 6 of 2018

1. Sholingar Saraswathi @ Kullapadiyar Saraswathi, W/o.Siva Kumar, Hindu, aged 30 years, R/o.D.No.12/169, Ankamma Street, Gammallapalem, Gudur Town and Mandal, SPSR Nellore District.

2. Sholingar Mohith, S/o.Siva Kumar, Hindu, aged 5 years, R/o.D.No.12/169, Ankamma Street, Gammallapalem, Gudur Town and Mandal, SPSR Nellore District.

(Being a Minor, rep. by his mother and Guardian, Sholingar Saraswathi @ Kullapadiyar Saraswathi (1st Petitioner)) … Petitioners

Vs.

Sholingar Siva Kumar, S/o.Late Krishna Murthy, Hindu, aged about 41 years, R/o.D.No.5/175, West Street, Opp. Police Station, Vakadu Village and Mandal,

SPSR Nellore District.... Respondent

This petition coming on 8.8.2022 for consideration before me in the presence of Sri A.Vijay Bhaskar, learned counsel for the petitioners and of Sri B.Sanjeevaiah, learned counsel for the respondent, upon perusing the record and having stood over for consideration, this Court made the following: -

O R D E R

1.This petition is filed by the 1st petitioner on her behalf and on behalf of the 2nd petitioner praying to grant monthly maintenance at

Rs.12,000/- to the petitioners together with costs, from the respondent.

2.The brief facts of the petition are :

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The marriage of the 1st petitioner was solemnized with the respondent on 26.1.2012 in G.S.Rayulu Theatre, Gudur and having joined the marital fold of the respondent, the 1st petitioner led marital life in her matrimonial home in Vakadu. During her stay in her matrimonial home, she was not happy with the respondent since the respondent used to go by the words of his brother S.Venkateswarlu and his wife Kavitha, another brother

S.Gangadhar and his sisters Geethanjali and Gowri, her husband Sundar. The respondent used to ill treat the 1st petitioner for no fault on her part, at the instance of his siblings and their spouses and bearing all such ill treatment, she led marital life in her matrimonial home. The sister of the respondent viz., Gowri used to perform occult worship(Kshudra Poojas) in the house and act as if some spirits possessed her and the 1st petitioner, who was pregnant by then, frightened by her attitude, used to have fever. The 1st petitioner was brought to her maternal home for delivery on 15.11.2012 and the 1st petitioner gave birth to the 2nd petitioner on 6.12.2012. Though the mother, brother and other relatives of the 1st petitioner tried to convince the respondent to take the petitioners back to the matrimonial home after she delivered 2nd petitioner, the respondent did not heed their advices. Later, the 1st petitioner received legal notice dt.15.12.2014 from the respondent with false allegations. Having received the said legal notice, the 1st petitioner went to the house of the respondent along with her brother on 18.12.2014 but they were not allowed into the house by the family members of the respondent. The respondent filed petition before the court seeking dissolution of marriage and the 1st petitioner, having filed her counter in the said HMOP, sought interim maintenance and accordingly interim maintenance was granted to these petitioners in the said HMOP. Later, the said HMOP was dismissed for default. The 1st petitioner is even now ready to 3 join the respondent to lead marital life with a condition that he shall put up a separate family, give assurance before the elders that he will look after her well and shall not allow his family members to interfere between the couple.

Having waited for a change in the attitude of the respondent, with a hope that he will take her back into his marital fold and failed, this petition is filed.

The mother of the 1st petitioner is not in a position to meet the expenses of the education of the 2nd petitioner and to maintain the petitioners. The respondent is earning Rs.60,000/- per month and has got capacity to pay maintenance to the petitioners.

3.The respondent, having appeared before the court, filed his counter resisting the petition, denying all the allegations made against him by the 1st petitioner. It is the contention of the respondent in his counter that one month after the marriage, the 1st petitioner conceived, that she insisted on working in the medical shop along with the respondent and when the respondent refused to allow her to work in the medical shop, she demanded

Rs.5000/- per month from him. The 1st petitioner used to suspect the character of the respondent. The respondent’s mother has been suffering from ill health since a long time. The respondent’s sister whose husband lost his leg in an accident and unable to work, is residing in the ground floor of the house along with her family. The 1st petitioner, after delivery of the child, refused to come back to matrimonial home without any reasonable cause.

The mother of the respondent was admitted in Intensive Care Unit in Vijaya

Hospital, Chennai due to ill health and when she wanted to see the child of the respondent before her last breath, the same was informed to the 1st petitioner but she refused to show the child to his grandmother. On 31.12.2013, the mother of the respondent died and having been sent a Taxi for her, the 1st petitioner came to the respondent’s house, sat for a while like 4 a stranger and went away causing embarrassing situation to the respondent and his family members. The 1st petitioner expressed her intention that she is not interested to join the marital fold of the respondent. Having no other go, the respondent, having got issued legal notice to the 1st petitioner, filed

HMOP seeking divorce and at a later date, due to the intervention of elders, the 1st petitioner expressed her intention to join the marital fold of the respondent with a condition that the respondent shall withdraw the HMOP or get it dismissed, consequent to which, the respondent let the HMOP dismissed for default. After dismissal of the HMOP, the 1st petitioner did not turn up before the elders. Having completed D-pharmacy, the 1st petitioner gave her certificate to Babu Medical shop in Manubolu and receiving

Rs.50,000/- per month and she is also being paid a monthly salary of

Rs.10,000/- while working in Doctors Pharmacy in Gudur. Thereby, the 1st petitioner filed the petition with false averments and not entitled for maintenance.

4.Heard both sides. Since the marriage is not denied, this court felt it unnecessary to discuss on the said aspect.

Section 125 of Criminal Procedure Code reads thus :

125. Order for maintenance of wives, children and parents:

(1) If any person having sufficient means neglects or refuses to maintain:

(a) his wife, unable to maintain herself; or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself; or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself; or 5

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, 1 [x x x] as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in Clause (b) to make such allowance, until she attains her majority, if the

Magistrate is satisfied that the husband of such minor

female child, if married, is not possessed of sufficient means.

[Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the

Magistrate considers reasonable, and to pay the same to

such person as the Magistrate may from time to time direct: . . .

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this Section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation: If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him. . . (4) No wife shall be entitled to receive an 1 [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be] from her husband under this Section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this Section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

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5.Now the points for consideration are:

1) Whether the 1 st petitioner, being the wife of the respondent, and the 2 nd petitioner, being the son, have been neglected by him?

2) Whether the 1 st petitioner is unable to maintain herself and the 2 nd petitioner?

3) Whether the respondent has got sufficient means to pay maintenance to the petitioners?

4) Whether the petitioners 1 & 2 are entitled for

maintenance from the respondent as prayed for ?

6.POINT No.1: Whether the 1 st petitioner, being the wife of the respondent, and the 2 nd petitioner, being the son, have been neglected by him?

In this regard, it is the evidence of the 1st petitioner while examining herself as P.W.1, that having married the respondent, she joined his marital fold and lived happily for six months and thereafter, the respondent neglected her, that the sister of the respondent viz., Gowri along with her family members, also used to stay with them, that she is having spiritual powers and used to dance at night with neem leaves. Having felt afraid of such activities, she asked the respondent to send her away but the respondent did not heed her words. After she came to her parents’ house for delivery, the respondent did not visit her and did not take her back to his house and later, she received divorce notice from her husband in the year 2015.

Per contra, it is the evidence of the respondent while examining himself as R.W.1 that the 1st petitioner, two months after the marriage, asked him to allow her to work in the medical shop of his father and when he requested her to look after his sick mother instead of working in medical shop, she demanded him to pay Rs.5000/- per month, that having left to her 7 maternal home for delivery, she did not return to matrimonial home and when he tried through elders to get her back, she refused stating that she cannot live in his house and with a demand to put up a separate family and he refused to meet the said demand since his mother is suffering from ill health. In the month of December, 2012, his mother expired but the 1st petitioner did not turn up to see the dead body and after he arranged a taxi for her, she came and immediately went away inspite of his requests. He filed OP for restitution of conjugal rights but even after receipt of notice, the 1st petitioner did not join his company.

7.The learned counsel for the petitioners, while arguing, contends that the respondent got issued legal notice demanding divorce but did not call her to join his company and instead of filing OP for restitution of conjugal rights, filed OP for dissolution of marriage, that even the mother of the respondent wanted to see the 2nd petitioner only during her last days, one year after birth of the child but never showed interest to see the 1st petitioner and that the sister of the respondent was kept in the house only to harass the 1st petitioner.

8.On the other hand, it is the contention of the learned counsel for the respondent that the 1st petitioner, having left to her parents’ house for delivery on 20.9.2012, did not return to matrimonial home inspite of requests by the respondent and that she did not choose to lodge report to the police prior to filing this MC or prior to filing of OP by the respondent, since she was never subjected to harassment by the respondent or his family members and that she chose to lodge report to the police with false allegations, at a later date only as an afterthought.

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9.Neither the 1st petitioner who alleged that she received legal notice from the respondent seeking divorce, not the respondent who averred that he filed OP for restitution of conjugal rights, chose to exhibit the said legal notice or copy of the said OP to support their contention. So, the said averments of the parties remained unsupported by documentary proof.

10.Now, coming to the material available on record, only a whisper is made in the MC petition that the 1st petitioner was ill treated by the respondent at the instance of his family members and while deposing evidence as P.W.1, similarly, she whispered that she was neglected by the respondent who looked after her well for six months after the marriage. As can be understood from the averments in the 3rd paragraph of the MC petition and in her deposition, it is the grievance of the 1st petitioner that the respondent used to hear the words of his siblings and their spouses and he did not either put up a separate family or send away his sister Gowri and her family members as demanded by her.

No doubt, if the said Gowri is performing such Pooja at night with neem leaves and act like she is possessed by spirits, it is a matter of concern for a woman who feels afraid of such activities but it is the averment of the respondent in his counter that the family of his sister were residing in the ground floor of the house depending on the amounts provided by his father and this is not challenged by the 1st petitioner. During the course of cross examination, P.W.1, having answered that the respondent brought his sister and brother-in-law who lost leg in an accident and maintaining them, adds that she was not informed about the same, prior to the marriage. By this, it can be understood that the 1st petitioner is not happy with such circumstances where the sister of the respondent is taking shelter in her matrimonial home i.e., the maternal home of the said sister Gowri. The 9 respondent or his father, might have allowed the said Gowri to reside in their house on humanitarian ground considering the situation of her husband who lost leg and unable to work and this act of theirs cannot be found fault.

11.One more point to be considered here is, the averment made in para No.6 of the MC petition that the 1st petitioner is ready to join the company of the respondent subject to certain conditions that he shall put up a separate family and not allow the interference of other family members.

There is no whisper from the 1st petitioner as to what sort of interference of other family members she wanted to avoid.

In this regard, it is the evidence of respondent that he refused to put up a separate family as demanded by the 1st petitioner since his mother was suffering from ill health. This refusal of the respondent to put up a separate family in view of the ill health of his mother, is reasonable. A man, for being a husband, cannot be forced to leave all his family members including his parents at their old age, for the sake of his wife who puts up such demand to lead marital life with him.

12.As can be understood from the evidence available on record, there were no forcing circumstances for the 1st petitioner to leave the company of the respondent before delivering the child and as a custom, she went to her parents' house for delivery, while carrying and thereafter, she imposed conditions to return to matrimonial home.

13.Coming to another aspect that the 1st petitioner is not allowed to work in the medical shop of the father of the respondent, having denied the suggestion during the course of cross examination that she demanded Rs.5000/- per month from the respondent or to allow her to conduct business in the medical shop, P.W.1 adds that she requested the 10 respondent to allow her to conduct business in the medical shop. Contrary to this, during the course of cross examination of R.W.1, a suggestion is posed to him that the 1st petitioner never asked him to allow her to look after the medical shop and again, another suggestion is posed to R.W.1 that the 1st petitioner was prevented from coming to the medical shop since there is a chance for her to find out the affair of respondent with another lady.

Considering these suggestions, it can be inferred that the 1st petitioner wanted to conduct business in the medical shop of the father of the respondent, but she was not allowed and it is one of the grievances she had against the respondent.

14.One more point raised by the learned counsel for the petitioner is that the respondent ought to have issued notice demanding the 1st petitioner to join his company but instead, he chose to issue notice demanding dissolution of marriage.

To turn a family into a successful and happy family, both the spouses shall be having an intention to lead life together happily but not one of the spouse putting up demands of his/her choice to leave all other family members to their fate or, one of the spouse leaving the matrimonial fold without reasonable cause and expecting the counterpart to beg him/her to join.

15.Considering the averments of the MC petition, the evidence of P.W.1, there are no serious allegations against the respondent that he neglected the 1st petitioner but at the same time, the obligation of the respondent to maintain the 2nd petitioner being his son, cannot be brushed away. The respondent might have got several reasons for not paying interim maintenance ordered by the court but it is his duty to pay the interim 11 maintenance, considering the welfare of his son but there was no regular payment of interim maintenance as can be seen from the record.

16.For the above discussion, this court is of the considered view that the 1st petitioner cannot be brought within the meaning of ‘neglected wife’ but the 2nd petitioner can be treated as ‘neglected son’ of the respondent.

17.POINT No.2: Whether the 1 st petitioner is unable

to maintain herself and the 2 nd petitioner ?

Except mentioning in the MC petition and during the course of evidence that the 1st petitioner is unable to maintain herself and the 2nd petitioner, not a single reason is assigned by the 1st petitioner as to the circumstances which prevented her to work and earn being a holder of

Diploma in Pharmacy.

18.During the course of cross examination, P.W.1 admits that she is being paid Rs.20,000/- per annum by the person who is running medical shop basing on her D.Pharmacy certificate and further adds that she is doing tailoring work at home. She did not whisper what is the income she is getting out of tailoring work and she was not pressed for an answer in that regard, by the counsel for the respondent.

19.Considering these circumstances, this court believes that the 1st petitioner has got capacity to maintain herself but she is unable to maintain the 2nd petitioner who is prosecuting his studies and she cannot be burdened to face all the expenses of the 2nd petitioner.

20.POINT No.3: Whether the respondent has got sufficient

means to pay maintenance to the petitioner?

It is the evidence of the respondent while examining himself as

R.W.1 that he is working in the medical shop of his father and being paid 12

Rs.8000/- per month. Though suggestions were posed by the learned petitioner’s counsel to him during the course of cross examination that the said medical shop is being maintained by him, it is admitted by the 1st petitioner while being examined as P.W.1, during the course of cross examination that the respondent is working in the medical shop being run by his father.

21.The respondent might be getting income as averred by him or less than that but it is his duty to work, earn and pay maintenance in the event of grant of maintenance to both or any of the petitioners, since he did not take up any plea that any other circumstances prevented him to work and earn.

Hence, this court believes that the respondent has got sufficient means to pay maintenance.

22.POINT No.4: Whether the petitioners 1 & 2 are entitled for maintenance from the respondent as prayed for?

The evidence of R.W.2 does not in anyway play important role. In relation to the present case, it is his evidence that he held mediation along with others and in the said mediation, the respondent requested the 1st petitioner to join his company but she refused. His evidence does not invite any appreciation.

23.The 1st petitioner, having failed to make out a case that she has been neglected or has been refused to maintain by the respondent and having failed to prove that she is unable to maintain herself, failed to convince the court that she is entitled for maintenance from the respondent but the 2nd petitioner is entitled for maintenance from the respondent.

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24.In the result, petition is partly allowed granting a maintenance at Rs.6000/- per month to the 2nd petitioner from the date of filing of the petition, considering the circumstances where there are no regular payments of the interim maintenance as ordered by the court to both the petitioners. The 1st petitioner is at liberty to claim the arrears of the maintenance of the 2nd petitioner, from the date of filing of the petition, deducting the amount of interim maintenance received by her during the pendency of the case, towards interim maintenance of both the petitioners.

The claim of the 1st petitioner for maintenance from the respondent, is dismissed.

Prepared and pronounced by me in the open court this the 10th day of August, 2022.

Sd/- R.Ashok Kumar

ADDL. JUDL.MAGISTRATE OF I CLASS,

GUDUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

Petitioners : Respondent: PW.1 : S.Saraswathi RW.1: S.Siva Kumar RW.2:K.Ramalinga Reddy

EXHIBITS MARKED FOR:

Petitioners : Ex.P-1 : Wedding invitation card

Ex.P-2 : Marriage photo

Ex.P-3 : Certified copy of orders in IA.No.15/2016 in HMOP.38/2015 on the file of the Senior Civil Judge’s Court, Gudur.

Respondent: NIL.

Sd/- R.Ashok Kumar

A.J.M.F.C. Gudur.

IN THE COURT OF ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS :: GUDUR.

Present:- Sri R.Ashok Kumar

Addl. Judicial Magistrate of I Class, Gudur.

Wednesday, the Tenth (10th) day of August, 2022

CC NO.178/2021

Between: State: Inspector (I/c), Special Enforcement Bureau Station, Gudur. … Complainant

And

Shaik Ameer Basha, S/o.Dasthagiri, aged 46 years, R/o.Kolanakuduru Village, Manubolu Mandal. … Accused

This case coming before me on 04.08.2022 for final hearing and disposal in the presence of learned Asst. Public Prosecutor for the State and of Sri A.Vijaya Bhaskar, Advocate for accused, upon hearing on both sides and having stood over for consideration, till this day, this court delivered the following:

J U D G M E N T

1. The Inspector (I/c), Special Enforcement Bureau, Gudur has filed the charge sheet against the accused in Cr.No.27/2020 for the offence punishable Under Section 7(a) r/w.8(e) of A.P. Prohibition Act.

2. The prosecution case in nutshell is as follows:

On 13.04.2020, at about 5-45 AM, during the course of raids conducted by P.W.2 along with P.W.1 and other staff members, reached near the Prawns pond of the accused in Sy.No.521/B-62 of Kolanakuduru Village,

Manubolu Mandal, where they found the accused standing at that place and trying to run away on seeing the Excise officials. He was detained and was questioned upon which, he confessed that he is preparing liquor illegally and showed two mud pots with wash. PW.1 was deputed to fetch mediators, but he failed in securing mediators upon which PW.2 verified the contents of the mud pots and found each of them containing 50 liters of Fermented Jaggery 2

Wash. Samples were drawn into two 375 ml. bottles from those mud pots for analysis and the mud pots with remaining Fermented Jaggery Wash, were destroyed and the accused was arrested under a cover of special report drafted on the spot. Later, sent the samples to the Chemical Examiner,

Guntur for analysis, who opined that the samples are “Fermented Jaggery

Wash, fit for distillation”.

3.Cognizance was taken for the offence under Section 7(a) r/W8(e) of A.P. Prohibition Act and summons were issued to the accused.

4.After appearance of accused before the Court, copies of all documents were furnished to him as contemplated under Section 207

Criminal Procedure Code.

5. On consideration of entire material on record, accused is examined under section 239 of Criminal Procedure Code, a charge under

Section.7(a) r/w.8(e) of A.P. Excise Act is framed against him, explained the substance of accusation to the accused in Telugu, for which, he pleaded not guilty and claimed to be tried.

6. The prosecution, in order to prove its case, cited five witnesses, among them examined two witnesses i.e., P.Ws.1 and 2 and got exhibited Exs.P.1 to P.3 and marked M.Os.1 and 2. The evidence of other witnesses is given up by the learned Assistant Public Prosecutor.

7.On closure of prosecution evidence, accused is examined

Under section 313 of Criminal Procedure Code, explaining the available incriminating material on record, he denied the same and reported no defence evidence on his behalf.

8. Heard both sides.

9. The learned Assistant Public Prosecutor argued that with the 3 evidence adduced, the prosecution succeeded in proving its case against the accused.

10. Per contra, the learned defence counsel argued that the evidence available on record is not sufficient to prove the case against the accused and that the accused is entitled for acquittal.

11. Now the Point of determination is :

Whether the prosecution is able to prove the

guilt of accused for the offence under

Section 7(a) r/w.8(e) of A.P. Prohibition Act

beyond all reasonable doubt?

12. POINT:

To prove the offence under Section 7(a) r/w. 8(e) A.P. Prohibition

Act, the prosecution has to establish that the accused herein was in possession of Fermented Jaggery Wash and was preparing liquor illegally.

13. According to the evidence of P.Ws. 1 & 2, on 13.4.2020, at about 5-45 AM, during the course of raids conducted by P.W.2 along with

P.W.1 and other staff members, reached near the Prawns pond of the accused in Sy.No.521/B-62 of Kolanakuduru Village, Manubolu Mandal, where they found the accused standing at that place and trying to run away on seeing the Excise officials. He was detained and was questioned upon which, he confessed that he is preparing liquor illegally and showed two mud pots with wash. PW.1 was deputed to fetch mediators, but he failed in securing mediators upon which PW.2 verified the contents of the mud pots and found each of them containing 50 liters of Fermented Jaggery Wash. Samples were drawn into two 375 ml. bottles from those mud pots for analysis and the mud pots with remaining Fermented Jaggery wash, were destroyed and the accused was arrested under a cover of special report drafted on the spot.

Later, sent the samples to the Chemical Examiner, Guntur for analysis, who 4 opined that the samples are “Fermented Jaggery Wash, fit for distillation”.

14.During the course of cross examination, it is the evidence of PW.1 that the said survey number was informed to them by the accused and that they did not try to confirm the Survey number of the said land through the Local Revenue Authorities. PWs. 1 and 2 admitted that no written summons were handed over to PW.1 for service on mediators. PW.1 was not even able to mention the names of those persons who refused to act as mediators. No doubt, when the search and seizure is in open place, there is no mandatory requirement to secure the independent mediators of the locality but to prove their case beyond any iota of doubt, it is expected that the police officials should have seriously and sincerely tried for independent mediators to show their impartial investigation. No doubt, the acts of police officials in discharge of their official duties are presumed to be correct unless the contrary is proved. But, when there was opportunity to secure the mediators, no convincing attempts being made by P.W.2. At this juncture, it is relevant to note a decision made in:

S.Babu Saheb @ Babu v. State of A.P., 2010 (1) A.L.T.

(Crl.) 32 A.P. wherein it was held ‘no efforts being made to secure the mediators is doubtful. The necessity was emphasized by the Hon’ble High

Court when there is seizure of contraband’.

Also in, Gajamker Narayana v. State of A.P., 2005 (3) A.L.T.

(Crl.) 1, it was held “.... Section 100(4) Cr.P.C. lays down that before making a search, the officer of 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 situated or of any other locality...”, the seizure of contraband was held to be illegal when the provision of Section 100 (4) Code of Criminal Procedure are not complied. Also, it was held that the evidence of

Excise officials is interested, artificial and routine. In this case on hand also,

P.W.2 did not depose the convincing reasons for non-securing of the independent mediators from the locality.

In Botcha Raju v. State Rep. by the Inspector of Police, 5

Vizianagaram Rural Circle, 1994 (2) A.L.T. (Crl.) 69 (A.P.), it was held “...the Courts below fell in error by accepting the version of the Police

Officers without the corroboration of the disinterested witnesses...”.

15. The only material evidence available for the prosecution to prove its case against the accused are Mos.1 and 2, the sample bottles with remaining Fermented Jaggery Wash said to have been collected from the possession of the accused. The Investigating officer did not even try to confirm with the revenue officials that the said land belong to the accused or not, because, others will not allow a person to install mud pots in their land for preparation of liquor illegally.

16.There is no sufficient material placed by the prosecution to establish that the accused was found preparing liquor illegally with the

Fermented Jaggery wash in two mud pots at the said place. Therefore, the prosecution miserably failed to establish the guilt against the accused for the offence under Section 7 (a) r/w.8(e) of A.P. Prohibition Act.

17.With regard to the alleged confessional statement of the accused before P.W.2, the same is hit by Sec.25 of Indian Evidence Act and is inadmissible in evidence.

18.For the above discussion, this Court feels that prosecution utterly failed to prove the guilt of the accused beyond reasonable doubt for the offence alleged against him.

19. IN THE RESULT, the Accused is found not guilty for the offence punishable U/sec.7(a) r/w.8(e) of A.P. Prohibition Act and he is acquitted U/s.248(1) Criminal Procedure Code. The Accused shall execute a personal bond for Rs.10,000/-and it shall remain in force for a period of six months as required Under Section 437-A of Criminal Procedure Code. M.Os.1 6 and 2 shall be destroyed after lapse of appeal time.

Typed to my dictation by the Personal Assistant, corrected and

pronounced by me in the Open Court, this the 10th day of August, 2022.

Sd/- R.Ashok Kumar

Addl. Judicial Magistrate of I Class Gudur.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF OF

PROSECUTION: DEFENCE:

P.W.1: B.Dayakar, the then SEB Constable, Gudur-None- P.W.2: P.V.Subba Rao, the then SEB SI, Gudur

DOCUMENTS MARKED FOR

PROSECUTION :-

Ex.P.1: Special Report dt.13.04.2020. Ex.P.2: First Information Report in Cr.No.27/2020 . Ex.P.3: Analysis Report

DEFENCE: -Nil-

MATERIAL OBJECTS

M.O.1: Sample bottle of F.J.Wash (375 ml). M.O.2: Sample bottle of F.J.Wash (375 ml).

Id/- RAK AJMFC, Gudur.

// TRUE COPY //

Addl. Judicial Magistrate of First Class, Gudur.

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CALENDAR AND JUDGMENT

District : Nellore Calendar and Judgment tried by Sri R.Ashok Kumar, Addl. Judicial Magistrate of First Class, Gudur.

Date of

Apprehen- Commen- Release Close of Offence Report sion of cement of Judgment on bail trial accused trial 13.4.202013.4.2020--30.6.20224.8.202210.8.2022

Calendar and Judgment in C.C.No. 178 of 2021 on the file of the Addl. Judl.

Magistrate of First Class, Gudur.

Complainant : The Inspector (I/c), Special Enforcement Bureau Station, Gudur. Cr.No.27/2020

Name of the Age

accused with Calling Religion Resident

father’s name

Shaik Ameer Basha,---MuslimKolanakuduru Village, 46 S/o.DasthagiriManubolu Mandal years

Offence : U/Sec. 34(a)1(i) of A.P. Prohibition Act

Finding : Accused found not guilty.

Sentence: Accused is acquitted U/s.248(1) Cr.P.C. for the offence U/s.7(a) r/ w.8(e) of A.P. Prohibition Act. The Accused shall execute personal bond for Rs.10,000/- and it shall remain in force for a period of six months as required Under Section 437-A of Criminal Procedure Code. M.Os.1 and 2 shall be destroyed after lapse of appeal time.

Remarks : NIL Explanation for the delay : Nil

Sd/- R.Ashok Kumar

Addl. Judicial Magistrate of I Class, Gudur.

Copy submitted to : The Hon’ble Prl.Senior Civil Judge-cum- Chief Judicial Magistrate, Nellore.

// TRUE COPY //

Addl. Judicial Magistrate of First Class, Gudur.

1

IN THE COURT OF ADDL. JUDL. MAGISTRATE OF I CLASS :: GUDUR.

Present:- Sri R.Ashok Kumar

Addl. Judicial Magistrate of I Class, Gudur.

Wednesday, the Tenth (10th) day of August, 2022

CC.No.2 of 2022

Between:

State : Prohibition and Excise Inspector, Rapur.… Complainant

And

Chejarla Rosaiah, S/o.Penchalaiah, aged about 64 years, R/o.Madapalli Village, Chejarla Mandal, SPSR Nellore District.… Accused

This case coming before me on 08.08.2022 for final hearing and disposal in the presence of learned Asst. Public Prosecutor for the State and of Sri.P.Venkata Subbaiah, Advocate for the accused, upon hearing on both sides and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1.The Prohibition and Excise Inspector, Rapur has filed the charge sheet against the accused in Cr.No.73/2019 for the offence punishable Under Section 34(a) of A.P. Excise Act.

2. The prosecution case in nutshell is as follows:

On 26.12.2019 during the course of raids conducted by P.W.2 along with P.W.1 and other staff members, reached Bus Stand of Podalakur

Town, at about 3.00 PM where they found the accused in possession of a white colour plastic bag, trying to run away on seeing them and he was apprehended. On enquiry, the accused confessed that the bag contain liquor bottles. They tried for mediators but in vain. On that, P.W.2 verified the said bag and found it containing (8) bottles of Bag Piper Whisky (180 ml), drew one bottle as sample, sealed and labeled it, seized the remaining property, arrested the accused under a cover of special report drafted on the spot and handed over the accused along with the case record and case property to the Prohibition and Excise Constable, Rapur (LW.4). Later, the Prohibition and

Excise Inspector, Rapur (LW.5) basing on the special report, registered a case and released the accused on bail. Later, sent the sample to the Chemical

Examiner, Guntur for analysis, who opined that the sample is “Indian

Liquor”.

3.Cognizance was taken for the offence under

Section 34(a) of A.P. Excise Act, and summons are issued to the accused.

4.After appearance of accused before the Court, copies of all documents were furnished to him as contemplated under Section 207

Criminal procedure Code.

5. On consideration of entire material on record, accused is examined under section 239 of Criminal Procedure Code, a charge under section 34(a) of A.P. Excise Act is framed against him, explained the substance of accusation to the accused in Telugu, for which, he pleaded not guilty and claimed to be tried.

6. The prosecution, in order to prove its case, cited six witnesses, among them examined three witnesses i.e., P.Ws.1 to 3 and got exhibited Exs.P.1 to P.4 and marked M.O.1. The evidence of other witnesses is given up by the learned Assistant Public Prosecutor.

7.On closure of prosecution evidence, accused is examined

Under section 313 of Criminal Procedure Code, explaining the available incriminating material on record, he denied the same and reported no defence evidence on his behalf.

8. Heard both sides.

9. The learned Assistant Public Prosecutor argued that with the evidence adduced, the prosecution succeeded in proving its case against the accused.

10. Per contra, the learned defence counsel argued that the evidence available on record is not sufficient to prove the case against 3 accused that accused is entitled for acquittal.

11 . Now the Point of determination is :

Whether the prosecution is able to prove the

guilt of accused for the offence under

Section 34 (a) of A.P. Excise Act beyond all

reasonable doubt?

POINT:

12.To prove the offence under Section 34 (a) of A.P. Excise Act, the prosecution has to establish that the accused herein was transporting, exporting, importing, manufacturing, collecting or possessing any intoxicants in contravention of A.P. Excise Act,1968 or any license or permit granted or issued under this Act.

13. According to the evidence of P.Ws.1 & 2, on 26.12.2019 at about 7.15 PM, during the course of raids conducted by them along with other staff members, they reached near Podalakur Gate Centre, where they found the accused in possession of a white colour plastic bag, which contained liquor bottles, they tried for mediators in surrounding places but none volunteered to act as mediators. On that, P.W.2 verified the said bag and found 8 nips of Bagpiper Whiskey, drew one bottle as sample, sealed and labeled it, seized the remaining property and arrested the accused under a cover of special report drafted on the spot.

14. P.W.3 deposed that basing on the special report Ex.P.1, he registered a case in Cr.No.73/2019 U/s.34(a) of A.P. Excise Act and submitted

FIR to all concerned, served Sec.41-A Cr.P.C. notice to the accused, forwarded

M.O.1 to Chemical Examiner, Guntur for analysis, who opined that the sample is “Indian Liquor”. and on completion of investigation, filed charge sheet.

15.During the course of cross examination, PWs. 1 and 2 admitted that no written summons were handed over to PW.1 for service on mediators. PW.1 was not even able to mention the names of those persons who refused to act as mediators. No doubt, when the search and seizure is in open place, there is no mandatory requirement to secure the independent mediators of the locality but to prove their case beyond any iota of doubt, it is expected that the police officials should have seriously and sincerely tried for independent mediators to show their impartial investigation. No doubt, the acts of police officials in discharge of their official duties are presumed to be correct unless contrary is proved. But, when there was opportunity to secure the mediators, no convincing attempts being made by P.W.2. At this juncture, it is relevant to note a decision made in:

S.Babu Saheb @ Babu v. State of A.P., 2010 (1) A.L.T.

(Crl.) 32 A.P. wherein it was held ‘no efforts being made to secure the mediators is doubtful. The necessity was emphasized by the Hon’ble High

Court when there is seizure of contraband’.

Also in, Gajamker Narayana v. State of A.P., 2005 (3) A.L.T.

(Crl.) 1, it was held “.... Section 100(4) Cr.P.C. lays down that before making a search, the officer of 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 situated or of any other locality...”, the seizure of contraband was held to be illegal when the provision of Section 100 (4) Code of Criminal Procedure are not complied. Also, it was held that the evidence of

Excise officials is interested, artificial and routine. In this case on hand also,

P.W.2 did not depose the convincing reasons for non-securing of the independent mediators from the locality.

In Botcha Raju v. State Rep. by the Inspector of Police,

Vizianagaram Rural Circle, 1994 (2) A.L.T. (Crl.) 69 (A.P.), it was held “...the Courts below fell in error by accepting the version of the Police

Officers without the corroboration of the disinterested witnesses...”.

16.There is no sufficient material placed by the prosecution to establish that the accused possessed contraband. Therefore, the prosecution miserably failed to establish the guilt against the accused for the offence under Section 34(a) of A.P. Excise Act. In the light of above discussion, and the evidence of P.W.2 being the police official and his evidence pertaining to

Ex.P.1 above referred citations, accused is entitled for benefit of doubt.

5

17.With regard to the alleged confessional statement of the accused before P.W.2, the same is hit by Sec.25 of Indian Evidence Act and is inadmissible in evidence.

18.For the above discussion, this Court feels that prosecution utterly failed to prove the guilt of the accused beyond reasonable doubt for the offence alleged against him.

19. IN THE RESULT, the Accused is found not guilty for the offence punishable U/sec.34(a) of A.P. Excise Act and he is acquitted

U/s.248(1) Criminal Procedure Code. The Accused shall execute a personal bond for Rs.10,000/- and it shall remain in force for a period of six months as required Under Section 437-A of Criminal Procedure Code. M.O.1 shall be destroyed after lapse of appeal time.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in the open court, this the 10th day of August, 2022.

Sd/- R.Ashok Kumar

Addl. Judicial Magistrate of I Class Gudur.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

PROSECUTION: DEFENCE:

P.W.1: Sk.Jilani, SEB EW Constable, Nellore. -None- P.W.2: V.Venkateswara Rao, SEB EW Inspector, Nellore P.W.3: G.Ravi Kumar, SEB SI, Rapur.

DOCUMENTS MARKED

FOR PROSECUTION :- Ex.P.1: Special Report, dt.26-12-2019. Ex.P.2: First Information Report in Cr.No.73/2019 . Ex.P.3: Analysis Report Ex.P.4: Attested copy of proceedings dt.01-12-2021 for the destruction of the Contraband.

FOR DEFENCE:- -Nil-

MATERIAL OBJECTS

M.O.1: One Sample bottle of Bagpiper Whisky (180 ml) Id/-RAK AJFCM,Gudur. // TRUE COPY //

Addl. Judicial Magistrate of I Class, Gudur.

`CALENDAR AND JUDGMENT

District : Nellore Calendar and Judgment tried by Sri R.Ashok Kumar, Addl. Judicial Magistrate of First Class , Gudur.

Date of

Appre- Commence- hension Released Close of Offence Report ment of Judgment of on bail trial trial accused 26.12.2019 26.12.2019--13.06.202208.08.2022 10.08.2022

Calendar and Judgment in C.C.No. 2 of 2022 on the file of the Addl. Judl.

Magistrate of First Class, Gudur.

Complainant : The Prohibition and Excise Inspector, Rapur.

Cr.No.150/2021

Name of the Age

accused with Calling Religion Resident

father’s name

Chejarla Rosaiah-HinduMadapalli Village, 64 S/o.PenchalaiahChejarla Mandal, years SPSR Nellore District.

Offence : U/Sec. 34(a) of A.P. Excise Act

Finding : Accused found not guilty.

Sentence : The Accused is acquitted U/s.248(1) Cr.P.C. for the offence punishable Under Section 34(a) of A.P. Excise Act. The Accused shall execute personal bond for Rs.10,000/- and it shall remain in force for six months as required Under Section 437-A of Criminal Procedure Code. M.O.1 shall be destroyed after lapse of appeal time.

Remarks : NIL Explanation for the delay : NIL

Sd/- R.Ashok Kumar

Addl. Judicial Magistrate of I Class, Gudur. Copy submitted to : The Hon’ble Principal Senior Civil Judge-cum- Chief Judicial Magistrate, Nellore.

// TRUE COPY //

Addl. Judicial Magistrate of I Class, Gudur.

1

IN THE COURT OF ADDL. JUDL. MAGISTRATE OF I CLASS :: GUDUR.

Present:- Sri R.Ashok Kumar

Addl. Judicial Magistrate of I Class, Gudur.

Wednesday, the Tenth (10th) day of August, 2022

CC.No.141 of 2022

Between:

State : Enforcement Inspector, Special Enforcement Bureau Station, Gudur.… Complainant

And

Vavilla Chandra Sekhar, S/o.Govindaiah, aged about 34 years, R/o.Muthukur Village, Nellore, Now at Lingavaram Village, Chillakuru Mandal, SPSR Nellore District.… Accused

This case coming before me on 08.08.2022 for final hearing and disposal in the presence of learned Asst. Public Prosecutor for the State and of Sri.P.V.Sai Kumar Reddy, Advocate for the accused, upon hearing on both sides and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1.The Enforcement Inspector, Special Enforcement Bureau

Station, Gudur has filed the charge sheet against the accused in

Cr.No.150/2021 for the offence punishable Under Section 34(a)1(i) of A.P.

Excise Act.

2. The prosecution case in nutshell is as follows:

On 19.10.2021 during the course of raids conducted by P.W.2 along with P.W.1 and other staff members, reached near Sivalayam Temple,

Lingavaram Village, Chillakuru Mandal, at about 9.50 AM where they found the accused in possession of a white colour plastic bag, trying to run away on seeing them and he was apprehended. On enquiry, the accused confessed that the bag contain liquor bottles. They tried for mediators but in vain. On that, P.W.2 verified the said bag and found it containing (14) bottles of Amruts Silver Cup VSOP Indian Brandy (180 ml), drew one bottle as sample, sealed and labeled it, seized the remaining property, arrested the accused under a cover of special report drafted on the spot. Later, sent the sample to the Chemical Examiner, Guntur for analysis, who opined that the sample is “Indian Liquor”.

3.Cognizance was taken for the offence under

Section 34(a)1(i) of A.P. Excise Act, and summons are issued to the accused.

4.After appearance of accused before the Court, copies of all documents were furnished to him as contemplated under Section 207

Criminal procedure Code.

5. On consideration of entire material on record, accused is examined under section 239 of Criminal Procedure Code, a charge under section 34(a)1(i) of A.P. Excise Act is framed against him, explained the substance of accusation to the accused in Telugu, for which, he pleaded not guilty and claimed to be tried.

6. The prosecution, in order to prove its case, cited three witnesses, among them examined two witnesses i.e., P.Ws.1 and 2 and got exhibited Exs.P.1 to P.4 and marked M.O.1. The evidence of other witnesses is given up by the learned Assistant Public Prosecutor.

7.On closure of prosecution evidence, accused is examined

Under section 313 of Criminal Procedure Code, explaining the available incriminating material on record, he denied the same and reported no defence evidence on his behalf.

8. Heard both sides.

9. The learned Assistant Public Prosecutor argued that with the evidence adduced, the prosecution succeeded in proving its case against the accused.

10. Per contra, the learned defence counsel argued that the evidence available on record is not sufficient to prove the case against accused that accused is entitled for acquittal.

3 11 . Now the Point of determination is :

Whether the prosecution is able to prove the

guilt of accused for the offence under

Section 34 (a)1(i) of A.P. Excise Act beyond

all reasonable doubt?

POINT:

12.To prove the offence under Section 34 (a)1(i)of A.P. Excise

Act, the prosecution has to establish that the accused herein was transporting, exporting, importing, manufacturing, collecting or possessing any intoxicants in contravention of A.P. Excise Act,1968 or any license or permit granted or issued under this Act.

13. According to the evidence of P.Ws.1 & 2, on 19.10.2021 at about 9.30 AM, during the course of raids conducted by them along with other staff members, they reached near Sivalayam Temple, Lingavaram

Village, where they found the accused in possession of a white colour plastic bag, which contained liquor bottles, they tried for mediators in surrounding places but none volunteered to act as mediators. On that, P.W.2 verified the said bag and found 14 nips of Amruts Silver Cup VSOP Brandy, drew one bottle as sample, sealed and labeled it, seized the remaining property and arrested the accused under a cover of special report drafted on the spot.

14.During the course of cross examination, PWs. 1 and 2 admitted that no written summons were handed over to PW.1 for service on mediators. PW.1 was not even able to mention the names of those persons who refused to act as mediators. No doubt, when the search and seizure is in open place, there is no mandatory requirement to secure the independent mediators of the locality but to prove their case beyond any iota of doubt, it is expected that the police officials should have seriously and sincerely tried for independent mediators to show their impartial investigation. No doubt, the acts of police officials in discharge of their official duties are presumed to be correct unless contrary is proved. But, when there was opportunity to secure the mediators, no convincing attempts being made by P.W.2. At this juncture, it is relevant to note a decision made in:

S.Babu Saheb @ Babu v. State of A.P., 2010 (1) A.L.T.

(Crl.) 32 A.P. wherein it was held ‘no efforts being made to secure the mediators is doubtful. The necessity was emphasized by the Hon’ble High

Court when there is seizure of contraband’.

Also in, Gajamker Narayana v. State of A.P., 2005 (3) A.L.T.

(Crl.) 1, it was held “.... Section 100(4) Cr.P.C. lays down that before making a search, the officer of 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 situated or of any other locality...”, the seizure of contraband was held to be illegal when the provision of Section 100 (4) Code of Criminal Procedure are not complied. Also, it was held that the evidence of

Excise officials is interested, artificial and routine. In this case on hand also,

P.W.2 did not depose the convincing reasons for non-securing of the independent mediators from the locality.

In Botcha Raju v. State Rep. by the Inspector of Police,

Vizianagaram Rural Circle, 1994 (2) A.L.T. (Crl.) 69 (A.P.), it was held “...the Courts below fell in error by accepting the version of the Police

Officers without the corroboration of the disinterested witnesses...”.

15.There is no sufficient material placed by the prosecution to establish that the accused possessed contraband. Therefore, the prosecution miserably failed to establish the guilt against the accused for the offence under Section 34(a)1(i) of A.P. Excise Act. In the light of above discussion, and the evidence of P.W.2 being the police official and his evidence pertaining to Ex.P.1 above referred citations, accused is entitled for benefit of doubt.

16.With regard to the alleged confessional statement of the accused before P.W.2, the same is hit by Sec.25 of Indian Evidence Act and is inadmissible in evidence.

17.For the above discussion, this Court feels that prosecution utterly failed to prove the guilt of the accused beyond reasonable doubt for the offence alleged against him.

18. IN THE RESULT, the Accused is found not guilty for the 5 offence punishable U/sec.34(a)1(i) of A.P. Excise Act and he is acquitted

U/s.248(1) Criminal Procedure Code. The Accused shall execute a personal bond for Rs.10,000/- and it shall remain in force for a period of six months as required Under Section 437-A of Criminal Procedure Code. M.O.1 shall be destroyed after lapse of appeal time.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in the open court, this the 10th day of August, 2022.

Sd/- R.Ashok Kumar

Addl. Judicial Magistrate of I Class Gudur.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

PROSECUTION: DEFENCE:

P.W.1: M.Krishnaiah, SEB Constable, Gudur -None- P.W.2: P.Vijay Kumar, SEB Inspector, Gudur

DOCUMENTS MARKED

FOR PROSECUTION :- Ex.P.1: Special Report, dt.19-10-2021. Ex.P.2: First Information Report in Cr.No.150/2021 . Ex.P.3: Analysis Report Ex.P.4: Attested copy of proceedings dt.08-12-2021 for the destruction of the Contraband.

FOR DEFENCE:- -Nil-

MATERIAL OBJECTS

M.O.1: One Sample bottle of Amruts Silver Cup VSOP Indian Brandy (180 ml) Id/-RAK AJFCM,Gudur.

// TRUE COPY //

Addl. Judicial Magistrate of I Class, Gudur.

CALENDAR AND JUDGMENT

District : Nellore Calendar and Judgment tried by Sri R.Ashok Kumar, Addl. Judicial Magistrate of First Class , Gudur.

Date of

Appre- Commence- hension Released Close of Offence Report ment of Judgment of on bail trial trial accused 19.10.2021 19.10.2021--05.07.202208.08.2022 10.08.2022

Calendar and Judgment in C.C.No. 141 of 2022 on the file of the Addl. Judl.

Magistrate of First Class, Gudur.

Complainant : The Enforcement Inspector, Special Enforcement Bureau Station, Gudur.

Cr.No.150/2021

Name of the Age

accused with Calling Religion Resident

father’s name

Vavilla Chandra Sekhar-HinduR/o.Muthukur Village, 34 S/o.GovindaiahNellore, years Now at Lingavaram Village, Chillakur Mandal, SPSR Nellore District. Offence : U/Sec. 34(a)1(i) of A.P. Excise Act

Finding : Accused found not guilty.

Sentence : The Accused is acquitted U/s.248(1) Cr.P.C. for the offence punishable Under Section 34(a)1(i) of A.P. Excise Act. The Accused shall execute personal bond for Rs.10,000/- and it shall remain in force for six months as required Under Section 437-A of Criminal Procedure Code. M.O.1 shall be destroyed after lapse of appeal time.

Remarks : NIL Explanation for the delay : NIL

Sd/- R.Ashok Kumar

Addl. Judicial Magistrate of I Class, Gudur. Copy submitted to : The Hon’ble Principal Senior Civil Judge-cum- Chief Judicial Magistrate, Nellore.

// TRUE COPY // 7

Addl. Judicial Magistrate of I Class, Gudur.

1

IN THE COURT OF ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS::

GUDUR.

Present: Sri R.Ashok Kumar

Addl. Judl. Magistrate of I Class, Gudur

Monday, the Eighth (8th) day of August, 2022

C.C.No.112/2018

Between:

State : Sub-Inspector of Police, Manubolu Police Station.

....Complainant

And

Gudisi Bharath Simha Reddy, S/o.Venkata Krishna Reddy, Aged about 19 years, Studying 1st Year B.Tech., SKR Engineering College, Konduru Satram Village,

Manubolu Mandal. ….. Accused

Daddogi Kiran Kumar @ Kiran, S/o.Chandraiah, Aged about 21 years, Studying 2nd Year B.Tech, SKR Engineering College, Konduru Satram Village, Manubolu Mandal, SPSR Nellore District. ….. Deceased

This case coming before me on 03.08.2022 for final hearing in the presence of learned Assistant Public Prosecutor for State and Sri.J.Suresh, Advocate for the accused, upon hearing on both sides, having stood over for consideration, till this day, this court delivered the following:

J U D G M E N T

1. The Sub Inspector of Police, Manubolu Police station filed charge sheet against the accused in Crime No.182/2017 for the offence punishable Under Section 304-A of Indian Penal Code and Sections.181, 196(a) of Motor Vehicles Act.

2. The brief facts of the case of the prosecution are as follows:

2

On 05-11-2017, the accused, who was studying 1st year B.Tech., in SKR Engineering College, Konduru Satram who was not having valid driving license to ride a two wheeler, was proceeding from Gudur to his college with Daddogi Kiran Kumar @ Kiran (deceased) as pillion rider on his bike bearing Regn.No.AP 26 BD 7688 which was not properly insured, while proceeding near Vengamamba Hotel, Manubolu on the National Highway, at about 2-00 pm, the accused drove the motor cycle in a rash and negligent manner, lost control over the vehicle due to which the vehicle fell down, the accused as well as D.Kiran Kumar (deceased) fell on the road, sustained grievous injuries and lost conscious. PW.2, being the Principal of the said college, lodged report to the police, basing on which, a case for the offence under Sec.338 of Indian Penal Code was registered. Later, while undergoing treatment, D.Kiran Kumar succumbed to injuries and the father of the deceased ie.,PW.1 lodged report to the police, basing on which, section of law was altered from 338 of Indian Penal Code to 304-A of Indian Penal Code.

On 23-01-2018, accused was served sec.41-A Criminal Procedure Code notice.

3. Cognizance is taken for the offences Under Section 304-A of

Indian Penal Code and Sections.181 and 196(a) of Motor Vehicles Act and summons were issued to the Accused.

4.On appearance of the accused before the court, Copies of all documents were furnished to him as contemplated under Section 207

Criminal Procedure Code. When examined under section 251 of Criminal

Procedure Code for the offence under section 304-A of Indian Penal Code and

Sections.181 and 196(a) of Motor Vehicles Act, the accused pleaded not guilty and claimed to be tried.

3

5.The prosecution, in order to prove its case, cited fifteen witnesses, among them, examined eight witnesses as P.Ws.1 to 8 and exhibited Exs.P.1 to P.19. The evidence of remaining witnesses is given up by the learned Assistant Public Prosecutor.

6. On closure of prosecution evidence, accused is examined

Under Section 313 of Criminal Procedure Code basing on the incriminating material available in the evidence of prosecution witnesses, he denied the same and reported no defence evidence on his behalf.

7. Heard both sides.

8. The learned Assistant Public Prosecutor argued that with the evidence adduced, the prosecution succeeded in proving its case against the accused for the offence alleged against him.

9. The learned defence counsel argues that the evidence available on record is not sufficient to prove the case against the accused and that he is entitled for acquittal.

10.Now the point that arise for determination is :

“ Whether the prosecution is able to prove

its case against the accused for the

offences alleged against him?”

POINT:

11.Pw.1 who lodged report to the police alleging that the accused, with his rash and negligent riding of the two wheeler, caused the accident, resulting in the death of his son D.Kiran Kumar, turned hostile to the case of the prosecution stating that he does not know the contents of the report and that except rushing to the hospital having come to know that his son met with accident. Same is the evidence of PW.2, who was the first 4 informant of the accident. His evidence is that having come to know that the student of his college met with accident, he went to Narayana Hospital, where he found Kiran Kumar undergoing treatment and that except this, he does not know anything about the manner of the accident. PW.3 who was examined to support the evidence of PW.1, also has not supported the case of the prosecution.

12.Pws.4 to 6 who are examined as independent eye witnesses to the accident also expressed their ignorance as to the manner of accident and in fact, their evidence is that they have not witnessed any such accident.

13.The only evidence available in support of the case of the prosecution is that of Pw.7, one of the mediators for the inquest held over the dead body of D.Kiran Kumar (deceased) and that of PW.8, the investigating officer.

14.In the absence of the evidence of direct witnesses, the evidence of other witnesses like inquest mediator and the investigating officer does not play any important role and does not invite any appreciation in depth, since the cause of death of D.Krian Kumar that it was due to road traffic accident, is not in question.

15.The prosecution, having failed to prove that the accident occurred due to rash or negligent riding of the crime vehicle by the accused, consequently failed to prove that he was not having valid driving license and that the vehicle was not properly insured and thereby failed to make out a case against the accused for the said offences.

16.In the result, Accused is found not guilty for the offences under Section 304-A of Indian Penal Code and Sections.181 and 196(a) of 5

Motor Vehicles Act and he is acquitted under sec. 255 (1) Criminal Procedure

Code for the said offences. His bail bond shall remain in force for a period of

Six months as required under section 437-A Criminal Procedure Code. No order in relation to property is passed since no property is produced before the Court.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in open court, this the 8 th day of August, 2022.

Sd/- R.Ashok Kumar

Addl. Judicial Magistrate of I Class

Gudur.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF OF

PROSECUTION: DEFENCE:

P.W.1: D.Chandraiah -None- P.W.2: G.Mahendra

P.W.3: G.Bala Muni

P.W.4: Ch.Suneel

P.W.5: P.Polaiah

P.W.6: V.Tirumala

P.W.7: D.Srinivasulu

P.W.8: D.Mallikarjuna Rao, the then HC of Manubolu

DOCUMENTS MARKED FOR PROSECUTION

Ex.P.1: Signature of PW1 in report dated 7.11.2017.

Ex.P.2: 161 Cr.P.C statement of PW.1.

Ex.P.3: Signature of PW2 in the statement dated 5.11.2017.

Ex.P.4: 161 Cr.P.C statement of PW.2.

Ex.P5: 161 Cr.P.C statement of PW.3.

Ex.P6: 161 Cr.P.C statement of PW.4.

Ex.P7: 161 Cr.p.C statement of PW.5.

Ex.P8: 161 Cr.P.C statement of PW.6.

Ex.P9: Inquest Report.

6

Ex.P10: MLC Intimation of the Deceased/D.Kiran Kumar.

Ex.P11: Statement of PW.2.

Ex.P12: FIR in Crime No 182/2017.

Ex.P13: Report given by PW.1 dt.07.11.2017.

Ex.P14: Altered FIR.

Ex.P15: Rough sketch

Ex.P16: Wound certificate of the accused.

Ex.P17: PMC of the deceased D.Kiran Kumar.

Ex.P18: MVI Report.

Ex.P19: MLC Intimation of accused.

DOCUMENTS MARKED FOR DEFENCE

--Nil--

MATERIAL OBJECTS MARKED

--Nil--

Id/- RAK AJMFC, Gudur. // TRUE COPY //

Addl. Judl. Magistrate of I Class, Gudur.

7

CALENDAR AND JUDGMENT

District: NELLORE. Calendar and Judgment tried by Sri.R.Ashok Kumar,

Additional Judicial Magistrate of I Class, Gudur.

Date of Date of Date of Date of Date of Date of Date of OffenceReportApprehe-ReleaseCommencclose of trialJudgment nsion of on bailement of accusedtrial 5.11.20176.11.2017----16.3.20223.8.20228.8.2022

Calendar and Judgment in C.C.No. 112 of 2018 on the file of Additional

Judicial Magistrate of I Class Court, Gudur.

Complainant : The Sub-Inspector of Police, Manubolu Police Station.

Cr.No. 182 of 2017.

Name of the Age Calling Religion Resident

accused with father’s name Gudisi Bharath Simha19StudentHinduSKR Engineering College, Reddy,yearsKonduru Satram Village, S/o.Venkata KrishnaManubolu Mandal. Reddy Offence: Under Section.304-A of Indian Penal Code and Sections.181 and 196(a) of Motor Vehicles Act.

Finding : Accused is found not guilty.

Sentence: The accused is acquitted under Section.255 (1) Criminal Procedure Code for the offences under Section.304-A of Indian Penal Code and Sections.181 and 196(a) of Motor Vehicles Act. His bail bonds shall remain in force for a period of six months as required under section 437-A Criminal Procedure Code. Remarks : NIL Explanation for the delay : NIL

Sd/- R.Ashok Kumar

Addl.Judicial.Magistrate of First Class, Gudur. Copy submitted to

The Hon’ble Principal Senior Civil Judge-cum- Chief Judicial Magistrate, Nellore.

// TRUE COPY //

Addl. Judl. Magistrate of I Class, Gudur.

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