Sri R Thirupathi

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IN THE COURT OF THE III ADDITIONAL CHIEF METROPOLITAN

MAGISTRATE :: AT HYDERABAD

PRESENT : SRI R. THIRUPATHI,

III ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD.

Tuesday, the 21st day of February, 2017

C.C. No. 1995/2014

Between :

The State of Telangana, represented by the Addl. Inspector of Police, P.S. Banjara Hills, Hyderabad. …… Complainant

And

Datrika Venu Madhav, S/o. Late D. Anjaiah, Aged: 33 years, Occ: Business, R/o H.No. 3-14-36/7/49, Plot No.5, Viveknagar, near Yadagiri Hotel, Ramanthapur, Hyderabad …… Accused

This case is coming on before me for final hearing in the presence of Sri P.J. Rama Krishna, the Senior Assistant Public Prosecutor for the Complainant and Sri B. Vijaysen Reddy, Advocate

for the accused and after perusing the case records and upon hearing

the arguments on both sides, this Court made the following:-

:: J U D G M E N T ::

The Additional Inspector of Police, P.S., Banjara Hills,

Hyderabad has filed a charge sheet against the sole accused in Crime

No. 24/2013 for the offences punishable under sections 420, 406 and 506 of the Indian Penal Code.

2.The brief facts, leading to the prosecution of the accused, can be summarized as follows:-

(i)Pws.1 and 2 (Jagdish Ray and Narender Kumar Agarwal) are running an automobile shop under the name and style ‘Adarsh

Motors’ at Krishna Nagar cross roads, dealing with the sale, purchase 2 and exchange of vehicles. The accused came into contact with them in connection with the sale and purchase of the said vehicles.

(ii)On 04.10.2012 at about 12:00 noon, the accused approached

Pws.1 and 2 (Jagdish Ray and Narender Kumar Agarwal) in their shop along with a Toyota Fortune car bearing no. AP-28DH-8888 belonging to Pw.4 (B. Ravinder Reddy) offering to sell the same for a consideration of Rs. 16,00,000/- by showing the original documents along with R.T.A., transfer forms and further informing them that the said car is under hypothecation to Indian Overseas Bank, Jubilee

Hills branch for Rs. 6,31,667/-. After verification, having believed the version of the accused, Pws.1 and 2 (Jagdish Ray and Narender

Kumar Agarwal) cleared off the loan to a tune of Rs. 9,09,333/- to the said bank in cash. When the complainant approached the R.T.A., agent for getting transfer of the vehicle, the signatures of the original owner were not tallied with the signature found on the transfer application form and the accused promised to bring fresh papers from the original owner.

(iii)On 30.10.2012 the accused came to the shop of Pws.1 and 2 (Jagdish Ray and Narender Kumar Agarwal), collected the original papers along with the car promising to show the car to the owner along with the signed papers. But, the accused did not turn up either on that day or on the next day i.e., on 31.10.2012.

(iv)On 01.11.2012 at 09:00 A.M., the accused contacted Pw.2 (Narender Kumar Agarwal) over phone and threatened him and his 3 father with dire consequences and warned them not to come to his house or to make any complaint against him, lest to see his end.

(v)When Pws.1 and 2 (Jagdish Ray and Narender Kumar Agarwal) contacted Pw.4 (B. Ravinder Reddy), the owner of the car, the said owner informed him that the said accused handed over his car to him and the owner refunded the amount of Rs. 6,31.667/- paid by Pws.1 and 2 (Jagdish Ray and Narender Kumar Agarwal) towards loan repayment on his behalf.

(vi)On 09.11.2012, the accused executed a document titled as ‘Deed of Full and Final Settlement’ agreeing to repay Rs. 7,00,000/- in two installments and issued two cheques on the name of Pw.1 (Jagdish Ray), one cheque bearing no. 005779 for Rs. 2,00,000/-

dated 15.11.2012 and another cheque bearing no. 005780 for

Rs.5,00,000/- dated 30.01.2013 drawn on Axis Bank, Habsiguda

Branch which were dishonoured for want of sufficient funds in the account of the accused.

(vii)On 04.01.2013 the accused threatened Pw.1 and 2 (Jagdish Ray and Narender Kumar Agarwal) and warned them and refused to pay the amount. Thus, the accused cheated Pws.1 and 2 (Jagdish Ray and Narender Kumar Agarwal) with dishonest intention and misappropriated the amount of Rs. 9,68,333/-.

3.The case was taken on file as C.C. 1995/2014 for the offences under sections 420, 406 and 506 of the Indian Penal Code.

4.On the appearance of the accused before this Court, copies of documents have been supplied to the accused as contemplated under section 207 Cr.P.C.

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5.The accused was examined under section 239 Cr.P.C., who denied the accusation levelled against him. After hearing the learned

Senior Assistant Public Prosecutor and the Defence Counsel, charges under sections 406, 420 and 506 of the Indian Penal Code have been framed against the accused, read over and explained to him in

Telugu, who pleaded not guilty to the said charges and claimed to be tried.

6.To substantiate its case, the prosecution has examined Pw.1 (Jagdish Ray), the de facto complainant, Pw.2 (Narender Kumar

Agarwal), his son, who are the victims, Pw.3 (Ramchander Singh), the mediator for the settlement dated 09.11.2012, Pw.4 (B. Ravinder

Reddy), the owner of the car and Pws.5 and 6 (D. Sanyasi Rao and

Syed Nayeemullah), the Investigation Officers.

7.After closure of the above prosecution evidence, the accused was examined under section 313 Cr.P.C., with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. The accused denied the incriminating material put to him and he did not propose to examine any defence witness.

8.Heard the learned Senior Assistant Public Prosecutor and the

Defence Counsel. Perused the record.

9.The points for consideration are:-

(i)“Whether the prosecution is able to establish that the accused has cheated Pws.1 and 2 punishable under section 420 IPC, beyond all reasonable doubt?” 5

(ii) “Whether the prosecution is able to establish that the accused has misappropriated a sum of Rs. 9,68,333/- punishable under section 406 IPC, beyond all reasonable doubt?”

(iii)“Whether the prosecution is able to establish that the accused has committed criminal intimidation by threatening Pws.1 and 2 with dire consequences punishable under section 506 IPC, beyond all reasonable doubt ?”

10.POINTS 1 AND 2: The accused stood charged for the offences under sections 406, 420 and 506 IPC alleging that the accused has taken away an amount of Rs. 9,09,333/- towards part of sale consideration of the Toyota Fortune vehicle bearing No. AP-28DH- 8888 belonging to Pw.4 promising to sell the said vehicle on behalf of

Pw.4 and later, failing to handover the requisite papers for transferring the vehicle from the original owner and returning the amount taken by him. Thus, the accused has cheated Pws.1 and 2.

11. The plea of the accused is one of total denial and false implication.

12.To sustain the said charge, the prosecution has relied upon the evidence of Pws.1 to 4.

13.Pws.1 and 2 are the de facto complainant and victims and they are father and son respectively. They testified on oath about the accused coming to their shop on 04.10.2012 offering to sell the

Toyota Fortune car bearing no. AP-28DH-8888 belonging to Pw.4 for a consideration of Rs. 16,00,000/- and receiving cash of Rs. 9,09,333/- 6 from Pws.1 and 2 and also making Pws.1 and 2 to pay Rs. 6,31,667/- at Indian Overseas Bank, Jubilee Hills Branch, to which the said vehicle was hypothecated by Pw.4. Thus, Pws.1 and 2 have paid the entire sale consideration of Rs. 16,00,000/- for the purchase of the said vehicle from the accused. It is further deposed by Pws.1 and 2 that the accused handed over the original R.C., book, Form No. 28, 29 and 30 to Pw.1 and when they went to the office of R.T.A., they were informed by the R.T.A., authorities that the said documents are not genuine and the signatures were not tallied. They further deposed that when they contacted the accused and informed the same, the accused promised to handover the fresh papers after consulting the original owner of the vehicle. They further deposed that on 30.10.2012 the accused came to their shop and asked them to handover the vehicle and papers, so that he can get registration of the vehicle since the owner returned to the house. Having trust on the accused, he handed over the vehicle to him.

14.Pws.1 and 2 further deposed that later the accused was not found in the house when they went to the house of the accused on 31.10.2012. On 01.11.2012 the accused again called Pw.2 over phone and abused him in filthy language questioning for coming to his house and when they contacted Pw.4, the owner of the vehicle, the said owner represented that he received back the vehicle and he has no grievance and he promised to refund the amount which was paid by them if he show valid receipts and later, the accused negotiated with them on 09.11.2012 and it was mutually agreed between them that the accused shall refund Rs. 7,00,000/- and on the same day, 7 the accused issued a cheque for Rs. 2,00,000/- post dating as 15.11.2012 and another cheque for Rs. 5,00,000/- by post dating as 30.01.2013 and when the said first cheque was presented, it was returned dishonoured as insufficient funds and that the account was not in operation. They further deposed that they informed the accused about the dishonour of cheques and the accused promised to repay the same and ultimately, the accused refused to pay the same and threatened them to do whatever they like and further the accused abused them in filthy language and threatened them with dire consequences. Then, Pw.1 lodged a complaint-Ex.P1.

15.Pws.1 and 2 proved Ex.P2 as the Full and Final Settlement executed by the accused on 09.11.2012 besides filing Ex.3-pronote and the receipt-Ex.P4 executed by the accused in the presence of

Pw.3. He also field Exs.P5 and P6-cheques and Ex.P7-cheque return memo showing the dishonour of the cheque. Pws.1 and 2 were extensively cross-examined by the learned Defence Counsel and their evidence does not reveal any material omissions and contradictions to discredit their testimonies on solemn oath. Pws.1 and 2 have no axe to grind against the accused for false implication. It is not suggested to Pws.1 and 2 that there was no such transaction between the accused and Pws.1 and 2 for the sale of the vehicle. The evidence of

Pws.1 and 2 gets corroboration and credence from the testimonies of

Pws.3 and 4.

16.Pw.3 is the mediator in whose presence the settlement has been arrived on 09.11.2012 between Pw.1 and the accused. It was deposed by Pw.3 that the accused offered to sell the vehicle to Pw.2 for 8

Rs.16,00,000/-, out of which, Pw.2 paid cash of Rs. 9,69,333/- to the accused besides repaying the loan of Rs. 6,31,667/- on behalf of

Pw.4, the owner of the vehicle, which was hypothecated to the bank.

He also further deposed that the accused gave transfer papers which were found to be defective by the R.T.A., authorities and later, the accused took away the vehicle and the papers with him promising to obtain fresh papers duly signed by the owner of the vehicle, later, the accused did not bring the said papers or the vehicle to Pw.1. It is further deposed by Pw.3 that the matter was settled for

Rs.7,00,000/-, out of which, the accused issued two cheques i.e., one cheque for Rs. 2,00,000/- dated 15.11.2012 and another cheque for

Rs. 5,00,000/- dated 30.01.2013 and the cheque for Rs. 2,00,000/- was presented for payment, it was informed that the account was already closed and when Pw.2 informed the same to the accused, the accused did not choose to pay the amount and asked him to do whatever he likes. He proved Ex.P2 as the Full and Final Settlement

Deed on which he signed as a witness. He further deposed that the accused also threatened Pw.2 to kill him and refused to pay the amount. This witness was also cross-examined at length, but nothing substantial could be elicited from him. He has no animosity with the accused or has got any special interestedness towards Pws.1 and 2, he being the independent witness.

17.Pw.4 is the owner of the car. He deposed that he offered to sell his car for Rs. 16,00,000/- when the accused approached him and he also informed the accused that there was outstanding loan of

Rs.6,00,000/- and odd with Indian Overseas Bank, Jubilee Hills 9

Branch and it was hypothecated to the said Bank. He further deposed that the accused took his car along with his original documents in or about December, 2012 and the accused again approached him in the month of January, 2013 and informed him that he had paid the outstanding loan amount of Rs. 6,00,000/- and odd to the Indian Overseas Bank and when he asked for the balance amount, the accused went out and sometime later, returned back and handed over the vehicle papers. Pw.4 further deposed that a few months later, in the same year, Pw.1 approached him and informed him that he had paid the bank loan amount of his car and also the remaining amount to the accused and he received the car and also refunded the loan amount of Rs. 6,00,000/- and odd to Pw.1 at that time. He deposed that the rest of the amount might have been misused by the accused. It is elicited from him in the cross- examination that he refunded the said amount of Pw.1 by way of cash and he has no definite knowledge about the misuse of the balance amount by the accused. The evidence of Pw.4 also corroborates the testimony of Pws.1 to 3 about his offering to sell the vehicle and handing over the same to the accused which was again offered to sell the same to Pw.2.

18.The evidence of Pws.1 to 4 would clinchingly establish that the accused induced Pws.1 and 2 to purchase the vehicle belonging to

Pw.4 for Rs. 16,00,000/-, out of which a sum of Rs. 6,31,667/- was paid to the bank and the remaining amount of Rs. 9,69,333/- was paid in cash who promised to transfer the vehicle through Pw.1 who is the owner of the vehicle by getting necessary papers. Their 10 evidence also further establishes that the accused produced the original papers duly signed by Pw.4 and taken steps to effect transfer of the vehicle in favour of Pw.1. Their evidence also discloses that the accused also did not choose to repay the amount of cash received by him from Pws.1 and 2 towards sale consideration.

19.The evidence of Pws.1 to 4 coupled with Exs.P2 to P7 would conclusively establish that the accused also agreed under Ex.P2 to pay Rs. 7,00,000/- in installments @ Rs. 2,00,000/- and

Rs.5,00,000/- by issuing post dated cheques for Rs. 2,00,000/- dated 15.11.2012 and another cheque for Rs. 5,00,000/- dated 30.01.2013.

20.Though there was a stipulation in the Full and Final Settlement

Deed-Ex.P2 that the settlement is subject to realization of cheque, otherwise Pw.1 is at liberty to take further action as per law. There is no specific mention in Ex.P2 as to which cheque was referred to in

Ex.P2, as a condition precedent for the enforcement of the said settlement. Ex.P5-cheque dated 15.11.2012 was presented for payment and the same was dishonoured for want of sufficient funds on 09.01.2013. When Ex.P5- cheque was dishonoured the question of again presenting another cheque-Ex.P6 on or after 30.01.2013 does not arise as there was no sufficient funds. The accused did not seriously dispute the execution of Ex.P2, issuance of cheques-Exs.P5 and P6 or the execution of pro-note-Ex.P3 and passing the receipt-

Ex.P4. They would conclusively establish that the accused induced

Pw.1 promising to pay Rs. 7,00,000/- towards Full and Final

Settlement and later, failed to pay the same and make arrangement for honouring the cheques-Exs.P5 and P6. Therefore, it can be safely 11 concluded without any hesitation, that the prosecution could successfully prove the guilt of the accused for the offences under sections 406 and 420 IPC. The accused can, therefore, be held to be guilty of the said offences with which he is charged. The points are answered accordingly in favour of the prosecution and against the accused.

21.POINT NO.3: The accused is also charged for the offence under section 506 of the Indian Penal Code. It is deposed by Pws.1 to 3 that the accused threatened Pws.1 and 2 with dire consequences to kill them and refused to pay the amount when demanded by Pws.1 and 2 by abusing them in filthy language. Therefore, it can also be held that the prosecution has proved the charge under section 506 of the Indian Penal Code. Accordingly, I find the accused guilty of the offence under section 506 IPC. The point is answered accordingly in favour of the prosecution and against the accused.

22.In the result, the accused is convicted under section 248(2)

Cr.P.C., for the offences under sections 406, 420 and 506 of the

Indian Penal Code.

Dictated to the Stenographer, transcribed and typed by him,

corrected and pronounced by me in the open court on this the 21st day of February, 2017.

III ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

ORDER ON THE POINT OF SENTENCE:

23.The accused is questioned about the quantum of sentence. He pleaded for mercy of the Court stating that he is having aged and 12 ailing mother, wife and two children who are solely depending upon him and that he is their bread winner.

24.Having regard to the gravity of the offence being cheating and misappropriation besides criminal intimidation, it is not desirable to invoke the benevolent provisions of the Probation of Offenders Act to the offenders of this nature.

25.The accused is a young boy aged about (33) years and considering the mitigating circumstances put-forth by the accused and keeping in view the circumstances under which the offence is committed and the nature of the offence, I am of the opinion that the ends of justice would be met if the accused is sentenced to undergo

Rigorous Imprisonment for two years for the offences under sections 406 and 420 IPC and Rigorous Imprisonment for three months for the offence under section 506 IPC and to pay a fine of Rs.2,000/- for the offence under section 420 IPC.

26.(i)In the result, the accused is convicted under section 248(2) Cr.P.C., for the offences under sections 406, 420 and 506 IPC and he is sentenced to undergo Rigorous Imprisonment for two years for the offences under sections 406 and 420 IPC and Rigorous

Imprisonment for three months for the offence under section 506 IPC and to pay a fine of Rs.2,000/- for the offence under section 420 IPC and in default of payment of fine, to suffer Simple Imprisonment for one month. All the sentences shall run concurrently.

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(ii)The period of remand undergone by the accused, during investigation and trial, shall be given set off under section 428 Cr.P.C.

(iii)The accused is apprised of his right to prefer an appeal against the judgment and conviction of the sentence within a period of one month before the Hon’ble Metropolitan Sessions Judge, Hyderabad.

(iv)Further, the accused is also apprised of his right to have legal assistance to defend his in the appellate Court, if he so requires on proper application before the appellate Court.

Dictated to the Stenographer, transcribed and typed by him,

corrected and pronounced by me in the open court on this the 21st day of February, 2017.

III ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTIONFOR DEFENCE

PW1 – Jagdish Ray, (Comlainant)- None - PW2 – Narender Kumar Agarwal, (victim) PW3 – Ramchander Singh, PW4 – B. Ravinder Reddy, (owner of car) PW5 – D. Sanyasi Rao, (Head Constable) PW6 – Syed Nayeemullah, (Sub-Inspector of Police/ Investigation Officer)

EXHIBITS MARKED ON BEHALF OF PROSECUTION

Ex.P1 – Complaint given by Pw.1 to the police, dated 05.01.2013 Ex.P2 – Full and Final Settlement executed by the accused on 09.11.2012 Ex.P3 – Promissory Note dated 09.11.2012 Ex.P4 – Receipt attached to the promissory note, dated 09.11.2012 Ex.P5 – Cheque bearing no. 005779, dated 15.11.2012 issued by the accused Ex.P6 - Cheque bearing no. 005780, dated 30.01.2013 issued by the accused Ex.P7 – Cheque Return Memo dated 09.01.2013 Ex.P8 - First Information Report issued by Pw.5 (D. Sanyasi Rao, Head Constable), dated 06.01.2013 14

EXHIBITS MARKED ON BEHALF OF DEFENCE

- Nil -

MATERIAL OBJECTS MARKED

- Nil -

III ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

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IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE: HYDERABAD.

PRESENT : R. THIRUPATHI,

III ADDL. CHIEF METROPOLITAN MAGISTRATE,

FAC CHIEF METROPOLITAN MAGISTRATE:

HYDERABAD.

Friday the 30th day of October, 2015

C.C.NO. 1152/08 Between:

The State of Telangana through The Sub-Inspector of Police, PS Bahadurpura,

Hyderabad... Complainant

A N D

A-1 : Gulam Rabbani @ Faheem, S/o. Gulam Dastagir, age : 32 years, Owner of lorry bearing No. AP 12/U-4637, r/o. H.No. 20-3-1059/8, Shagunj, Hussainialam, Hyderabad.

A-2 : Mohd. Yousuf, S/o. Mohd. Jahangir, age : 40 years, Occ : Sand business, r/o. H.No. 20-123/E, Devid Kushi Jha, Hussainialam, Hyderabad.

(As the presence of A-2 could not be secured for a long time who is absconding, the case against him was split up and numbered as C.C.No. 648/15)

A-3 : Mohd. Kousar, S/o. Mohd. Azmath Ali, age : 44 years, Occ : lorry driver, r/o. Navabsab Kunta, Tadban,

Hyderabad. ... Accused

This case coming before me finally in the presence of Ms. Rita, APP for the State and Sri M.A.S. Jaweed, Counsel for the Accused and after having perused the evidence adduced on either side and exhibits marked and the material papers available on record having heard both sides and stood over for consideration till this day, this Court delivered the following :

J U D G M E N T

The Sub-Inspector of Police, Bahadurpura has filed a charge sheet against A-1 to A-3 in Cr.No. 109/08 for the offences punishable under Sections 186,504 and 506-II of IPC.

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2.The indictment against the accused, in brief, is as follows :

i)On 11-05-08 at about 2 PM while PW-1 was performing the traffic regulation duty in front of Zoo park along with Nagender (LW-2),

A-3 parked a lorry bearing No. AP 12/U-4637 on the road causing obstruction to the free flow of traffic and when he objected and requested the accused No. 3 to remove the said lorry, A-3 abused him in filthy language and challenged him. Then, PW-1 reported the matter to

Papalal, Assistant Sub-Inspector of Police (PW-4) who was on duty in the

Rakshak vehicle and when PW-4 questioned A-3, A-3 abused PW-1 in the presence of PW-4. Then, A-3 was brought to the police station.

ii)Some time later while Pws. 1 and 4 were performing their duties, A-1 and A-2 went there, A-1 caught hold the hand of PW-1, abused him in filthy language and dragged him to some distance. A-2 caught hold of the shirt collar of PW-1 and abused him in filthy language. They also threatened to kill him on the road itself. Thus, A-1 and A-2 assaulted

PW-1. So, A-1 and A-2 were also taken to the police station.

iii)PW-1 lodged a complaint which was registered as a case in

Cr.No. 109/08 and investigated. During the course of the investigation, witnesses were examined. The accused were arrested and sent for judicial custody. After completion of investigation, charge sheet was filed.

3.The case was taken on file as C.C.No. 1152/08 against A-1 to

A-3. As the presence of A-2 could not be secured for a long time who is absconding, the case against him was separated and numbered as

C.C.No. 648/15.

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4.My learned predecessor furnished copies of documents to A-1 and A-3 as required under Section 207 of Cr.P.C., and they were examined under Section 239 of Cr.P.C. The accused denied the accusation levelled against them. So, charges under Sections 353 and 506-II of IPC have been framed, read over and explained to them, who pleaded not guilty to the said charges and claimed to be tried.

5.To substantiate the said charges, the prosecution has examined PW-1, the defacto complainant and the victim, Pws. 2 to 4, ASI, the constables and the alleged eye witnesses to the incident and PW-5 the Investigating officer. The other listed witnesses were not examined by the prosecution.

6.After closure of the above prosecution evidence, the accused were examined under Section 313 of Cr.P.C., with reference to the incriminating circumstances appearing against them in the evidence of

Pws. 1 to 5 and the accused denied the incriminating material put to them and they did not propose to examine any defence witness.

7.Heard the learned Assistant Public Prosecutor and as well as the Defence Counsel. Perused the record.

8.The points for determination are :

1. “Whether the prosecution is able to establish that the accused have assaulted and used criminal force on Pws. 1 to 4 who are public servants who are discharging their official duties punishable under Section 353 of IPC ?” 4

2. “Whether the prosecution is able to establish that the accused have committed criminal intimidation threatening to kill Pws. 1 to 4 punishable under Section 506-II of IPC beyond all reasonable doubt ?”

9.P O I N T Nos. 1 and 2 :

The accused stood charged for the offences punishable under

Section 353 of the Indian Penal Code alleging that A-1 and A-3 along with A-2 have attacked and beat PW-1 while he was discharging his official duties in the regulation of traffic on 11-05-2008 at Zoo park when he objected the driver to remove the lorry, then the accused caught hold of his shirt collar and threatened to kill him. The plea of the accused is one of total denial and false implication.

10.To prove the incident proper, the prosecution has examined

Pws. 1 to 4 and PW-5, the Investigating officer. At the very outset,

I may state here that PW-2, one of the alleged eye witnesses, pleaded ignorance of this case and did not identify the accused and he was declared as hostile by the learned Assistant Public Prosecutor and nothing substantial could be elicited in his cross-examination by the learned Assistant Public Prosecutor to establish the complicity of the accused.

11.(i)Pws. 1,3 and 4 are material witnesses to prove the incident proper. PW-1 is the defacto complainant and the victim. He has given statement - Ex.P-1 before the Police promptly at 4.30 PM which was registered as a case in Cr.No. 109/08 leading to the prosecution of the accused during investigation, wherein he has stated that on 11-05-2008 at about 3.40 PM., while he was on traffic regulation duty near Zoo park, 5 a lorry bearing No. AP 12 U 4637 was parked and causing obstruction to the free flow of the traffic when he objected and assaulted him to remove the vehicle, the said driver behaved arrogantly questioning his authority and then he informed the Assistant Sub-Inspector of Police, who was present there along with staff, came there and took the said driver to the said Police station. Then they continued to discharge their traffic duty and some time later another person came and questioned him and caught hold of his hand and started dragging him and threatened him to see his end.

ii)It is also further stated therein that another person who came along with the said person, also threatened to see that his uniform is removed and by so saying he caught hold of his uniform shirt collar and about to slap him. Meanwhile the duty constables who were performing duty near Zoo park came there and saved him from the clutches of the said persons. He further stated that on enquiry he learnt that A-1 is the owner of the lorry while A-2 is the another lorry driver. Thus, as per

Ex.P-1, A-1 is the accomplice of PW-1. The complaint was given against

A-1 to A-3 that they have assaulted him. This is the earliest version of

PW-1 in his statement - Ex.P-1.

12.Now in the Court, PW-1 has testified on oath that on 11-05-2008 while he was on point duty at Zoo park along with Nagender,

Home Guard, a lorry was parked opposite to Zoo park causing obstruction to the free flow of the traffic and when he asked to remove the lorry , the driver did not pay heed to his words and instead, he abused him and half an hour later, A-1 to A-3 came there and threatened to kill him by catching hold of shirt collar. He identified the accused as 6 the persons who assaulted him. He was extensively cross-examined by the learned counsel for the accused but no material omissions or contradictions effecting the credibility of the testimony of PW-1, are elicited. There is no animosity between the accused and PW-1 prior to this incident and in fact, the accused are strangers to PW-1. PW-1 has no axe to grind against the accused for false implication. I see no valid reasons to disbelieve his testimony. The evidence of PW-1 gets credence and corroboration from the testimonies of Pws. 3 and 4.

13.PW-3 is the constable who worked at PS Bahadurpura at the relevant time. According to him, on 11-05-2008 at 4 PM, while he was performing the crime beat duty near Zoo park, he was informed by one

Rajesh (PW-2) about a police person is being beaten by two persons. On such information, he went there and found the Home guard was being beaten by two persons. He apprehended those two persons and handed over them in the police station. He identified A-1 and A-3 as culprits who assaulted PW-1. He was also cross-examined by the defence counsel but no material omissions or contradictions are elicited from him to discard his testimony.

14.PW-4 is the then Assistant Sub-Inspector of Police, PS

Bahadurpura at the relevant time. He testified on oath about himself being on patrolling duty near Zoo park on Rakshak vehicle on 11-05-2008 at 3.40 PM and PW-1 complaining of the accused quarrelling with him and abusing him when he asked to remove the lorry which was causing obstruction. Then, he immediately went there and asked the accused to remove the lorry but he continued to abuse PW-1 in filthy 7 language. Then he took him to the police station and handed over him in the police station. Except an improvement about himself not stating to the police about himself asking the accused to remove the lorry, nothing could be elicited to disbelieve from his testimony.

15.The evidence of Pws. 3 and 4 amply corroborates the testimony of PW-1 on solemn oath. There are no infirmities, inconsistencies or material omissions or contradictions effecting the credibility of their testimonies. As stated already, Pws.1,3 and 4 do not have any animosity for making false implication against the accused. The learned defence counsel did not place any material in support of his defence that the accused did not commit any offence and that a false case is foisted against them, though it is suggested so to Pws. 1,3 and 4 and but they have positively denied those suggestions. Those suggestions remained suggestions without any substantive material to prove the said defence version.

16.The contention of the learned defence counsel is that the evidence of Pws. 1,3 and 4 cannot be relied upon being Police officials, in the absence of the corroboration of independent witnesses. Such a contention does not hold any water as no material omissions, contradictions or infirmities are elicited. Merely because Pws. 1,3 and 4 happened to be Police officials, their evidence, on solemn oath, cannot be brushed aside.

17.The next contention of the learned defence counsel that no independent witness is examined also, has no substance as the 8 prosecution has examined PW-2, who is an independent witness, but unfortunately, he has chosen to turn hostile to the prosecution case. It is not the case of the prosecution that there are some other material witnesses present and witnessed the occurrence who were deliberately omitted by the prosecution. If such is the case of the accused, then certainly it would be fatal to the case of the prosecution, if those material witnesses are not examined. I find that the evidence of Pws. 1,3 and 4 is consistent, cogent, convincing and trustworthy besides being corroborative with each other on all material purposes and I see no valid reason to disbelieve their testimonies.

18.The evidence of Pws. 1,3 and 4 would conclusively and unhesitatingly establish that the accused herein have assaulted and used criminal force on PW-1, who is a Home guard and a public servant and who was deployed on traffic regulation duty at Zoo park and while he was discharging his official duties of regulation of traffic, when he asked the accused to remove the lorry which was causing obstruction.

19.The evidence of PW-1 proves that the accused also threatened PW-1 to kill him. Thus, the above acts of the accused in assaulting the public servant PW-1 while discharging his duties and threatening him to kill him would attract the ingredients of Sections 353 and 506-I of IPC only, as the accused was not armed with any deadly or lethal weapons, at the time of the criminal intimidation made by him. So, it cannot be held that accused has committed criminal intimidation to cause death or grievous hurt, to attract the ingredients of Section 506-II of IPC.

9

20.I, therefore, hold that prosecution has proved that the guilt of the accused for the offences under Sections 353 and 506-I of IPC beyond all reasonable doubt. Accordingly, I find them guilty of the said offences.

The points are answered in favour of the prosecution and against the accused.

21. In the result, A-1 and A-3 are convicted under Section 255(2) of Cr.P.C., for the offences under Sections 353 and 506-I of IPC.

Dictated to the Stenographer Grade-II, transcribed by her,

corrected and pronounced by me in the open court on this the 30th day of October, 2015.

FAC CHIEF METROPOLITAN MAGISTRATE

HYDERABAD.

ORDER ON THE POINT OF SENTENCE :

22.When the accused nos. 1 and 3 are questioned about the quantum of sentence, they pleaded for mercy of the Court to take lenient view stating that they are poor persons and that their family members are dependent on them as they are sole bread winners.

23.Having regard to the facts and circumstances of the case and as the accused have assaulted PW-1, a public servant, while he was discharging his duties, it is not desirable to invoke the benevolent provisions of the Probation of Offenders Act to the offenders of this nature.

10

24.It is also not desirable to sentence the accused to imprisonment at once, having regard to the mitigating circumstances put forth by them. The accused are youngsters in the age group of 32 and 44 respectively. If they are sentenced to imprisonment at once, their family members would face starvation. So, taking into account, the mitigating circumstances put forth by the accused and having regard to the gravity of the offence, I am of the opinion that the ends of justice would be met if the accused are sentenced to pay fine which I quantity at Rs. 2000/- each for the offence under Section 353 of IPC and Rs. 1000/- each for the offence under Section 506-I of IPC each.

25.In the result, A-1 and A-3 are convicted under Section 255(2) of Cr.P.C., for the offence under Section 353 and 506-I of IPC and they are sentenced to pay a fine of Rs. 2000/- each for the offence under

Section 353 of Indian Penal Code and Rs. 1000/- each for the offence under Section 506-I of Indian Penal Code and in default of payment of fine amount, A-1 and A-3 shall undergo Simple Imprisonment for two months under each count.

Dictated to the Stenographer Grade-II, transcribed by her,

corrected and pronounced by me in the open court on this the 30th day of October, 2015.

FAC CHIEF METROPOLITAN MAGISTRATE

HYDERABAD.

11

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

PW.1 : Syed Jaweed Ali (Complainant and victim) NONE

PW.2 : Rajesh (Eye witness)

PW.3 : Arjun, PC 6427 (Eye witness)

PW.4 : Papalal, ASI of Police (Eye witness)

PW.5 : G. Sreeram, SI of Police (Investigating officer)

EXHIBITS MARKED

Ex.P-1 : Statement of PW-1 recorded by the Police dt. 11-05-08.

Ex.P-2 : Statement of PW-2 recorded under Section 161 of Cr.P.C.

Ex.P-3 : First Information Report, issued by PW-5.

MATERIAL OBJECTS MARKED

NIL

FACCHIEF METROPOLITAN MAGISTRATE

HYDERABAD.

12

CALENDER OF CASES TRIED BY CHIEF METROPOLITAN MAGISTRATE : HYD. FORM NO: 71/72 OF CRL. RULES OF PRACTICE

CALENDER AND JUDGEMENT

C.C.NO. 1152/08

Date of offence: 11-05-08 Date of report/complaint : 11-05-08

Taking cognizance : 24-09-08

Furnishing copies to the accused : 04-08-14

Plea of the accused : 18-11-14

Examination U/Sec.313 Cr.P.C.: 05-10-15 and 15-10-15

Date of apprehension of accused : 11-05-08

Date of Release on bail : 13-05-08

Date of Commencement of trial : 23-02-15

Date of Close of Trial : 27-10-15

Date of Judgment: 30-10-15

Name of the Complainant : Sub-Inspector of Police,

PS Bahadurpura

Name of the accused : A-1 : Gulam Rabbani A-3 : Mohd. Kousar

Explanation for delay: No delay / Due to non production of witnesses by the prosecution. Offence under Section : Convicted under Section 353 of IPC and 506-I of IPC

Finding : In the result, A-1 and A-3 are convicted under Section 255(2) of Cr.P.C., for the offence under Section 353 and 506-I of IPC and they are sentenced to pay a fine of Rs. 2000/- each for the offence under Section 353 of Indian Penal Code and Rs. 1000/- each for the offence under Section 506-I of Indian Penal Code and in default of payment of fine amount, A-1 and A-3 shall undergo Simple Imprisonment for two months under each count.

Result : Convicted under Section 255(2) Cr.P.C

FAC CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

To: The Hon'ble I Addl., Metropolitan Sessions Judge, Hyderabad.

Dis.No. /CMM/2015 Date :

1

IN THE COURT OF THE III ADDL. CHIEF METROPOLITAN

MAGISTRATE AT HYDERABAD

PRESENT : SRI R. THIRUPATHI,

III ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD.

Tuesday, the 21st day of February, 2017

C.C. No. 2645/2014

Between :

The State of Telangana, represented by the Sub-Inspector of Police, P.S. Banjara Hills, Hyderabad. …… Complainant

And

A1) E. Gopal Reddy, S/o C.S. Reddy, Aged: 42 years, Occ: Supervisor, R/o H.No. 8-3-228/A, Yousufguda check post, Hyderabad

A2) Rajendra Kumar Singh, S/o Late Shyam Sunder Singh, A3) Shaik Rafiq, S/o Shaik Gaffar, A4) P. Nirup Kumar Reddy @ Nirup, S/o Satyanarayana Reddy, A5) M. Srinivas Rao, S/o Satyanarayana, A6) M. Shyam Sunder Rao, S/o Raghuvendra, (NB: A2 to A6 were convicted upon their admission on 18.10.2016 and hence the present case is proceeded against A1 only) …… Accused

This case is coming on before me for final hearing in the presence of Sri P.J. Rama Krishna, the Senior Assistant Public Prosecutor for the Complainant and Sri Vampati Mallikarjuna Sastry, Sri Kishan Raj Chauhan, Sri B. Anil Kumar, Advocates for the accused and after perusing the case records and upon hearing the arguments on both sides, this Court made the following:-

:: J U D G M E N T ::

The Sub-Inspector of Police, P.S. Banjara Hills, Hyderabad has filed a charge sheet against A1 to A6 in Crime No. 711/2014 for the offences punishable under sections 3 and 4 of the Andhra Pradesh

Gaming Act, 1974 (now Telangana Gaming Act).

2.The brief facts, leading to the prosecution of the accused, can be summarized as follows:- 2

(i)On 05.07.2014 on reliable information about the playing of three cards game at the house of A1, Pw.2 (S. Santosham), the Sub-

Inspector of Police along with his staff proceeded to the house of A1, served search proceedings on him and searched the house. During the course of search, they found A1 to A6 playing three cards game, they secured the presence of Pws.3 and 4 (M. Ravi Kumar and

G.Srihari) and in their presence, the accused gave a statement and pursuant to the statement of the accused, Pw.2 has seized cash of

Rs.11,940/-, (52) playing cards from the accused along with mobile phones under a cover of panchanama. The accused were brought to the station.

(ii)Pw.2 (S. Santosham) lodged a complaint-Ex.P1 with the Station

House Officer (Pw.5-Y. Mahesh), who registered the case in Crime No.

711/2014 and issued First Information Report-Ex.P5. The accused were arrested and sent for judicial custody. After completion of investigation, charge sheet was filed.

3.The case was taken on file as C.C. 2645/2014 for the offences under sections 3 and 4 of the Andhra Pradesh Gaming Act, 1974 (now

Telangana Gaming Act) against A1 to A6.

4.On the appearance of the accused before this Court, copies of documents have been supplied to them as contemplated under section 207 Cr.P.C.

5.The substance of the accusation has been read over and explained to the accused no.1 to 6 under section 251 Cr.P.C. A2 to

A6 admitted the accusation levelled against them voluntarily and 3 accordingly, they were convicted under section 252 Cr.P.C., on 18.10.2016 and sentenced to pay a fine of Rs.500/- each for the offence under section 4 of the A.P. Gaming Act, 1974 and in default of payment of fine, to suffer Simple Imprisonment for three months each. A1 denied the commission of the offence and claimed to be tried. So, the case is posted for trial against A1.

6.During the course of trial, the prosecution has examined Pw.1 (T.Venu Babu), the constable, Pw.2 (S. Santosham), the Sub-Inspector who apprehended the accused and seized the offensive material,

Pws.3 and 4 (M. Ravi Kumar and G. Srihari), the mediators in whose presence the statement of the accused was recorded and the offensive material was seized and Pw.5 (Y. Mahesh), the Sub-Inspector of Police who registered the case basing on the complaint-Ex.P4 given by Pw.2.

7.After closure of the above prosecution case, the accused no.1 was examined under section 313 Cr.P.C., with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the incriminating material put to him and he did not propose to examine any defence witness.

8.Heard the learned Senior Assistant Public Prosecutor and the

Defence Counsel. Perused the record.

9.The point for consideration is:- “Whether the prosecution is able to establish that the accused no.1 has been running a common gaming house at his house illegally without valid licence or permit punishable under sections 3 and 4 of the Andhra 4

Pradesh Gaming Act, 1974 (now Telangana

Gaming Act), beyond all reasonable doubt?”

POINT :

10.It is the case of the prosecution that the accused was playing three cards game illegally by running a gambling house in his house at Plot No.47, H.No. 8-3-682/1, Navodaya colony, Banjara Hills,

Hyderabad along with A2 to A6 and the police seized the playing cards, cash and mobile phones under a cover of panchanama pursuant to their statements.

11.The plea of the accused is one of total denial and false implication for statistical purpose.

12.As stated already, A2 to A6 were convicted and sentenced to pay a fine of Rs. 500/- as stated supra. Now, we are concerned with A1 only.

13.To sustain the said charges, the prosecution has examined

Pws.1 to 5. Pws.1, 2 and 5 are the police personnel who have conducted raid at the house of A1 and seized the offensive material, whereas Pws.3 and 4 are the mediators in whose presence the accused is supposed to have given statement and the offensive material has been seized, but Pws.3 and 4 did not support the prosecution case. They denied conduction of panchanama in their presence and the accused giving any statement. The evidence of

Pws.3 and 4 does not help the prosecution to establish the complicity of the accused in the offence. Now, we are left with the testimony of

Pws.1 and 2. Pw.1 is the constable who accompanied Pw.3 the Sub- 5

Inspector. Pw.1 deposed that on 05.07.2014 at about 09:15 P.M., he accompanied their Sub-Inspector (Pw.2) to the house of A1 at Plot

No.47, Navodaya colony, Banjara Hills where they found A1 to A6 playing three cards game and then they secured the presence of two mediators Pws.3 and 4 and the Sub-Inspector searched the house and recorded the statement of A1 and pursuant to his statement, he seized cash of Rs. 11,940/- and (52) playing cards besides mobile phones.

14.Pw.2 is the Sub-Inspector who deposed about himself receiving information about playing of three cards game and proceeding to the house of A1 at Navodaya colony on 05.07.2014 at 08:30 P.M., and themselves searching the house after serving search proceedings-

Ex.P1 and finding A1 to A6 playing three cards game in the said house. He deposed that A1 gave a statement and pursuant to which, he seized cash of Rs. 2,200/-, playing cards and a Nokia mobile phone under a cover of panchanama. He also deposed to have seized cash, playing cards and mobile phones from A2 to A6 also which are

M.Os.2 and 3. Pw.2 admits in the cross-examination that he is the complainant as well as the Investigation Officer. He also admits that he did not prepare any rough sketch at the scene of offence. Pws.1 and 2 did not depose about Pw.2 complying with the provisions of 100

Cr.P.C., in conducting search and seizure. The mediators-Pws.3 and 4 were admittedly taken from the police station. They are not the inhabitants of the place of offence. No seizure list was prepared and served upon the accused to show that the contraband was seized from 6 them. Thus, Pw.2 did not follow the mandatory provision of section 100 Cr.P.C.

15.Pws.1 and 2, being the police officials, are naturally interested in the success of their case and it is highly unsafe to place reliance upon the interested testimonies of Pws.1 and 2 to base conviction of the accused particularly in view of the hostility of Pws.3 and 4, who are the independent witnesses. There is no corroboration to the testimonies of Pws.1 and 2. As per section 100 Cr.P.C., Pw.2 is expected to take independent and respectable inhabitants of the place of offence and he is also required to prepared seizure list and serve the same on the accused which Pw.2 did not follow.

16.Thus, in view of the above infirmities in the investigation and evidence of Pws.1 and 2 and in view of Pw.2 being the Investigation

Officer which is highly irregular and contrary to the settled principles of investigation, it is not safe to place reliance upon the interested testimonies of Pws.1 and 2 to base conviction of the accused.

Therefore, I hold that the prosecution has miserably failed to prove the guilt of the accused no.1 beyond all reasonable doubt.

Consequently, I find the accused no.1 not guilty of the offence with which he stood charged. The point is answered accordingly against the prosecution.

17.(i)In the result, the accused no.1 is acquitted under section 255(1) Cr.P.C., for the offences under sections 3 and 4 of the Andhra

Pradesh Gaming Act, 1974 (now Telangana Gaming Act) and his bail bonds shall stand cancelled.

7

(ii)M.O.1-Cash of Rs. 11,940/- which was invested in the fixed deposit and M.O.3-five mobile phones shall be confiscated to the State as there is no claim from any of the accused and M.O.2- (52) playing cards shall be destroyed, after expiry of the appeal time.

Dictated to the Stenographer, transcribed and typed by

him, corrected and pronounced by me in the open court on this the 21st day of February, 2017.

III ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

PW1 – T. Venu Babu, (Constable)- None - PW2 – S. Santosham, (Sub-Inspector of Police/ Investigation Officer) PW3 – M. Ravi Kumar, (panch witness) PW4 – G. Srihari, (panch witness) PW5 – Y. Mahesh, (Sub-Inspector of Police)

EXHIBITS MARKED

Ex.P1 –Search Proceedings prepared by Pw.2 - Nil – (S. Santosham), dated 05.07.2014 Ex.P2 -Admissible portion of confession statement of A1- cum-Seizure panchanama, dated 05.07.2014 Ex.P3 -Admissible portion of confession statement of A2 to A6- cum-Seizure panchanama, dated 05.07.2014 Ex.P4 - Complaint given by Pw.1 (S. Santosham, Sub-Inspector of Police), dated 05.07.2014 Ex.P5 - First Information Report issued by Pw.5 (Y. Mahesh, Head Constable), dated 05.07.2014 Ex.P6 – Signature of Pw.3 (M. Ravi Kumar) on the search proceedings Ex.P7 – Signature of Pw.3 (M. Ravi Kumar) on the Panchanama Ex.P8 – Signature of Pw.4 (G. Srihari) on the search proceedings Ex.P9 – Signature of Pw.4 (G. Srihari) on the Panchanama

MATERIAL OBJECTS MARKED

M.O.1 – Cash of Rs. 11,940/- (deposited vide FDR) M.O.2 – (52) playing cards M.O.3 – Five mobile phones

III ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

1

IN THE COURT OF THE III ADDITIONAL CHIEF METROPOLITAN

MAGISTRATE :: AT HYDERABAD

PRESENT : SRI R. THIRUPATHI,

III ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD.

Thursday, the 16th day of February, 2017

C.C. No. 868/2015

Between :

The State of Telangana, represented by the Detective Sub-Inspector of Police, P.S. S.R. Nagar, Hyderabad. …… Complainant

And

Immidi Mahesh @ Tinku, S/o I. Rama Krishna, Aged: 24 years, Occ: Driver, R/o Plot No.6, FG-1, Tirumala Nilayam, Behind SNS Hospital, Dinakaranagar, Neredmet, R.K. Puram Post, Secunderabad …… Accused

This case is coming on before me for final hearing in the presence of Sri P.J. Rama Krishna, the Senior Assistant Public Prosecutor for the Complainant and Smt. N. Sujatha, Sri N. Babu Rao, Advocates for the accused and after perusing the case records and upon hearing the arguments on both sides, this Court made the following:-

:: J U D G M E N T ::

The Sub-Inspector of Police, P.S., S.R. Nagar, Hyderabad has filed a charge sheet against the sole accused in Crime No. 718/2014 for the offences punishable under sections 356 and 379 of the Indian

Penal Code.

2.The brief facts, leading to the prosecution of the accused, can be summarized as follows:-

(i)On 28.07.2014 at about 07:45 A.M.,, while Pw.1 (Smt.P.Pramila) was proceeding to Mental Hospital, Erragadda, the accused snatched away gold chain by coming on a motor cycle along with A2 and decamped with the booty.

2

(ii)On a complaint given by Pw.1 (Smt.P. Pramila), a case in crime

No. 718/2014 was registered and investigated. During the course of investigation, witnesses were examined. On 09.09.2014 at 08:00

A.M., while Pw.3 was checking the vehicles at Laxminarayana Yadav park, B.K. Guda, they found the accused coming on a motor cycle viz., Hero Honda motor cycle bearing no. AP-29AJ-5491 without carrying requisite documents and when they checked him, they found the accused to be in possession of the stolen property i.e., gold

Mangalasutram chain weighing about (3) tulas pertaining to Crime

No. 768/2014. The said Sub-Inspector of Police (Pw.3) seized the said property in the presence of Pw.2 (B. Srinivas) and Ravi Kumar Yadav (Lw.2). The accused lead the police and the mediators to his house where Pw.3 has seized the property pertaining to this case along with other properties concerning other crimes under a seizure report.

Later, A1 lead the police to the house of one Rahul Sunny (A2) who was found absconding. Later, the accused was arrested and sent for judicial custody. After completion of investigation, charge sheet was filed against the accused reserving right to file separate charge sheet against the absconding accused (A2) after his apprehension.

3.The case was taken on file as C.C. 868/2015 for the offences under sections 356 and 379 of the Indian Penal Code.

4.On the appearance of the accused before this Court, copies of documents have been furnished to him as required under section 207

Cr.P.C., and he was examined under section 239 Cr.P.C. The accused denied the accusation levelled against him. After hearing the learned Senior Assistant Public Prosecutor and the Defence Counsel, 3 charges under sections 356 and 379 of the Indian Penal Code have been framed against the accused, read over and explained to him in

Telugu, who pleaded not guilty to the said charges and claimed to be tried.

5.During the course of trial, the prosecution has examined Pw.1 (Smt.P. Pramila), Pw.2 (B. Srinivas), one of the mediators for the statement of the accused-cum-seizure panchanama, and Pws.3 to 5 (N.Sanjay Kumar, V. Uday Bhasker and K. Sunil Reddy), the

Investigation Officers.

6.After closure of the above prosecution evidence, the accused was examined under section 313 Cr.P.C., with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. The accused denied the incriminating material put to him and he did not propose to examine any defence witness.

7.Heard the learned Senior Assistant Public Prosecutor and the

Defence Counsel. Perused the record.

8.The point for consideration is:-

(i)“Whether the prosecution is able to establish that the accused has assaulted or used criminal force upon Pw.1 (Smt.P. Prameela) while attempting to commit theft of gold chain punishable under section 356 IPC, beyond all reasonable doubt?”

(ii)“Whether the prosecution is able to establish that the accused has committed theft of 4 gold chain weighing about (3.5) tulas belonging to Pw.1 (Smt. P. Prameela) punishable under section 379 IPC, beyond all reasonable doubt?”

9.POINTS NO.1 AND 2: The prosecution case is that the accused committed theft of gold chain belonging to Pw.1 from her person while she was proceeding on the road at Mental Hospital, Erragadda,

Hyderabad on 26.07.2014.

10.The plea of the accused is one of total denial and false implication.

11.To sustain the said charges, the prosecution has examined Pw.1 besides Pws.2 to 5. Pw.1 is the de facto complainant who deposed that on 26.07.2014 at about 07:45 A.M., while she was proceeding on the road towards S.R. Nagar from her house and when she reached

Mental Hospital, Erragadda, Hyderabad, the accused met her by coming on a motor cycle and enquired about the way leading to

S.R.Nagar and when she pleaded ignorance, the accused returned back on the vehicle and snatched away her gold chain from the neck weighing (3½) tulas which is M.O.1, after slapping her and she gave a complaint-Ex.P1 to the police. Except eliciting omissions with regard to the accused proceeding ahead and slapping her, no other material omissions or contradictions are elicited from her. She also admitted that the police showed the accused to her in the Court only.

12.The evidence of Pw.1, regarding identification of the accused for the first time in the Court, that too, on being showed by the police, cannot be relied and acted upon to convict him in the absence of prior 5 test identification parade and also the absence of mention of physical features which enabled her to identify the accused in the Court or

before the police. The evidence of Pw.1 would only establish that her

gold chain (M.O.1) was subjected to theft.

13.The prosecution wanted to prove the charge by relying upon the evidence of Pws.3 to 5. Pw.3 is the Sub-Inspector of Police who apprehended the accused on 10.09.2014 at 08:00 A.M., and seized gold Mangalasutram and Hero Honda Passion Plus motor cycle under

Ex.P2-Statement-cum-Seizure Panchanama. He further deposed that after taking the accused into custody from the Court for investigation on 18.09.2014, on being lead by the accused, he had been to the shop of Sri Srinivasa Chary along with M. Mallesh and T.Srinivas Goud at

Krupa complex, Surya Nagar colony, Safilguda, Secunderabad at about 10:30 A.M., where he seized one gold chain with locket pertaining to this case and one gold Mangalasutram, gold chain with pustelu and another gold Mangalasutram pertaining to other crimes under a cover of seizure report. Unfortunately, the prosecution did not choose to examine Srinivasa Chary from whom the stolen property pertaining to this case has been recovered. Even it has not filed seizure report under which the stolen property pertaining to this case was seized.

14.Pw.2 is not a witness to the stolen property pertaining to this case. He is a mediator for the statement of the accused-cum-seizure panchanama with regard to seizure of gold Pusthelathadu pertaining to another crime which is the subject-matter in C.C.No. 869/2014.

The mediators- M. Mallesh and T. Srinivas Goud, in whose presence 6 the stolen property pertaining to this case was seized, are not cited as witnesses in the memo of evidence and are not examined in the Court as witnesses. The said Srinivasa Chary, the receiver of the stolen property from where the stolen property has been seized and the mediators in whose presence the stolen property is sized or material witnesses to establish the complicity of the accused. Even the prosecution failed to file the seizure report pertaining to this case and marked as an exhibit. Therefore, it can be safely concluded without any hesitation that the prosecution has miserably failed to prove the charge either under section 356 IPC or 379 IPC. I, therefore, extend benefit of doubt to the accused in the said circumstances. The points are answered accordingly against the prosecution.

15.(i)In the result, the accused is acquitted under section 248(1) Cr.P.C., for the offences under sections 356 and 379 of the

Indian Penal Code and his bail bonds shall stand cancelled.

(ii)The interim custody of M.O.1 (gold chain) given to Pw.1 (Smt.P.Prameela) shall be made absolute subject to result of appeal.

Dictated to the Stenographer, transcribed and typed by

him, corrected and pronounced by me in the open court on this the 16th day of February, 2017.

III ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

PW.1 – P. Prameela, (de facto complainant/victim)- None – PW.2 – B. Srinivas, (panch witness) PW.3 – N. Sanjay Kumar, (Sub-Inspector of Police/ Investigation Officer) 7

PW.4 – V. Uday Bhasker, (constable) PW.5 – K. Sunil Reddy, (Sub-Inspector of Police)

EXHIBITS MARKED

Ex.P1 - Complaint given by Pw.1 (P. Prameela) to the police, - Nil -

dated 31.07.2014

Ex.P2 – Attested copy of admissible portion of confessional- cum-seizure panchanama, dated 10.09.2014 Ex.P3 - First Information Report issued by Pw.3,

dated 31.07.2014

MATERIAL OBJECTS MARKED

M.O.1 – Gold chain

III ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

1

IN THE COURT OF THE III ADDITIONAL CHIEF METROPOLITAN

MAGISTRATE :: AT HYDERABAD

PRESENT : SRI R. THIRUPATHI,

III ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD.

Thursday, the 16th day of February, 2017

C.C. No. 867/2015

Between :

The State of Telangana, represented by the Detective Sub-Inspector of Police, P.S. S.R. Nagar, Hyderabad. …… Complainant

And

Immidi Mahesh @ Tinku, S/o I. Rama Krishna, Aged: 24 years, Occ: Driver, R/o Plot No.6, Fg-1, Tirumala Nilayam, Behind SNS Hospital, Dinakaranagar, Neredmet, R.K. Puram Post, Secunderabad …… Accused

This case is coming on before me for final hearing in the presence of Sri P.J. Rama Krishna, the Senior Assistant Public Prosecutor for the Complainant and Smt. N. Sujatha, Sri N. Babu Rao, Advocates for the accused and after perusing the case records and upon hearing the arguments on both sides, this Court made the following:-

:: J U D G M E N T ::

The Sub-Inspector of Police, P.S., S.R. Nagar, Hyderabad has filed a charge sheet against the sole accused in Crime No. 650/2014 for the offences punishable under sections 356 and 379 of the Indian

Penal Code.

2.The brief facts leading to the prosecution of the accused can be summarized as follows:-

(i)On 13.07.2014 at about 03:00 P.M., while the de facto complainant-Smt.K. Krishna Kumari (Lw.1) was passing on the road near Hindu Public School, the accused came there on a motor cycle and snatched away his gold chain with pusthe and thalibottu 2 weighing about (2.5) tulas from her neck and fled away with the booty.

(ii)On a complaint given by Smt.K. Krishna Kumari (Lw.1), a case in crime No. 650/2014 was registered and investigated. During the course of investigation, witnesses were examined. On 09.09.2014 at 08:00 A.M., while Pw.3 was checking the vehicles at Laxminarayana

Yadav park, B.K. Guda, they found the accused coming on a motor cycle viz., Hero Honda motor cycle bearing no. AP-29AJ-5491 without carrying requisite documents and when they checked him, they found the accused to be in possession of the stolen property i.e., gold

Mangalasutram chain weighing about (3) tulas pertaining to Crime

No. 768/2014. The said Sub-Inspector of Police (Pw.3) seized the said property in the presence of Pw.1 (B. Srinivas) and S. Ravi Kumar

Yadav (Lw.2). The accused lead the police and the mediators to his house where Pw.3 has seized the property pertaining to this case along with other properties concerning other crimes under a seizure report. Later, A1 lead the police to the house of one Rahul Sunny (A2) who was found absconding. The accused was arrested and sent for judicial custody. After completion of investigation, charge sheet was filed against the accused reserving it right to file separate charge sheet against the absconding accused (A2) after his apprehension.

3.The case was taken on file as C.C. 867/2015 for the offences under sections 356 and 379 of the Indian Penal Code.

4.On the appearance of the accused before this Court, copies of documents have been furnished to him as required under section 207 3

Cr.P.C., and he was examined under section 239 Cr.P.C. The accused denied the accusation levelled against him. After hearing the learned Senior Assistant Public Prosecutor and the Defence Counsel, charges under sections 356 and 379 of the Indian Penal Code have been framed against the accused, read over and explained to him in

Telugu, who pleaded not guilty to the said charges and claimed to be tried.

5.In order to substantiate its case, the prosecution has examined

Pws.1 to 3 only. Pw.1 (B. Srinivas) is one of the mediators for the statement of the accused-cum-seizure panchanama. Pw.2 (K. Sunil

Reddy) is the Sub-Inspector of Police who filed the charge sheet while

Pw.3 (N. Sanjay Kumar) is the Investigation Officer who registered the case and investigated the same including arrest and seizure of the stolen property. The de facto complainant is not examined by the prosecution reporting that her whereabouts are not known. The other mediators are also not examined by the prosecution despite granting sufficient opportunity to examine the said witnesses and the learned

Senior Assistant Public Prosecutor gave up the said witnesses.

6.After closure of the above prosecution evidence, the accused was examined under section 313 Cr.P.C., with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. The accused denied the incriminating material put to him and he did not propose to examine any defence witness.

7.Heard the learned Senior Assistant Public Prosecutor and the

Defence Counsel. Perused the record.

4

8.The point for consideration is:-

(i)“Whether the prosecution is able to establish that the accused has assaulted or used criminal force upon Smt. K. Krishna Kumari (Lw.1) while attempting to commit theft of gold chain with pusthelu and thalibottu punishable under section 356 IPC, beyond all reasonable doubt?”

(ii)“Whether the prosecution is able to establish that the accused has committed theft of gold chain with pusthelu and thalibottu weighing about (2.5) tulas belonging to Smt. K. Krishna

Kumari (Lw.1) punishable under section 379 IPC, beyond all reasonable doubt?”

9.POINTS NO.1 AND 2: It is thecase of the prosecution that the accused snatched away the gold chain with pusthelu and thalibottu weighing about (2.5) tulas from the person of Smt.K. Krishna Kumari (Lw.1) while she was passing on the road near Hindu Public school lane, S.R. Nagar, Hyderabad on 13.07.2014 at about 03:00 P.M.

10.The plea of the accused is one of total denial and false implication.

11.To sustain the said charges, the prosecution has examined

Pws.1 to 3.

12.At the very outset, I may state here that the de facto complainant-Smt. K. Krishna Kumari (Lw.1) is not examined by the prosecution who is a material witness to unfold the story of the prosecution case. The property which is alleged to be involved in this 5 case is also not produced and marked as a material object as it was returned to the complainant as interim custody and she did not produce the same during the course of trial as her whereabouts are not available. Thus the material object i.e., subject of the present case which was involved in the commission of theft is not produced during the course of trial. Pw.2 is the Sub-Inspector of Police who simply filed the charge sheet after completion of investigation by Pw.3.

His evidence also does not help the prosecution to sustain the charges.

13.Pw.3 is the Sub-Inspector of Police who deposed to have registered the case basing on the complaint given by Smt.K. Krishna

Kumari (Lw.1) on 13.07.2014 at 07:00 P.M., and issued First

Information Report-Ex.P3. He further deposed about himself apprehending the accused on 10.09.2014 while he was in possession of gold Mangalasutram weighing about (3) tulas and seizing the same from his possession under a cover of panchanama-Ex.P1 (admissible portion) in the presence of Pw.1 (B. Srinivas) and Ravi Kumar Yadav (Lw.2). He also deposed about the accused giving the statement and leading them to the shop of S. Srinivasa Chary along with M. Mallesh and T. Srinivas Goud, the mediators to Krupa complex, Surya Nagar colony, Safilguda, Secunderabad on 18.09.2014 and himself seizing the gold chain with locket pertaining to this case besides other properties concerning other crimes in the presence of mediators. The mediators M. Mallesh and T. Srinivas Goud in whose presence the property concerning this crime was recovered is not examined by the prosecution. Even they were not cited as witnesses. No seizure 6 report under which the stolen property pertaining to this case is also not filed. The shop keeper-S. Srinivasa Chary is also not examined to prove the alleged seizure of the property. The evidence of Pws.1 and 3 does not connect the accused with the alleged commission of theft.

The material document i.e., the seizure report conducted in the presence of M. Mallesh and T. Srinivas Goud pertaining to this case is not filed. Thus, the evidence of Pws.1 to 3 does not inspire the confidence of the Court to base conviction of the accused and hence the accused is entitled for acquittal. The points are answered accordingly against the prosecution.

14.(i)In the result, the accused is acquitted under section 248(1) Cr.P.C., for the offence under sections 356 and 379 of the

Indian Penal Code and his bail bonds shall stand cancelled.

(ii)The interim custody of the unmarked property deposited vide

P.I.No. 225/2014 given to the de facto complainant-Smt.K. Krishna

Kumari (Lw.1) shall be made absolute subject to result of appeal.

Dictated to the Stenographer, transcribed and typed by

him, corrected and pronounced by me in the open court on this the 16th day of February, 2017.

III ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

PW.1 – B. Srinivas, (panch witness) - None – PW.2 – K. Sunil Reddy, (Sub-Inspector of Police) PW.3 – N. Sanjay Kumar, (Sub-Inspector of Police/ Investigation Officer) 7

EXHIBITS MARKED

Ex.P1 – Admissible portion of Confessional-cum-Seizure - Nil - panchanama, dated 10.09.2014 Ex.P2 - Complaint given by Smt. K. Krishna Kumari (Lw.1) to the police, dated 13.07.2014 Ex.P3 - First Information Report issued by Pw.3,

dated 13.07.2014

MATERIAL OBJECTS MARKED

- Nil -

III ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD