Sri S. Anil Kumar

1 CC.No.403/2015, Dt.29.12.2022

IN THE COURT OF THE ADDL. JUDICIAL MAGISTRATE OF 1st CLASS ::

SULLURPET :: SPSR NELLORE DISTRICT

Present: Sri S. Anil Kumar,

Additional Judicial Magistrate of 1st class,

Sullurpet.

Thursday, this the 29th day of December, 2022

C.C.No.403/2015

State: Rep. by Sub-Inspector of Police,

Tada Police Station … Complainant

Vs.

1. Amburu Rama Krishana, S/o Subramanyam, aged about 32 years, SC Mala by caste, Kadaluru Village, Tada Mandal.

2. Amburu Hari Krishna, S/o Subramanyam, aged about 25 years, SC Mala by caste, Kadaluru Village, Tada Mandal.

3. Malchi Veeraiah, S/o Ramanaiah, aged about 33 years, SC Mala by caste,

Kadaluru Village, Tada Mandal.... Accused Nos.1 to 3

This case coming for final hearing before me on 21.12.2022 in the presence of the Assistant Public prosecutor for complainant and of Sri P.

Lakshmaiah, Counsel for the accused and having stood over for consideration till this day, this court delivered the following:-

JUDGMENT

1) The State represented by the Sub-Inspector of Police, Tada Police station filed charge sheet against the accused in Cr.No.114/2015 for the offence

U/Secs.324, 323, 506 r/w 34 IPC.

2) The case of prosecution as per charge sheet in Cr.No.114/2015 of

Tada Police station is that:

Due to the land disputes between the accused group and the complainant group, on 27-05-2015 at about 12.30 hours A1 to A3 came to the house of

LW1/Amburu Veeraiah by abusing him as “EAMIRA NAA KODAKAA NENU

CONSTABLENI RAA NEE ANTHU CHUSTAANU” and kicked on his stomach 2 CC.No.403/2015, Dt.29.12.2022 and fisted on his chest. LW2-Amburu Venkatesh who is younger brother of

LW1/Amburu Veeraiah and residing by the side of his house came there. On that,

A1 to A3 pushed him and beat him, A1 stabbed with bike keys, due to which, he received bleeding injury under left eye. A1 to A3 pushed them and also threatened to kill them. A1 to A3 pushed LW2/Amburu Venkatesh and he fell down on the road, beat with hands and kicked him.

That on the report of LW1/Amburu Veeraiah, LW6/SI of Police, Tada P.S.

registered the above crime, took up investigation, examined witnesses and prepared rough sketch. On 28-05-2015 at about 10.15 a.m. on surrender of A1 to A3, LW6/SI of Police, Tada P.S. arrested them, sent for remand where the accused enlarged on bail.

That the SI of Police, Tada P.S. after receiving wound certificate of LW2 and after completion of investigation, filed charge sheet.

3)On 12-09-2015 this case was taken cognizance against the accused

Nos.1 to 3 for the offence U/Secs.324, 323, 506 r/w 34 of IPC and issued summons to the accused Nos.1 to 3.

4)On 05-12-2017 upon the appearance of accused before this court, copies of documents as contemplated U/Sec.207 of Cr.P.C. were furnished and on 14-12-2017 they were examined U/Sec.239 Cr.P.C. for the offences

U/Secs.324 and 506 IPC against A1, Sec.323 r/w 34 IPC against A2 and A3 were read over, explained to the accused in Telugu for which they pleaded not guilty and claimed to be tried.

5)The prosecution to prove its’ case examined PWs.1 to 6 and got marked EXs.P1 to P6. No witnesses were examined and no exhibits were marked on behalf of the defence. But the Advocate Commissioner was 3 CC.No.403/2015, Dt.29.12.2022 examined as CW1 and got marked Ex.C1 as per the orders in

Crl.M.P.No.109/2021 for defence.

6) After closure of prosecution evidence, the accused was examined

U/sec.313 Cr.P.C explaining incriminating material available in the evidence of prosecution witnesses and got read over and explained to them in Telugu for which they denied and reported defence evidence. The Advocate Commissioner was examined as CW1 and got marked Ex.C1 as per the orders in

Crl.M.P.No.109/2021 for defence. Further, accused counsel reported no defence

evidence. Hence, defence evidence closed.

7) Now the point for consideration is : Whether the prosecution brought

home the guilt of the accused No.1 for the offence U/Sec.324, 506 IPC and

the accused Nos.2 and 3 for the offence U/Sec.323 r/w 34 of IPC beyond all

reasonable doubt?

POINT :-

8) In order for better understanding, I am herewith drawing the provisions of law.

Section 323 in The Indian Penal Code

“Punishment for voluntarily causing hurt.—Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both”.

Section 324 in The Indian Penal Code

“Voluntarily causing hurt by dangerous weapons or means.—Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both”.

4 CC.No.403/2015, Dt.29.12.2022

Section 506 in The Indian Penal Code

“Punishment for criminal intimidation.—Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.—And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both”.

Section 34 in The Indian Penal Code

“Acts done by several persons in furtherance of common intention.— When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone”.

9) The investigation in this case commenced on the report of PW1 which is marked as Ex.P1. The brief contents of Ex.P1 is that:-

Due to previous land disputes, Amburu Rama Krishna, Amburu Hari

Krishna and Maltchi Veeraiah came upon his house by saying “EAMIRA NAA

KODAKAA NENU CONSTABLENI RAA NEE ANTHU CHUSTAANU” and abused him in filthy language, kicked on his stomach and fisted on his chest. When his brother/Amburu Venkatesh who is residing by the side of his house came there, they pushed him on the floor and beat him and Rama Krishna stabbed him with bike keys, due to which, his brother sustained bleeding injury near left eye.

Then, they thrown both of them down and punched them and also threatened them with dire consequences. They again pushed down his brother, who already got injured one leg and kicked him by saying that they would break his another leg. Already several cases are registered against Maltchi Veeraiah. Hence the report.

10) The prosecution to prove its case, got examined PWs.1 to 6. PW1 is the Defacto complainant, PW2 is the injured, PWs.3 and 4 are the eye witnesses,

PW5 is the Medical Officer and PW6 is the Investigating officer.

5 CC.No.403/2015, Dt.29.12.2022

11) PW1 deposed in his chief-examination that at about 3 years back in between 8:00 a.m. and 9:00 a.m., A1 to A3 were cultivating the land and then, A1 and A2 came to the adjacent land of him while he was doing cultivation and necked him out from the land and he fallen on the ground and both left the place.

But there is no mention about this incident in Ex.P1/report, Sec.161 Cr.P.C.

statement of PW1 and charge sheet.

Further, he deposed in his chief-examination that he does not know the survey number to an extent of Ac.0.60 cents and also he did not possess any document pertaining to the disputed site.

In his chief-examination he deposed that A1 to A3 came to near his house and altercated with him several times with regard to land. Here PW1 did not mention at what time they came to near his house. All of them pushed him on the side canal before the house and he had fallen and sustained injuries on his chest. Whereas, in his report and Sec.161 Cr.P.C. statement he stated that A1 fisted on his chest and in the cross-examination, he deposed that he did not file any report to show that he sustained injuries on his chest on the date of alleged incident.

In his chief-examination, he deposed A1 poked his brother LW2-Amburu

Venkatesh near his eye with bike keys, due to which, he sustained bleeding injuries on his eye. Then, himself and LW2 went to police station along with villagers. Then on his narration police drafted a report. Ex.P1 is the report dt.28-05-2015. Whereas, in the cross-examination, he stated that A1 poked his brother LW2-A. Venkatesh near his eye with bike keys at the backside of the house of N. Gopal and he witnessed the same. He cannot say on which eye

LW2-A. Venkatesh sustained injury and he also stated that on the date of alleged incident he filed Ex.P1 report and he got drafted Ex.P1 through his villagers. He went to the hospital after two days of the alleged incident. LW2-A. Venkatesh 6 CC.No.403/2015, Dt.29.12.2022 went to the hospital on the date of alleged incident. He cannot say the date of alleged incident. But he said it took place between 8:00 a.m and 9:00 a.m. He went to the police station at 10:00 a.m. on the date of alleged incident. He stated that he filed this report seeking the relief of agricultural land. He stated that the incident took place even in the agricultural land in between 8:00 a.m. and 9:00 a.m.

In chief-examination, he admitted his signature and contents of Ex.P1.

Whereas in the cross-examination, he stated that he does not know the contents of Ex.P1.

In his cross-examination, he stated that LW2-A. Venkatesh also signed in

Ex.P1 but in Ex.P1 there is no signature of PW2.

In the cross-examination, he deposed that he does not know whether the mother of A1 filed report in Cr.No.115/2015 against him, his brother’s son and three others in Tada P.S. for the offences U/Secs.509, 323, 506 r/w 34 IPC. He admitted that he and his brother were accused in CC No.118/2016. He admitted his son is working as Tahsilar. He stated that there is no proof to show that he and accused are owners of the disputed agricultural land. The other part of the cross-examination is the suggestions put supporting defence version, for which, he denied.

This piece of evidence creates doubt in the mind of the court whether the incident really took place. There are lot of variations when compared to the chief-examination of PW1 with that of his report, Sec.161 Cr.P.C. Statement and cross-examination.

12) PW2 deposed in his chief-examination that prior to 4 years at about 11:00 a.m. he heard cries out side of his house while he was sleeping in his house. Then, he came outside and noticed A1 to A3 and one Jayakrishna were beating PW1 with hands. Whereas, in his Sec.161 Cr.P.C., Ex.P1, charge sheet 7 CC.No.403/2015, Dt.29.12.2022 contents, Sec.161 Cr.P.C. Statements of other witnesses and PW1 evidence, there is no mention of name Jayakrishna.

In his chief-examination, he deposed that when he tried to rescue PW1, A1 beat him with bike keys and he sustained injury above his left eye brow.

Whereas in Sec.161 Cr.P.C. statements of all witnesses, Ex.P1, charge sheet contents and PW1 evidence, A1 poked below the eye of PW2. If he poked with bike keys below the left eye how the injury happened to PW2 on the above left eye brow.

In his chief-examination, he deposed that all the accused pushed him down and beat him with hands and legs. When they went to police station, police shifted them to Government Hospital, Sullurpeta. Due to the disputes of agriculture Government land of Ac.0.60 Cents in Kadaluru Village, the offence took place.

In the cross-examination, he stated that police examined him on the date of alleged incident in the year 2014. He gave his evidence as PW2 on 18-02-2019. In his chief-examination, he deposed that prior to 4 years at about 11:00 a.m. the offence took place. It means in the year 2015.

In the cross-examination, he deposed that he does not remember the date and month of alleged incident. Himself, his brother Chandraiah, PW1 and one other person went to the police station on the date of alleged incident. They were shifted to hospital on the date of alleged incident between 5:00 and 5:30 p.m. He also filed report at police station. He alone went inside of Police station and signed in the report drafted by police. He admitted PW1’s son-in-law working as Tahsildar but does not know whether he was working in Tada MRO Office at the time of alleged incident. The other part of the cross-examination is the suggestions put supporting defence version, for which, he denied.

8 CC.No.403/2015, Dt.29.12.2022

Hence, there are lot variations with regard to time, date, year and place of offence when compared the evidence of PWs.1 and 2, report, Sec.161 Cr.P.C.

statements and charge sheet.

13) PWs.3 and 4 deposed that they do not know anything about this case.

The learned APP declared them as hostile and put questions in nature of cross- examination, however with permission of the court but except marking their 161Cr.P.C. Statements as Exs.P2 and P3, nothing could be elicited to show that they are deposing false to help the accused.

14) PW5 who is Deputy Civil Surgeon at CHC, Sullurpet deposed that on 27-05-2015 she examined PW2, found incised wound on left zygoma, pain and tenderness on back diffusing and opined that the injury is simple in nature and issued wound certificate/Ex.P4 dt.27-05-2015.

In the cross-examination, he admitted that there is a possibility of receiving the injuries mentioned in wound certificate, when a person fell on the rough surface on cement road. He admitted that he never mentioned the age of injury.

He denied that he issued wound certificate at the instance of police of Tada and that he never examined PW2 and he is deposing false in favour of prosecution.

15) PW6 the then SI of Police, Tada P.S. deposed that on 28-05-2015 at about 11:00 a.m. in police station PW1 gave Ex.P1/written complaint, basing on it, he registered a case in Cr.No.114/2015 of Tada P.S. U/Secs.324, 323, 506 r/w 34 IPC under Ex.P5/FIR, issued copies of FIR to all concerned, examined PWs.1 and 2 at police station, referred PW2, injured to Government Hospital, Sullurpet for treatment, visited the scene of offence, examined and recorded the statements of PWs.3 and 4, prepared rough sketch of scene of offence under

Ex.P6, accused surrendered before police and they were enlarged on bail by police and after receipt of medical certificate, he filed charge sheet.

9 CC.No.403/2015, Dt.29.12.2022

In the cross-examination, he admitted PW1 is not injured in this crime,

PW2 who is injured has not given any report to police. He stated that he has not filed any report to show that he referred PW2 to Government Hospital. As per record he has not approached them prior to 28-05-2015. As per Ex.P4, PW2 was examined on 27-05-2015. He does not remember whether he registered any crime against PWs.1 and 2 in Cr.No.115/2015. After perusing the crime record 115/2015 he admitted as to registration of said crime against PWs.1 and 2. As per records the surname of defacto complainant in Cr.No.115/2015 and the surname of accused in the present case is same. He admitted accused, PWs.1 and 2 are same villagers. He admitted as the incident occurred at one time they are case and counter. He admitted that he registered both crimes at different time. After perusing the record in Cr.No.115/2015 he admitted that the said incident occurred at 11:00 a.m. on 27-05-2015. Ex.P1 is given at 12:30 p.m. He admitted there is a delay of one day in receiving the complaint. The reason for delay in registering the complaint is not mentioned under Ex.P1. As per Ex.P1 the scene of offence is near the house of defacto complainant. He admitted that as per Ex.P6 the scene of offence is shown as road. He adds it is entrance to the house of PW1. Ex.P6 does not disclose the name of the village and there is no date beneath the signature. He admitted he has not inspected the scene of offence before registering Ex.P5. He admitted that he has not inspected the scene of offence before registering Ex.P5. He admitted as per complaint in

Cr.No.115/2015 the mother of accused has given complaint against PWs.1 and 2 that her land is being grabbed. He cannot depose now whether he has filed charge sheet that the land belongs to mother of accused. He has recorded the confessional statement of accused when they surrendered in the police station.

As per the evidence of PW6, on 28-05-2015 at about 11.00 a.m. PW1 came to Police Station and gave Ex.P1 report and then after registering FIR, he 10 CC.No.403/2015, Dt.29.12.2022 referred PW2/injured to hospital. Whereas, as per PW5 evidence he examined

PW2 and issued wound certificate on 27-05-2015. Further, PW5 admitted that there is a possibility of receiving the injuries mentioned in wound certificate, when a person fell on the rough surface on cement road. From the above evidence of

PW.6, it is clear that it is a case and counter to the Cr.No.115/2015 as suggested by defence counsel and the same was admitted by PW6 also in his cross- examination.

16) CW1 deposed that he was appointed as Advocate Commissioner on 21-05-2018 in this CC and also in CC No.118/2016 through court and as per orders of court he visited the disputed land with the assistance of VRO and VRA

before both side counsel Sri.L. Ganapathi and Sri P. Lakshmaiah, examined and

recorded the statements of VRO, VRA, neighbouring land owners, defacto- complainant and filed report/Ex.C1 on 13-07-2018. The disputed land is in enjoyment of Amburu Subramanyam.

In the cross-examination, he stated that he has not taken the signature of witnesses in their statement and notice. He stated he appointed as Advocate

Commissioner to know under whose enjoyment the disputed land is. He admitted that as per Order 26 Rule 9, Sec.75 of CPC Advocate Commissioner cannot be appointed to know the fact of possession of land.

The evidence of CW1 and Advocate Commissioner Report shows that the disputed land is in enjoyment of Amburu Subramanyam who is father of the accused. This piece of evidence creates doubt in the mind of the court whether

A1 to A3 entered into disputed land and made galata or PWs.1 and 2 entered into the disputes land and made galata. Accordingly, the evidence of CW1 strengthens the case of defence.

11 CC.No.403/2015, Dt.29.12.2022

17) From the above discussion and on careful perusal of the record, there is no convincing and satisfactory evidence of PWs.1 and 2 as they deposed in different versions. There are so many lacunas and infirmities in their evidence.

Further, PWs.3 and 4 turned hostile, who are eye witnesses to the incident.

Without corroboration from the evidence of PWs.1 to 5, the evidence of PW.6, who is interested official witness, is not sufficient to bring home the guilt of the accused. Further, there are lot of lacunaes and infirmities in the evidence of

PW6 also. Hence, for the above discussion, the prosecution failed to bring home the guilt of the accused beyond all reasonable doubt.

For the above discussion, the prosecution failed to bring home the guilt of accused beyond all reasonable doubt.

18) In the result, A1 is found not guilty for the offence U/Secs.324, 506

IPC and A2 and A3 are found not guilty for the offence U/Secs.323 r/w 34 IPC as such they are acquitted of the same U/Sec.248(1) Cr.P.C. The bail bonds of accused shall be in force for a period of six months as required u/Sec.437-A

Cr.P.C.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the open court, on this the 29th day of December, 2022.

Sd/- S. Anil Kumar,

Addl. Judicial Magistrate of 1 st class, Sullurpet.

Appendix of evidence

Witnesses examined

For prosecution:-

P.W.1:- Amburu Veeraiah

P.W.2:- A. Venkatesh

P.W.3:- P. Srinivasulu

P.W.4:- M. Subramanyam

P.W.5:- G. Priyadarsini, Deputy Civil Surgeon at CHC, Sullurpet.

P.W.6:- A. Suresh Babu, the then, SI of Police Tada P.S.

12 CC.No.403/2015, Dt.29.12.2022

For Defence

CW1: K. Dharma Prasad, Advocate Commissioner.

Documents marked

For prosecution:-

Ex.P.1:- The written complaint of PW1 dt.28-05-2015.

Ex.P.2:- Sec.161 Cr.P.C. Statement of PW3.

Ex.P.3:- Sec.161 Cr.P.C. Statement of PW4.

Ex.P.4:- Wound Certificate of PW2 dt.27-05-2015.

Ex.P.5:- FIR dt. 28-05-2015 in Cr.No.114/2015 u/Secs.324, 323, 506 r/w 34 IPC.

Ex.P.6:- Rough Sketch of Scene of offence.

For Defence

Ex.C.1:- Commissioner Report dt.13-07-2018.

Material objects

-Nil-

Sd/- S. Anil Kumar,

Addl. Judicial Magistrate of 1 st class, Sullurpet.

//True copy//

Addl. Judicial Magistrate of 1 st class,

Sullurpet.

13 CC.No.403/2015, Dt.29.12.2022

CALENDAR AND JUDGMENT

District of:NELLORE

CALENDAR OF CASES TRIED BY THE PRINCIPAL JUNIOR CIVIL JUDGE, SULLURPET, (FAC) ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

SULLURPET

Date of Date of Date of Date of Date of Date of Date of OffenceFilingApprehensiReleasedCommenceClosure of Sentence on of on bailment trial accusedof trial 27.05.15 28.05.15 ----20.08.2018 15.03.2022 29.12.22 Explanation for the delay and remarks:

This case was taken on file on 12.09.2015. On 05-12-2017, on appearance of the accused, copies of case documents were furnished to the accused. On 14-12-2017, accused were examined U/Sec.239 Cr.P.C. and posted for trial. On 20.08.2018, PW.1 examined, Ex.P1 marked and cross-examined on 21-01-2019.

On 18-02-2019, PW2 was examined. On 29-07-2019, PWs.3 and 4 were examined and got marked Exs.P2 and P3. On 03-01-2020, PW5 was examined and got marked Ex.P4. On 04-01-2022, PW6 was examined and got marked

Exs.P5 and P6 and the prosecution evidence was closed. On 07-01-2022, the accused was examined U/Sec.313 Cr.P.C. On 15-03-2022, CW1 was examined and got marked Ex.C1 for defence and the defence evidence closed. On 23-06-2022 and on 21-12-2022, heard arguments. On 29.12.2022 judgment is

pronounced. Hence the delay.

JUDGMENT IN CALENDAR CASE No.403/2015 ON THE FILE OF

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS, SULLURPET

Complainant : The Sub-Inspector of Police, Tada P.S..

Description of the Accused :

1. Amburu Rama Krishana, S/o Subramanyam, aged about 32 years, SC Mala by caste, Kadaluru Village, Tada Mandal.

2. Amburu Hari Krishna, S/o Subramanyam, aged about 25 years, SC Mala by caste, Kadaluru Village, Tada Mandal.

3. Malchi Veeraiah, S/o Ramanaiah, aged about 33 years, SC Mala by caste, Kadaluru Village, Tada Mandal.

Offence:U/Sec.324, 506 of IPC against A1 U/Sec.323 r/w 34 IPC against A2 and A3.

Finding:Accused are found not guilty for the above said offences.

14 CC.No.403/2015, Dt.29.12.2022

Sentence:In the result, A1 is found not guilty for the offence U/Secs.324, 506 IPC and A2 and A3 are found not guilty for the offence U/Secs.323 r/w 34 IPC as such they are acquitted of the same U/Sec.248(1) Cr.P.C. The bail bonds of accused shall be in force for a period of six months as required u/Sec.437-A Cr.P.C.

Sd/- S. Anil Kumar,

Addl. Judl. Magistrate of First Class, Sullurpet

REMARKS From

Additional Judicial Magistrate of

First Class

SULLURPET

To The Hon’ble Chief Judl.

Magistrate-cum-Prl. Senior Civil

Judge,

NELLORE

Calendar Case No.:CC.No.403/2015 Date o f Judgment:27.12.2022 Date of Dispatch of: Calendar Dis. No. & Date: Date Received

//True copy//

Addl. Judicial Magistrate of 1 st class,

Sullurpet.

1

IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE

OF 1 st CLASS :: SULLURPET :: SPSR NELLORE DISTRICT.

Present: Sri S .ANIL KUMAR

Additional Judicial Magistrate of First Class, Sullurpeta.

Tuesday, this the 27th day of December, 2022.

C.C.No. 42/2019

State : Sub-Inspector of Police, Tada Police station. … Complainant.

Vs.

Gummidi Hari Kumar, S/o.Rajendra, Aged about 25 years, resident of KondamittaVillage, Srikalahasthi Mandal,Chittore Dist, Driver of Car bearing No:AP 03 CL 0018… Accused.

* * *

This matter is coming on 21-12-2022 for final hearing, in the presence of Assistant Public Prosecutor for the State and

Sri T.Sudhakar Reddy , Advocate for the accused, and on perusal of relevant material on record, and having stood over for consideration till this date, this Court delivered the following:

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

1. The Sub-Inspector of Police, Tada Police Station, filed charge sheet against the accused in Crime No.280 of 2018 of Tada

Police Station, for the offence punishable under sections 304-A, 338 and 337 of Indian Penal Code with the following allegations:-

2. The brief averments of the charge sheet is in nutshell as follows:-

The deceased is a female baby aged about one and half year, resident of Annambakam village, Chillakur Mandal. The injured

PW1 is the father of the deceased, injured LW2-T.Lakshmi is mother of deceased. The offence took place on NH-16 from Nellore to Chennai lane at Kiliveti Canal Bridge, outskirts of the Tadakandriga Village,

Tada Mandal.PW.1 is the complainant/ injured rider of tri- 2 cycle motor fitted rickshaw, the deceased is the daughter namely

Arichina aged about one and half year, they are livelihood by procession the pictures of Sai Baba, on try Cycle motor rickshaw and seeking alms in Andhra Pradesh and neighborhood state Tamilnadu, all the villagers of Annambakam are being colonial in other state for seeking alms, in this process on 02.12.2018 PW.1 along with his wife and deceased and four other families were left from Annambakam in order to go Chennai for seeking alms, in five tricycle motor rickshaws,

PW.1 handled his Rickshaw, his wife and deceased were sat inside their rickshaw, on the way after sunset all together halted at Nelaballi village of Naidupet Mandal. Later on 03.12.2018 at 07.00 hours left from Nelaballi village at first PW1 rickshaw was proceeding, the remaining relatives follow PW.1. While reached Kiliveti Canal bridge nearby Tada village at about 09.20 hours, at that juncture the accused diver of car bearing No. AP-03-CL-0081 drove the car in a rash and negligent manner at high speed and overtake the lorry swerved extreme left margin and hit PW.1 rickshaw from rear side, as a result of which the rickshaw totally damaged, PW.1, his wife and deceased were fell down on the road, PW.1 sustained injuries over left hand and left leg, his wife received injuries over back side, deceased received severe injuries over head and face, immediately they were shifted to

Government hospital, Tada as well as the deceased was shifted to Sri

City Hospital, for treatment. While undergoing treatment deceased was died at 10.20 hours due to fatal injuries. Later on the advice of duty doctor PW.1 and his wife were shifted to Government hospital,

Gudur for better treatment.

On the statement of P.W.1, a case was registered in Cr.No.

280/2018, U/S. 304(A), 337 IPC of Tada Police Station on 03.12.2018 3 at 11.30 hours and investigated by PW.5. During the course of investigation PW5 visited the scene of offence and prepared a rough sketch, found no material objects at the scene of offence, drafted crime scene observation report and duly attested by them. PW5 held inquest over the dead body in the presence of inquestdars at Govt.

Hospital, Sullurpet, they unanimously opined that the deceased died due to rash and negligent driving of the accused driver of car bearing

No: AP-03-CL-0081. LW.12-Dr.S.Ravi Babu, A.P.V.V.P., hospital, Gudur, who gave treatment to PW.1 and LW.2-T.Lakshmi issued wound certificates and opined that PW.1 sustained injuries are simple in nature as well as LW.2-T.Lakshmi sustained injuries are grievous in nature. L.W.13-Dr.G.Srinivas, Civil Assistant Surgeon, Government hospital, Sullurupet conducted autopsy over the dead body, issued

Postmortem Certificate and opined that the deceased died due to

Head injury. PW4 inspected the crime vehicle bearing No. AP-03-CL- 0081, issued MVI Report and opined that the accident was occurred not due to any mechanical defects of the vehicle. During the course of investigation PW.5 arrested the accused driver on 07.12.2018 in Tada

Police Station and served notice u/s 41 (a) Cr.P.C.Basing on the wound certificates section 338 IPC was added. After verifies the investigation of PW5 and took up further investigation and after completion of investigation and filed charge sheet against the accused. Thus the accused is liable for punishment u/s. 304(A),338, 337 of IPC.

3.The case was taken on file for the offences punishable under sections 304-A, 338 and 337 of the Indian Penal Code on 18-03- 2019.

4

4. After appearance of the accused on 20-08-2019 copies of documents were furnished to accused as contemplated under Section 207 Cr.P.C.

5.The accused was examined under section 251 of Cr.P.C the substance of accusation levelled against the accused is explained to him in Telugu language for the offences punishable under sections 304-A, 338 and 337 of the Indian Penal Code, for which he denied, pleaded not guilty and claimed to be tried. Hence, the case was posted for trial.

6.On behalf of the prosecution PW1 to PW5 are examined and got marked Ex.P1 to Ex.P9.

7.After closure of prosecution side evidence, the accused was examined under Section 313 of Cr.P.C for the incriminating material evidence appearing in the prosecution witnesses was explained to the accused in Telugu language, for which he denied the same and reported no evidence.

8.Heard both sides arguments. Perused the entire record.

9.Now the points for consideration are that:- 1. Whether the prosecution is able to establish that the deceased died due to injury sustained in road accident, when

hit by the crime vehicle beyond the reasonable doubt?

2. Whether the prosecution is able to establish that the death of the deceased was caused due to rash or negligent driving of accused at the time of accident beyond the reasonable doubt?

3.Whether the prosecution is able to bring home the guilty of accused for the offence punishable under sections 304-A,

337,338 of Indian Penal Code beyond all reasonable doubt?

5

4. T0 What relief ?

10.In order to bring home the guilt of the accused, on behalf of the prosecution PW1 to PW5 were examined and got marked EX.P1 to EX.P9 out of which PW1 is the eye witness and injured person, who is travelling in the try motor cycle. PW2 is the another eye witness who is also following PW1 try cycle. PW.3 is the hearsay witness who surrendered accused before police. PW4 is the Motor Vehicle

Inspector, who issued M.V.I.report. PW5 is the investigating officer.

11.It is the case of the prosecution is that the defacto complainant/ injured is rider of try cycle motor fitted rickshaw, the deceased is the daughter namely Arichina aged about one and half year, they are livelihood by procession the pictures of Sai Baba, on try

Cycle motor rickshaw and seeking alms in Andhra Pradesh and neighborhood state Tamilnadu, all the villagers of Annambakam are being colonial in other state for seeking alms, in this process on 02.12.2018 PW.1 along with his wife and deceased and four other families were left from Annambakam in order to go Chennai for seeking alms, in five try Cycle motor rickshaws, PW.1 handled his

Rickshaw, his wife and deceased were sat inside their rickshaw, on the way after sunset all together halted at Nelaballi village of Naidupet

Mandal. Later on 03.12.2018 at 07.00 hours left from Nelaballi village at first PW1 rickshaw was proceeding, the reaming relatives follow

PW.1. While reached Kiliveti Canal bridge nearby Tada village at about 09.20 hours, at that juncture the accused diver of car bearing NO. AP- 03-CL-0081 drove the car in a rash and negligent manner at high speed and overtake the lorry swerved 6 extreme left margin and hit PW.1 rickshaw from rear side, as a result of which the rickshaw totally damaged, PW.1 and his wife and deceased were fell down on the road, PW.1 sustained injuries over left hand and left leg, his wife received injuries over back side, deceased received severe injuries over head and face, immediately they are shifted to Govt. Hospital, Tada as well as the deceased shifted to Sri

City Hospital, for treatment. While undergoing treatment deceased was died. As seen from the evidence of PW1 and PW2, who are the eye witnesses to the accident and PW1 is injured person, they deposed with one voice about rash and negligent driving of the crime vehicle and caused to the death of the deceased in the accident. In the entire cross-examination of PW1 and PW2 the death of the deceased was not denied by the learned defence counsel. Further as seen from the inquest panchanama which was marked as Ex.P6 reveals that the deceased died in a road accident. The postmortem certificate which was issued by the doctor and marked as Ex.P7 and reveals that the deceased died due to head injury. So, as seen from the evidence of prosecution witnesses and documents, it is an undisputed fact that the deceased died in a road accident. Accordingly, this point is answered.

12.The learned defence counsel by submitting his arguments contended that the accused has not drove the crime vehicle in rash and negligent manner. The Pw1 him self only crossed the road margin and came to the out side of the margin in the result the accused car front left side was dashed to the PW1 tricycle and as a result the PW1 failed to control the speed of the tricycle and hit the wall of the

Kiliveti bridge and fell down on the road and received the injuries.

Accused not liable for the accident.

7

13. In order for clear understanding, I am herewith drawn the

provision of law under sections 304-A, 337 and 338 of Indian

Penal Code.

304-A Causing death by negligence. - Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both.

337. Causing hurt by act endangering life or personal safety of others. - Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

338. Causing grievous hurt by act endangering life or personal safety of others.- Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees or with both.

14. Point No.1 & 2:

PW1 who is injured cum eye witness deposed that on 02-12-2018 he along with his wife /LW2 and deceased daughter

Arichana in their tricycle to go to Chennai for begging alms. LW2 and deceased daughter sat in the rickshaw being driven by him. Along with his family, LW3-Seenaiah, LW4-T.Bhaskar, LW5-T.Prasad, LW6-

T.Subrahmanyam, LW7-B.Subbaiah also started to Chennai. On 03-12-2018 at about 9.20 am when they reached canal near Tada one car coming from Nellore to Chennai road came fastly and dashed to 8 their tricycle resulting he sustained injuries on his left side of body.

LW2 received injuries on her hip. Deceased fell on the ground and received injury on her head. Deceased daughter was shifted to Sri

City hospital while PW1 and LW2-Lakshmi were shifted to government hospital. LW3-P.Seenaiah informed them that their daughter succumbed to injuries while undergoing treatment. The car bearing no. AP 03 CL 0018 dashed their tricycle. He further deposed that car is black in colour and he noticed the driver of car. He identified the driver as accused standing in the court hall.

During in cross examination he admitted that along with him LW3-P.Seenaiah, LW4- T.Bhaskar LW5-T.Prasad and LW7-Bhattala

Subbaiah were moving ahead and behind of his try cycle. He further admitted that the road is two road lane having margin for movement of motorcycles. He also admitted that one lorry was proceeding towards Chennai on right side of his tricycle. He also admitted that the bridge is old bridge having no margin and narrow width. The learned defence counsel has suggested that the accident was due to the negligence of PW1 but not the rash and negligent driving of accused for which, PW1 denied the same. He denied the suggestion put by defence counsel that a false case is foisted against accused being driver of car. He further denied the suggestion that due to narrow width of road lorry moved towards his tricycle and tricycle moved towards lorry due to which accident occurred.

As seen from the evidence of PW1, who is the defacto complainant in this case and injured cum eye witness supported Ex.P1 report as well as case of prosecution for the reasons best known to him. Further it is elicited that the accused was the driver of crime 9 vehicle at the time of alleged accident. The said fact was strengthened since PW1 identified the accused who was the driver of car at the time of alleged accident and due to rash and negligent driving of accused the accident was occurred. In the cross examination the defence counsel failed to elicit anything as to the manner of accident and driving of accused.

15.PW2/P.Seenaiah is another eye witness and who was travelling in his son’s tricycle along with PW1 try cycle, he also categorically stated about going to Chennai for Biksha and deposed about accident and about injuries sustained by PW1,his wife/LW2 and their daughter. He further deposed that the daughter of PW1 and

LW2 died after reaching Sri City Hospital. He deposed the car number is 0018 and seen the driver of car and identified the accused

in the court. He deposed that the accident took place because of

negligence of the car driver.

During cross examination he deposed that the distance between PW1 vehicle and his vehicle is half kilometre. He also admitted that the accident took place at Kiliveti kaluva which is having narrow width. He denied the suggestion that he has not stated to police as per advise of doctors he has shifted the daughter of PW1 to Sricity hospital. He denied the suggestion that he has not witnessed the accident. He denied the suggestion that the accident was occurred as the lorry moved towards trycycle of PW1 and the trycycle of PW1 moved towards lorry and hit the car on back side.

PW2 also deposed on same lines of PW1 about the manner of accident and cause of accident is due to the rash and negligent driving of driver of car who is accused herein and identification of the 10 accused. Further, the deceased daughter of PW1 is died due to the injuries caused in the accident.

16.P.W.3 deposed that accused was driver in their company and he telephoned and informed him that one tricycle carrying

Saibaba idol came to right near bridge after Tada and both vehicles colluded. The other similar tricycles were going in front of alleged try cycle and other two tricycles were going behind the alleged tricycle .

He further deposed that he took accused to police station and surrendered him before police.

On perusal of evidence of PW3 his evidence is hearsay evidence about the accident and occurrence of incident but it is fact that accused was driver of crime vehicle at the time of alleged accident and the accident was occurred near bridge.

17.P.W.4 V.Jayaprakash, the then Motor Vehicle Inspector,

Sullurupet deposed that as per requisition he inspected the crime vehicle bearing no. AP 03 CL 0013 LMV car and found certain damages and issued Ex.P2 MVI Report. He is of the opinion that the accident occurred not due to any mechanical defects of vehicle.

During in cross examination he admitted that there is possibility of damages mentioned in Ex.P2 to the vehicle if by sudden brake the vehicle hit the stationed vehicle. This point is not helpful to disprove the guilt of accused.

18.Now remains the evidence of P.W.5 who is the investigating officer himself. He deposed as to various aspect of 11 investigation starting from receipt of hospital intimation to registering the crime and investigation into.

PW5 – deposed that he registered Ex.P1 as a case in Cr.No. 280/2018 u/sec. 304-A, 337 IPC under Ex.P3. That in the presence of mediators he drafted scene observation report under Ex.P4 and prepared rough sketch under Ex.P5 , conducted inquest over the dead body of deceased under Ex.P6. He further deposed that LW16 received postmortem certificate under Ex.P7 and wound certificates of PW1 and LW2 -T.Lakshmi under Ex.P8 and Ex.P9 respectively and surrender of accused.

In the cross-examination of PW5, it was elicited that he has not observed the motor capacity of tricycle and length and width of

Kiliveti Bridge and as per Ex.P5 accident took place on Kiliveti bridge only. Further it was elicited that the distance between PW1 tricycle and other tricycles and one lorry was coming on right side of PW1 tricycle and there was a car behind it. Except that in the evidence of

PW5 nothing was elicited about the investigation done by him.

19.So, as seen from the entire evidence of the prosecution witnesses, it reveals that the accused is the driver of the crime vehicle on the date of the accident and . Accordingly, this point is answered.

20.Point No.3

It is the case of the prosecution is that due to rash and negligent driving of the accused the accident was occurred and due to which PW1, LW2-T.Lakshmi and his daughter/deceased 12 sustained injuries and subsequently the daughter of PW1 succumbed to injuries . In the evidence of PW1 and PW2, they deposed with one voice stating that due to rash and negligent driving and in a high speed of the accused the accident was occurred. It is the duty of the driver of any vehicles to take care while driving the vehicles. On perusal of evidence of PW1 and PW2 this court feels that since the

Kiliveti bridge is narrow one if the accused had not driven the crime vehicle in high speed with rash and negligent manner, accident would not have been occurred. If so, there is no possibility of sustaining injuries to anyone. But case on hand, Ex.P8 and P9 shows that PW1, his wife/ LW2 sustained injuries in the accident and as per Ex.P7 the daughter of PW1 died succumbed to injuries caused in the accident.

22.The another accusation levelled against the accused under sections 337 and 338 of the Indian Penal Code caused simple and grievous injuries by rash and negligent act endanger to human life. As seen from the wound certificates of PW1 and LW2 which was marked as Ex.P8 and P9 reveals that the prosecution witnesses received injuries simple and grievous in nature as such it is fact that the prosecution witnesses i.e., PW1 and LW2 received injuries.

In the cross-examination of PW1and PW2 nothing was elicited to disbelieve their evidence. So, the prosecution has proved that the deceased died due to injury sustained in road accident which was caused by rash and negligent driving of accused at the time of accident and PW1 and LW2 sustained injuries in that accident.

Accordingly, these points no.1 to 3 are answered.

13

23.In view of above facts and circumstances, considering material on record, this Court holds that the prosecution has proved the offences punishable under sections 304-A, 338 and 337 of the

Indian Penal Code against accused beyond all reasonable doubts.

24.Point No.4:

In view of my finding in point No.1 to 3, the accused is found guilty for the offences punishable under sections 304-A, 338 and 337 of the Indian Penal Code and. Accordingly, this point is answered.

Dictated to the Typist of this Court, corrected and pronounced

by me in the open court on this 27th day of December, 2022.

ADDL.JUDL.MAGISTRATE OF I-CLASS,

SULLURUPET.

25.The accused is questioned regarding the quantum of sentence imposed on him for which he submitted that he is having wife and two children and he has to look after the welfare of the family. He is the only earning member of his family. Hence, prayed to take lenient view in imposing sentence on him.

26.Considering the submissions made by the accused this

Court is not inclined to take lenient view in imposing sentence on him to apply section 3 and 4 of Probation of Offenders Act, and section 360 of the Cr.P.C, in view of nature of offence.

27.In the result, the accused is found guilty for the offences punishable under sections 304-A, 338 and 337 of the Indian Penal

Code, as such, he is convicted U/s.255(2) Cr.P.C, hence the accused is 14 sentenced to undergo simple imprisonment for a period of SIX

MONTHS and also to pay fine of Rs.5000/-(Rupees Five Thousand only) for the offence punishable under section 304-A of the Indian

Penal Code, in default of the said fine amount the accused shall undergo simple imprisonment for a period of one month. The accused is further sentenced to undergo simple imprisonment for a period of TWO MONTHS, and also to pay fine of Rs.1000/-(Rupees

One Thousand only) for the offence punishable under section 338 of the Indian Penal Code, in default of the said fine amount the accused shall undergo simple imprisonment for a period of one month. The accused is further sentenced to undergo simple imprisonment for a period of TWO MONTHS and also to pay a fine of Rs.500/-(Rupees

Fine hundred only) for the offence punishable under section 337 of the Indian Penal Code, in default of the said fine amount the accused shall undergo simple imprisonment for a period of one month. All sentences shall run concurrently. There is no remand period undergone by the accused during the course of trial to give set off under section 428 of Cr.P.C.

28.Accused is informed about his right to prefer an appeal against the Judgment passed by this court, and provided legal aid.

Total fine of Rs.6500/-(Rupees Six thousand and five hundred only).

Dictated to the Typist of this Court, corrected and

pronounced by me in the open court on this 27th day of December,

2022.

Sd/- S. Anil Kumar,

ADDL.JUDL.MAGISTRATE OF I-CLASS,

Sullurpeta.

// APPENDIX OF EVIDENCE //

WITNESS EXAMINED.

For Prosecution : For Defence :

P.W.1 : Tirumala Nagaraju - NONE - 15 P.W.2 : P.Seenaiah

P.W.3 : B.Venkateswarlu

P.W.4 : V.Jayaprakash

P.W.5: K.Venkateswararao, the then Head constable, Tada P.S.

EXHIBITS MARKED ON BEHALF OF PROSECUTION

For Prosecution : For Defence :

Ex.P1 : Report of P.W.1 - NIL -

Ex.P2 : Motor Vehicle Report.

Ex.P3 : FIR in Cr.No.280/2018

Ex.P4 : Scene observation Report

Ex.P5 : Rough sketch

Ex.P6: Inquest report

Ex.P7 : Postmortem certificate

Ex.P8: Wound certificate of LW2-T.Lakshmi

Ex.P9: Wound certificate of PW1.

MATERIAL OBJECTS MARKED

- NIL –

Sd/- S. Anil Kumar,

ADDL.JUDL.MAGISTRATE OF I-CLASS,

SULLURPETA

.

//True copy//

ADDL.JUDL.MAGISTRATE OF I-CLASS,

SULLURPETA

1 CC.No.315/2022, Dt.28.12.2022

IN THE COURT OF THE ADDL. JUDICIAL MAGISTRATE OF 1st CLASS ::

SULLURPET :: SPSR NELLORE DISTRICT

Present: Sri S. Anil Kumar,

Additional Judicial Magistrate of 1st class,

Sullurpet.

Wednesday, this the 28th day of December, 2022

C.C.No.315/2022

State: Special Enforcement Bureau Inspector,

Sullurupeta … Complainant

Vs.

Iran Venkataramanaiah, s/o Venkateswarlu, Age 62 years, Caste Velama, R/o Mangalampadu Village, Sullurupeta Mandal, SPSR Nellore District … Accused

This case coming for final hearing before me on 26.12.2022 in the presence of the Assistant Public prosecutor for complainant and of Sri M. Sudarsana Rao and

Sri A. Kiran Kumar, Advocates for the accused and having stood over for consideration till this day, this court delivered the following:-

JUDGMENT

1. The State represented by the Inspector, Special Enforcement Bureau,

Sullurpet filed charge sheet against the accused in Cr.No.114/2020 for the offence U/Sec.34(a)(1)(i) of A.P. Excise Act, 1968, with the following allegations.

On 09.11.2020 at afternoon, as per the instructions of

LW6-D. Suryanarayana, Inspector, Special Enforcement Bureau, Sullurpet,

PW3-Y. Mohan, Sub-Inspector, Special Enforcement Bureau, Sullurpet along with his staff went to Sullurpet Y Junction Bus Stop in a Government vehicle bearing

No.AP-31-TV-5707 and found a male person standing by holding a white plastic bag in his right hand and on enquiry, the accused stated that there are liquor bottles in the bag. Then, PW3 secured two persons i.e. PW2 and

LW4-B. Venkatalakshmi from gathering persons there to act as mediators. Before mediators, PW3 searched the bag and found 12 liquor bottles i.e. (i) 06 Nips of 9

Sea Horses Whisky (ii) 06 Nips of Champion Special Whisky and the accused 2 CC.No.315/2022, Dt.28.12.2022 confessed the offence by stating that he purchased three bottles from each shop, for selling purpose without valid permit or licence. Then, PW3 drawn one sample bottle from each brand, seized remaining liquor bottles and arrested the accused under cover of mediators’ report. Basing on the said mediators’ report, he registered a case in Cr.No.114/2020 under Section 34 (a)(1)(i) of A.P. Excise Act, 1968 and produced the accused before the court for judicial remand.

During the course of investigation, PW3 sent the sample bottles for chemical analysis. After receiving the Analysis report vide R.C.No.2880/2020, dt.23-01-2021 opining that samples are Indian made liquor and on completion of investigation done by PW3, LW6/D. Surya Narayana, Inspector, Special

Enforcement Bureau, Sullurpet laid charge sheet.

2. On 31-07-2022, this court took cognizance of case against the accused for the offence punishable U/Sec.34(a)(1)(i) of A.P. Excise Act, 1968.

3. On 18-08-2022 copies of documents were furnished to the accused as required under Section 207 of Criminal Procedure Code.

4. On 18-08-2022 the accused was examined Under Section 239 of

Criminal Procedure Code in Telugu, for which, he denied. After hearing both sides and on perusing the entire case record, a charge for the offence punishable

Under Section 34 (a) (1) (i) of A.P. Excise Act was framed against the accused.

The same was read over and explained to him in Telugu, for which, he denied the same, pleaded not guilty and also claimed to be tried. Thus, the case was posted for trial.

5. During the course of the trial, the prosecution has examined LWs.1, 3 and 5 as PWs.1 to 3 respectively and got exhibited Exs.P1 to P3 besides M.Os.1 and 2. The evidence of LW2-K. Penchalaiah, Head Constable, Special

Enforcement Bureau, Sullurpet, LW4-B.Venkatalakshmi, Volunteer and

LW6/D. Suryanarayana, Inspector, Special Enforcement Bureau, Sullurpet was 3 CC.No.315/2022, Dt.28.12.2022 given up by the learned Assistant Public Prosecutor. Hence, prosecution side evidence is closed.

6. After closure of prosecution evidence, the accused was examined

Under Section 313 Crimnal Procedure Code on 22-12-2022 by explaining the incriminating prosecution evidence in question form in Telugu, for which, he denied and reported that there is no defence evidence.

7. Heard arguments of the learned Assistant Public Prosecutor and the learned counsel for the accused.

8. Now the point for consideration is :

Whether the prosecution is able to bring home the guilty of accused for the offence punishable under Section 34(a)(1)(i) of A.P. Excise Act beyond all reasonable doubt?

POINT :-

9. The learned Assistant Public Prosecutor argued that the evidence of

PWs.1 to 3 clinchingly establishes that the accused was found in possession of 12 liquor bottles without valid licence and therefore, he shall be convicted for committing an offence punishable under Section 34 (a)(1)(i) of A.P. Excise Act.

10. On the other hand, the learned defence counsel argued that though

PW.2 supported the case of prosecution, her evidence is not cogent and convincing, hence, without convincing and satisfactory evidence of independent witnesses, the evidence of the Excise Officials shall not be relied upon and further contended that the accused was falsely implicated in this case for statistical purpose and therefore, the accused is entitled for benefit of doubt.

11. In view of the rival contentions of both sides, the entire evidence is perused. Herein the case, there is no dispute with regard to the nature of property alleged to be seized. In other words, it is not in dispute that the sample sent to Chemical Examiner was Indian made liquor as opined in Analysis report 4 CC.No.315/2022, Dt.28.12.2022 (Exs.P3). The main contention of accused is that nothing was seized from his possession and a false case was implicated against him for statistical purpose.

12. In order to establish its case, the prosecution examined PWs.1 to 3 and got marked EXs.P1 to P3 and M.Os.1 and 2. PWs.1 and 3 are the Excise

Officials. PW2 is the independent witness. Ex.P1 is the mediators’ report dt.09-11-2020. Ex.P2 is the FIR in Cr.No.114/2020 u/Sec.34(a)(1)(i) of AP

Excise Act. Ex.P3 is the Chemical Analysis Report. M.Os.1 and 2 are sample bottles.

13. PW1 who is the Excise Official, deposed that on 09.11.2020 as per the directions of LW6-D. Suryanarayana, Inspector, Special Enforcement Bureau,

Sullurpet, LW5-Y. Mohan, LW2/K. Penchalaiah, T. Venkateswarlu went for raids and at about 12.30 p.m. reached Y Junction Bus stop and found one male person with a white plastic bag and when he tried to escape, LW5 along with staff caught hold of him and asked about contents of bag and on instructions of LW5, he brought two mediators after 20 minutes. Before mediators, LW5 opened the bag and found 12 liquor bottles of two brands (i) 9 Horses Whisky of 6 bottles (2) Choice 5 Special Whisky of 6 bottles. Accused confessed he purchased the same from the Government shops at Sullurpet and they are duty paid liquor bottles. LW5 drafted mediators report commenced from 1:30 p.m to till 2.15 p.m., then all returned to SEB Station along with property, accused and mediators.

LW5 drawn one sample bottle for chemical analysis and remaining kept in the same bag and seized.

In the cross-examination, he admitted Choice 5 Special Whisky is different with that of Champion Special Whisky. He admitted that particulars of staff and mediators who accompanied with him. He admitted Mangalampadu Village bus stop is located at Western side of the Railway Gate. He admitted that in mediators’ report the another brand of liquor bottle is mentioned as Champions 5 CC.No.315/2022, Dt.28.12.2022

Special Whisky. He secured the mediators from Kollamitta area. They have not issued any written notice to mediators. He admitted that LWs.3 and 4 are belongs to the village of Mangalampadu. He admitted that the time of alleged offence is working hours for LWs.3 and 4 and they are doing their jobs at

Sachivalayam Office. He admitted the batch and serial numbers are not mentioned in mediators’ report and also the batch number and serial number of the sample bottle. He admitted that the 1st page of mediators’ report does not contain anyone signature. He admitted that there two Government wine shops at

Sullurpet. He admitted that there is a limit of 3 bottles for each person to sell. He admitted that they have not cited as accused in the present case. The other part of the cross-examination is the suggestions put supporting defence version for which he denied. This piece of evidence creates whether they went to the scene of offence.

14. PW2, who is Mahila police deposed that on 09-11-2020 that is Monday on requisition of Excise Constable through phone, she along with Volunteer went to Y junction and observed excise officials caught hold accused along with 12 liquor bottles. They obtained her signature and volunteer signature on a report.

Thereafter, they went to the scene of offence.

In the cross-examination, she admitted that she acted as mediator in some other cases and that the Excise officials already started the drafting of mediators’ report when she reached the scene of offence and that their details not mentioned in mediators’ report. They have not served any notice to act as mediators. They have not obtained any written permission from her higher officials to act as a mediator. She stated that she has reached the scene of offence on a bike along with volunteer and the same was not mentioned in mediators’ report. The other part of the cross-examination is the suggestions put 6 CC.No.315/2022, Dt.28.12.2022 supporting defence version for which he denied. From this piece of evidence, it is clear that she is a stock witness.

15. Y. Mohan Rao, the then, SEB Sub-Inspector, SEB Station, Sullurpet deposed that on 09-11-2020 at about 12:30 p.m. himself, LW2-K. Penchalaiah,

PW1 went to Bus stop near Y junction. One person standing with a white plastic bag in suspicious state. On enquiry, he stated that the bag contains liquor bottles. On his instructions, PW1 and LW2 secured two mediators i.e PW2 and

LW4/B. Venkatalakshmi nearby Y junction. Before mediators they opened the bag and found two brands of liquor bottles i.e. (1) 9 Sea Horse Whisky – 6 in number (2) Champion Special Whisky – 6 in number, total 12 bottles. On enquiry, he confessed that he purchased two bottles from each shop of Sullurpet for selling the same at higher prices. He has drawn one sample bottles from each brand for chemical analysis and remaining bottles kept in the same bag and seized, arrested the accused, drafted Mediators’ report/Ex.P1, after obtaining signatures of mediators and accused in Ex.P1, took property and accused to

SEB Station, Sullurpet, registered the case in Cr.No.114/2020 U/Sec.34(a) of AP

Excise Act under cover of Ex.P2/FIR, sent the accused to remand, sent samples/M.Os.1 and 2 for chemical analysis/Ex.P3 and after completion of his investigation, LW6 laid charge sheet.

It is settled law that any official who detected the crime cannot also be the

Investigating Officer as held in 2003 Vol.1 ALD Criminal Page 13. In the present case, PW3 is both the official who detected the crime as well as the Investigating

Officer.

In the cross-examination, he stated that it will take 10 minutes’ time to reach Y Junction from SEB Station, Sullurpet. He admitted that Ex.P1 completed by 2.15 p.m. He admitted as per Ex.P1, they registered FIR by 6:00 p.m. He adds that in between they have also conducted the other raids. He admitted that 7 CC.No.315/2022, Dt.28.12.2022 he has not mentioned the same in Ex.P1 as well as in Charge sheet for the delay. He does not know whether PW2 is working in Mangalamadu

Sachivalayam. They have not served any written notice to PW2 to act as mediator. He admitted that he has not mentioned the particulars of staff who accompanied in said raid in Ex.P1. They have not mentioned in Ex.P1 from where the mediators are secured. They have not mentioned the serial numbers and batch number of liquor bottles in Ex.P1. He denied that in the sample bottle

MRP rate is Rs.180/- but they have mentioned the same in Ex.P1 as Rs.250/-.

He admitted that there is visibility of MRP Rs.180/- in Ex.P1. He admitted that the distance between Sullurpet and Mannarpoluru around 15 kms. It will take around one hour to go and come to Mangalampadu. He admitted that the working hours of Sachivalayam is from 9:00 a.m. to 5:00 p.m. He denied that as

PW2 available after 6:00 p.m. they call her to SEB Station, Sullurpet and obtained the signatures in Ex.P1. As per information given by PW2, they arrested the accused. He denied that they prepared mediators’ report at SEB

Station, Sullurpet and foisted false case against the accused and never seized any liquor from the accused. He admitted that in Ex.P3 there is no mention about the state to which the liquor belongs.

Had the instance been true, there should not be such variations. In the charge sheet, mediators’ report and PW3 evidence 2nd brand name of liquor bottles mentioned as Champion Special Whisky whereas in the evidence of PW1 he deposed 2nd brand name as Choice 5 Special whisky and admitted in his cross-examination that Choice 5 Special Whisky is different with that of

Champion Special Whisky. In PW2 evidence she submitted that as per the requisition of Excise Constable through phone with regard to Excise offence, she came to Y junction along with volunteer. Whereas, in the cross-examination of 8 CC.No.315/2022, Dt.28.12.2022

PW3, it is stated that as per information given by PW2, they arrested the accused.

16. Apart from the oral evidence of PWs.1 to 3 the prosecution mainly relied upon Ex.P1 mediators’ report. This court gone through it, the contents of

Ex.P1 mediators report reveal that the accused confessed his guilty before the police which is inadmissible in the eye of law as per Sec.25 of Indian Evidence

Act. Hence, the Ex.P1 mediators report cannot be taken into consideration. This court relies upon the judgment of Hon’ble High Court of AP “In decision reported in 2005 (2) APLJ, Page No.73 in K. Babu Rao Vs. State of AP his lordship held that the alleged recovery by the police whose evidence cannot be straight away believed because there was no panch witness and the explanation of the prosecution evidence is not acceptable”. In this case, though independent witness was examined, from her evidence it is clear that she is a stock witness and her evidence is not cogent and consistent. Hence, the evidence of PWs.1 and 3 is not taken straight away about the seizure of M.Os.1 and 2.

17. According to the prosecution, in the presence of mediators (PW2 and and LW4-B. Venkatalakshmi), PW3, the then SI of Police, SEB Station, Sullurpet seized (1) 9 Sea Horse Whisky – 6 in number (2) Champion Special Whisky – 6 in number, total 12 bottles, from the possession of accused and lifted one sample from each brand/MOs.1 and 2 and to send for chemical analysis. Though independent witness was examined, it is not cogent and convincing in this case.

Hence, there is a doubt whether the prosecution seized MOs.1 and 2 from the possession of accused.

18. According to the prosecution witnesses they seized (1) 9 Sea Horse

Whisky – 6 in number (2) Champion Special Whisky – 6 in number, total 12 bottles, and lifted two bottles each one from each brand and sent the above sample bottles to chemical analysis. Though the chemical examiner opined that 9 CC.No.315/2022, Dt.28.12.2022 the sample liquor bottles are Indian made Liquor, the same cannot be taken into consideration because the seizure of bottles from the possession of the accused is not established beyond all reasonable court. Hence, the accused is entitled for benefit of doubt.

19. The learned defence counsel further pointed that the Excise officials even failed to follow the sampling procedure and hence, the accused is entitled to benefit of doubt. That the excise officials failed to drawn samples from each bottle and the same is fatal to the prosecution case. Admittedly, PW3 had drawn two sample bottles each one from each brand out of 12 liquor bottles. Since, the adhesive labels were not on the seized bottles, the evidence of PW3 is not clear and specific whether each brand of bottles are with same batch number and manufacture date. In view of the said contention, it is pertinent to note the following decision:

K. Muleswara Rao Vs. State reported in 1978 (1) APLJ Short notes, where in it was held that “It is the duty of the prosecution to prove by sending the other bottles also to the chemical Analyst to find out whether the bottles contained alcohol or some spurious liquor and that has not been done by the prosecution and that has been prejudiced the case of the accused”

20. In the present case on hand, two bottles each one from each brand were drawn as samples. It is not the case of the prosecution that all the seized bottles of each brand were with same batch number and date of manufacture.

Admittedly, PW3 did not mention batch number and date of manufacture of the seized bottles in the mediators’ report. If all the bottles of each brand are with common batch number and date of manufacture, the Excise officials might have been justified in drawing two sample bottles one from each brand. Therefore, in the light of the said decision, the court is of the view that the Excise Officials failed to follow the sampling procedure as per rules.

10 CC.No.315/2022, Dt.28.12.2022

21. All these lacunae and infirmities show the defective investigation, which casts doubt in the prosecution version. In view of above mentioned lacunae and without support of independent evidence for seizure of contraband and arrest of the accused, the court holds that it is not safe to rely on the evidence of PWs.1 and 3, who are Excise Officials to hold that the accused was found in possession of Indian made liquor as alleged.

22. For the foregoing reasons, as there is no convincing and satisfactory evidence to prove that the accused was found in possession of Indian made liquor as alleged, Ex.P1/Mediators report could not be relied upon. Even though

Exs.P3/Analysis report discloses that the contents of samples sent were Indian made liquor, as there is no convincing evidence to prove that the contents of the said samples were drawn from the bottles found from the possession of accused,

Ex.P1 would not help the prosecution case. Thus, the court holds that the prosecution failed to establish the guilt of accused for offence punishable under

Section 34 (a)(1)(i) of A.P. Excise Act, beyond all reasonable doubt. Hence, the accused is entitled for benefit of doubt. Accordingly, the point is answered against the prosecution and in favour of accused.

23. In the result, accused is found not guilty for the offence punishable under Section 34 (a)(1)(i) of A.P. Excise Act. Therefore, he is acquitted for the said offence under Sec.248 (1) Cr.P.C. The bail bonds of accused shall be in force for a period of six months as required U/Sec.437-A Cr.P.C. MOs.1 and 2 shall be destroyed after expiry of appeal time.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the open court, on this the 28th day of December, 2022.

Sd/- S. Anil Kumar,

Addl. Judicial Magistrate of 1 st class Sullurpet.

Appendix of evidence

Witnesses examined

For prosecution:- For Defence -- NONE -- 11 CC.No.315/2022, Dt.28.12.2022

P.W.1:- A.Chenchaiah

P.W.2:- P.Heeri Munni, Mahila Police.

P.W.3:- Y.Mohan Rao, the then, SEB Sub-Inspector, SEB Station, Sullurpet.

Exhibits marked

For prosecution:-

Ex.P.1:- Mediators Report

Ex.P2:- F.I.R. dated 09.11.2020 in Cr.No.114/2020 u/s 34(a) of AP Excise Act.

Ex.P3:- Chemical Analysis Report

For Defence: Nil

Material objects

M.Os.1 & 2 are Sample Bottles

Sd/- S. Anil Kumar,

Addl. Judicial Magistrate of 1 st class, Sullurpet.

//True copy//

Addl. Judicial Magistrate of 1 st class,

Sullurpet.

12 CC.No.315/2022, Dt.28.12.2022

CALENDAR AND JUDGMENT

District of:NELLORE

CALENDAR OF CASES TRIED BY THE ADDITIONAL JUDICIAL MAGISTRATE

OF FIRST CLASS, SULLURPET

Date of Date of Date of Date of Date of Date of Date of OffenceFilingApprehensiReleasedCommencClosure ofSentence on of on bailement trial accusedof trial 09.11.20 09.11.20 ----05.12.2220.12.2228.12.22 Explanation for the delay and remarks:

This case was taken on file on 31.07.2022. On 18-08-2022, after appearance of the accused, copies of case documents were furnished to the accused. On the same day i.e. On 18-08-2022, a charge was framed against the accused and posted for trial. On 05.12.2022, PWs.1 and 2 examined. On 20-12- 2022, PW3 was examined and got marked Exs.P1 to P3 and the prosecution evidence was closed. On 22-12-2022, the accused was examined U/Sec.313

Cr.P.C. On 26-12-2022 heard arguments of both sides. On 28.12.2022 judgment is pronounced. Hence the delay.

JUDGMENT IN CALENDAR CASE No.315/2022 ON THE FILE OF

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS, SULLURPET

Complainant : The Sub-Inspector of Police, Sullurpet P.S..

Description of the Accused : Iran Venkataramanaiah, S/o Venkateswarlu, Age 62 years, Caste Velama, R/o Mangalampadu Village, Sullurupeta Mandal, SPSR Nellore District.

Offence:U/Section 34 (a)(1)(i) of A.P. Excise Act Finding:Accused found not guilty for the above said offence.

Sentence:In the result, accused is found not guilty for the offence punishable under Section 34 (a)(1)(i) of A.P. Excise Act. Therefore, he is acquitted for the said offence under Sec.248 (1) Cr.P.C. The bail bonds of accused shall be in force for a period of six months as required U/Sec.437-A Cr.P.C. MOs.1 and 2 shall be destroyed after expiry of appeal time.

Sd/- S. Anil Kumar,

Addl. Judl. Magistrate of First Class, Sullurpet

REMARKS From

Additional Judicial Magistrate of

First Class

SULLURPET

13 CC.No.315/2022, Dt.28.12.2022

To The Hon’ble Chief Judl.

Magistrate-cum-Prl. Senior Civil

Judge,

NELLORE

Calendar Case No.:CC.No.315/2022 Date of Judgment:28.12.2022 Date of Dispatch of: Calendar Dis. No. & Date: Date Received //True copy//

Addl. Judicial Magistrate of 1 st class,

Sullurpet.

1CC.No.439/2022 Dt.27.12.2022

IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF 1 st CLASS

:: SULLURPET :: SPSR NELLORE DISTRICT

Present: Sri S. Anil Kumar,

Additional Judicial Magistrate of 1st class,

Sullurpet

Tuesday, this the 27th day of December, 2022

C.C.No.439/2022

State: Sub-Inspector of Police, Sullurpet P.S.… Complainant

Vs.

Patan Tajuddin, S/o Barakutalla, aged about 24 years, Muslim, Ganapathi Nagar, Sullurpeta.

(The case against A5 is split up on 25-11-2022

from CC No.166/2019). ... Accused No.5

This case coming for final hearing before me on 26.12.2022 in the presence of the Assistant Public prosecutor for complainant and of

Sri R. Kumar, Advocate for the A5 and having stood over for consideration till this day, this court delivered the following:-

JUDGMENT

1. The Sub-Inspector of Police, Sullurpeta P.S. filed charge sheet against the accused in Cr.No.112/2019 for the offence U/Sec.171-H, 188 of Indian Penal

Code, with the following allegations.

On 08-04-2019 at about 00.30 hours, on credible information that YSRCP workers were together lured 120 voters of Rajiv Nagar, Sullurpeta by distributing cash of Rs.1,000/- per each voter and their party pamphlets as well as they were going towards Panduranga Swamy temple to lure voters by distributing cash and their party pamphlets by violating code of conduct of Election Commission of

India, LW1-S. Srinivasulu, Municipal Commissioner, Sullurpet, along with LWs.5 to 7/M.Srinivasulu Reddy, HC 2217, V.Venkateswarlu, PC 2725 and Ramagiri

Hari, who are Team Leader and members of Flying Squad Team for Sullurpeta respectively in view of General Elections, 2019, secured LWs.2 to 4/I. Goutham 2CC.No.439/2022 Dt.27.12.2022

Mahesh, Data Processing Officer, Municipal Office, Sullurpet, V. Surya, Work

Inspector, Municipal Office, Sullurpeta and D. Praveen, Assistant Engineer,

Municipal Office, Sullurpet and reached to Sri Panduranga Swamy Temple

Junction, Sullurpeta and conducted vehicle checking, checked two scooties and found that YSRCP pamphlets, voter lists for Polling Station Nos.226, 227, 228 and 234 and trying to lure voters by distributing cash, then caught hold A1 to A7 but A8 absconded, seized YSRCP pamphlets, voter lists for poling station

Nos.226, 227, 228 and 234 and two scooties (1) Hero pleasure bearing registration No.AP-26-CB-0397 and (2) Hero Maestro bearing registration No.AP- 26-BD-8251 worth Rs.65,000/- from their possession under cover of panchanama.

Basing on the above panchanama, LW8-P. Viswanadha Reddy, SI of

Police, Sullurpet P.S. registered a case in Cr.N.112/2019 u/Sec.171-H, 188 IPC.

During the course of investigation, LW8-P. Viswanadha Reddy, SI of Police,

Sullurpet P.S. examined the witnesses, recorded their statements, prepared rough sketch of the scene of offence, served Sec.41-A Cr.P.C. notice and after completion of investigation, filed charge sheet.

2. On 22-08-2019, this court took cognizance of case against this accused (A5) in CC No.166/2019 along with other accused Nos.1 to 4 and 6 to 8 in CC

No.166/2019 for the offence punishable U/Secs.171-E and 188 of IPC.

3. On 01-11-2019 copies of documents were furnished to this accused (A5) in CC No.166/2019 along with other accused Nos.1 to 4 and 6 to 8 in CC

No.166/2019 as required under Section 207 of Criminal Procedure Code.

4. On 21-11-2019 the accused was examined U/Sec.251 Cr.P.C. this accused (A5) in CC No.166/2019 along with other accused Nos.1 to 4 and 6 to 8 3CC.No.439/2022 Dt.27.12.2022 in CC No.166/2019 for the offence U/Secs.171-H, 188 IPC were read over, explained to the accused in Telugu for which they pleaded not guilty and claimed to be tried.

5. During the course of the trial, the prosecution has examined LWs.2, 3, 1, 6, 7, 4 and 8 as PWs.1 to 7 respectively and got exhibited Exs.P1 to P11. The evidence of LW5-M. Srinivasulu Reddy, HC 2217 of Sullurpet P.S. was given up by the learned Assistant Public Prosecutor. Hence, prosecution side evidence is closed.

6. After closure of prosecution evidence, the case against this accused i.e.

A5 in CC No.166/2019 was split up and renumbered as CC No.439/2022 on 25-11-2022 as the NBW pending against A5 pending since long time and on 26-12-2022 NBW was recalled and this Accused (A5 in CC No.166/2019) was present and examined Under Section 313 Criminal Procedure Code by explaining the incriminating prosecution evidence in question form in Telugu, for which, he denied and reported that there is no defence evidence. On the other side no one examined and no documents marked on his behalf.

7. Heard arguments of the learned Assistant Public Prosecutor and the learned counsel for the accused.

8. Now the points for consideration are :

1.Whether the accused distributed the amount to the voters or not?

2. Whether the prosecution is able to bring home the guilty of accused for the offence punishable under Section 171- H and 188 of IPC beyond all reasonable doubt?

POINT Nos.1 and 2 :-

9) In order for better understanding, I am herewith drawing the provisions of law.

4CC.No.439/2022 Dt.27.12.2022

Section 171H in The Indian Penal Code

Illegal payments in connection with an election.—“Whoever without the general or special authority in writing of a candidate incurs or authorises expenses on account of the holding of any public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidate, shall be punished with fine which may extend to five hundred rupees: Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate.”

Section 188 in the Indian Penal Code

Disobedience to order duly promulgated by public servant.

—“Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”

10) The investigation in this case commenced on the panchanama which is marked as Ex.P8 through PW6.

The brief contents of Ex.P8 is that the Flying Squad Team, Sullurpet, in view of Parliament and Sullurpet Assembly Constituency General Elections, 2019 by orders of the District Collector, SPSR Nellore District and the Electoral

Registration Officer, Sullurpeta (SC) Assembly Constituency vide Bc.B3.78/2019, in the presence of mediators seized YSRCP pamphlets, voter lists for polling station Nos.226, 227, 228 and 234 and two vehicles worth Rs.65,000/- from the possession of accused. Hence the panchanama.

5CC.No.439/2022 Dt.27.12.2022

11) It is the case of offence allegedly committed by the accused in view of

Tirupathi Parliament and Sullurpet assembly bye elections as accused belongs to

YSRCP party was distributing the money to the voters.

12) The prosecution to establish the same, adduced PWs.1 to 7 evidence out of 08 listed witnesses and marked Exs.P1 to P11.

13) PW1 who is Data Processing Officer, Sullurpet Municipality, Sullurpet deposed that in view of general elections LW1-Municipal Commissioner,

Sullurpet was appointed as leader of Flying Squad Team, Sullurpet. Himself,

LW3-Work Inspector, Sullurpet Municipality, LW4-Assistant Engineer, Municipal

Office were assistants to him. On telephonic information from LW1-Municipal

Commissioner in the month April, 2019, they all three went to Sullurpet Police

Station and at the instance of LW1-Municipal Commissioner he put his signature.

He identified his signatures in Exs.P1 and P2. In view of the above evidence of

PW.1, the learned APP declared him as hostile and put questions in nature of cross-examination, however with permission of the court but except marking his

Sec.161 Cr.P.C. Statement as Ex.P3, nothing could be elicited to show that he is deposing false to help the accused.

14) PW2 who is working as Work Inspector, Sullurpet Municipality,

Sullurpet deposed on the same lines with that of PW1. He identified his signatures in Exs.P4 and P5. In view of the evidence of PW.2, the learned APP declared him as hostile and put questions in nature of cross-examination, however with permission of the court but except marking his Sec.161 Cr.P.C.

Statement as Ex.P6, nothing could be elicited to show that he is deposing false to help the accused.

6CC.No.439/2022 Dt.27.12.2022

15) PW3 the then Leader of the Flying Squad, Sullurpet deposed that on 08-04-2019 at night time he received phone call that YSRCP is distributing pamphlets and money. All his team members went to Rangaswamy Nagar in

Sullurpet and there they found pamphlets with some persons and then, they seized pamphlets under cover of panchanama under Ex.P7 and P8 is the confessional panchanama.

In the cross-examination by A1’s counsel, PW3 stated that he has not given any election code of conduct to police. The incident took place in the midnight. He denied that Rangaswamy Nagar is not situated in Sullurpet. He admitted that there are no signatures of police officials in Exs.P7 and P8.

In the cross-examination by A2 to A6 counsel, PW3 denied that no incident took place and for statistical purpose and at the political influence, this false case is foisted and accused did not commit the offence.

In the cross-examination by A7’s counsel, PW3 admitted that by the time of elections in 2019, the ruling party is TDP Party. He further admitted all pamphlets are easily available to any person. He denied that they obtained the signatures in the police station on the panchanama and accused did not commit the offence. He also stated that Ex.P6 is written in the municipal office. This piece of evidence creates doubt whether they really went to the scene of offence.

In his evidence he did not state anywhere that they seized cash from accused.

He stated that he seized pamphlets from some persons. Further, he himself admitted in the cross-examination by A7’s counsel that all pamphlets are easily available to any person. He also admitted that there are no signatures of police officials in Exs.P7 and P8.

16) PW4 who is PC 2725 of Sullurpet P.S. deposed that he is part of

Flying Squad. On credible information through phone about distribution of 7CC.No.439/2022 Dt.27.12.2022 money at the time of election, PW1 took all of them to Pandurangaswamy temple and there they observed two vehicles and they stopped the vehicles. The vehicles contain the voters list and on enquiry, they have no permission to carry and he seized the vehicles.

In the cross-examination by A1’s counsel, PW4 stated that he has not given any election code of conduct to police. He denied that he was never examined by police and statement is prepared by themselves. PW1 received phone call at about 12 a.m.

In the cross-examination by A7’s counsel, PW4 denied that because of rapport between police and revenue officials they got foisted this false case against accused. He also denied that in his presence no vehicles were seized.

He denied that he deposing false.

In the cross-examination by A2 to A6 counsel, PW4 admitted that they all the list witnesses are Flying Squad members. He denied during election time this false case is foisted for statistical purpose and accused did not commit any offence. This piece of evidence also creates whether they really went to the scene of offence. He did not depose when, where and at what time they went to the scene of offence and the name of the person from whom they seized the cash.

17) PW5 who is photographer failed to support the case of prosecution and turned hostile and deposed that he does not know PWs.1 to 4, LW4-

Assistant Engineer, Municipal Office, LW5-M. Srinivasulu Reddy and also does not know anything about this case. In the cross-examination by Investigating agency, he denied that in his presence vehicles are seized and he is deposing false to help the accused.

8CC.No.439/2022 Dt.27.12.2022

18) PW6 the then Assistant Engineer deposed that in the year 2019 on one day on telephonic message through PW3, he went to PW3, from there along with PW3 to police station and he was asked to write panchanama under Ex.P8.

He identified the panchanama.

In the cross-examination by A1’s counsel, PW6 stated that at the time of drafting Ex.P8, no accused was present there and at the time of drafting Ex.P8 himself, PW3, SI of Police were present.

In the cross-examination of A7’s counsel, PW6 denied that he has not written the Ex.P8 panchanama but he has signed in the blank paper. He denied that he has not gone to the place at the instance of PW3 and he has signed in the police station. From this piece of evidence, it is clear that they did not do to the scene of offence.

19) PW7 the then Sub-Inspector of Police, Sullurpet deposed that on 08-04-2019 while election code was in prevail, PW3 submitted report along with panchanama and basing on it, he registered a case in Cr.No.112/2019

U/Sec.171-H, 188 IPC under cover of FIR/Ex.P9, issued copies of FIRs to all concerned, visited the scene of offence near Panduranga swamy temple, examined the Flying Squad Members, issued Sec.41-A Cr.P.C. notice to accused, PW3 seized two bikes, voter list/Ex.P11, bunch of pamphlets/Ex.P10 and cash of Rs.65,000/- and after completion of investigation, he filed charge sheet.

In the cross-examination by A1’s counsel, PW7 admitted that the scribe of panchanama is not mentioned in Ex.P7/panchanama. PW3 seized the bikes and handed over to him. He does not remember whether the said bikes are produced before the Hon’ble Court. At 2:05 p.m. he has examined PW3. He also admitted that the receipt of information as per Ex.P3 is at 00.30 hours and 9CC.No.439/2022 Dt.27.12.2022

Pandurangaswamy temple is at a distance of two furlongs from Sullurpet P.S.

and it is a busy locality and surrounded by shops. He has not examined any witnesses at the scene of offence. He denied that a false case is foisted against accused as they are followers of YSRCP Party at the instance of TDP Rulers.

He denied that no offence was committed by the accused. He denied that basing on Ex.P7 false case is registered against accused. He denied that true voter list is available in MRO Office. He denied that PW3 did not seize any alleged material and not handed over to him.

In the cross-examination of A7’s counsel, he admitted that he has not examined any witnesses at the scene of offence nor cited in the charge sheet.

He admitted that pamphlets are available with any one and it can be printed anywhere. He does not know whether voter list can be obtained by anyone from

MRO Office. He admitted that the bundle consists how many pamphlets is not mentioned in anywhere. He denied that Exs.P10 and P11 are implanted by them for the purpose of case. This piece of evidence creates doubt whether he conducted table investigation in this case and foisted false case against the accused.

20) From the available evidence on record, PWs.1, 2 and 5 all the three are eye witnesses to the incident, did not support the case of prosecution and turned hostile for the reasons best known them. PWs.3 and 4 did not depose about the seizure of cash from the accused while distributing the amount to the public. PW3 deposed only about seizure of pamphlets whereas PW4 deposed about seizure of two vehicles. PW7 in his chief-examination stated that PW3 seized two bikes, pamphlets and cash of Rs.65,000/-. Whereas in the

Panchanama it is mentioned that two vehicles worth Rs.65,000/-. They deposed in different versions. Further, PW4 admitted that they all the list of witnesses are 10CC.No.439/2022 Dt.27.12.2022 flying squad members. PW6 himself stated in the cross-examination by A1’s counsel that at the time of drafting Ex.P8, no accused was present there. PW6 further stated that at the time of drafting Ex.P8 himself, PW3 and SI of Police were present. It clearly shows that they drafted Ex.P8 in the police station itself.

PW4 not deposed in his evidence, when, where and at time he went to the scene of offence. Hence, with all these lacunas and infirmities their evidence cannot be believable. Without corroboration from the evidence of PWs.1 to 6, the evidence of PW.7, who is interested official witness, is not sufficient to bring home the guilt of the accused. Further, PW7 himself admitted that though the scene of offence i.e. Pandurangaswamy temple is busy locality and surrounded by shops, he did not examine any witnesses. It creates doubt in the mind of the court that he did table investigation in this case and foisted false case against the accused.

Hence, for the above discussion, the prosecution failed to bring home the guilt of the accused beyond all reasonable doubt.

For the above discussion, this point is answered against the prosecution.

POINT NO.2:-

21) In the result the accused No.5 is found not guilty for the offence

U/Secs.171-H, 188 of IPC and accordingly, he is acquitted U/Sec.255 (1) Cr.P.C.

The bail bonds of accused shall be in force for a period of six months as required

Under Sec.437-A Cr.P.C.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the open court, this the 06th day of December, 2022.

Sd/- S. Anil Kumar,

Addl. Judicial Magistrate of 1 st class, Sullurpet.

Appendix of evidence

Witnesses Examined

For prosecution for Defence

P.W.1 : I. Goutham Mahesh --None-- P.W.2 : V. Surya. P.W.3 : Sangam Srinivasulu 11CC.No.439/2022 Dt.27.12.2022

P.W.4: V. Venkateswarlu P.W.5: Ramagiri Hari P.W.6: D. Praveen P.W.7: P. Viswanath Reddy, the then, SI of Police, Sullurpet P.S.

Documents marked

For prosecution Ex.P.1:- Signature of PW1 in confessional Panchanama Ex.P.2:- Signature of PW1 in Panchanama. Ex.P.3:- Sec.161 Cr.P.C. Statement of PW1. Ex.P.4:- Signature of PW2 in confessional Panchanama Ex.P.5:- Signature of PW2 in Panchanama. EX.P6:- Sec.161 Cr.P.C. Statement of PW2. Ex.P.7:- Panchanama Ex.P.8:- Confessional panchanama. Ex.P.9:- FIR in Cr.No.112/2019, dt.08-04-2019 U/Sec.171-H, 188 IPC. Ex.P.10:-Bunch of pamphlets. Ex.P.11:- Voter list.

For defence :- NIL

Material objects marked

NIL

Sd/- S. Anil Kumar,

Addl.Judicial Magistrate of 1 st class, Sullurpet.

//True copy//

Addl.Judicial Magistrate of 1 st class, Sullurpet.

12CC.No.439/2022 Dt.27.12.2022

CALENDAR AND JUDGMENT

District of:NELLORE

CALENDAR OF CASES TRIED BY THE ADDITIONAL JUDICIAL MAGISTRATE OF

FIRST CLASS, SULLURPET

Date ofDate ofDate ofDate ofDate ofDate ofDate of offencereport/ApprehenreleaseCommenceclose ofsentence/ complaint-sion ofon bail- ment oftrialorder accusedtrial 08.04.201908.04.2019­­­­13­06­2202­11­2227­12­22 Explanation for the delay and remarks: This case was taken on file on 22.08.2019 in CC No.166/2019 and posted for appearance of accused, On 01-11-2019 on appearance of the accused Nos.1 to 8, copies of case documents were furnished to him, On 21-11-2019, the accused were examined under Sec.251 Cr.P.C. and posted for trial, On 13.06.2022 PWs.1 and 2 were examined and got marked Exs.P1 to P6, On 26- 07-2022 PW3 was examined and got marked EXs.P7 and P8. On 02-08-2022 PWs.4 and 5 were examined, On 04-08-2022 PW6 was examined, On 02-11- 2022 PW7 was examined and got marked EXs.P9 to P11 and the prosecution evidence was closed, The evidence of LW5-M. Srinivasulu Reddy was given up by the learned Assistant Public Prosecutor, On 25-11-2022, the case against A5 split up and renumbered as CC No.439/2022 as NBW pending against him since long time and on 26-12-2022, NBW was recalled and he was present and examined U/Sec.313 Cr.P.C. and heard the arguments. On 27.12.2022 judgment is pronounced. Hence the delay.

JUDGMENT IN CALENDAR CASE No.439/2022 ON THE FILE OF

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS, SULLURPET

Complainant : The State rep. by Sub-Inspector, Sullurpet P.S.

Description of the Accused : 5. Patan Tajuddin, S/o Barakutalla, aged about 24 years, Muslim, Ganapathi Nagar, Sullurpeta. (The case against A5 is split up on 25-11-2022 from CC No.166/2019).

Offence:U/Secs.171-H, 188 of IPC.

Finding:Accused Nos.1 to 4 and 6 to 8 are found not guilty for the above said offence.

Sentence: In the result the accused No.5 is found not guilty for the offence U/Secs.171- H, 188 of IPC and accordingly, he is acquitted U/Sec.255 (1) Cr.P.C. The bail bonds of accused shall be in force for a period of six months as required Under Sec.437-A Cr.P.C.

Sd/- S. Anil Kumar,

Addl. Judl. Magistrate of First Class,

SULLURPET

13CC.No.439/2022 Dt.27.12.2022

REMARKS From TheAdditionalJudicial

Magistrate of First Class

SULLURPET

To The Hon’ble Chief Judl.

Magistrate-cum-Prl. Senior Civil

Judge,

NELLORE

Calendar Case No.:CC.No.439/2022 Date of Judgment:27.12.2022 Date of Dispatch of: Calendar Dis. No. & Date: Date Received

//True copy//

Addl.Judicial Magistrate of 1 st class, Sullurpet.

1CC.No.148/2019 Dt.27.12.2022

IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF 1 st

CLASS :: SULLURPET :: SPSR NELLORE DISTRICT

Present: Sri S. Anil Kumar,

Additional Judicial Magistrate of 1st class,

Sullurpet

Tuesday, this the 27th day of December, 2022

C.C.No.148/2019

State: Sub-Inspector of Police, D.V.Satram P.S.… Complainant

Vs.

Valluru Kumaraswamy, s/o Veeraswamy, aged about 25 years, SC (mala) by caste, Tanayali Village, Doravarisatram Mandal. … Accused

This case coming for final hearing before me on 22.11.2022 in the presence of the Assistant Public prosecutor for complainant and of

Sri M.Sudarshan Rao, and Sri A.Kiran Kumar, Advocates for the Accused and having stood over for consideration till this day, this court delivered the following:-

JUDGMENT

1. The Sub-Inspector of Police, D.V.Satram P.S. filed charge sheet against the accused in Cr.No.42/2019 for the offence U/Sec.171(H) IPC &Sec.34(a) of

A.P. Excise Act with the following allegations:

On 09.04.2019 at about 11.00 a.m. on credible information

L.Ws.1 to 6/Konduru Subramanyam MPDO/Flying Squad incharge officer,

DV Satram Mandal, A.Amir Basha, Office Subordinate at MPDO office, DV

Satram, Sk.Babar, Computer Operator at MPDO office, DV Satram Mandal,

D.Mujeer Basha, H.C.400 of DV Satram P.S., I.Hari Krishna P.C.2713 of DV

Satram P.S., and M.Venkata Rao, the then SI of Police, DV Satram P.S. went to

Tanayali and conducted raid at the house of accused and found Old Tavern

Whisky 180 ml bottles – 204 worth Rs.20,400/- and on enquiry the accused confessed that he is in possession of the same for distributing to the voters in view of forth coming General Election selling without any license and permission.

On that, L.W.1 separated one sample bottle for chemical analysis and handed 2CC.No.148/2019 Dt.27.12.2022 over liquor bottles to L.W.6/S.I. of Police. L.W.6/SI of Police issued Sec.41-A

Cr.P.C. notice to the accused, seized Old Tavern Whisky 180 ml bottles – 203 under cover of Mahazarnama, registered a case in Cr.No.42/2019 u/sec.171-H

IPC and Sec.34(a) of A.P.Excise Act, issued copies of FIR to all concerned, sent sample bottles to RFSL Guntur for chemical analysis. L.W.7/L.Sudhakar Reddy,

SI of Police, D.V.Satram P.S. filed Charge Sheet.

2. On 03-08-2019, this court took cognizance of case against the accused for the offence punishable U/Secs.171-H of IPC and Sec.34(a) of AP Excise Ac.

3. On 09-08-2019 copies of documents were furnished to the accused as required under Section 207 of Criminal Procedure Code.

4. On 09-08-2019 the accused was examined Under Section 239 of

Criminal Procedure Code, for which, he denied. After hearing both sides and on perusing the entire case record, a charge for the offence punishable Under

Section.171-H IPC and 34 (a) of A.P. Excise Act was framed against the accused. The same was read over and explained to him in Telugu, for which, he denied the same, pleaded not guilty and also claimed to be tried. Thus, the case was posted for trial.

5. During the course of the trial, the prosecution has examined LWs.1, 3, 5, 6 and 7 as PWs.1 to 5 respectively and got exhibited Exs.P1 to P3. The evidence of LW.2-A.Amir Basha, Office Subordinate at MPDO office, DV Satram and

L.W.4-D.Mujeer Basha, H.C.400 of DV Satram P.S. was given up by the learned

Assistant Public Prosecutor. Hence, prosecution side evidence is closed.

6. After closure of prosecution evidence, the accused was examined Under

Section 313 Criminal Procedure Code on 26.09.2022 by explaining the 3CC.No.148/2019 Dt.27.12.2022 incriminating prosecution evidence in question form in Telugu, for which, they denied and reported that there is no defence evidence. On the other side, no one examined and no documents marked on their behalf.

7. Heard arguments of the learned Assistant Public Prosecutor and the learned counsel for the accused.

8. Now the points for consideration are :

1.Whether the accused distributed the amount to the voters or not?

2. Whether the prosecution is able to bring home the guilty of accused for the offence punishable under Section 171-H of IPC and 34(a) of AP Excise Act beyond all reasonable doubt?

POINT Nos.1 and 2 :-

9) The investigation in this case commenced on the panchanama which is marked as Ex.P1 through PW1.

The brief contents of Ex.P1 is that the Flying Squad Team, DV Satram

Mandal in view of Parliament and Sullurpet Assembly Constituency General

Elections, 2019 by orders of the District Collector, SPSR Nellore District and the

Electoral Registration Officer, Sullurpeta (SC) Assembly Constituency vide

Rc.H1/466/2019 dt.12.03.2019, on 09-04-2019 in the presence of mediators in

Tanayali village, DV Satram Mandal conducted raid and seized Old Tavern liquor bottles 180 ml - 204 worth Rs.20,400/- from the possession of accused. Hence the panchanama.

10) It is the case of offence allegedly committed by the accused in view of

Tirupathi Parliament and Sullurpet assembly bye elections as accused belongs to

YSRCP party was in possession of liquor bottles for selling and distributing the same to the voters.

4CC.No.148/2019 Dt.27.12.2022

11) The prosecution to establish the same, adduced PWs.1 to 5 evidence out of 07 listed witnesses and marked Exs.P1 to P3.

12) PW1 who is MPDO/Flying Squad incharge officer, DV Satram Mandal deposed that in view of General Elections, 2019 himself, L.Ws.2 and 3/ A.Amir

Basha, Office Subordinate at MPDO office, DV Satram, Sk.Babar, Computer

Operator at MPDO office, DV Satram Mandal, along with two constables while conducting vehicle checking in the area of Assembly Constitution, Sullurupeta, on 09.04.2019 on credible information, immediately rushed to Tanayali Village and found the accused in possession of Whisky bottles 100 in number and he confessed he is having liquor bottles for distributing the same to YSRCP voters in view of forth coming General Elections. As the accused is selling liquor bottles without licence, he seized the bottles under cover of Panchanama dated 09.04.2019 and handed over the contraband to Police.

In the cross-examination he deposed that he reached Tanayali by 11.00 a.m. He cannot say the quantity of the whisky bottles. The distance between

Thanyali village and DV Satram is 15 kms. He denied that he has not seized the contraband from the possession of accused. The attesting witnesses are his staff and police. He denied that he has not drafted any Panchanama and on his instructions his subordinates put their signatures in Ex.P.1. He cannot say the names of Police who accompanied with him. He has not handed over the order copy issued by the District Collector to show that he was deputed to DV Satram

Mandal as flying squad in view of General Elections, 2019. He has not intimated about this crime to his higher authority. He has not tried to secure mediators in the village where public office is functioning. He has not obtained signature of accused in Ex.P1. He cannot say the vehicle number in which they were travelling. He has not ascertained the source of flags. He denied Ex.P1 was 5CC.No.148/2019 Dt.27.12.2022 drafted in his office and foisted a case against the accused for statistical purpose.

Police examined him after he lodged Panchanama, but he cannot say the exact date. He has not visited Tanayani Village.

This piece of evidence creates doubt in the mind of the court whether they really went to the scene of offence and prepared panchama there. If they really went to the scene of offence, conducted raid and prepared panchanama there, why they did not try to secure mediators in the village where the public office is functioning, why he unable to tell the vehicle number in which they proceeded to the scene of offence, why they have not ascertained the source of flags and why he cannot say the exact date of incident. Further, in his chief-examination he stated that the accused possessed 100 whisky bottles, whereas, in his cross- examination he stated that he cannot say the quantity of whisky bottles. He himself in his evidence in different versions.

13) P.W.2 deposed that on 09.04.2019 in view of elections he accompanied P.W.1 to the house of accused Tanayani Harijanawada and noticed

Old Tavern Whisky bottles 24 worth Rs.20,400/- to distribute voters without any authorized permission. P.W.1 verified the bottles and handed over to L.W.6.

P.W.1 seized bottles under cover of Panchanama which bears his signature.

In the cross-examination he deposed that Ex.P1 was drafted in MPDO office+-e and he signed in the Panchanama on the instructions given by P.W.1.

L.W.2 and himself signed in MPDO office. P.W.1 not obtained the signatures of accused. Whereas, PW1 in his cross-examination denied that on his instructions his subordinates put their signatures in Ex.P.1.

From this piece of evidence also, it creates doubt in the mind of the court whether they really went to the scene of offence and whether the incident really took place. If they really went to the scene of offence why they put their 6CC.No.148/2019 Dt.27.12.2022 signatures in MPDO Office and why did not obtain the signature of accused as suggested by defence counsel. Further, as per the evidence of PW1 accused possession 100 liquor bottles whereas he deposed they notice 24 Old Tavern

Bottles at the house of accused. They deposed in different versions.

14) P.W.3 deposed that on credible information to PW1 on 09.04.2019 himself, another police official, PW1 and his staff went to the house of accused at

Tanayani village and found 204 bottles of Old Tavern Whisky and on enquiry by

P.W.1 accused stated he has not obtained any permission. Whereas, PW1 deposed in his evidence that accused possessed 100 whisky bottles in his house and PW2 deposed in his evidence that they noticed 24 bottles at the house of accused. They deposed in different versions.

PW3 in his chief-examination further deposed that P.W.1 secured SI of

Police, DV Satram PS and filled the printed Ex.P1/Panchanama there and they all officials signed in Ex.P1. P.W.1 handed over accused and seized property to

L.W.6 SI of Police. As per the evidence of PW2, himself and LW2 put their signature in Ex.P1 at MPDO Office. Therefore, they deposed in different versions.

In the cross-examination he deposed that he has not filed any document, that he is part of flying squad in the 2019 Election time. He cannot say the door

No. of the accused house. The batch number and the serial number on the contraband were torn. He admitted that the same is not mentioned in Ex.P1. He admitted that details of officials are not mentioned in Ex.P1. He denied that he has stated the name of accused. He cannot tell the boundaries of the house of accused. As there are no one, they have not tried to secure mediators at the alleged place. Whereas, PW1 in his cross-examination deposed that he has not 7CC.No.148/2019 Dt.27.12.2022 tried to secure mediators in the village where public office is functioning. Hence, the version PW2 with that of PW1 version is entirely different.

From this piece of evidence also, it creates doubt in the mind of the court that they have not gone to the alleged place, no offence took place and that he is deposing false as suggested by defence counsel

15) P.W.4 deposed that on 09.04.2019 while he was in Police Station upon credible information P.W.1 who is flying squad incharge officer took him and his staff and P.W.1’s staff to Tanayali village to the house of accused, it was election time. They searched his house, found 204 liquor Old Tavern Whisky bottles of 180ml each in possession of accused without any permission. Thereafter, he has drawn one sample bottle to send for chemical analysis, seized property under cover of Panchanama under Ex.P1, later shifted accused and property to

DV Satram PS, registered Ex.P1 as a case in Cr.No.42/2019 under Sec.171-H &

Sec.34(a) of AP Excise Act under Ex.P2/FIR, issued copies of FIR to all concerned, issued 41-A Cr.P.C. notice and released him on bail, send the sample bottles for chemical analysis to SDPO, received chemical analysis report under

Ex.P3 and after completion of his investigation, his successor L.W.7 SI of Police filed charge sheet.

In the cross-examination he admitted Ex.P1 is in printed form which is filled. The particulars of mediators is not mentioned in Ex.P1. He admitted that there is no signature of the accused in Ex.P1. The concerned G.O. is not produced before the court. As per this piece of evidence, it creates doubt in the mind of the court that they foisted a false case against accused for statistical and due to political influence as suggested by the defence.

8CC.No.148/2019 Dt.27.12.2022

16) Now remains the evidence of P.W.5, who deposed that he took up further investigation from L.W.6, his predecessor. He received chemical analysis under Ex.P3. After completion of investigation he filed charge sheet.

In the cross-examination he denied that during election time the statistical cases shall be foisted. He denied that this is one such and the accused has committed no offence.

17) Herein the case, there is no dispute with regard to the nature of property alleged to be seized. In other words, it is not in dispute that the samples sent to Chemical Examiner were Indian made liquor as opined in Analysis report(Ex.P3). The defence counsel pointed out that when there is possible opportunity to secure the independent witnesses at the scene of offence why they did not secure. As per PW1 evidence, he has not tried to secure mediators in the village where public office is functioning. So, it can be considered as a lapse on the part of the Investigating agency. The learned defence counsel further pointed that the police officials even failed to follow the sampling procedure and hence, the accused is entitled to benefit of doubt. In view of the said contention, it is pertinent to note the following decision: K. Muleswara Rao

Vs. State reported in 1978 (1) APLJ Short notes, wherein it was held that “….It is the duty of the prosecution to prove by sending the other bottles also to the chemical Analyst to find out whether the bottles contained alcohol or some spurious liquor and that has not been done by the prosecution and that has been prejudiced the case of the accused….”. In the present case on hand, only one bottle was drawn from each brand as samples. Therefore, in the light of the said decision, the court is of the view that the police officials failed to follow the sampling procedure as per rules.

18. Apart from the oral evidence of PWs.1 to 6 the prosecution mainly 9CC.No.148/2019 Dt.27.12.2022 relied upon Ex.P1-Panchanama. This court gone through it, the Ex.P1 is in a printed form filled by PW1, incharge Flying squad and which is signed by other officials, who is which is inadmissible in the eye of law as per Sec.25 of Indian

Evidence Act. Hence, the Ex.P1 panchanama cannot be taken into consideration.

This court relies upon the judgment of Hon’ble High Court of AP “In decision reported in 2005 (2) APLJ, Page No.73 in K. Babu Rao Vs. State of AP his lordship held that the alleged recovery by the flying squad and police whose evidence cannot be straight away believed because there was no panch witness and the explanation of the prosecution evidence is not acceptable”. In this case also, no panch witnesses were examined. Hence, the evidence of PWs.1 to 6 is not taken straight away about the seizure of liquor bottles.

19. From the available evidence on record and from the above discussion, it is clear that PWs.1 to 3 deposed in different versions about the quantity of liquor bottles, place they signed in Ex.P1, about not securing of mediators etc.

Hence, with all these lacunas and infirmities, their evidence cannot be believable.

All these lacunae and infirmities show the defective investigation, which casts doubt in the prosecution version. In view of above mentioned lacunae and in absence of independent evidence for seizure of contraband and arrest of the accused, the court holds that it is not safe to rely on the evidence of PWs.1 to 6, who are Flying Squad officials and police officials to hold that the accused was found in possession of Indian made liquor as alleged.

20. For the foregoing reasons, as there is no convincing and satisfactory evidence to prove that the accused was found in possession of Indian made liquor as alleged, Ex.P1/Panchanama could not be relied upon. Even though

Ex.P4/Analysis report discloses that the contents of sample sent was Indian made liquor, as there is no convincing evidence to prove that the contents of the 10CC.No.148/2019 Dt.27.12.2022 said sample was drawn from the bottles found from the possession of accused,

Ex.P1 would not help the prosecution case. Thus, the court holds that the prosecution failed to establish the guilt of accused for offence punishable under

Sec.171-H and 181 of IPC and Sec.34(a) of A.P. Excise Act, beyond reasonable doubt. Hence, the accused is entitled for benefit of doubt. Accordingly, the point is answered against the prosecution and in favour of accused.

POINT NO.2:-

21) In the result the accused is found not guilty for the offence punishable

U/Secs.171-H of IPC and Sec.34(a)(1)(i) of AP Excise Act. Therefore, he is acquitted for the said offence U/Sec.248(1) Cr.P.C. The bail bonds of accused shall be in force for a period of six months as required U/Sec.437-A Cr.P.C.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the open court, this the 27th day of December, 2022.

Sd/- S. Anil Kumar,

Addl. Judicial Magistrate of 1 st class, Sullurpet.

Appendix of evidence

Witnesses Examined

For prosecution for Defence

P.W.1 : G.Subramanyam --None-- P.W.2 : Sk.Babar P.W.3 : I.Harikrishna P.W.4: M.Venkat rao P.W.5: Sudhakar Reddy

Documents marked

For prosecution Ex.P.1:- Panchanama dated 09.04.2019 Ex.P.2:- F.I.R. dt.09.04.2019 in Cr.No.42/2019 u/sec.171-H IPC, 34 of A.P. Excise Act. Ex.P.3:- Chemical Analysis Report For defence :- NIL

Material objects marked

NIL

Sd/- S. Anil Kumar,

Addl.Judicial Magistrate of 1 st class, Sullurpet.

//True copy//

Addl.Judicial Magistrate of 1 st class, Sullurpet.

11CC.No.148/2019 Dt.27.12.2022

CALENDAR AND JUDGMENT

District of:NELLORE

CALENDAR OF CASES TRIED BY THE ADDITIONAL JUDICIAL MAGISTRATE OF

FIRST CLASS, SULLURPET

Date ofDate ofDate ofDate ofDate ofDate ofDate of offencereport/ApprehenreleaseCommenceclose ofsentence/ complaint-sion ofon bail- ment oftrialorder accusedtrial 09.04.201909.04.2019­­­q­09­08­1919­09­2227­12­22 Explanation for the delay and remarks: This case was taken on file on 03.08.2019 and posted for appearance of accused. On 09-08-2019 on appearance of the accused, copies of case documents were furnished to them and on the same day, the accused was examined under Sec.239 Cr.P.C. and posted for trial. On 09.08.2019 PWs.1 and 2 were examined and got marked Ex.P1. On 27-07-2022 PW3 was examined. On 01-08-2022 PW.4 was examined and got marked Exs.P2 and P3. On 19-09-2022 PW5 was examined and the prosecution evidence was closed. The evidence of LW.2-A.Amir Basha, Office Subordinate at MPDO office, DV Satram and L.W.4-D.Mujeer Basha, H.C.400 of DV Satram P.S. was given up by the learned Assistant Public Prosecutor. Hence, prosecution side evidence is closed. On 26-09-2022 the accused was examined U/Sec.313 Cr.P.C. On 22-11-2022 heard the arguments. On 27.12.2022 judgment is pronounced. Hence the delay.

JUDGMENT IN CALENDAR CASE No.148/2019 ON THE FILE OF

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS, SULLURPET

Complainant : The State rep. by Sub-Inspector, D.V. Satram P.S.

Description of the Accused :

Valluru Kumaraswamy, s/o Veeraswamy, aged about 25 years, SC (mala) by caste, Tanayali Village, Doravarisatram Mandal.

Offence:U/Secs.171-H of IPC and Sec.34(a)(1)(i) of A.P. Excise Act.

Finding:Accused is found not guilty for the above said offence.

Sentence: In the result the accused is found not guilty for the offence punishable U/Secs.171-H of IPC and Sec.34(a)(1)(i) of AP Excise Act. Therefore, he is acquitted for the said offence U/Sec.248(1) Cr.P.C. The bail bonds of accused shall be in force for a period of six months as required U/Sec.437-A Cr.P.C.

Sd/- S. Anil Kumar,

Addl. Judl. Magistrate of First Class,

SULLURPET

12CC.No.148/2019 Dt.27.12.2022

REMARKS From TheAdditionalJudicial

Magistrate of First Class

SULLURPET

To The Hon’ble Chief Judl.

Magistrate-cum-Prl. Senior Civil

Judge,

NELLORE

Calendar Case No.:CC.No.148/2019 Date of Judgment:27.12.2022 Date of Dispatch of: Calendar Dis. No. & Date: Date Received

//True copy//

Addl.Judicial Magistrate of 1 st class, Sullurpet.