Sri S.nagarjuna

1I ADJ COURT, VSP NSC No.646/2017

IN THE COURT OF SPECIAL JUDGE TO TRY OFFENCES UNDER N.D.P.S ACT–

cum–I ADDITIONAL DISTRICT & SESSIONS JUDGE – cum- METROPOLITAN

SESSIONS JUDGE, VISAKHAPATNAM

Present: Sri S. Nagarjuna Spl. Judge to try Offences under NDPS Act -cum-Metropolitan Sessions Judge

Wednesday, the 19th day of December, 2018

N.S.C.No.646/2017

a)The serial number of the case:NSC No.646/2017

b)Date of commission of offence:12-09-2017

c)Name of the Complainant, if anyState represented by the Prohibition & Excise Inspector, Prohibition & Excise Station, Anakapalli.

d) Name of the accused, if any A.1 Shik Ashalam Bhasa, S/o Paneer, age 37 years, C/o B.C.E. (Muslim), R/o D.No.2- 53, Chintanippula Agraharam village, Anakapalli Mandal, Visakhapatnam District.

A.2 Illapu Raju, S/o Veeru Naidu, age 30 years, C/o Kapu, R/o NearSanthoshimatha Temple,Gavarapalem, AnakapalliMandal, Visakhapatnam District.

A.3Singidi Nani @ Venkatesh @ Nanaji,S/oNarasimha Murthy, age 26 years, C/o Neyyala R/o Gudivada Street, PaderuMandal, Visakhapatnam District.

e)Offences complained of or proved :U/Sec.8(c) r/w Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

f)Plea of the accused and his :A1 to A3 pleaded not guilty. examination, if any

This case coming on 11-12-2018 for final hearing before me in the presence of Addl. Public Prosecutor for the State; and of Sri K.Siva,

Advocate for A1 to A3; and the matter having stood over for consideration till this day, this Hon’ble Court delivered the following:

2I ADJ COURT, VSP NSC No.646/2017

JUDGMENT

1.Sri V.Ravi Kumar, Prohibition & Excise Inspector, Anakapalli, has laid a charge sheet in Cr.No.156/2017 of the Prohibition & Excise Station,

Anakapalli for the trial of A1 to A3 under Sections 20(b)(ii)(C) read with

Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

2.It is the case of the prosecution that on 12.09.2017 at about 5.25 p.m., at House bearing No.SC No.808, Sirasapalli village near APGVB

Bank, Anakapalli Mandal, Visakhapatnam, A1 to A3 were found in possession of 90 kgs of ganja loaded in three polythene bags, which is a commercial quantity, without any valid permission or license under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985.

This Hon’ble Court took cognizance of the case against A1 to A3. On production of A1 to A3 and on due consideration, a charge under Section 8(c) read with Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 has been framed, read over and explained to them for which they denied the same, pleaded not guilty, and claimed to be tried.

3.The learned Additional Public Prosecutor has examined PW1 to

PW4 and got marked Exs.P1 to P7 and MO1 to MO5 on behalf of the prosecution. After closure of the evidence of prosecution, A1 to A3 have been examined under Section 313 of the Cr.P.C stating the particulars of incriminating material made against them for which they denied the same and claimed no defence evidence.

4.POINT FOR DETERMINATION:

Were A1 to A3 found in possession of 90 kgs of ganja on 12.09.2017 at 5.25 p.m., at House bearing No.SC No.808, Sirasapalli village near APGVB Bank ? If so, are A1 to A3 liable for punishment under

Section 8(c) read with Section 20(b)(ii)(C) of the Narcotic Drugs and

Psychotropic Substances Act, 1985 ?

3I ADJ COURT, VSP NSC No.646/2017

5.The learned additional public prosecutor has submitted that on 12.09.2017 at about 5.25 p.m., at House bearing No.SC No.808,

Sirasapalli village near APGVB Bank, Anakapalli Mandal, Visakhapatnam,

A1 to A3 were found in possession of 90 kgs of ganja loaded in three polythene bags, which is a commercial quantity, without any valid permission or license under the provisions of the Narcotic Drugs and

Psychotropic Substances Act, 1985 and therefore, A1 to A3 are liable for punishment under Section 8(c) read with Section 20(b)(ii)(C) of the

Narcotic Drugs and Psychotropic Substances Act, 1985. In support of her arguments, she has very much relied upon the evidence of PW1 to PW4 coupled with Exs.P1 to P7 and MO1 to MO5. On the other hand, the learned advocate for A1 to A3 submitted that they did not commit any offence; that they have been falsely implicated in this case for statistical purpose; and that they are entitled for acquittal.

6.POINT: It is appropriate to extract the following provisions of the law for better appreciation of the case:

Section 8(c) of the Narcotic Drugs and Psychotropic Substances

Act, 1985 runs as follows:

Section 8 Prohibition of certain Operations- No person shall-

(c) Produce, manufacture, possess, sell, purchase, transport, warehouse, use consume, import inter-State, export inter-State, import into India, export from India or transship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made there under and in a case where any such provisions, imposes any requirement by way of license, permit or authorization also in accordance with the terms and conditions of ;such license, permit or authorization: Provided that, and subject to the other provisions of this Act and the rules made there under, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing import interstate and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specif in this behalf:

4I ADJ COURT, VSP NSC No.646/2017

Prohibition of certain activities relating to property derived from offence:- No person shall-

(c) Knowingly acquire, possess or use any property which was derived from an offence committed under this Act or under any other corresponding law of any other country.”

Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 runs as follows:

Section 20 Punishment for contravention in relation to cannabis plant and cannabis- Whoever, in contravention of any provision of this Act of any rule or order made or condition of license granted there under:-

(b) produces, manufactures, possesses sells, purchases, transports, imports inter-state, exports inter-State or uses cannabis, shall be punishable,-

(ii) where such contravention relates to sub-clause(b) (C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees: Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

7.Since the plea of A1 to A3 is total denial of the charge, the initial burden of proof is only on the prosecution to prove the guilt of A1 to A3 beyond all reasonable doubt.

8.In this case, the learned additional public prosecutor has examined

PW1, who is working as VRO, Akkireddypalem, Anakapalli Mandal from

August, 2016. He stated that on 12.09.2017, the Sub-Inspector and CI came to his office and informed to his MRO that ganja was caught; that himself and another VRO along with the CI and SI at the direction of the

MRO proceeded to a house situated in Sirasapalli village opposite to

Grameena Bank; that CI and SI went into the house; that they were out side of the house; that the CI and SI brought out from the house three bags containing ganja; that he was told that the three bags contain ganja; that two persons came out of the house along with CI and SI; and that the report was written. He revealed that he cannot identify the said 5I ADJ COURT, VSP NSC No.646/2017 two persons who came out of the house with CI and SI and he does not know to whom the said house belongs. Through this witness, Ex.P1, the mediator’s report dated 12.09.2017 and Ex.P2, the photograph showing the ganja bags were marked. Ex.P1 discloses that on 12.09.2017 at 5.25 p.m., at a house situated opposite to APGVB Bank, Sirasapalli village, A1 and A2 were found in possession of three plastic gunny bags containing 90 kgs of ganja in the presence of two witnesses. Ex.P1 contains the signature of PW1. But PW1 did not identify A1 and A2 in this court. The photograph shows the three plastic gunny bags said to have been found in possession of A1 and A2. The photograph was certified by I Additional

Junior Civil Judge-cum-V Metropolitan Magistrate, Anakapalli at the time of inventory. PW1 was cross examined by the advocate for accused. He revealed that he signed in Ex.P1 in the excise station. When PW1 signed in Ex.P1 in the excise station, the suggestion put to him that he signed in

Ex.P1 without going through the contents of Ex.P1 can not be rules out because he could not identify either A1 or A2 in this case. If really the proceedings covered by Ex.P1 were taken place in his presence, nothing prevented him from identifying either A1 or A2 before the court. Further,

PW1 did not state in his evidence about the total quantity said to have been found in three plastic gunny bags. So, the evidence of PW1 cannot be weighed in support of the case of the prosecution.

9.The learned additional public prosecutor has also examined PW2, who is working as constable, Anakapalli Excise Station from 2.11.2015.

He stated that on 12.09.2017 at about 4.30 pm., or 5.00 pm., while he was in Anakapalli Excise station, the CI along with SI, STF Sub-Inspector,

Station HC and himself proceeded to MRO office on the information received about the transportation of ganja; that they picked two VROs from the MRO office and proceeded to the house situated opposite to

Grameena bank, Sirasapalli village; that CI, Sub-Inspector, Head 6I ADJ COURT, VSP NSC No.646/2017 constable, himself, PW1 and other VRO entered into the house and found two persons in the house; that the CI asked about their identity particulars; that one notice was also issued to the said persons for conducting search in the house; that in one of the rooms in the house three bags were found along with weighing machine; that CI asked about the contents of the bags; that the said two persons fearing the same; that later revealed that the bags contain ganja; that CI informed the said two persons that the bags may be searched either before the gazetted officer or begore the Magistrate at their option by a notice in writing issued to them; that the Head constable informed to the said two persons that CI was also gazetted officer, for which the said two persons allowed the CI to conduct search of the bags; that the first bag was opened and found 16 packets; that the said 16 packets were also opened and found ganja with bad smell; that the second bag was also opened and found 16 packets; that the said 16 packets were also opened and found ganja with bad smell; that the third bag was also opened and found 13 packets; that the said 13 packets were also opened and found ganja with bad smell; that they stated that the ganja bags were supplied by Singidi Nanaji @ Nani; that he identified A1 and

A2 as they were the said two persons; that the total packets came to 45; that the packets were weighed which came to 90 kgs of ganja; that A1 and A2 were personally searched and found one mobile from A1 and A2 and two mobiles from A2; that the mediator’s report was written and that he is the scribe of the mediator’s report. He revealed that Ex.P1 is the mediator’s report dated 12.09.2017. He also revealed that Ex.P2 is the photograph showing the ganja bags and MO1 to MO3 are the mobile phones.

10.In view of the evidence of PW2, it can be said that it is a case of personal search. Section 50 of the Narcotic Drugs and Psychotropic 7I ADJ COURT, VSP NSC No.646/2017

Substances Act, 1985 provides the conditions under which the search of persons shall be conducted. It states that when an officer duly authorized under Section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall if such person so requires, take such person without unnecessary delay to the nearest

Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. The conditions under which the search of A1 and

A2 shall be conducted have not been followed in this case because A1 and A2 were not produced before the nearest gazetted officer of any of the departments mentioned in Section 42 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 or the nearest Magistrate. The evidence of PW2 made it clear that the CI who is a witness to the raid conducted the search proceedings. Though the CI is a gazetted officer, he ought not to have conducted search proceedings, as he being a witness to the alleged raid. It causes much prejudice to the rights of A1 and A2.

11.Though Ex.P2 was signed by PW2, the evidence of PW2 cannot be weighed in support of the case of the prosecution, because the evidence of PW2 is not corroborated by the evidence of any independent witness.

Since PW2 is a constable working in the same excise station where the

CI is also working, it is possible that he was influenced by his superior officer to speak in support of the case relating to their station.

12.The learned additional public prosecutor has also examined PW3, who worked as VRO, Rajupalem-II from 2015 to July, 2018. He stated that on 12.09.2017 at about 4.00 pm., or 4.30 pm., while he was in MRO office, Excise officials of Anakapalli came to MRO office and asked MRO to provide VROs and from there himself and excise officials proceeded to

Sirasapalli and reached at 5.00 pm., that one asbestos sheeted shed is opposite to A.P.Grameena Bank; that he was out side of the shed and 8I ADJ COURT, VSP NSC No.646/2017 brought three bags from the shed; that the mediator’s report was written and obtained his signature in the Excise station; and that Ex.P1 contains his signature. He revealed that he did not see any of the accused at that time; that he did not see the ganja bags at that time and that the signature was obtained in the excise station in the mediator’s report. In view of the evidence of PW3, it can be said that nothing happened in the presence of PW3 on 12.09.2017 at about 5.25 p.m., at the house situated opposite to Grameena bank, Sirasapalli village. It can be inferred that PW1 and PW3 subscribed their signatures in the excise station without knowing the contents thereon to oblige the excise officials and not otherwise.

13.The learned additional public prosecutor has also examined PW4, who is working as CI, Excise Police station Anakapalli from 19.09.2015.

He stated that on 12.09.2017 around 4.30 pm., on receipt of credible information himself, SI of special task force and staff approached the

MRO, Anakapalli to provide mediators and on the requisition, two VROs were provided to act as mediators and along with mediators they proceeded to the suspected place situated in the house of Sk. Aslam

Basha who is A1 in this case; that the house is situated at Sirasapalli village opposite to APGV bank; that they.observed four portions in the house; that the first three portions were locked already and eastern side portion was closed; that they knocked the door at that time one person in the portion opened the door and after opening the door they informed about their visit and issued search notice; that after taking permission from the said person, they entered into the portion and observed only one room is available in his portion and also observed one more person was available with him and he tried to conceal three bags towards north eastern side; that he collected their identity particulars; that A2 is the said person; that A2 informed that the bags contain ganja; that they also 9I ADJ COURT, VSP NSC No.646/2017 observed electronic weighing machine; that notice under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was issued informing that he is the gazetted officer competent to conduct search proceedings for which they reported no objection; that he marked the three bags as A, B, C and opened the bags and found 16 packets in A bag, 16 packets in B Bag and 13 packets in C-bag; that the total packets found were 45 in number; that each packet was weighed which came to 2 kgs; that the total dry ganja found was 90 kgs in all the three bags; that he arrested A1 and A2; that basing on the confession report, he found the involvement of A3 in this case; that he seized one cell phone from A1 and two cell phones from A2; that the above said proceedings were taken place in the presence of mediators; that after completion of the mediator’s report, he returned to excise station along with two accused and mediators; that he registered it as a case in Cr.No.156/2017 for the offence under Section 20(b) of the Narcotic Drugs and

Psychotropic Substances Act, 1985; that he submitted the FIR to the

Hon’ble court; that he forwarded the arrested accused to judicial

custody; that he produced the case property before the Magistrate for inventory; that on 16.09.2017 the Hon’ble Magistrate conducted inventory; that two samples were drawn in all 45 packets @ 50 grams each; that he forwarded the samples to the chemical laboratory; that after receipt of the laboratory report, he laid the charge sheet against the accused; that after obtaining NBW he arrested A3 on 25.02.2018 who was residing at Chodavaram; that Ex.P1 is the mediator’s report

dated 12.09.2017; that Ex.P2 is the photograph showing the ganja bags;

that Ex.P3 is the search notice; that Ex.P4 is the FIR; that Ex.P5 is the copy of letter of advise; that Ex.P6 is the REL report; that Ex.P7 is the certificate issued by the Magistrate for inventory; that MO1 to MO3 are the mobile phones; and that MO4 and MO5 are the samples.

10I ADJ COURT, VSP NSC No.646/2017

14.In view of the evidence of PW4, it can be said that PW4 himself received the information about the transportation of ganja; that he himself conducted the raid; that he himself sent samples and he himself laid the charge sheet against the accused. Because he has done several roles, the letter and spirit of the provisions of the Narcotic Drugs and

Psychotropic Substances Act, 1985 have been defeated by its' non compliance. Section 42 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 provides power of entry, search, seizure and arrest without warrant or authorisation. Suspected place is the house of A1. So, under sub-section (2) of Section 42 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 he has to necessarily comply the procedure. It provides that where an officer takes down any information in writing under sub-section(1) or records, grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. But PW4 did not reduce into writing the information received by him. It is nothing but violation of

Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

It creates a doubt in the mind of the court as to whether the suspected place was really searched by PW4 on 12.09.2017 at 5.25 p.m., or not. If really he conducted search in the house of A1, nothing prevented him to follow the procedure under sub-section (2) of Section 42 of the Narcotic

Drugs and Psychotropic Substances Act, 1985 because suspected place is nothing but a house. The evidence of PW4 that he conducted search proceedings in the house of A1 is not supported by the evidence of PW1 and PW3. According to PW1 and PW3, they subscribed their signatures in

Ex.P1 only in the excise station and they do not know what happened in the house of A1 at the time of the alleged raid. Since PW2 is a constable working in the same excise station, on the basis of such evidence, the evidence of PW4 cannot be weighed in support of the case of the 11I ADJ COURT, VSP NSC No.646/2017 prosecution. Ex.P3 discloses that the right of A1 and A2 was informed to be searched either before the gazetted officer or before the Magistrate.

It is a printed notice. A1 and A2 put their signatures in Ex.P3. It was attested by PW1 and PW3, but there is no whisper in the evidence of

PW1 and PW3 that such a notice was issued to A1 and A2 in their presence. It is significant to note that Ex.P3 is silent about the name of

PW4 who proposed to conduct search proceedings. There is no endorsement in Ex.P3 that they have accepted to be searched by PW4 himself. It is not the latter and spirit of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 that the gazetted officer, who participated in the raid, can also be conducted the search proceedings, and they are not legal. It is of no use to the case of the prosecution.

Ex.P6 discloses that the samples received by the laboratory on 18.09.2017 from the Station House Officer, Prohibition & Excise station,

Anakapalle was analyzed by the laboratory and the report issued by the laboratory dated 21.09.2017 revealed that samples contain ganja, but it is of no use to the case of the prosecution. Though the samples were drawn before the Magistrate from the bags produced before him, it cannot be said that those bags were seized from the possession of A1 and A2, because the evidence of PW2 and PW4 is not corroborated by the evidence of PW1 and PW3 and the alleged search proceedings become illegal, because no independent witness was secured and the evidence of an independent witness in support of the case of the prosecution is absent in this case.

15.After analyzing the entire evidence of prosecution, I am of the considered view that the prosecution is not able to discharge its initial burden in proving that on 12.09.2017 at about 5.25 p.m., at House bearing No.SC No.808, Sirasapalli village near APGVB Bank, Anakapalli

Mandal, Visakhapatnam, A1 to A3 were found in possession of 90 kgs of 12I ADJ COURT, VSP NSC No.646/2017 ganja loaded in three polythene bags. I conclude that A1 to A3 are not liable for punishment under Section 8(c) read with Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

16.I find A1 to A3 not guilty for the offence under Section 8(c) read with Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic

Substances Act, 1985. Accordingly, this point is decided against the prosecution.

17.In the result, A1 to A3 are acquitted under Sec.235(1) of the Cr.P.C for the offence punishable under Section 8(c) read with Section 20(b)(ii) (C) of the Narcotic Drugs & Psychotropic Substances Act, 1985 and they are set at liberty. A1 to A3 are ordered to be released forthwith, if their presence is not required in any other case. MO1 to MO3 shall be confiscated to State and MO4 and MO5 shall be destroyed after expiry of appeal time.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in open Court this the 19th day of December, 2018.

SPECIAL JUDGE TO TRY OFFENCES UNDER N.D.P.S

ACT-cum-I ADDITIONAL DISTRICT & SESSIONS

JUDGE– cum-METROPOLITAN SESSIONS JUDGE,

VISAKHAPATNAM

APPENDIX OF EVIDENCE

For Prosecution: Witness ExaminedFor Defence: - NIL-

PW1 : J.V.Somayajulu

PW2 : N.Ramesh

PW3 : B.Appanna

PW4 : V.Ravi Kumar

Exhibits marked For Prosecution:

Ex.P1 is the mediator’s report dated 12.09.2017.

Ex.P2 is the photograph showing the ganja bags.

Ex.P3 is the search notice.

Ex.P4 is the FIR.

13I ADJ COURT, VSP NSC No.646/2017

Ex.P5 is the copy of letter of advise.

Ex.P6 is the REL report.

Ex.P7 is the certificate issued by the Magistrate for inventory.

Material Objects :

MO1 to MO3 are the mobile phones.

MO4 and MO5 are the samples.

SPECIAL JUDGE TO TRY OFFENCES UNDER NDPS

ACT-cum-METROPOLITAN SESSIONS JUDGE,

VISAKHAPATNAM

1I ADJ COURT, VSP NSC No.23/2013

IN THE COURT OF SPECIAL JUDGE TO TRY OFFENCES UNDER N.D.P.S ACT–

cum–I ADDITIONAL DISTRICT & SESSIONS JUDGE – cum- METROPOLITAN

SESSIONS JUDGE, VISAKHAPATNAM

Present: Sri S. Nagarjuna Spl. Judge to try Offences under NDPS Act -cum-Metropolitan Sessions Judge

Tuesday, the 18th day of December, 2018

N.S.C.No.23/2013

a)The serial number of the case:NSC No.23/2013

b)Date of commission of offence:13-10-2012

c)Name of the Complainant, if anyState represented by Sub-Inspector of Police, Narsipatnam police station.

d) Name of the accused, if any A1 : Jarubula Santosh, S/o Harajayanaik, 23 years, Lambadi by caste, Chinnamariyarla, Thuppudda gedda Thanda, Mehabhoob Nagar, District.

A2: Korra Siva

A3: Pathilovath Balu, S/o Bheemla, 26 years, St.Lambadi, China Revalli village,BalanagarMandal, Mehaboob Nagar District.

A4: Mukudupalli Varahalu, S/o Yerrayya, 32 years, SC, Mala of Vaddipa village of Rolugunta Mandal.

(The cases against A2 was split up and separate case number was assigned as NSC No.166/2018).

e)Offences complained of or proved :U/Sec.8(c) r/w Sections 20(b)(ii)(C) and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

f)Plea of the accused and his :A1, A3 and A4 pleaded not guilty. examination, if any

This case coming on 6-12-2018 for final hearing before me in the presence of Addl. Public Prosecutor for the State; and of Kum.K.Y.Mani,

Advocate for A1 and A3; and of Smt.R.Krishna Kumari, Advocate for A4; and the matter having stood over for consideration till this day, this

Hon’ble Court delivered the following:

2I ADJ COURT, VSP NSC No.23/2013

JUDGMENT

1.Sri B.Rohinipathi, Sub-Inspector of Police, Narsipatnam (R) police station, has laid a charge sheet in Cr.No.42/2012 of Narsipatnam police station for the trial of A1 to A4 under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

2.It is the case of the prosecution that on 13.10.2012 at about 5.00 a.m., at K.L.Puram, A1, A3, A4 and another were found while transporting 24 kgs of ganja loaded in one gunny bag and kept in the dickey of the Indica car bearing registration No.AP 09AU 7028, which is a commercial quantity, without any valid permission or license under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985.

This Hon’ble Court took cognizance of the case against A1 to A4. The case against A2 was split up and separate case number was assigned as

NSC No.166/2018. On appearance of A1, A3 and A4 and on due consideration, a charge under Section 8(c) read with Sections 20(b)(ii)(C) and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 has been framed, read over and explained to them for which they denied the same, pleaded not guilty and claimed to be tried.

3.The learned Additional Public Prosecutor has examined PW1 to

PW5 and got marked Exs.P1 to P5 and MO1 to MO13 on behalf of the prosecution. After closure of the evidence of prosecution, A1, A3 and A4 have been examined under Section 313 of the Cr.P.C stating the particulars of incriminating material made against them for which they denied the same and claimed no defence evidence.

4.POINT FOR DETERMINATION:

Were A1, A3 and A4 with another found in possession of 24 kgs of ganja on 13.10.2012 at about 5.00 a.m., at K.L.Puram ? If so, are A1, A3 and A4 liable for punishment under Section 8(c) read with Sections 20(b)

(ii)(C) and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ?

3I ADJ COURT, VSP NSC No.23/2013

5.The learned additional public prosecutor has submitted that on 13.10.2012 at about 5.00 a.m., at K.L.Puram, A1, A3, A4 and another were found while transporting 24 kgs of ganja loaded in one gunny bag and kept in the dickey of the Indica car bearing No.AP 09AU 7028, which is a commercial quantity, without any valid permission or license under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 and therefore, A1, A3 and A4 are liable for punishment under

Section 8(c) read with Sections 20(b)(ii)(C) and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985. In support of her arguments, she has very much relied upon the evidence of PW1 to PW5 coupled with

Exs.P1 to P5 and MO1 to MO13. On the other hand, the learned advocate for A1, A3 and A4 submitted that they did not commit any offence; that they have been falsely implicated in this case for statistical purpose; and that they are entitled for acquittal.

6.POINT: It is appropriate to extract the following provisions of the law for better appreciation of the case:

Section 8(c) of the Narcotic Drugs and Psychotropic Substances

Act, 1985 runs as follows:

Section 8 Prohibition of certain Operations- No person shall-

(c) Produce, manufacture, possess, sell, purchase, transport, warehouse, use consume, import inter-State, export inter-State, import into India, export from India or transship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made there under and in a case where any such provisions, imposes any requirement by way of license, permit or authorization also in accordance with the terms and conditions of ;such license, permit or authorization: Provided that, and subject to the other provisions of this Act and the rules made there under, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing import interstate and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specif in this behalf:

4I ADJ COURT, VSP NSC No.23/2013

Prohibition of certain activities relating to property derived from offence:- No person shall-

(c) Knowingly acquire, possess or use any property which was derived from an offence committed under this Act or under any other corresponding law of any other country.”

Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 runs as follows:

Section 20 Punishment for contravention in relation to cannabis plant and cannabis- Whoever, in contravention of any provision of this Act of any rule or order made or condition of license granted there under:-

(b) produces, manufactures, possesses sells, purchases, transports, imports inter-state, exports inter-State or uses cannabis, shall be punishable,-

(ii) where such contravention relates to sub-clause(b) (C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees: Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

Section 25 Punishment for allowing premises, etc., to be used for commission of an offence- Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence.

7.Since the plea of A1, A3 and A4 is total denial of the charge, the initial burden of proof is only on the prosecution to prove the guilt of A1,

A3 and A4 beyond all reasonable doubt.

8.In this case, the learned additional public prosecutor has examined

PW1, who worked as Head Constable, Narsipatnam Rural police station from 2011 to 2015. He stated that on 13.10.2012 at about 4.00 am on the information received by the Sub-Inspector, himself, SI, PC/1317,

HG/126, HG/54, HG/289 started from the station and proceeded to

KLPuram and reached at 5.00 am., that while conducting vehicular checking, one Tata Indica car was coming from Yugandarapalem village 5I ADJ COURT, VSP NSC No.23/2013 at high speed; that they stopped the vehicle and asked the driver to get down from the vehicle and asked to open the dickey; that after opening the dickey they found bad smell; that one bag was loaded with material and the same was got opened by the driver of the car and found 12 packets; that after opening the packets ganja was found; that he asked the identity particulars and also the place where the ganja was brought; that he confessed the offence; that the other two persons in the vehicle also revealed their identity particulars; that out of the two persons one person was searched and found Rs.24,400/- in cash; that the occurrence report was written as mediators were not secured and thereafter, two mediators were secured and the two mediators, persons and property were brought before the CI along with weigher; that CI verified 12 packets of ganja; that the ganja was weighed which came to 24 kgs; that samples @ 50 grams each were drawn; that the total samples drawn were 24 in number; that CI handed over the case property and the persons in the Narsipatnam Rural police station through his SI; that A1,

A3 and A4 were the said three persons; and that he can identify the case properties.

9.The learned additional public prosecutor has also examined PW2, who is resident at Narsipatnam. He stated that in the year 2012, he went to the police station where he was asked to sign on the paper; that the mediator’s report dated 13.10.2012 prepared at 7.00 am contains his signature, but he does not know its contents; that no person was shown to him with ganja bags.

10.The learned additional public prosecutor has also examined PW3, who is resident of Narsipatnam. He is doing scrap business. He stated that he does not know what happened in this case; and that he does not know the facts of the case.

6I ADJ COURT, VSP NSC No.23/2013

11.The learned additional public prosecutor has also examined PW4, who worked as Sub-Inspector of Police, Narsipatnam Rural police station from 2012 to January, 2014. He stated that on 13.10.2012 at 5.00 am., on credible information, he along with his Head constable, one police constable and two home guards proceeded to KL Puram and reached; that while they were conducing vehicular checking, they observed one

TATA Indica car coming from Rolugunta; that on suspicion they stopped the vehicle and found three persons with one bag in the said vehicle; that on questioning about the contents of bag, they revealed that the bag contains ganja; that he produced the persons and property along with vehicle before the Excise and Prohibition Inspector, Narsipatnam; that he gave requisition to CI, Excise of Prohibition and Excise to conduct search of the properties; that he accepted their requisition to act as gazetted officer; that he got down the bag from the vehicle and found 12 packets in the bag; that the packets were opened and found ganja; that the three persons confessed before the gazetted officer; that he secured the weigher as per the requisition of CI; that the weigher came and weighed the ganja; that each packet came to 2 kgs; that total ganja found was 24 kgs; that Rs.24,400/- in cash was seized from A2; that the said three persons along with property were taken to Narsipatnam Rural

Police station; that on the basis of mediator’s report, he registered it as a case in Cr.No.42/2012 for the offence under Section 20(b) of the Narcotic

Drugs and Psychotropic Substances Act, 1985 and submitted the FIR to the court; that Mediator’s report was prepared at the office of CI,

Prohibition and Excise, Narsipatnam; that he arrested the accused and sent them to judicial custody; that on 16.11.2012, A4 was arrested at his residence as per the confessional statement of other accused; that he was sent to judicial custody; that he forwarded the samples to the chemical laboratory; that after receipt of the laboratory report, he laid 7I ADJ COURT, VSP NSC No.23/2013 the charge sheet against the accused; that MO1 is the cash of

Rs.24,400/-; that Ex.P1 is the occurrence report dated 13.10.2012 prepared at 5.00 am; that Ex.P2 is the mediator’s report dated 13.10.2012 prepared at 7.00 am; that Ex.P3 is the FIR; that Ex.P4 is the

REL report; that Ex.P5 is the certificate issued by the Magistrate for inventory.

12.The learned additional public prosecutor has also examined PW5, who worked as C.I. of Narsipatnam Excise station from July, 2012 to

November, 2013. He stated that on 13.10.2012 at 7.00 am., the rural

Sub-Inspector, Narsipatnam along with staff and three persons and case properties and asked him to conduct search proceedings; that he asked whether the three persons have any objection to conduct search proceedings, for which they replied that they had no objection to do so; that in Indica car, one gunny bag was found and out of gunny bag, the dry ganja in the form of flowering and fruiting tops of dry ganja was found; that he collected their identity particulars, for which they informed; that out of them one person’s name is Siva and another person’s name is Santosh and the third person’s name he does not remember; that he collected the details where from they acquired the dry ganja, for which they informed that they purchased ganja at Vaddipa village of Roluguna Mandal; that they confessed the offence; that the ganja was weighed with the help of weighing machine by the constable, which came to 24 kgs of ganja; that in the bag 12 small packets were found and each small packet 24 samples were drawn; that the mediators were present at that time; that the mediator’s report was written and obtained the signatures of himself and three persons and the staff; that the persons in the accused dock appeared to be the same persons; that

MO2 to MO13 are the samples; and that Ex.P2 is the mediator’s report.

8I ADJ COURT, VSP NSC No.23/2013

13.Ex.P1 is the occurrence report dated 13.10.2012 prepared at 5.00 a.m. It discloses that the Sub-Inspector, HC 1198 and PC 317 and homeguard No.126 of Narsipatnam rural police station proceeded to

K.L.Puram; that while they were conducting vehicular checking, one TATA

Indica Car was coming with high speed from Gurandorapalem; that they stopped the car and found the driver of the car and three persons in the back seat of the car and on seeing them they confessed themselves and on suspicion, the Sub-Inspector, Narsipatnam rural police station questioned about their identify particulars. It further discloses that when he questioned about the contents of the bag found in the dickey for which they confessed that it contains ganja packets; that the Sub-

Inspector, Narsipatnam Rural police station informed the right of the said persons to be searched before the gazetted officer for which they accepted; that a notice was also issued under Section 50 of the Narcotic

Drugs and Psychotropic Substances Act, 1985 on the said three persons; and that the Sub-Inspector, Narsipatnam Rural police station took them into his custody.

14.On careful perusal of Ex.P1, none of the police officials who accompanied the Sub-Inspector of Narsipatnam Rural police station have attested it. The signatures of PW1, who is the head constable working in the same police station, is absent in Ex.P1. No reason was assigned in

Ex.P1 as to why he could not attest Ex.P1 and the circumstances under which the special report was prepared at that time are also absent. No attempt was made by the Sub-Inspector of Narsipatnam Rural police station to secure any mediators at the time of the alleged raid. Since

PW1 did not attest Ex.P1, the suggestion put to PW1 that nothing happened in his presence cannot be ruled out, because it is possible for

PW1 to give evidence in support of the case relating to their station at the instance of his superior officers. So, the evidence of PW1 and PW4 9I ADJ COURT, VSP NSC No.23/2013 cannot be the basis to convict the accused under the above penal provision of the law. PW4 did not explain in his evidence as to the circumstances why the occurrence report was prepared. PW1 and PW4 never said that they tried to secure the independent witness at the time of the alleged raid. It is significant to note that Ex.P1 does not contain either the signatures or thumb impressions of the accused. There was nothing prevented PW4 from obtaining the thumb impressions or the signatures of the accused on Ex.P1 at the time of the alleged raid, if really the accused were caught at the place of the raid. The alleged notice said to have been served on the accused under Section 50 of the

Narcotic Drugs and Psychotropic Substances Act, 1985 did not see the light of the day. If really, the accused were caught with ganja bags at the time of the alleged raid, nothing prevented PW4 from obtaining the signatures of the accused by serving a notice under Section 50 of the

Narcotic Drugs and Psychotropic Substances Act, 1985. Even otherwise, the right of the accused to be searched before the Magistrate has not been informed by PW4. So that, it can be said that the right of the accused to be searched before the Magistrate is curtailed by PW4. Ex.P2 is the mediator’s report dated 13.10.2012 prepared at 7.00 a.m., at

Narsipatnam Excise Inspector’s Office. It discloses that A1 to A3 were produced before PW5 to conduct search proceedings. Though PW5 is a gazetted officer, the alleged search proceedings said to have been issued by PW4, did not see the light of the day and therefore, in the absence of such search notice, the alleged search proceedings conducted by PW5 becomes illegal. The evidence of PW4 and PW5 discloses that the search proceedings were conducted in the presence of the mediators. Though Ex.P2 contains the signatures of A1 to A3 and also the two mediators PW2 and PW3 who were examined by the

additional public prosecutor in support of the case of the prosecution,

10I ADJ COURT, VSP NSC No.23/2013 the two mediators did not support the case of the prosecution. PW2 and

PW3 were cross examined by the learned additional public prosecutor, but they did not turn to support the case of the prosecution that on 13.10.2012 at about 7.00 a.m., in their presence, search proceedings were conducted by PW5. PW2 stated that he went to the police station where he was asked to sign on the mediator’s report and accordingly, he signed on the mediator’s report. PW3 stated that he does not know anything about the case. So, the alleged search proceedings conducted by PW5 is not supported by the evidence of PW2 and PW3 and therefore, the alleged search proceedings conducted by PW5 in the presence of

PW1, PW2, PW3 and PW4 cannot be believed.

15.MO1 was marked through the evidence of PW4. It is cash of

Rs.24,400/-. In the cross examination, PW4 revealed that he produced the new currency of 500 rupee notes. No denomination of the currency notes which were seized during the alleged search proceedings have been mentioned in Ex.P2 with serial numbers. Therefore, MO1, the cash said to have been seized from the possession of A2 was not the cash of

Rs.24,400/- said to have been seized from the possession of A2 during the search proceedings. It is nothing but a personal search and PW4 has to follow the conditions under Section 50 of the Narcotic Drugs and

Psychotropic Substances Act, 1985. Since no notice in writing was issued to A1 to A3 about their right to be searched either before the gazetted officer or before the magistrate and when the information received by him was not reduced into writing and the same was sent to his superior officers, the entire proceedings covered by Ex.P2 are doubtful and no reliance can be placed on the contents therein. Ex.P3 is the FIR. It discloses that PW4 is the complainant. It is only a suomotu complaint. He registered the case only on the basis of occurrence/mediator’s report.

But the evidence of PW4 is of no use to the case of the prosecution when 11I ADJ COURT, VSP NSC No.23/2013 the two independent witnesses examined by the prosecution turned hostile. Ex.P4 is the REL report. It discloses that on 25.10.2012, 12 samples @ 50 grams each were received from the Sub-Inspector of

Police, Narsipatnam police station and after analyzing the samples, the chemical examiner issued the report dated 26.10.2012. It discloses that the samples contain ganja. The said report relates to Cr.No.42/2012 of

Narsipatnam police station, but the alleged recovery of ganja packets from the possession of A1 to A3 was not duly approved by the prosecution and therefore, Ex.P4 is of no use to the case of the prosecution. Ex.P5 is the certificate issued by the Magistrate. Though the seized property was conducted for inventory before the Magistrate, it is of no use to the case of the prosecution, because the two independent witnesses did not support the case of the prosecution to believe the alleged search and seizure of the case properties from the possession of

A1 to A3. MO2 to MO13 are the samples marked through the evidence of

PW5. But the samples do not contain the signatures or the thumb impressions of the three accused persons. PW5 admitted that the crime number was made on the samples. There is no explanation why the crime number was made on the samples, if really they were drawn prior to the registration of the case. So, in the absence of any specific marks from the side of the accused on the samples, the drawing of samples sent to the laboratory is far away from truth. After considering the entire evidence of prosecution, I have come to conclusion that the prosecution is not able to prove the guilt of the accused beyond all reasonable doubt.

16.I find A1, A3 and A4 not guilty for the offences U/Sec.8(c) r/w

Sections 20(b)(ii)(C) and 25 of the Narcotic Drugs and Psychotropic

Substances Act, 1985. Accordingly, this point is decided against the prosecution.

12I ADJ COURT, VSP NSC No.23/2013

17.In the result, A1, A3 and A4 are acquitted under Sec.235(1) of the

Cr.P.C for the offence punishable under Section 8(c) read with Sections 20(b)(ii)(C) and 25 of the Narcotic Drugs & Psychotropic Substances Act, 1985 and they are set at liberty. Bail bonds of A1, A3 and A4 and their sureties shall be in force for a period of six months. MO1 to MO13 shall be preserved till the disposal of the case against A2 in

N.S.C.No.166/2018.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in open Court this the 18th day of December, 2018.

SPECIAL JUDGE TO TRY OFFENCES UNDER N.D.P.S

ACT-cum-I ADDITIONAL DISTRICT & SESSIONS

JUDGE– cum-METROPOLITAN SESSIONS JUDGE,

VISAKHAPATNAM

APPENDIX OF EVIDENCE

For Prosecution: Witness ExaminedFor Defence: - NIL-

PW1 : K.Suryanarayana

PW2 : N.Nageswara Rao

PW3 : N.Chitti Babu

PW4 : B.Rohinipathi

PW5 : Abdul Kaleem

Exhibits marked For Prosecution:

Ex.P1 is the occurrence report dated 13.10.2012 prepared at 5.00 am.

Ex.P2 is the mediator’s report dated 13.10.2012 prepared at 7.00 am.

Ex.P3 is the FIR.

Ex.P4 is the REL report.

Ex.P5 is the certificate issued by the Magistrate for inventory.

Material Objects :

MO1 is the cash of Rs.24,400/-

MO2 to MO13 are the samples.

SPECIAL JUDGE TO TRY OFFENCES UNDER NDPS

ACT-cum-METROPOLITAN SESSIONS JUDGE,

VISAKHAPATNAM

1 MSJ COURT/VSP

SC.149/2016

IN THE COURT OF METROPOLITAN SESSIONS JUDGE-cum-I ADDL.

DISTRICT & SESSIONS JUDGE-cum-SPECIAL JUDGE TO TRY THE OFFENCES UNDER PROTECTION OF CHILDREN FROM SEXUAL OFFENCE:

VISAKHAPATNAM

Present: Sri S.Nagarjuna

Special Judge to Try the Offences under POCSO Act-cum-Metropolitan

Sessions Judge-cum-I Addl. District & Sessions Judge

Wednesday, the 19th day of December, 2018

SESSIONS CASE NO.149/2016

(Crime No.7/2015 of Paderu Police Station)

a)The serial number of the case:S.C.No.149/2016

b)Date of commencement of :Prior to 26.01.2015 offence

c)Name of the Complainant, if :The State represented by the Deputy anySuperintendent of Police, SC, ST Cell-I, Anakapalli and Paderu Sub Divisions, Visakhapatnam District.

d)Name of the accused person, :1)Golluri Sankararao @ Gurrala his parentage and residence, if Sankara Rao, S/o.late Mallayya, 40 anyyears, Kummari (BC), Jeep driver, Near Modakondamma temple, Paderu Village and mandal.

2)Golluri Vijaya Laxmi, W/o.Sankara Rao,Goudabycaste,Near Modakondamma temple, Paderu village and mandal.

e)Offence complained of :under Sections 376, 494, 420, 323 and 506 of the IPC & Section 4 of the Protection of Children from Sexual Offences Act, 2012

f)Plea of the accused and his :A.1 & A.2 are pleaded not guilty examination, if any

This case coming on 5.12.2018 for final hearing before me in the presence of Spl. Public Prosecutor for the State; and of Sri A.Sudhakar Rao, Advocate for A.1 & A.2; and the matter having stood over for 2 MSJ COURT/VSP

SC.149/2016

consideration till this day, this Hon’ble court delivered the following:

J U D G M E N T

1.Sri L.Mohana Rao, the Deputy Superintendent of Police, SC, ST

Cell-I, Anakapalli and Paderu Sub Divisions, Visakhapatnam, has filed charge sheet in Cr.No.7/2015 of Paderu Police Station for the trial of A.1 & A.2 for the offences punishable under Sections 376, 494, 420, 323 and 506 of the IPC & Section 4 of the Protection of Children from

Sexual Offences Act, 2012.

2.On 22.07.2016, the learned Judicial Magistrate of First Class,

Paderu, who took cognizance of the case under Sections 376, 494, 420, 323, 506 of the IPC & Section 4 of the Protection of Children from

Sexual Offences Act, 2012, has committed the same to this Hon'ble court by his orders in PRC.No.12/2016, dt.22.07.2016 after following due procedure under Section 209 of the Cr.P.C.

3.The allegations leveled against A.1 & A.2 are that on Boddichettu

Ushalakshmi was studying intermediate in Paderu Government Junior

College; that she used to stay in Government hostel at Paderu; that she was occasionally going to her native village Kimudupalli in a private jeep; that A.1 was running a private jeep from Paderu to Kimudupalli village; that she used to board the jeep and got down at her native village; that A.1 fell in love with her and he wishes her to marry; that she believed his words that he would marry her; that A.1 had sexual intercourse with her; that they loved together for about six months and 3 MSJ COURT/VSP

SC.149/2016

thereafter, A.1 harassed her physically and mentally on suspicion of her character; that she wanted to complain against him in the police station; that due to fear of the police, A1 had married her on the night of 1.01.2015; that after the marriage, A.1 did not turn up to her house; that she called him on phone; that A.2 lifted the phone and replied that she is the wife of A.1; and that A.1 dishonestly promised her to marry, he had sexual intercourse, exploited her sexually and cheated her.

4.After appearance of A.1 & A.2 and after due consideration, charges under Sections 376, 494, 420, 323 and 506 r/w 34 of the IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 against A.1 and under Sections 323, 506 r/w 34 of the IPC against

A.2, have been framed, read over and explained to them respectively, for which they denied the same, pleaded not guilty and claimed to be tried.

5.The learned Special Public Prosecutor has examined PW.1 to PW.13 and got marked Exs.P.1 to P.23 on behalf of prosecution. After closure of the evidence of prosecution, A.1 & A.2 were examined under Section 313 of the Cr.P.C., stating the particulars of incriminating material made against them, for which they denied the same and claimed no defence evidence.

6.POINT FOR CONSIDERATION:

“Has the prosecution proved the guilt of A.1 & A.2 beyond all reasonable doubt ? If so, are A.1 & A.2 liable for punishment under 4 MSJ COURT/VSP

SC.149/2016

Sections 376, 494, 420, 323 and 506 r/w 34 of the IPC & Section 4 of the Protection of Children from Sexual Offences Act, 2012 respectively ?”

7.Heard.

8.POINT:

Before going into merits and demerits of the case, it is appropriate

to refer the following provisions of the law:

(i)Section 376 of the I.P.C:

Whoever, except in the case provided for by sub-section (2), commits rape, shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extent to ten years, and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extent to two years or with fine or with both.

(ii)Section 494 of the I.P.C:

whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extent to seven years and shall also be liable to fine.

(iii)Section 420 of the I.P.C:

Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable 5 MSJ COURT/VSP

SC.149/2016

security, shall be punished with imprisonment of either description for a term which may extent to seven years, and shall also be liable to fine.

(iv)Section 323 of the I.P.C:

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.

(v)Section 506 of the I.P.C:

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.

(vi)Section 4 of Protection of Children from Sexual Offences Act, 2012:

Whoever, commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extent to imprisonment for life, and shall also be liable to fine.

9.Since A.1 & A.2 denied the charges levelled against them respectively, the burden of proof is only on the prosecution to prove the guilt of the accused beyond all reasonable doubt.

10.In this case, the learned special public prosecutor has examined

PW.1, who is the victim in this case. She did not state anything against

A.1 & A.2. She revealed that the police report, dated 26.01.2015 contains her signature, but she does not know its contents. Though

PW.1 was cross examined by the special public prosecutor, she did not 6 MSJ COURT/VSP

SC.149/2016

turn to support the case of prosecution as if she stated against A.1 &

A.2 as in Ex.P.1, the 161 Cr.P.C., statement recorded by the police. The learned special public prosecutor has also examined PW.2 to PW.6 and

PW.8, but they did not support the case of prosecution. Even though they were cross examined by the learned special public prosecutor, they did not turn to support the case of prosecution as if they stated against

A.1 & A.2 as in Exs.P.2 to P.6 and Ex.P.10, the 161 Cr.P.C., statements recorded by police. The learned special public prosecutor has also examined PW.7, who worked as VRO, Paderu from 2012 to 2016. The evidence of PW.7 coupled with Exs.P.7 to P.9 discloses that on 2.02.2015, the SI of Paderu called him and another VRO; that they proceeded to the house of A.1 and observed the scene of offence; that the scene observation report was prepared; that they went to

Chundruput to the house of Kimudu Subba Rao and observed the scene observation at the second place, but their evidence is of no use to the case of prosecution, because the victim did not state anything against

A.1 and A.2. The learned special public prosecutor has also examined

PW.9, who is working as Tasildhar working in Munagapaka. The evidence of PW.9 coupled with Ex.P.11 and Ex.P.12 discloses that both the victim and accused belong to S.T. The learned special public prosecutor has also examined PW.10, who worked as Head Master, Turakala Valasa High

School, Pedabayalu mandal from 2002 to 2016. PW.10 stated that PW.1 studied in their school from 2004 to 2008 from classes VI to X. The 7 MSJ COURT/VSP

SC.149/2016

evidence of PW.10 coupled with Ex.P.13 made it clear that the date of birth of PW.1 is 14.07.1993, but it is of no use to the case of prosecution, because the victim did not state anything against A.1 &

A.2. The learned special public prosecutor has also examined PW.11, who worked as SI of Police, Paderu Police Station from 23.01.2014 to 25.05.2015. The evidence of PW.11 coupled with Exs.P.14 and P.15 discloses that on 26.01.2015, PW.1 gave a written report and on the basis of which, he registered it as a case in Crime No.7/2015 for the offences under Sections 376, 494, 420, 323, 506 r/w Section 34 of the

IPC and Section 3(1)(x) (xii) and SC/ST Act. In the cross examination, he admitted that there is delay in giving report to the police and the reason assigned in Column No.8 was that it occurred on account of consultation with village elders, but the names of the village elders whom the complainant approached are not noted in the FIR. Since the delay in giving report has not been properly explained, it is fatal to the case of prosecution. The learned special public prosecutor has also examined PW.12, who is working as Civil Assistant Surgeon, Area hospital, Paderu. He stated that himself and Doctor Shoba Rani worked together at Area hospital, Paderu; that he acquainted with the signature and handwriting of Dr.Shoba Rani; that Ex.P.16 is the potency certificate issued by Dr. Shoba Rani; and that as per Ex.P.16, the accused is capable of performing sexual act. The evidence of PW.12 is only a circumstantial evidence and in the absence of incriminating material 8 MSJ COURT/VSP

SC.149/2016

made against A.1 & A.2, it is of no use to the case of prosecution. The learned special public prosecutor has also examined PW.13, who is working as DSP, SC/ST Cell, Visakhapatnam Rural from 12.11.2014. On 27.01.2015, PW.13 took CD from PW.11 for further investigation. On 30.01.2015, PW.13 examined PW.1 and recorded her statement in the

KGH; that on 2.02.2015, he visited the scene of offence and prepared

Ex.P.17, the rough sketch; that he examined PW.1 to PW.5, K.Subba

Rao, K.Eswari and K.Pothu Raju and recorded their 161 Cr.P.C statements; that on 2.02.2015, he arrested the accused and sent them to judicial custody; that he seized the material and sent to RFSL; that he obtained case certificates of complainant and accused; that on 17.03.2015, he filed an application before the Magistrate to record the statement of victim under Section 164 of the Cr.P.C; that the accused and victim belong to same caste; that Exs.P.18 and P.19 are the rough sketches; that Ex.P.20 is the letter of advice; that Ex.P.21 is the RFSL report; that Ex.P.22 is the preliminary opinion given by the Doctor; that

Ex.P.23 is the final opinion given by the Doctor; and that after receipt of all the necessary documents from the concerned departments, he laid the charge sheet in this case.

11.PW.1, who is the victim did not state anything against the accused. PW.2 to PW.6, and PW.8 did not support the case of prosecution. Only on the basis of the evidence of PW.7, PW.9, PW.10 to

PW.13, whose evidence is not corroborated by the evidence of any eye 9 MSJ COURT/VSP

SC.149/2016

witness to the alleged occurrence, A.1 and A.2 cannot be said as guilty.

There is no evidence touching the ingredients of the offences levelled against the accused, either under the provisions of the I.P.C or under the provisions of Protection of Children from Sexual Offences Act, 2012.

In view of the oral and documentary evidence adduced by the prosecution, I have no hesitation to say that the prosecution is not able to prove the guilt of the accused beyond all reasonable doubt to punish them under the above penal provisions of the law. I find A.1 and A.2 not guilty for the offences punishable under Sections 376, 494, 420, 323 and 506 r/w 34 of the IPC & Section 4 of the Protection of Children from

Sexual Offences Act, 2012 respectively. Accordingly, the point is decided.

12.In the result, A.1 & A.2 are acquitted under Section 235(1) Cr.P.C., for the offences punishable under Sections 376, 494, 420, 323 and 506 r/w 34 of the IPC & Section 4 of the Protection of Children from Sexual

Offences Act, 2012 respectively and they are set at liberty. The bail bonds of A.1 & A.2 and their sureties shall remain in force for further period of six months. The unmarked case property, if any in this case, shall be destroyed after expiry of appeal time.

Dictated to Field Assistant, transcribed by her, corrected and pronounced by me

in open court on this the 19 th day of December, 2018.

SPECIAL JUDGE TO TRY THE

OFFENCES UNDER POCSO ACT-cum-

METROPOLITAN SESSIONS JUDGE,

VISAKHAPATNAM

10 MSJ COURT/VSP

SC.149/2016

APPENDIX OF EVIDENCE

Witness Examined For Prosecution:

PW.1B.Usha Lakshmi

PW.2B.Chitti Babu

PW.3P.Padma

PW.4G.Manmadha Rao

PW.5B.Radha Kumari

PW.6M.Swaroopa

PW.7J.V.Lakshmi

PW.8B.Satyalamma

PW.9S.A.Maheswara Rao

PW.10P.Sanyasi Rao

PW.11R.Dhanunjay

PW.12Dr. K.Krishna Rao

PW.13L.Mohan Rao

For Defence:- NONE –

Exhibits Marked For Prosecution:

Ex.P.1/08.11.2018161 Cr.P.C., statement of PW.1

Ex.P.2/08.11.2018161 Cr.P.C., statement of PW.2

Ex.P.3/08.11.2018161 Cr.P.C., statement of PW.3

Ex.P.4/08.11..2018161 Cr.P.C., statement of PW.4

Ex.P.5/09.11.2018161 Cr.P.C., statement of PW.5

Ex.P.6/09.11.2018161 Cr.P.C., statement of PW.6

Ex.P.7/09.11.2018Scene observation report, dated 02.02.2015 at 10.00 a.m.

Ex.P.8/09.11.2018Scene observation report, dated 02.02.2015 at 11.30 a.m.

Ex.P.9/09.11.2018Scene observation report, dated 02.02.2015 at 12.30 p.m.

11 MSJ COURT/VSP

SC.149/2016

Ex.P.10/09.11.2018161 Cr.P.C., statement of PW.8

Ex.P.11/13.11.2018Caste certificate of PW.1

Ex.P.12/13.11.2018Caste certificate of A.1

Ex.P.13/13.11.2018Study cum conduct certificate of PW.1

Ex.P.14/13.11.2018Report

Ex.P.15/13.11.2018First Information Report

Ex.P.16/23.11.2018Potency certificate issued by Dr Shoba Rani

Ex.P.17/03.12.2018Rough sketch

Ex.P.18/03.12.2018Rough Sketch

Ex.P.19/03.12.2018Rough sketch

Ex.P.20/03.12.2018Letter of advise

Ex.P.21/03.12.2018RFSL report

Ex.P.22/03.12.2018Preliminary opinion given by the Doctor

Ex.P.23/03.12.2018Final opinion given by the Doctor

For Defence:- NIL-

Material Objects -NIL –

SPECIAL JUDGE TO TRY THE

OFFENCES UNDER POCSO ACT-cum-

METROPOLITAN SESSIONS JUDGE,

VISAKHAPATNAM

12 MSJ COURT/VSP

SC.149/2016

1 MSJ COURT: VSP Crl.Appeal No.388/2016

IN THE COURT OF METROPOLITAN SESSIONS JUDGE-cum-I ADDITIONAL

DISTRICT AND SESSIONS JUDGE VISAKHAPATNAM

Present : Sri S.Nagarjuna, Metropolitan Sessions Judge -cum- I Addl. District & Sessions Judge, Visakhapatnam

Monday, the 17th day of December, 2018

CRIMINAL APPEAL No.388/2016

a)For which court appeal is: II Additional Chief Metropolitan Magistrate, preferredVisakhapatnam

b)No. of the case in that court: CC.No.641/2010

c)No. of the Appeal:Crl. Appeal No.388/2016

d)Name & Description of the: Thappitla Rambabu, son of late Baburao, Hindu, appellantaged 21 years, residing at Rajiv Veedhi, Simhachalam, Visakhapatnam.

e)Name & Description of the: State represented by Additional Public Respondent Prosecutor, Visakhapatnam.

f)Sentence and law under: In the result, the accused is convicted under which it was imposed in theSection 255(2) of the Cr.P.C. lower court

g)Whether confirmed, :In the result, the appeal is dismissed modified or reversed

h)Date of presentation: 16-09-2016

i)Date of filing: 27-09-2016

j)Notice issued by court to: 1-12-2016 appear

k)Bail bonds if he has been---- let out on bail :

l)Hearing : 4-12-2018 mJudgment / Order: 17-12-2018

This criminal appeal coming on 4-12-2018 for final hearing before me in the presence of Sri V.Suresh Kumar, advocate for appellant; and of

Additional Public Prosecutor for Respondent; and the matter having

stood over for consideration till this day, this Hon'ble court delivered the following:

JUDGMENT

1.The appellant is the accused in CC No.641/2010 on the file of II

Additional Chief Metropolitan Magistrate, Visakhapatnam. He was charge

2 MSJ COURT: VSP Crl.Appeal No.388/2016 sheeted by the Sub-Inspector of Police, Gopalapatnam traffic police station, Visakhapatnam City in relation to Crime No.180/2010 registered under Sections 337 and 338 of the IPC and Section 181 of the M.V.Act.

The Sub-Inspector of Police, Gopalapatnam traffic police station,

Visakhapatnam City submitted that on 1.08.2010, the accused being the rider of pulsar motorcycle bearing registration No.AP 31 BB 8565 drove the same in a rash and negligent manner and after over taking a bus going ahead of the motorcycle and dashed against TVS moped bearing

No.AP 31 BH 0811 ridden by Govardhana Krishna coming in opposite direction near Z.P. High school, Adivivaram causing injuries to

Govardhana Krishna and Malla Konda, the pillion rider and thereby, the accused committed the offences punishable under Sections 337 and 338 of the IPC. But the accused denied the allegations made against him in the charge sheet. After observing all the legal formalities, after recording the oral evidence of PW1 to PW6 coupled with Exs.P1 to P6, the documentary evidence adduced on behalf of the prosecution, and after hearing both sides, the court below found the accused guilty for the offences punishable under Sections 337 and 338 of the IPC and accordingly, the accused was convicted under Section 255(2) of the

Cr.P.C., and he was sentenced to undergo simple imprisonment for a period of four months for the offence punishable under Section 337 of the IPC and also sentenced to undergo simple imprisonment for a period of six months for the offence punishable under Section 338 of the IPC.

However, he was acquitted for the offence under Section 181 M.V.Act.

2.Aggrieved by the judgment passed by the court below, the advocate for appellant herein preferred this appeal and urged before this

Hon’ble Court to allow the appeal by setting aside the judgment and

sentence passed in CC No.641/2010 dated 19.07.2016 on the file of II

Additional Chief Metropolitan Magistrate, Visakhapatnam on the grounds

3 MSJ COURT: VSP Crl.Appeal No.388/2016 that the lower court failed to see the discrepancy in the evidence of PW1 to PW3; that Section 161 Cr.P.C., statements of PW1 and PW2 did not disclose the same injuries found in the wound certificates; that there is delay in lodging the report; that the prosecution failed to produce the record before the court below to show that PW1 and PW2 took first aid at

Sanjivini hospital; that merely because the accident happens is not sufficient to hold the driver guilty without establishing the necessary ingredients of rashness or negligence; and that the judgment of the lower court is contrary to law and weight of evidence. On the other hand, the learned additional public prosecutor supported the findings of the court below in convicting the accused for the offence punishable under

Sections 337 and 338 of the IPC. The point that arises for determination in this appeal is as to whether the prosecution has proved the guilt of the accused beyond all reasonable doubt to punish him under Sections 337 and 338 of the IPC or not.

3.POINT:

The primary requirement to constitute the offences under Sections 337 and 338 of the IPC against the accused is only rash or negligent driving of the accused at the time of the accident. To decide this point, it is required for the court to look into the entire evidence of prosecution recorded in the court below. The learned additional public prosecutor has examined PW1, in the court below, who is one of the injured in the accident. He stated that on 1.08.2010 at about 2.30 p.m., while himself and M.Konda were proceeding in T.V.S.Excel bearing No.AP 31 BH 0181 and when they reached near Adivivaram junction, the accused who was coming on pulsar motorcycle drove the same in a rash and negligent manner and without blowing horn, dashed their vehicle, due to which they fell down and sustained fracture of right leg and the pillion rider

M.Konda also sustained fracture on his back and his wrist. Ex.P1 is the 4 MSJ COURT: VSP Crl.Appeal No.388/2016 statement of PW1 recorded by the police and it contains his signature.

He stated that after receiving the injuries, they lost conscious and he regained conscious in Sanjeevini hospital. The learned additional public prosecutor has also examined PW2, who is the pillion rider. He supported the evidence of PW1. He stated that his wrist was broken. The learned

additional public prosecutor has also examined PW3, who was coming on

motorcycle from Simhachalam and proceeding towards RTC bus at the time of the accident. He stated that on 1.08.2010 while himself and one

Rambabu were proceeding to RTC bus stopped at Harijana colony,

Adivivaram, they noticed one TVS Excel driven by the person over take the RTC bus and dashed their two wheeler due to which the persons on the TVS Excel sustained injuries. The learned additional public prosecutor has also examined PW4, who is working as motor vehicle inspector. The evidence of PW4 coupled with Ex.P2 discloses that the accident occurred was not due to any mechanical defect of the pulsar motorcycle bearing No.AP 31 BB 8565. The learned additional public prosecutor has also examined PW5, who is working as consultant in

Orthopedic at Sanjeevini hospital. The evidence of PW5 coupled with

Exs.P3 and P4 discloses that PW1 and PW2 were examined; that PW1 was found with lacerated would in the first web space of left foot of six inches long which is a simple in nature and that PW2 also sustained three grievous injuries. The learned additional public prosecutor has also examined PW6, who worked as Sub-Inspector of police, Gopalapatnam traffic police station from 1.05.2010 to 31.12.2010. He stated that on 1.08.2010 at 9.00 p.m., he has received the statement of the injured along with FIR in Cr.No.180/2010 registered under Section 338 of the IPC from the head constable; that on receipt of the same, he took investigation in this case; that he submitted Ex.P5, the FIR to the Court; that he prepared Ex.P6, the rough sketch; that he examined PW3, 5 MSJ COURT: VSP Crl.Appeal No.388/2016

T.Apparao and G.Apparao and recorded their statements; that he verified the documents pertaining to the crime vehicle and also sent a requisition to the motor vehicle inspector; that on 25.08.2010, he arrested the accused as he himself surrendered before the police station; that after receipt of the wound certificate and the report of motor vehicle inspector and after completion of the investigation, he filed charge sheet. All the witnesses have not been cross examined by the advocate for accused.

During the course of examination under Section 313 of the Cr.P.C., the accused stated that he did not commit any offence.

4.PW1 and PW2 are the injured persons and their unchallenged evidence can be used against the accused. PW1 and PW2 have categorically stated in their evidence about the rash or negligent driving of the accused at the time of the accident. PW3 is the owner of the crime vehicle and the accused drove the motorcycle from Simhachalam towards Adivivaram. Both the accused and PW3 were coming on the motorcycle at the time of the accident. Though PW3 did not state in his evidence about the rash or negligent driving of the accused at the time of the accident, the evidence of PW3 cannot be taken into consideration to hold that the accused was not at fault, because PW3 is the owner and the accused was the rider of the crime vehicle at the time of the accident. By nature, the owner of the motorcycle does not speak about the rash or negligent driving of the accused. The evidence of PW4 to

PW6 is only a circumstantial evidence. In view of the evidence of PW1 to

PW6 coupled with Exs.P1 to P6, I have no hesitation to say that the prosecution has established all the necessary ingredients to constitute the offences punishable under Sections 337 and 338 of the IPC and therefore, the findings arrived at by the court below in convicting the accused for the above said offences cannot be interfered with. I conclude that this appeal is devoid of any merits.

6 MSJ COURT: VSP Crl.Appeal No.388/2016

5.With regard to the quantum of sentence, the appellant/accused was asked by the court below for which he stated that he is eking his livelihood by doing driving; that he has got parents and he is only the bread earner of his family and they are depending on him; and that if he is put in jail, his family members will be subjected to great starvation. He requested the court to take a lenient view, but the court below did not consider the circumstances as shown by him and sentenced him to undergo four months for the offence punishable under Section 337 of the

IPC and six months for the offence punishable under Section 338 of the

IPC. Section 337 of the IPC provides that '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.' Section 338 of the IPC provides that '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.' In view of the above provisions of the law, the court below need not impose sentence of imprisonment on the accused. While exercising discretionary power that too after coming to know the fact that he has so many dependents and also they would suffer if he is sent to jail. In my view, the punishment awarded to the appellant/accused is not at all lenient. Since the appellant/accused is a bread winner of his family and when he brought to the notice of the court about the number of dependents, the submissions made by the appellant/accused on the quantum of sentence in the court below can be considered and I feel that the sentence of simple imprisonment for the period of four months for the offence punishable under Section 337 of 7 MSJ COURT: VSP Crl.Appeal No.388/2016 the IPC and the sentence of simple imprisonment for a period of six months for the offence punishable under Section 338 of the IPC, as awarded to the appellant/accused by the court below, can be modified and reduced only to pay a fine of Rs.500/- in default to suffer simple imprisonment for a period of two months for the offence punishable under Section 337 of the IPC, and also to pay a fine of Rs.1000/- in default to suffer simple imprisonment for a period of three months for the offence punishable under Section 338 of the IPC. Accordingly, the point is decided.

6.In the result, the appeal is dismissed confirming the conviction of the appellant/accused under section 255(2) of Cr.P.C for the offence punishable under Sections 337 and 338 of the IPC by the Judgment of the II Additional Chief Metropolitan Magistrate, Visakhapatnam in

CC.No.641/2010 dated 19-07-2016. However, the sentences of simple

imprisonment for a period of four months for the offence punishable under Section 337 of the IPC and the sentence of simple imprisonment for a period of six months for the offence punishable under Section 338 of the IPC, as awarded to the appellant/accused by the court below, are modified and reduced only to pay a fine of Rs.500/- in default to suffer simple imprisonment for a period of two months for the offence punishable under Section 337 of the IPC, and also to pay a fine of

Rs.1000/- in default to suffer simple imprisonment for a period of three months for the offence punishable under Section 338 of the IPC. The appellant/accused shall pay the total fine amount of Rs.1500/- before the court below. On failure of the appellant/accused to pay the total fine amount before the trial Court aforesaid, the trial Court shall proceed 8 MSJ COURT: VSP Crl.Appeal No.388/2016 against him in accordance with law.

Dictated to the Stenographer, transcribed by her,

corrected and pronounced by me in open Court, on this the 17 th day of December, 2018.

METROPOLITAN SESSIONS JUDGE

-cum- I ADDL. DIST. & SESSIONS JUDGE

VISAKHAPATNAM

Copies to: The II Additional Chief Metropolitan Magistrate, Visakhapatnam. The accused.

1 MSJ COURT/VSP

SC.111/2017

IN THE COURT OF METROPOLITAN SESSIONS JUDGE-cum-I ADDL.

DISTRICT & SESSIONS JUDGE-cum-SPECIAL JUDGE TO TRY THE OFFENCES UNDER PROTECTION OF CHILDREN FROM SEXUAL OFFENCE:

VISAKHAPATNAM

Present: Sri S.Nagarjuna

Special Judge to Try the Offences under POSCO Act-cum-Metropolitan

Sessions Judge-cum-I Addl. District & Sessions Judge

Thursday, the 20th day of December, 2018

SESSIONS CASE NO.111/2017

(Crime No.36/2015 of Parawada Police Station)

a)The serial number of the case:S.C.No.111/2017

b)Date of commencement of :Prior to 01.03.2015 offence

c)Name of the Complainant, if :The State represented by the Inspector anyof Police, Parawada Police Station.

d)Name of the accused person, Pilli Kalyan, S/o.Pentayya, age 19 his parentage and residence, if years,.Settibalijabycaste, anyR/o.J.P.AgraharamVillage, AvasomavaramPanchayat, Atchuthapuram Mandal, Visakhapatnam District.

e)Offence complained of :under Section 506 of the IPC & Section 12 of the Protection of Children from Sexual Offences Act, 2012

f)Plea of the accused and his :Accused pleaded not guilty examination, if any

This case coming on 7.12.2018 for final hearing before me in the presence of Spl. Public Prosecutor for the State; and of Sri M.Ravi, Advocate for Accused; and the matter having stood over for consideration till this day, this Hon’ble court delivered the following:

J U D G M E N T

1.Sri B.Ramana Murthy, the Inspector of Police, Parawada Police

Station, Visakhapatnam City, has filed charge sheet in Cr.No.36/2015 of

Parawada Police Station for the trial of accused for the offence 2 MSJ COURT/VSP

SC.111/2017

punishable under Section 506 of the IPC & Section 12 of the Protection of Children from Sexual Offences Act, 2012.

2.The allegations leveled against the accused are that the victim was studying 8th class in Z.P.Girls High School, Parawada; that she used to board Yelamanchili to Maddilapalem route 400 ‘Y’ RTC city bus at

Nagavaram to go to Parawada for attending school; that during the month of January when she boarded the bus at 9.00 a.m, the accused also boarded the same bus; that the accused cut a cake in the bus, distributed to all the girls and to the victim; that she took the cake piece by saying “Thanks Annayya” for which the accused used to abuse her as “who is your Annayya”; that he used to obstruct her regularly in the bus without giving way but giving way to the other girls; that he used to shake hands after getting down the bus; that one day, he threw a paper by writing his phone number, demanded her to contact him over phone and demanded her to come to beach with him or else, he would pour acid on her face and affix obscene photos to her photo and circulate the same in Internet and also show the obsence photos to her mother; that on 01.03.2015, he came to the village of the victim and while causing enquiry about victim, the Karanam Krishna Rao, Marisetti Appalaraju,

Karanam Nookarathnam and Karanam Ramulamma caught him and questioned him about his behavior towards the victim; that they also instructed the accused to call his parents for informing his behavior; that on the same day, the accused contacted her mother over phone and abused her indiscriminately and when she asked the victim, she 3 MSJ COURT/VSP

SC.111/2017

narrated about the sexual harassment made out by the accused towards her.

3.On the basis of the report given by Gonthina Lakshmi, the

Inspector of Police, Parawada P.S., registered it as a case in Crime

No.36/2015 under Section 506 of the I.P.C & Section 12 of the

Protection of Children from Sexual Offences Act, 2012, arrested the accused and sent him to judicial custody. During the course of investigation, he recorded the statement of victim, visited the scene of offence, drafted rough sketch, examined the witnesses Gonthina

Lakshmi, Gonthina Lavanya, Karanam Krishna Rao, Marisetti Appalaraju,

Karanam Nookarathnam and Karanam Ramulamma and recorded their statements. After completion of investigation of the crime, he prayed in the charge sheet to punish the accused under the above penal sections of the law.

4.After appearance of accused, charges under Section 506 of the

IPC and Section 12 of the Protection of Children from Sexual Offences

Act, 2012 have been framed against accused, read over and explained to him, for which he denied the same, pleaded not guilty and claimed to be tried.

5.The learned Special Public Prosecutor has examined PW.1 to PW.7 and got marked Exs.P.1 to P.8 on behalf of prosecution. After closure of the evidence of prosecution, the accused was examined under Section 313 of the Cr.P.C., stating the particulars of incriminating material made against him, for which he denied the same and claimed no defence 4 MSJ COURT/VSP

SC.111/2017

evidence.

6.POINT FOR CONSIDERATION:

“Has the prosecution proved the guilt of accued beyond all reasonable doubt ? If so, is the accused liable for punishment under

Section 506 of the IPC & Section 12 of the Protection of Children from

Sexual Offences Act, 2012 ?”

7.I have heard the arguments of the learned Special Public

Prosecutor and also the advocate for accused.

8.POINT: Before going into merits and demerits of the case, it is appropriate to refer the following provisions of the law:

(i)Section 506 of the I.P.C:

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.

(ii)Section 12 of Protection of Children from Sexual Offences Act, 2012:

Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extent to three years and shall also be liable to fine.

9.Since the accused denied the charges levelled against him, the burden of proof is only on the prosecution to prove the guilt of the accused beyond all reasonable doubt.

10.In this case, the learned special public prosecutor examined PW.1, who is the victim in this case. She did not state anything against accused. She revealed that she does not know the accused. She has not 5 MSJ COURT/VSP

SC.111/2017

given any complaint against the accused. Though PW.1 was cross examined by the special public prosecutor, she did not turn to support the case of prosecution as if she stated against the accused as in Ex.P.1, the 161 Cr.P.C., statement recorded by police. The learned special public prosecutor has also examined PW.2 to PW.5. PW.2 is the mother of

PW.1. She stated that she gave complaint about missing of PW.1 to the police, but she did not accept the contents of the complaint, dated 5.03.2015. PW.3 to PW.5 are the neighbours of PW.1. PW.2 to PW.5 did not support the case of prosecution. Even though they were cross examined by the learned special public prosecutor, they did not turn to support the case of prosecution, as if they stated against accused as in

Exs.P.2 to P5. The learned special public prosecutor has also examined

PW.6, who worked as ASI, Munagapaka Police Station from 2013 to

September, 2014. She stated in her evidence that she recorded the statement of PW.1 and handed it over to the investigation officer. The learned special public prosecutor has also examined PW.7, who worked as CI, Paravada PS from November, 2014 to June, 2016. He stated in his evidence that on 5.03.2015 at about 3.45 p.m., while he was present at the police station, PW.1 came to the police station and lodged a written report, basing on the report, he registered it as a case in Cr No.36/2015 under Section 506 of IPC and Section 12 of POCSO Act; that he submitted the F.I.R., to the Hon’ble Court; that Ex.P.6 is the report; that

Ex.P.7 is the First Information Report; that he examined PW.2 and recorded her statement; that he visited scene of offence and drafted 6 MSJ COURT/VSP

SC.111/2017

rough sketch; that Ex.P.8 is the rough sketch; that he requested women

SI to visit the police station and record the PW.1 statement; that on his request women SI came to the police and recorded the statement of

PW.1; that he also examined PW.3 and Karanam Krishna Rao and recorded their statements; that he addressed a letter to the Head

Master, ZP Girls High School Paravada with a request to give study certificate and date of birth certificate of PW1; that on the same day he served notice under Section 41 Cr.P.C to the accused; that he sent accused to the Hon’ble Court for Judicial custody on 6.03.2015; and that after completion of Investigation, he laid the charge sheet against the accused.

11.In view of oral and documentary evidence adduced by the prosecution, I have no hesitation to say that the prosecution is not able to prove the guilt of the accused beyond all reasonable doubt to punish him under the above penal provisions of law. PW.1, who is the victim did not state anything against the accused. So also PW.2 to PW.5 did not support the case of prosecution. Merely on the basis of the evidence of

PW.6 & PW.7 whose evidence is not corroborated by the evidence of any of the eye witnesses to the occurrence, the accused cannot found guilty.

There is no evidence toughing the ingredients to constitute offences levelled against the accused, either under the provisions of the I.P.C or under the provisions of Protection of Children from Sexual Offences Act, 2012. Therefore, I find the accused not guilty for the offences punishable under Section 506 of the IPC & Section 12 of the Protection 7 MSJ COURT/VSP

SC.111/2017

of Children from Sexual Offences Act, 2012. Accordingly, the point is decided.

12.In the result, the accused is acquitted under Section 235(1) of the

Cr.P.C., for the offences punishable under Section 506 of the IPC &

Section 12 of the Protection of Children from Sexual Offences Act, 2012, and he is set at liberty. The bail bond of the accused and his sureties shall remain in force for further period of six months. The unmarked case property, if any in this case, shall be destroyed after expiry of appeal time.

Typed to my dictation to the Field Assistant, corrected and pronounced by me in open court on this the 20 th day of December, 2018.

SPECIAL JUDGE TO TRY THE

OFFENCES UNDER POCSO ACT-cum-

METROPOLITAN SESSIONS JUDGE,

VISAKHAPATNAM

APPENDIX OF EVIDENCE

Witness Examined For Prosecution:

PW.1Gonthina Lavanya

PW.2Gonthina Lakshmi @ Gonthuna lakshmi

PW.3M.Appala Raju

PW.4Karanam Ramulamma

PW.5Karanam Nooka Ratnam

PW.6S.Krishna Kumari

PW.7B.Ramana Murthy

For Defence:- NONE –

Exhibits Marked For Prosecution:

Ex.P.1/23.10.2018161 Cr.P.C., statement of PW.1 8 MSJ COURT/VSP

SC.111/2017

Ex.P.2/23.10.2018161 Cr.P.C., statement of PW.2

Ex.P.3/24.10.2018161 Cr.P.C., statement of PW.3

Ex.P.4/24.10.2018161 Cr.P.C., statement of PW.4

Ex.P.5/24.10.2018161 Cr.P.C., statement of PW.5

Ex.P.6/06.12.2018Report

Ex.P.7/06.12.2018First Information Report

Ex.P.8/06.12.2018Rough Sketch

For Defence:- NIL-

Material Objects -NIL –

SPECIAL JUDGE TO TRY THE

OFFENCES UNDER POCSO ACT-cum-

METROPOLITAN SESSIONS JUDGE,

VISAKHAPATNAM