Sri. S. Nageswara Rao

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IN THE COURT OF THE II ADDITIONAL JUDICIAL

MAGISTRATE OF FIRST CLASS :: TIRUPATI

Present:: Sri S.Nageswara Rao, B.A., LL.B., II Additional Judicial Magistrate of First Class.

Tuesday, Twenty Fourth (24th) day of April, Two thousand twelve.

Calendar Case No. 442 of 2009

State represented by Sub-Inspector of Police, East Police Station, Tirupati.

(Crime No.156/2009) ..Complainant

-Versus-

Chadalavada Krishna Murthy, aged 60 years, s/o C.Venkata Subbaiah, D.No.14-182, Padmavathi Puram,

Tirupati Town. ..Accused

This case is coming on 23rd day of April, 2012 before me for final hearing in the presence of Assistant Public Prosecutor for the

State and Sri I.Guruswamy and Sri I.Ramesh, Advocates for the accused and having stood over for consideration till this day, the court delivered the following :

J U D G M E N T

State represented by the Sub Inspector of Police, East Police

Station, Tirupati laid charge sheet against the accused for the offences under Secs.430 and 379 of Indian Penal Code in

Cr.No.156/2009. The allegations made in the charge sheet, in brief, are as follows :

The accused is the Proprietor of Group Theatre premises, T.P.

Area, Tirupati consisting of five theaters namely Prathap, Min

Prathap, Teja, Ramraj and Venkata Subbamma. Palleti Mohan

Reddy (PW1), Commissioner of Tirupati Municipal Corporation 2 used to conduct a programme called “Dial your Commissioner (Spandana)” every month from 9 am to 10 am inviting complaints from public. On 30.03.2009 during the said programme, PW1 received a phone call that the municipal corporation water is being taken unauthorizedly through illegal tap connection by the accused to his group theatres. PW1 after due enquiry learnt that the accused had unauthorized tap connection to his group theatres since 15 months and used municipal water causing loss of Rs.2,25,000/- to the Municipal Corporation, Tirupati. The said illegal tap connection was disconnected. PW1 made a complaint to the police on 18.06.2009 at 6.30 pm. The same was registered as Cr.No.156/2009 and investigated. After investigation, the charge sheet has been laid.

2) Cognizance was taken for the offences under Secs.379 and 430 of Indian Penal Code and process was issued against the accused who was on bail. On appearance of the accused, he was furnished with copies of documents under section 207 of Criminal

Procedure Code. After hearing the parties and basing on the material placed by the prosecution, charges under Section 379 and 430 of Indian Penal Code have been framed against the accused, read over and explained to him. The accused pleaded not guilty of the said charges and claimed to be tried.

3) The prosecution in order to prove the charges has adduced the oral evidence of PWs.1 to 4 and documentary evidence of Exs.P1 to P11. Then the accused has been examined 3 under Sec.313 of Criminal Procedure Code and he denied the incriminating evidence available against him. He stated that the tap connection was there since several days and that he did not draw water through the illegal connection as they were having tankers. Further he stated that he is an Ex.MLA and acted as

Chief Election Agent of Praja Rajyam Party and that PW1 is related to one Karunakar Reddy and both of them intentionally caused a false case against him to insult him. No oral evidence has been adduced on behalf of the accused, but Exs.D1 and D2 have been marked for the defence.

4) Heard the arguments of the learned Assistant Public

Prosecutor for the State and the counsel for the defence.

5) Now the points for consideration are,

1) Whether the accused committed mischief by committing the act of diminution of the supply of water for drink for human beings etc., punishable under Sec.430 of I.P.C.

2) Whether the accused has committed theft of water belonging to Tirupati Municipal Corporation through unauthorized Municipal tap connection dishonestly and has committed the offence under Sec.379 of I.P.C.

6) The evidence produced by the prosecution is to be looked at to come to any conclusion on the points raised above.

7) PW1 is the defacto-complainant who worked as

Commissioner of Tirupati Municipal Corporation from 16.02.2008 till the date of his retirement on 31.05.2010. According to him, he 4 used to conduct a programme called “Spandana” every Monday of the week from 9 am to 10 am inviting grievances, problems, suggestions and information from the public, over phone.

Similarly, on 30.03.2009 in the said programme he received a complaint from one Raja Reddy regarding illegal tapping of municipal water by Prathap Group of theatres, Tirupati. On that immediately after the programme, he sent the Municipal Tap

Inspector Ramakrishnama Raju (PW2) to enquire into the allegations and received report from him on 01.04.2009 stating that the allegation was true and the Group theatres were drawing water through illegal connection since about 15 months. So PW1 ordered disconnection of illegal connection and an amount of

Rs.2,25,000/- was estimated as the water pilfered through illegal connection and action was initiated for collection of the said amount from the owner of the theatres i.e. accused. Further PW1 gave a report before the Station House Officer, East Police

Station, Tirupati for criminal action against the accused under

Ex.P1.

8) Through PW1, the prosecution produced Ex.P2 list of complaints received through phones on ‘Spandana’ programme, in which serial No.620 on 30.03.2009 shows a complaint that though the apartment of the accused in Thyagaraja Nagar and

Prathap Theatre were having tap connections, tax was not levied.

Ex.P3 is also produced by PW1 as the report given by PW2 Tap

Inspector of Tirupati Municipal Corporation dated:31.03.2009 and 5

Ex.P4 the report of S.Ramakrishnama Raju, Tap Inspector of

Tirupati Municipal Corporation dt.01.04.2009 disconnecting the illegal tap connection in T.Nagar, Teja apartment and T.P.Area,

Group theatres, Tirupati. PW1 produced Ex.P5 as the proceedings issued by him on 01.04.2009 to PW2 to disconnect the illegal connection. Ex.P6 is the report submitted by Mohammad Rafi,

Assistant Engineer, Water Works, Tirupati Municipal Corporation

dated:17.04.2009. Ex.P7 is the report of A.Subramanyam,

Assistant Technical Officer, Tirupati Municipal Corporation

dated:20.04.2009. Ex.P8 is the Note issued by him to the

Executive Engineer dated:30.04.2009. Ex.P9 is Enquiry Report of

Municipal Engineer dt.27.05.2009 and Ex.P10 is Enquiry report of

T.Mohan, Executive Engineer dated:14.06.2009.

9) From the cross-examination of PW1, it is clear that PW1 has got instructions from Government only to regularize the illegal tap connections, but not to initiate any penal action against the persons holding illegal tap connections. But that does not mean that PW1 cannot initiate penal action against the said illegal tap connections if it attracts any penal provisions.

10) As per the evidence of PW1, there are five theatres in group and each theatre is separate entity as far as the approval regarding construction and assessment of tax is concerned.

PW1’s evidence that as far as his knowledge is concerned, the theatres are in the individual names. No document is places

before the court to show that the accused is the Proprietor of all

6 the theatres. Further PW1 says that he had verified as to in whose name the theatres were standing at the time of assessment of the tax and after the complaint in ‘Spandana’ programme also. It has been suggested to PW1 that as per the

Municipal records, the group theatres are not standing in the individual name of the accused and the same is denied by PW1.

From the evidence of PW1, it is clear that he has not personally verified the alleged illegal tap connection. So, the PW1 has no personal knowledge about the existence of the illegal tap connection and it is clear from PW1 that the report of PW2 i.e.

Ex.P3 is the basis for holding that there is illegal tap connection directing disconnection. Further the evidence of PW1 in the cross-examination that he has no idea whether there were any tap connections to the theatres by the previous owners shows that he has not verified any records of the Municipality and he has not verified physically about the existence of any tap connections to any of the theatres. Further the evidence of PW1 that he does not know whether there was any tap connection illegally to any of the theatres during his tenure shows that he has no knowledge about any existence of any connections to the theatres either legally or illegally.

11) Ex.D2, a receipt issued by Tirupati Municipality

dated:08.12.2011 is admitted by PW1 as the document issued by

the Municipality. PW1 admitted that Ex.D2 was for payment of water charges for the period from 01.04.1994 to 30.09.2011 in 7 the name of Prathap theatre. PW1 does not know about any application made by the accused on 09.01.2009 for tap connection to group theatres. This shows that PW1 without exercising any diligence and without verifying physically or from the records about any tap connections to the group theatres has made the complaint to the police under Ex.P1. The evidence of

PW1 therefore cannot prove any illegal tap connection to the group theatres and that the accused was the owner of the said theatres.

12) S.Ramakrishnama Raju (PW2), Tap Inspector of Tirupati

Municipal Corporation since 2002 stated that on 30.03.2009, as per the direction of Commissioner, Tirupati Municipal Corporation, he inspected Group theatres of the accused and found one tap connection on the back side of Ramraj theatre on the south-west corner from the Municipality main pipe line without valid connection. He reported the said matter to the Commissioner under Ex.P3. Further on the instructions of the Commissioner, he disconnected the said tap connection and reported the matter to the Commissioner under Ex.P4. He states that due to the tapping of water without valid permission, the Municipality has sustained loss of Rs.2,25,000/- as per the assessment made by the

Engineering department as the tap connection was there for about 15 months.

13) PW2 is the crucial witness for the case as he is the person who is said to have inspected the premises and found the 8 alleged illegal tap connection. But it is strange to note from PW2 that there are only three theatres in the group and one connection was found illegally given. As per the evidence of PW1 there are five theatres in group, but PW2 says that there are only three theatres. This itself creates doubt about PW2 visiting the group theatres and inspecting the same for finding out whether there are any illegal tap connections or not. PW2 further stated that there were no other connections either previously or at present. PW2 is duty bound to inspect the connections of taps and verify their legality. He did not verify the documents in the office of the Municipality about any existing legal connections.

He is the person who prepared Exs.P3 and P4. Ex.P3 is the report

dated:31.01.2009 signed by PW2. It shows that PW2 was asked

an explanation by the office about the illegal water supply to

Srinivasa Teja Residency, T.Nagar i.e. Teja apartment and Group theatres in T.P. area. The explanation given by PW2 was that he verified the records of the office and found that there was no record about the tap connection to Teja apartment, T.Nagar and

Group theatres. Further it shows that he made enquiries with neighbouring persons and came to know that Teja apartment was using water since 8 years and Group theatres using water since 15 months. No basis is shown in Ex.P3 as to how PW2 come to such a conclusion. Ex.P3 is the basis for PW1 to come to knowledge that there was illegal tap connection to the Group theatres. But Ex.P3 does not show that there was any illegal tap 9 connection to the theatres or the apartment. It only shows that water is being used by them since 8 years and 15 months respectively and there was no record about any connections given to those apartments and theatres. Ex.P3 does not reflect that PW2 has made any physical inspection of the group theatres and made the report under Ex.P3. But coming to evidence, PW2 says that on 31.03.2009 at 10.30 am, he visited the scene of offence and asked the persons employed there about any document to show that about any illegal tap connection. That fact is not mentioned by PW2 in his report Ex.P3. As admitted by

PW2 he did not go to the accused and he did not enquire him about any document. PW2, strangely, admitted that he did not verify any records in the office of the Municipality and it would be done by the officials in Revenue Section. But the report, Ex.P3 shows as if the PW2 had verified the record and found no record about the existence of tap connection to the apartment or theatres. This falsifies Ex.P3 report given by PW2.

14) PW2 stated that he enquired in the neighbouring area about the period of existence of the connection. But at the same time he admits that there are no residential houses within the compound of group theatres. So, it is not known as to who were enquired by PW2 to know the existence of tap connection for 15 months. Admittedly, PW2 is the person who is duty bound to inspect the connections of taps and verify their legality, but he says that it was enquired by him and he came to know about the 10 existence of the tap connection for certain period. This shows that PW2 has not verified the connections as per his duty. So, there is no basis for PW2 to state in his Ex.P3 report that there was tap connections in existence to the group theatres since 15 months.

15) Coming to the disconnection said to have been made by

PW2, PW2 stated that as per Ex.P4 report submitted to the

Commissioner that he has disconnected the tap connection. The evidence of PW2 discussed above shows that he has not physically verified about the existence of the tap connection to the group theatres. So, there is any amount of doubt about the disconnection said to have been made by PW2 on 01.04.2009 as per Ex.P4. PW2 stated that the disconnection was shown from 10 am to 1 pm as the Commissioner has directed disconnection on 31.03.2009. Ex.P5 is the memo dated:01.04.2009 directing PW2 to disconnect the illegal water connections to Srinivasa Teja

Residency at Teja apartment of T.Nagar and group theatres of T.P.

Area. The said orders was signed by the Municipal Engineer

Mr. Anand on 01.04.2009 itself. But PW2 states that

Commissioner has directed the disconnection on 31.03.2009 itself and he was given orders on 31.03.2009 evening itself. When the orders Ex.P5 itself shows that they were made on 01.04.2009 by the office of the Municipality, the evidence of PW2 that he received orders on 31.03.2009 itself is falsified. Further when the orders was issued on 01.04.2009 they must have been issued 11 during the office hours. The evidence of PW2 that he has conducted the disconnection on 01.04.2009 from 10.30 am to 1 pm is very much doubtful. It is the evidence of PW2 in the cross-examination that he used four contract labours for the purpose of disconnection and that Fitter, by name, Subramanyam was also present along with him, but none of them have been examined to establish the physical disconnection of the tap connection. Exs.P4 and P5 dated:01.04.2009 does not contain any information that the disconnection was done by engaging any contract labour from 10.30 am to 1 pm on 01.04.2009. It is simply stated in Ex.P4 that illegal taps were disconnected to Teja apartment of T.Nagar and group theatres of T.P. area. Thus it is clear that the prosecution has failed to establish the alleged inspection made by PW2 on 31.03.2009 about the existence of the tap connection and about the disconnection said to have bee made on 01.04.2009.

16) It is evident from PW2 that Exs.P3 and P4 were prepared in the office of the Commissioner who is having authority to conduct departmental action against PW2. In fact, a perusal of

Exs.P3 and P4 shows that only because of the memos issued to

PW2 he has submitted the reports under Exs.P3 and P4. Even

Exs.P3 and P4 are very vague. Thus, though Exs.P3 and P4 were proved to have been given by PW2, no sanctity can be given to the contents of the reports about the existence of illegal tap connections and disconnections said to have been made by PW2.

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17) P.Ananda Rao, Executive Engineer of Tirupati Municipal

Corporation (PW3) from 28.08.2008 has stated that on 30.03.2009, as per the complaint received in ‘Spandana’ programme, the Commissioner, Tirupati Municipal Corporation,

Tirupati directed the inspection of the Group theatres by the Tap

Inspector and the Tap Inspector inspected the group theatres and submitted a report that there was illegal tap connection and that the Commissioner directed the removal of said illegal tap connection which was removed by the Tap Inspector. PW3’s evidence shows that PW2 was directed to inspect the theatres and submit his report and as per the report submitted by PW2 there was direction to remove the illegal tap connection. So, PW3 has not made any physical verification about the existence of any tap connection to the group theatres. His evidence solely relies on the report of PW2 only. So, the evidence of PW3 is not proving about any existence of tap connection to the group theatres illegally and about disconnection said to have been made.

18) If we look at Ex.P6, it is an explanation given by

S.Mohammed Rafi, Assistant Engineer working at Puttur

Municipality dated:17.04.2009. As per Ex.P6, the said S.M.Rafi worked as Assistant Engineer, Water Supply Wing, Puttur

Municipality during 2006-2007. Ex.P6 shows that during the said period, there were no illegal tap connections to the group theatres of T.P. Area. This document is not in favour of the prosecution and it shows that no illegal tap connections were 13 there to Group theatres. Ex.P6 is only an explanation submitted by the employee of the Municipality.

19) Similarly, Ex.P7 is an explanation given to the

Commissioner of Tirupati Municipal Corporation by

A.Subaramanyam who worked at Tirupati. It shows that as per the explanation given by him, he explained either himself or his staff have not given any illegal tap connection.

20)Ex.P8 is an office note signed by PW1 dt.20.04.2009 seeking explanation from one T.Mohan, Executive Engineer (I.H.S.D.P.), Municipal Corporation, Tirupati regarding the allegation that during the year 2000-2001 while T.Mohan was working as Deputy Executive Engineer an illegal water tap connection was given to Srinivas Teja Residency i.e. Teja apartment, T.Nagar. Ex.P8 shows that explanation was called for about the said allegation and it is not relevant to the present case. Ex.P9 is the enquiry report by Mr. Anand, Municipal

Engineer, Tirupati who is not examined in this case as a witness.

It relates to the illegal tap connection to Srinivasa Teja

Residency/Teja Apartment of T.Nagar. The said report shows that after enquiry, Teja apartment was found to have taken illegal water tap connection. It is also not relevant to the present case as the present case is not relating to any illegal tap connections to Srinivasa Teja Residency/Teja Apartment. Further Ex.P9 is not proved by its author i.e. Mr. Anand, Municipal Engineer, Tirupati.

21) Ex.P10 is the explanation given by T.Mohan who worked 14 as Executive Engineer, I.S.H.D.P., Tirupati Municipal Corporation stating that he has not given any tap connections to the group theatres during the period of his functioning from 2006 to 2007.

22) In this regard, it has to be seen that the defence has produced a document Ex.D2 dt.08.12.2011, PW1 himself admitted that the document issued by the Tirupati Municipal

Corporation regarding payment of water charges for the period from 01.04.1994 to 30.09.2011 in the name of Pratap Theatre.

This shows that there was legal tap connection to Pratap theatre for the period from 01.04.1994 to 30.09.2011 and amount of

Rs.16,620-00 was paid by Pratap theatre with consumer

No.1012008281 with demand No.10120081167 for the demanding year 2011-2012. This document shows that the

Pratap theatre has made payment of the water charges as per the demand from 01.04.1994 to 30.09.2011 nearly for 17 years with consumer number also. Thus, it is clear that there was legal tap connection to Prathap theatre nearly for 17 years. This falsifies the case of the prosecution that there were no connections to the group theatres at any point of time either before or subsequent to the inspection by PW2. Further it shows that none of the officials of the Municipal Corporation, Tirupati have verified the records to know whether there are any legal water connections to the group theatres at any point of time.

23) It is the evidence of O.Ramachandra Reddy, PW4, worked as Sub-Inspector of Police, East Police Station, Tirupati 15 that on 18.06.2009 at 6.30 pm, PW1 went to the police station along with PW2 and presented Ex.P1 report and that he registered it as Cr.No.156/2009 under Secs.430 and 379 of IPC and issued first information report, Ex.P11 to the court. Further according to him, he recorded the statements of PWs.1 and 2, later visited the

Municipal Corporation Office, recorded the statement of PW3,

T.Subramanyam, Shaik Mohammad Rafi and also visited the scene of offence i.e. Group Theatres, T.P.Area, Tirupati along with

PW2 and examined the same. Further he stated that on 12.07.2009 he effected the arrest of the accused on his surrender and released him on bail and later filed charge sheet after completion of investigation.

24) The cross-examination of PW4 shows that he has not made proper investigation of this case. PW4 has not tried to examine the person viz. Raja Reddy who made complaint in ‘Spandana’ programme to PW1 though his cell phone number was given even in Ex.P1 report itself. The said Raja Reddy if in existence would have been examined by the investigation officer.

In fact, it is the complaint of the said Raja Reddy which is the basis for PW1 to find out whether there were any tap connections to the group theatres or not. The non-examination of the said

Raja Reddy creates any amount of doubt as argued by the defence about the existence of the said Raja Reddy.

25) As admitted by PW4, he did not verify any records of the

Municipality personally to know whether there were any legal tap 16 connections to the group theatres or not. When there is specific allegation that the group theatres were using the water through illegal tap connection, it is expected from the investigation officer to verify whether there were any legal tap connection to the theatre or not, but in this case PW4 has not done so. Further PW4 has not verified atleast whether the group theaters were standing in the name of the accused or not. He did not even verify whether the group theatres are proprietory concern or a company or run by an individual. That means PW4 has not verified whether the accused is the proper person to be prosecuted or not. He simply recorded Sec.161 Cr.P.C. statements of the witnesses and laid charge sheet against the accused whose name is shown in the report, Ex.P1.

26) PW4 stated that he visited the scene of offence, but his cross-examination shows that he did not visit the scene of offence. As per PW4, the scene of offence is back side of Pratap theatre. Again he stated that the tap connection was on the eastern side of Ramraj theatre on the southern side of one cool drink shop outside the theatre. Even PW4 admitted that in his evidence that the place of offence is on the back side of Pratap theatre is not correct. He did not even see pipe line of Municipal

Corporation from which the alleged illegal tap connection was drawn. This makes it clear that PW4 has not even visited the

Group theatres whether the alleged illegal tap connection was drawn. As already discussed, the evidence of PW2 about the 17 inspection made by him on 31.03.2009 and the alleged disconnection made on 01.04.2009 cannot be believed. Even the evidence of PW4 about his visit made to the scene of offence cannot be believed.

27) Thus it is clear that the investigation done by PW4 is not on proper lines and in fact PW4 has not conducted any investigation of this case except filing the charge sheet mechanically.

28) In view of the aforesaid discussion regarding the evidence produced by the prosecution it is clear that the prosecution is not able to prove that the accused has committed any act of mischief and thereby caused diminution of supply of water to any purposes specified under Sec.430 of IPC and that he has illegally tapped water belonging to Tirupati Municipal

Corporation and committed theft of the said water. So, the prosecution is not able to establish both the charges levelled against the accused and thereby the accused is entitled for acquittal.

29) In the result, I find the accused not guilty of the charges under Sec.379 and 430 of I.P.C. and accordingly, he is acquitted of the said charges under Sec.248(1) of Cr.P.C. The accused was not in judicial custody at any time. Bail bond of the accused shall be in force for a period of six months, and thereafter the same shall stand cancelled.

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Dictated to the Personal Assistant, transcribed by him,

corrected and pronounced by me in the open court, this the 24th day of April, 2012.

Sd/- S.Nageswara Rao

II Addl. Judl. Magistrate of First Class, Tirupati.

Appendix of evidence. Witnesses examined. For Prosecution :-For Defence :-

PW1 Sri P.Mohan Reddy, Commissioner, TMC - None - PW2 Sri S.Ramakrishnama Raju, Tap Inspector PW3 Sri P.Ananda Rao, Municipal Engineer PW4 Sri O.Ramachandra Reddy, S.I.

Exhibits marked. For Prosecution :-

Ex.P.1 Dt.18.06.2009 Report of PW1 to the police Ex.P.2 Dt. - - List of complaints received through phones at ‘Spandana’ programme. Ex.P.3 Dt.31.03.2009 Report of PW2 Ex.P.4 Dt.01.04.2009 Report of PW2 Ex.P.5 Dt.01.04.2009 Proceedings of PW1 Ex.P.6 Dt.17.04.2009 Report of S.Mohammad Rafi, Asst. Engineer Ex.P.7 Dt.20.04.2009 Report of A.Subramanyam, Asst. Tech. Officer Ex.P.8 Dt.20.04.2009 Note of PW1 to Executive Engineer. Ex.P.9 Dt.27.05.2009 Enquiry Report of Municipal Engineer Ex.P.10 Dt.14.06.2009 Report of Executive Engineer. Ex.P.11 Dt.18.06.2009 FIR in Cr.No.156/2009 of East P.S., Tirumala.

For Defence :- Nil

Material objects :- Nil.

Sd/- S.Nageswara Rao

II Addl. Judl. Magistrate of First Class, Tirupati.

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IN THE COURT OF THE II ADDITIONAL JUDICIAL MAGISTRATE

OF FIRST CLASS :: TIRUPATI

Present :: S.Nageswara Rao, B.A., LL.B., II Addl. Judl. Magistrate of First Class.

Tuesday, Twenty Fourth (24th) day of April, two thousand twelve.

Calendar Case No. 31 of 2010

Between : State represented by the Sub-Inspector of Police, Traffic Police Station,

Tirumala. (Cr.No.66/2009) ..Complainant

And :

1) P.Nagaraja, aged 27 years, s/o P.Eswaraiah, D.No.20-2-495/A/2, Maruthi Nagar, Korlagunta, Tirupati.

2) V.Serisha, aged 44 years, w/o V.Sankar, D.No.20-2-548/A, Maruthi Nagar,

Korlagunta, Tirupati. ..Accused

This case coming on this day before me for final hearing in the presence of Assistant Public Prosecutor for the State and of Sri

K.Nagesh, Advocate for the accused and having stood over for consideration till this day, the court delivered the following :

J U D G M E N T

State represented by the Sub-Inspector of Police, Traffic

Police Station, Tirumala, filed charge sheet against the accused 1 and 2 in Crime No.66/2009 under Secs.338 of IPC, under

Sec.134(a) & (b) r/w 187, Sec.3 r/w 181 and under Sec.5 r/w 180 of the Motor Vehicles Act, with the following allegations :

A1 was the driver of Maruthi van bearing Regn.No.AP.03/T

JTR 4985 on 25.12.2009 at 11.45 am. A2 is the owner of the said 2 vehicle at the time of the incident. On 25.12.2009 at about 11.45 am at SMC – Gokulam main road in front of SMC generator room,

Tirumala A1 being the driver of the said Maruthi van drove it in rash and negligent manner while proceeding from SMC towards

Gokulam, lost control over it and collided against foregoing motor cycle bearing Regn.No.AP.03/L-5991, as a result of which, the rider of the motor cycle V.Murali (PW2) fell down on the road and sustained contusion over left thigh i.e., crack fracture of left femur.

K.Balakrishna (PW1) shifted PW2 to Aswani Hospital, Tirumala with the help of ambulance. The accused left the crime vehicle on the spot and absconded without informing the incident to the concerned police and without providing first aid to the injured. On the report of PW1, case in Cr.No.66/2009 was registered on 25.12.2009 at 12.45 pm and investigated. Accordingly, charge sheet has been laid.

2) Cognizance was taken for the offences under Secs.338 of

IPC, under Sec.134(a) & (b) r/w 187, Sec.3 r/w 181 of the Motor vehicles Act against A1 and under Sec.5 r/w 180 of the Motor

Vehicles Act against A2 and process was issued against the accused. On appearance of the accused, copies of documents were furnished to them under Sec.207 Cr.P.C. Then the accused were examined under Sec.251 Cr.P.C. They denied the substance of allegations of offences levelled against them. The accused pleaded not guilty and claimed to be tried. Further it is stated that A1 has got licence to drive the vehicle.

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3) The prosecution examined PWs.1 to 6 and marked Ex.P1 to P5 on its behalf. Then the accused 1 and 2 have been examined under Sec.313 of Cr.P.C. They denied the incriminating evidence available against them stating that a false case is foisted against them. No evidence has been adduced on behalf of the accused.

4) Heard both sides.

5) Now the point for consideration is whether the prosecution is able to establish the allegations made against the accused beyond all reasonable doubts.

6) Out of the six witnesses examined by the prosecution,

PW1 K.Balakrishna is the defacto-complainant who gave report to the police, PW2 V.Murali is the alleged injured, PW3 E.Ravi Kumar is cited as eye-witnesses to the incident. PW4 G.Chengaiah, A.S.I.

has conducted investigation of this case. PW5 Y.Venkataramana,

S.I. of Police verified the investigation of PW4 and filed charge sheet. PW6 Dr. P.Santhi Kala is the doctor who issued wound certificate, Ex.P4 basing on Ex.P5 X-ray report.

7) The evidence of PW1 is that on 25.12.2009 himself and his friend V.Murali (PW2) went to Tirumala on his motor cycle bearing

Regn.No.AP.03/L-5991 for darshan in Srivari temple and later he sent PW2 to observe the queue line and was waiting at S.M.C.

Generator room. Further he stated that while PW2 was returning on his motor cycle, coming on the left side of the road near generator room of S.M.C., one Maruthi van bearing Regn.No.TR- 4985 went from behind at high speed and dashed against the 4 motor cycle driven by PW2, due to which PW2 fell down from the vehicle and sustained injury to his left leg near thigh. PW1 further stated the incident happened at 11.45 am and A1 was the driver of the said omni van which was stopped there. Further PW1 stated that he shifted PW2 to Aswani hospital in an ambulance for treatment and A1 went to the said hospital and so PW1 has come to know about his name and he gave Ex.P1 report to the police.

8) Coming to PW2 who is the injured in this case, he gave evidence that he is Mechanic in Raja Auto works, Tirupati that on 25.12.2009 when PW1 and himself went to Tirumala for darshan in

Srivari temple on Pulsar motor cycle of his friend bearing

Regn.No.AP.03/L-5991 that PW1 sent him to observe the queue line and was waiting at SMC generator room. PW2 further stated that while he was returning on the motor cycle, near the generator room of S.M.C., one Maruthi omni van having temporary registration number with 'L' board, went from behind at high speed without horn and dashed against his motor cycle from behind, due to which he fell down from the vehicle and sustained injury to his left leg near thigh. Further he stated that the incident happened at about 11.45 am, and that he was shifted to Aswani hospital through ambulance for treatment and after one hour police examined him at the hospital. Later he was shifted to SVRR GG

Hospital, Tirupati.

9) It is the evidence of PW3 E.Ravi Kumar, a resident of

Tiruchanur working as taxi driver that on 25.12.2009 at about 5 11.30 am at SMC quarters, while he was taking tea, one Pulsar

Bajaj motor cycle was proceeding from Vaikuntam side towards

S.M.C. driven by a person and at that time one Omni Maruthi van went behind the motor cycle at high speed and dashed against the motor cycle from its back side, due to which the person on the motor cycle fell down on the road and sustained injuries to his right leg. He further stated that the Maruthi van was stopped and the injured was taken to Aswani Hospital, Tirumala in the said

Maruthi van. Further he stated that he cannot say the registration number of the Maruthi van, but he has given the number of the motor cycle as AP.03/Z-5991.

10) It is the evidence of PW6 Dr. P.Santhikala working as Civil

Assistant Surgeon, SVRR GG Hospital, Tirupati that on 25.12.2009 she examined PW2 and found tenderness and restricted movements of left hip, x-ray of pelvis AP view shows crack fracture of left femur. She opined the said injury is grievous in nature and issued Ex.P4 wound certificate and exhibited Ex.P5 as the x-ray report.

11) PW4 G.Chengaiah is the Assistant Sub Inspector worked at Traffic Police Station, Tirumala. According to him on 25.12.2009 at 12.45 pm while he was incharge of the police station, PW1 went to the police station and presented Ex.P1 report, which he registered as Cr.No.66/2009 under Sec.337 IPC and issued first information report Ex.P2. Further PW4 stated that he recorded the statement of PW1, visited the Aswini hospital at 1.45 pm and 6 recorded the statements of Pws2, 3 and then he visited the scene of offence, observed the same and prepared rough sketch of the scene of offence. He exhibited Ex.P3 observation mahazar prepared by him. According to him, he found one Maruthi van and a two wheeler at the scene of offence.

12) It is the evidence of Pw5 Y.Venkataramana, S.I. of Police,

Traffic Police Station, Tirumala that PW4 registered the case basing on the report, Ex.P1 on 25.10.2009 (25.12.2009 ? ) and on 05.01.2010 at 12.30 pm he arrested A1 and sent him to judicial custody and that A1 failed to show his driving licence to drive the

Maruthi Omni vehicle and that A2 was the owner of the said vehicle and was released on bail by the court. PW5 stated that he filed charge sheet against A1 and A2.

13) The case of the accused is that PW2 sustained injuries somewhere else and a false case is foisted against the accused in order to claim compensation and that the accused is not responsible for the incident. Further it is the case of the accused is that the Maruthi van did not come to Tirumala on the date of incident and the accident did not occur because of the said van.

14) Ex.P1 is the report given by PW1. As per the report,

Ex.P1, PW1 was standing at SMC generator room and sent PW2 to observe the queue line, and PW2 went on Pulsar motor cycle of

PW1 upto Gokulam and while he was returning to SMC generator room, on the left side of the road in front of SMC generator room,

Maruthi van bearing No.AP.03/T-JTR-4985 went from behind and 7 hit the motor cycle. It is stated by PW1 in Ex.P1 that the driver of the van drove it at high speed, with great caution (Atijagrathaga).

He did not state that the vehicle was driven either rashly or negligently. As per Ex.P1, PW2 was shifted to Aswani hospital,

Tirumala in ambulance. The name of one Nagaraju was given as driver of the van.

15) The evidence of PW6 shows that PW2 sustained crack fracture of left femur and it is opined that it is grievous in nature as per Exs.P4 and P5. There is no dispute about this evidence and

PW2 sustaining grievous injury on 25.12.2009 is proved.

16) Now it has to be seen whether the said injury is caused in the motor vehicles accident as alleged by the prosecution. PW2 is the injured, whereas Pws.1 adn 3 are eye-witness to the incident.

PW4 is friend of PW2 and PW3 also admits that PW1 is his sister's husband. So, Pws.1 to 3 are close to each other. Except their evidence there is no independent evidence coming forth from the prosecution side though the scene of offence is a place where there was movement of public.

17) Now it has to be seen whether the evidence of Pws.1 to 3 can be relied upon. PW1 stated in Ex.P1 that the driver of the van has driven it with great caution, that means there was no negligence or rashness on the part of the driver of the van. Even if it is taken that it was stated by PW1 in Ex.P1 by mistake, the evidence of PW1 does not reflect that the vehicle was driven either rashly or negligently. Both Pws.1 and 2 have stated the same fact 8 about the manner of the incident. PW1 has given in evidence, the number of the van as TR-4985, but in Ex.P1 the number of the vehicle was given as AP.03/T-JTR-4985. So, PW1 is not giving the complete number of the vehicle in his evidence. PW1 has not stated in Ex.P1 report that the van was stopped at the scene and the driver absconded from the scene, but in evidence he says that the Omni van was stopped and A1 who was the driver of the vehicle went away from there and then PW2 was shifted to the hospital in ambulance. Further he says that A1 went to the Aswani hospital, where PW1 has come to know the name fo A1, but he did not state in Ex.P1 report that he came to know the name of the accused when A1 went to the Aswani hospital. In one breath PW1 stated that A1 left the place leaving the vehicle at the scene of offence and another breath he says A1 went to the hospital himself. This gives rise to a doubt about the evidence of PW1 regarding the involvement of the vehicle and about A1 being the driver of the said vehicle. PW1, he himself admitted that he came to know about the driver while he was at the hospital, but he did not state the said fact to the police. If really Pw1 has come to know about the driver while he was at the hospital he would have stated so to the police and he would have stated the said fact in

Ex.P1 report. The said admission on the part of PW1 amounts to contradiction and is a material contradiction. Thus, it is difficult to place reliance on the testimony of PW1 about the manner of the occurrence of the incident and about the involvement of Maruthi 9 omni van in the incident and A1 being the driver of the said vehicle at that time.

18) When the evidence of PW2 is perused, PW2 is not giving the number of the vehicle, but he is stating that it was one Maruthi

Omni van having temporary registration with 'L' board also. PW1 has not stated that the vehicle was having 'L' board as stated by

PW2. PW1 says that he does not remember whether he stated to the police that the Maruthi van was having temporary registration number and 'L' board. Thus, it is difficult to believe the version of

PW2 that he has stated to the police about the 'L' board to the vehicle.

19) PW2 stated that he sustained injury to his left leg near thigh. But as stated by PW4 the investigation officer, PW2 stated to him that he sustained contusion to his right thigh. PW2 denies the said fact being stated to the police. This is also a material contradiction elicited from the evidence of PW2. PW2 is not stating that the Maruthi van was stopped at the scene and driver left the place as stated by PW1. It is not the evidence of PW2 that he lost consciousness after the incident. So PW2 was in conscious state and he must have observed whether the vehicle was stopped after the incident or not. The evidence of PW1 is not corroborated by

PW2 on this aspect. When the accused is disputing about the involvement of the vehicle itself in the incident, this material inconsistency between the evidence of Pws.1 and 2 creates doubt about the involvement of the Maruthi van in the incident. Added 10 to that PW3 who is also cited as eye-witness to the incident gives a different version. According to him, the Maruthi van was stopped at the scene and the injured PW2 was taken to Aswani hospital in the same Maruthi van. As per the testimony of PWs.1 and 2, PW2 was taken to the hospital in Ambulance, PW3 says that PW2 was shifted to the hospital in Maruthi van itself apart from creating any doubt about the presence of PW3 at the time of the incident at the place of incident. The said evidence of PW3 creates any amount of doubt in the testimonies of Pws.1 and 2 about the truth in their evidence.

20) When the evidence of Pw3 is perused. as already stated he is closely related to PW1 who is friend of PW2 i.e., the injured in this case. PW3 gives two strange versions in his evidence which

Pws1 and 2 have not spoken to. PW3 says that PW2 sustained injuries to his right leg, whereas PW2 in this case sustained one injury to his left leg near his left thigh. This testimony of PW2 found to be material contradiction to his earlier statement.

Further PW3 says that the Maruthi van was stopped at the scene and injured was shifted to the hospital in the said van and A2 was the driver of the said van. This is materially inconsistent with the evidence of PW2 who stated that PW2 was shifted to the hospital in ambulance. Further PW3 is able to give the number of the motor cycle bearing No.AP.03/Z-5991, but he is not able to state the number of the Maruthi van. If really the Maruthi van was there and was seen by PW3, he would as well state the number of the 11

Maruthi van also as he is able to say the number of the of the motor cycle. This creates doubt in the testimony of PW3 about his presence and observing the incident.

21) Further the cross-examination of PW3 shows that PW3 witnessed the incident from a distance of about one furlong. It is very difficult to believe the testimony of PW3 who says that he witnessed the incident from a distance of one furlong to believe his version about the vehicle being driven at high speed and dashing

PW2. PW3 who witnessed the incident must have gone to the scene of incident from the said distance and his testimony that A1 was there as driver of the van shows that A1 might not have left the place after the incident as stated by PW1. This creates doubt about the evidence of PW1 also.

22) It is clear from the testimonies of Pws.1 and 2 that the road at the scene of offence is upgradient and it creates doubt about the vehicle being driven at high speed as spoken to by

Pws.1 to 3.

23) PW4 is the investigation officer. According to him, he did not find any damages to the vehicles involved in the crime. If really the vehicle i.e. van hit the motor cycle, there should have been some dent or damage to the vehicle, but no such damages were found by PW4 creating a doubt about the involvement of the

Maruthi van in the incident. As per the version of Pws.1 and 2, the

Maruthi van was stopped at the place of incident, but as per the version of PW3 the Maruthi van was taken to the Aswani hospital 12 for shifting of injured. This creates any amount of doubt in the testimony of PW4 about the van being found at the scene of offence when PW4 observed the scene of offence. PW4 stated that the vehicle was entered into the entry point at Alipiri, but he did not verify the date and time of the entry of the vehicle. If that is so, the prosecution would have produced any material to establish that the Maruthi van came to Tirumala on that particular date to show that its involvement in the incident. When the accused is disputing the involvement of the Maruthi van itself, the evidence about the entry of the vehicle at Alipiri is material and in the absence of such evidence being produced by the prosecution, a doubt is created about the involvement of the Maruthi van in the incident. In this case, PW4 says that he visited the scene of offence and prepared observation report, Ex.P3. None of the mediators for Ex.P3 could not be examined in this case to establish the fact that PW3 actually observed the scene of offence. So,

Ex.P3 could not be proved by the prosecution as a document prepared before the mediators. In view of the evidence of PW3 that the vehicle Maruthi van was used for shifting of the injured to the hospital, there is any amount of doubt about the existence of the vehicle at the scene of offence at the time of observation made by PW4.

24) PW4 stated that he found the motor cycle as well as

Maruthi van at the scene of offence. None of the said vehicles could be produced before the court. It is not know as to what 13 happened the said vehicles found at the scene of offence. No material is placed to show that the Maruthi van was seized by the police and that same was handed over to the accused subsequently from the custody of the police. If really the said vehicle was found at the scene and was seized, there would have been evidence to the effect that the van was found at the scene of offence. In the absence of such evidence it is difficult to believe the prosecution version simply relying on the interested testimonies of Pws.1 to 3.

25) In view of the aforesaid discussion, I am of the view that the prosecution is unable to establish that the Maruthi van belonging to A2 was involved in the incident and that the said incident occurred due to the rash or negligent driving of the driver of the said van and that A1 was the driver of the said vehicle at that place and at that time of the incident. Accordingly, the prosecution has failed to establish any of the offences levelled against the accused beyond all reasonable doubts and therefore, the accused are entitled for acquittal.

26) In the result, I find A1 not guilty of the offences under

Sec.338 of IPC, under Secs.134(a)&(b) r/w 187 and under Sec.3 r/w 181 of the Motor Vehicles Act, A2 not guilty of the offence under

Sec.5 r/w 180 of the Motor Vehicles Act and they are acquitted of the same under Sec.255(1) of Cr.P.C. A1 was in judicial custody on 05.01.2010 and 06.01.2010 and A2 was not in judicial custody at any time. Bail bonds of the accused shall be in force for a 14 period of six months and thereafter the same shall stand cancelled.

Dictated to the Personal Assistant, transcribed by him,

corrected and pronounced by me in the open court, this the 24th day of April, 2012.

Sd/- S.Nageswara Rao

II Addl. Judl. Magistrate of First Class, Tirupati.

Appendix of evidence :

Witnesses examined :

For Prosecution : For Defence :

PW.1 Sri T.Balakrishna- None - PW.2 Sri V.Murali PW.3 Sri E.Ravi Kumar PW.4 Sri G.Chengaiah, ASI PW.5 Sri Y.Venkataramana PW.6 Dr. P.Santhikala

Exhibits marked. For Prosecution :

Ex.P.1 Dt.25.12.2009 Report of PW1 to the police. Ex.P.2 Dt.25.12.2009 FIR in Cr.No.66/2009 of Traffic P.S., Tirumala Ex.P.3 Dt.25.12.2009 Observation mahazarnama Ex.P.4 Dt.08.01.2010 Wound certificate of PW2 Ex.P.5 Dt. - - x-ray report

For Defence : Nil

Material objects : Nil

Sd/- S.Nageswara Rao

II Addl. Judl. Magistrate of First Class, Tirupati.

1

IN THE COURT OF THE II ADDITIONAL JUDICIAL

MAGISTRATE OF FIRST CLASS :: TIRUPATI

Present:: Sri S.Nageswara Rao, B.A., LL.B., II Additional Judicial Magistrate of First Class.

Monday, Twenty Third (23rd) day of April, Two thousand twelve.

Calendar Case No. 485 of 2009

State represented by

Sub-Inspector of Police,

II town Police Station, Tirumala.

(Crime No.60/2009) ..Complainant

-Versus-

N.Venkatesh, aged 30 years, s/o Narayana Setty,

D.No.2-276, Candi Road, Srikalahasti.

N/o Bangarampet village, Pellakur Mandal,

Nellore District. ..Accused

This case is coming on 18th day of April, 2012 before me for final hearing in the presence of Assistant Public Prosecutor for the

State and Sri K.Ramachandra Raju, Advocate for the accused and having stood over for consideration till this day, the court delivered the following :

J U D G M E N T

State represented by the Sub Inspector of Police, II town police station, Tirumala filed charge sheet against the accused in

Cr.No.60/2009 under Sec.420 of IPC alleging as follows :

The accused is a resident of Srikalahasti. On 25.06.2009 at about 11.30 am near ATC-115 , Tirumala, the accused cheated

R.Balakrishna (PW2) and one B.Divakar by selling 23 cellar tickets obtained through the recommendation letter of D.Srinivas, 2

Minister and Assistant Secretary to C.M.Ramalingeswara Rao and obtained Rs.1,300/- from them. The same was observed by

A.Mallikarjuna (PW1) and Mummami Rajan Narasimhulu, Attender- cum-watchmen of Tirumala Tirupati Devasthanams, Tirumala and they have produced the accused and pilgrims before the Assistant

Vigilance and Security Officer D.V.Nageswara (PW6) and then reported the matter to the police. The same was registered as

Cr.No.60/2009. The accused was arrested and an amount of

Rs.1,300/- along with two cellar tickets, three LPT empty slips, six accommodation slips, one cellar requisition empty form, one original recommendation letter of MLA, Satyavedu, one original letter of Pilli Subash Chandra Bosh and one xerox copy of recommendation letter of MLC C.Seertharamulu were seized under cover of mahazar attested by mediators. Accordingly, the accused has been charge sheeted.

2) Cognizance was taken for the offence under Sec.420 of

Indian Penal Code and process was issued against the accused.

On appearance of the accused, copies of documents were furnished to him under section 207 of Criminal Procedure Code.

The accused was examined under Section 239 of Criminal

Procedure Code. He denied the allegations. Charge under Section 420 of Indian Penal Code was framed against the accused, read over and explained to him. The accused pleaded not guilty and claimed to be tried.

3

3) The prosecution examined PWs1 to 8 and marked Exs.P1 to P12 on its behalf. Then the accused was examined under

Sec.313 of Criminal Procedure Code and he denied the incriminating material available against him. No evidence has been adduced on behalf of the accused.

4) Heard both sides.

5) Now the point for consideration is, whether prosecution is able to establish the guilt of the accused beyond reasonable doubts.

6) To prove the charge under Sec.420 of IPC, the prosecution has to establish the ingredients of the said offence. Sec.420 of

IPC deals with cheating and dishonestly inducing for delivery of property. As per the said provision, whoever cheats and thereby dishonestly induces any person to deliver any property to any person etc. shall be liable for punishment. So, cheating is the primary ingredient of the offence under Sec.420 of IPC. Cheating is defined by Sec.415 of IPC. As per the said provision, the prosecution has to establish that the accused has deceived any person and induced the said person fraudulently or dishonestly to deliver any property to any person or to consent that any person shall retain any property. The another limb of the said provision of Sec.415 of IPC is not relevant to the facts of the present case.

In this case, the allegation is that the accused has cheated pilgrims R.Balakrishna and P.Divakar and getting delivery of the cash of Rs.1,300/- from them by cheating them.

4

7) The evidence available in this case is that of PW1

A.Mallikarjuna who worked as Attender-cum-watchman, Vigilance

Department of Tirumala. His evidence is to the effect that on 25.06.2009 at 10 am, while himself and M.Rajan Narasimhulu, another Attender-cum-watchman were on duty at ATC-115, MBC, 29, MBC-26 areas, having found the accused talking with pilgrims, they followed them upto ATC-115, where the accused took two persons inside the office. Further the evidence of PW1 is that after the accused and pilgrims came out of the office, they enquired their names and addresses and came to know that Balakrishna and Diwakar have come to Tirumala along with others in total 23 persons and at MBC-29, the accused approached them stating that they would provide VIP Break tickets and took them to ATC -115 and handed over two letters, one in the name of D.Srinivas,

Minister and another in the name of Chief Minister's office and basing on the said letter, he obtained 23 cellar tickets and that the accused has demadned Rs.2,500/-, but agreed to receive

Rs.1,300/- and that they were about to give money to the accused. Further the evidence of PW1 is that he came to know that the accused was an employee of 'Opportunity' paper and was indulged in sale of tickets for money and was also selling laddus by cheating pilgrims and that the accused was found in possession of Rs.1,300/-, xerox copy of identity card, 3 LPTs, 6 accommodation slips and some letters of people representatives and then he took them to the Assistant Vigilance and Security 5

Officer and drafted Ex.P1 report which was endorsed by the

Assistant Vigilance and Security Officer and was given to the police. He identified Ex.P2 as the two cellar tickets for 23 persons, Ex.P3 two recommendation letters issued by D.Srinivas,

Minister and another from Chief Minister's office, Ex.P6 empty cellar requisition form, Ex.P7 three recommendation letters issued by Narayanaswamy MLA, Subhash Chandra Bose, Minister and

C.Seetharamulu, MLC.

8) PW1 is not the person who is said to have been cheated and who has delivered the cash. He is the only an Attender-cum- watchman of the Vigilance Department of TTD and his evidence only shows that he found the accused and two pilgrims talking each other and coming to know about the accused providing a cellar ticket for 23 persons by taking Rs.1,300/- from the pilgrims.

The documents seized from the possession of the accused marked through PW1 also do not have any link with the charge levelled against the accused. The cross-examination of PW1 shows that no report was given to him by the pilgrims as if they were cheated.

9) The report, Ex.P1 of PW1 is also speaking the same facts stated by PW1. So, the evidence of PW1 only helps the prosecution to show that he is the person who set the law into motion.

10) PW2 R.Balakrishna is a resident of Nanganellore,

Chennai, working as Civil Engineer at Chennai. As per his 6 testimony on 25.06.2009, he along with his family came to

Tirumala totally 23 persons for ear boring ceremony and at about 10 am, while he was sitting at the place of queue line for VIPs, one person went them and enquired them whether they had darshan in the temple and when he stated that they did not have darshan in the temple, the said person stated that he has passes to go for darshan. Further PW2 stated that the said person gave him two letters one for 11 persons and another for 12 persons and took them to the office at ATC and purchased tickets by making payment of Rs.2,300/- and later the said person demanded Rs.2,300/- and so PW2 has given Rs.1,300/- to that person. Further PW2 states that thereafter he went for darshan and while proceeding to darshan, he reported the matter to the vigilance officers at vigilance office and shown the person to the vigilance officers.

11) The evidence of PW2 is different from that of PW1. As per the testimony of PW2 while the pilgrims and the accused were came out of the ATC 115 office, he intercepted them and enquired them and having found the transaction he took them to the Assistant Vigilance and Security Office and on the instructions of Assistant Vigilance and Security Officer, he reported the matter to the police by producing the accused and pilgrims before the police. But PW2 states he himself reported the matter to the

Vigilance officers while proceeding for darshan and he is not stating anything about the testimony given by PW1. Further PW2 7 is not identifying the accused as the person who committed the act stated by him.

12) It is the evidence of PW6 D.V.Nageswara Rao, worked as

Assistant Vigilance and Security Officer, TTD, Tirumala that on 25.06.2009 at 1 pm, PW1 and Narasimhulu produced PW2 and the accused before him stating that the accused cheated pilgrim party by collecting Rs.1,300/- and giving cellar tickets. Further he stated that on his instructions a report was prepared and endorsed to the police. This evidence of PW6 is corroborating the testimony of PW1, but it is not in accordance with the evidence of

PW2 who is the alleged victim in this case. Though PW2 stated that he himself reported the matter to the Vigilance officers, PW6 says that no such report was given by the pilgrims.

13) PW3 S.Venugopal, worked as Asisstant Executive Officer,

Vaikuntam queue complex-I, Tirumala gave evidence about his working at ATC-115 on 25.06.2009 and issuing permission for 11 cellar tickets basing on the recommendation letter of D.Srinivas,

Minister under Ex.P3. Further he stated about his granting permission for 12 cellar tickets in the name of one Sanjay of

Hyderabad on the recommendation letter of S.Ramalingeswara

Sarma, Assistant Secretary to Chief Minister of A.P. Also. Further he stated that he was enquired by the police about sanction of the permission and seized two letters, Ex.P3, but he cannot identify the person who brought him along with Ex.P3. The evidence fo PW3 establishes only issuance of permission for grant 8 of cellar tickets basing on Ex.P3. The said evidence does not show that the accused was the person who approached PW3 and obtained cellar permission.

14) The evidence of PW4 V.Kishore Babu, Editor of

Opportunity Fortnightly that the accused was the reporter of their fortnightly from January, 2007 to June, 2008 and he was removed from their office subsequently. Further he stated that later he came to know that the accused as reporter of their paper was caught while selling seva tickets at Tirumala. The evidence of

PW4 only shows that the accused was the employee of 'Opportunity' Fortnightly and nothing more. The evidence of PW4 that he came to know about the accused being involved in the case cannot prove the facts of the case.

15) It is the evidence of PW7 P.Venkataramana, S.I. of Police,

II town police station at the relevant time that on 25.06.2009 at 7.30 pm, PW1 went to the police station along with PW2,

B.Divakar and M.R.Narasimhulu and presented Ex.P1 report by producing the accused, which he registered as Cr.No.60/2009 under Ex.P9. Further he stated that he recorded the statements of the witnesses and that in the presence of mediators recorded the statements of the accused and seized cash of Rs.1,300/-, two cellar tickets, 3 LPT empty slips, 6 accommodation slips, one empty requisition form, one original recommendation letter of

MLA, Satyavedu, one original recommendation letter of

P.Subhashchandra Bose, one xerox copy of letter of MLC 9

C.Seetharamulu under cover of mahazar, Ex.P10. He identified the documents seized by him under Exs.P2 to P7. Further he stated that on 26.06.2009 he seized one recommendation letter of D.Srinivas, Minister, Ex.P3 along with a letter from Chief

Minster's Peshi from PW3 under cover of police proceedings,

Ex.P4 and after completing the investigation, he filed the charge sheet.

16) The said evidence of PW7 about the arrest of the accused and seizure of the documents and cash from him is not supported by the mediators examined as Pws.5 and 8. PW5 stated that he signed at the police station as Ex.P8 and that he does not know anything about this case. PW8 also stated that he only made signatures on Ex.P12 at the police station and he does not know anything about this case. Both Pws5 and 8 denied the case of the prosecution about the accused being arrested by recording the statement from him seizing cash of Rs.1,300/- and other documents under cover of mahazar. So, the prosecution is not able to establish the seizure of the documents made by PW7.

As already discussed, the other documents sezied by PW1 produced before PW7 cannot prove the ingredients of the offence of 'cheating'. The cross-examination of PW7 shows that no complaint was given by the pilgrims and the documents seized by

PW1 were produced before him and that the name of the accused was not found in any of the recommendation letters or tickets.

10

PW7 has not made any investigation about the letters seized by him belonging to the Minister and Chief Minster's Peshi.

17) The above discussion made with regard to the evidence of Pws.1 to 8 and Exs.P1 to P12 shows that the prosecution is not able to prove the ingredients of the offence of 'cheating' namely deception on PW2 played by the accused and fraudulent or dishonest inducement made by the accused to PW2 to deliver the cash. Even the evidence of PW2 is silent about any deception played on him and any fraudulent or dishonest inducement made to him by anybody to part with money. Even PW2 is not able to identify the accused as the person who approached him and gave him Rs.1,300/- to him. The transaction spoken to by PW2 is already found to be different from the statements made from

Pws.1 and 6 and the prosecution case is inconsistent on this aspect.

18) Even if the transaction spoken to by PW2 is taken as true, the said transaction is not establishing the ingredients of the offence of cheating defined by Sec.415 of IPC which is the main ingredient of the offence under Sec.420 of IPC. Accordingly, I am of the view that the prosecution is not able to establish the charge under Sec.420 of IPC against the accused. Therefore, the accused is entitled for acquittal.

19) In the result, I find the accused not guilty of the charge under Sec.420 of IPC and accordingly, he is acquitted of the 11 same under Sec.248(1) of Cr.P.C. The accused was in judicial custody from 26.06.2009 to 02.07.2009. Bail bond of the accused shall be in force for a period of six months, and thereafter the same shall stand cancelled.

20) The accused is not claiming the case property and he is denying the total prosecution case. So, the unmarked case property ie. cash of Rs.1,300/- entered in C.P.R.No.351/2009 was remitted into Sub-Treasury, Tirupati vide challan No.25144 dt.13.08.2009, and it is ordered to be forfeited to the State, after the appeal time is over.

Dictated to the Personal Assistant, transcribed by him,

corrected and pronounced by me in the open court, this the 23rd day of April, 2012.

Sd/- S.Nageswara Rao

II Addl. Judl. Magistrate of First Class, Tirupati.

Appendix of evidence. Witnesses examined.

For Prosecution :- For Defence :-

PW1 Sri A.Mallikarjuna, Attender - None - PW2 Sri R.Balakrishna PW3 Sri S.Venugopal, AEO PW.4 Sri V.Kishore Babu PW.5 Sri N.Mohan PW.6 Sri D.V.Nageswara Rao, AVSO PW.7 Sri P.Venkataramana, S.I. PW.8 Sri P.Balasubramanyam

Exhibits marked. For Prosecution :-

Ex.P.1 Dt.25.06.2009 Report of PW1 to the Police Ex.P.2 Dt.25.06.2009 Two cellar tickets Ex.P.3 Dt. - - Two recommendation letters Ex.P.4 Dt. - - Three laddu issue slips Ex.P.5 Dt. - - Six accommodation slips Ex.P.6 Dt. - - empty cellar requisition form Ex.P.7 Dt. - - three recommendation letters 12

Ex.P.8 Dt.25.06.2009 signature of PW5 in mahazarnama Ex.P.9 Dt.25.06.2009 FIR in Cr.No.60/20089 of CCS.,Tirumala Ex.P.10 Dt.25.06.209 Mahazarnama for arrest and seizure Ex.P.11 Dt.26.06.2009 Police proceedings for seizure Ex.P.12 Dt.25.06.2009 Signature of PW8 in mahazarnama

For Defence :- Nil

Material objects :- Nil.

Sd/- S.Nageswara Rao

II Addl. Judl. Magistrate of First Class, Tirupati.

1

IN THE COURT OF THE II ADDITIONAL JUDICIAL MAGISTRATE

OF FIRST CLASS :: TIRUPATI

Present:: Sri S.Nageswara Rao, B.A., LL.B., II Additional Judicial Magistrate of First Class.

Thursday, Nineteenth (19th) day of April, Two thousand Twelve

Calendar Case No. 379 of 2010

State represented by Inspector of Police, Central Crime Station, Tirupati.

(Crime No.165/2008) ..Complainant

-Versus-

Shaik Javeed, aged 28 years, s/o Mahaboob Basha, Devalam Street,

Near Pancharathna Talkies, Madanapalle. ..Accused

This case is coming on 18th day of April, 2012 before me for final hearing in the presence of Asst. Public Prosecutor for the State and Sri C.V.Chalapathi, Advocate, Tirupati for the accused and having stood over for consideration till this day, the court delivered the following :

J U D G M E N T

State represented by the Inspector of Police, Central Crime

Station, Tirupati filed charge sheet against the accused in Crime

No.165/2008 for the offences under Sec.457 and 380 or 411 of

Indian Penal Code with the following allegations :

The accused is a resident of Devalam street, Madanapalle. On the night of 03.07.2008 at Bhagavan Electricals situated in shop

No.45, Nethajji Road, Tirupati, some unknown offenders effected entry into the said shop belonging to D.Champalal (PW1) by 2 breaking the ventilator glass of window and committed theft of camera, I-pods, walkmans, cell phones, all worth Rs.35,000/- and escaped with the stolen property. On the report of PW1, case in

Cr.No.165/2008 was registered and investigated by the police.

During the course of investigation, V.Somasekhar Reddy, Inspector of Police, Finger Prints Bureau, Chittoor (PW6) inspected the scene of offence and submitted report that the chance prints preserved from the scene of offence are tallied with finger prints of the accused. During the course of investigation, on 27.02.2010 at 9 am, in front of Big-C mobile shop, near four pillars mandapam,

Tirupati, K.Rasool Saheb, Inspector of Police, Central Crime Station,

Tirupati (PW5) arrested the accused and seized one MP4 Digital player with wires, MP5 player with wires and headphones, Philips

TIP3 player with headphones concerned in this case from the possession of the accused under cover of mahazar attested by mediators. The accused also made confession that one

Rushisekhar @ Rushi also participated the offence along with him and remaining stolen properties with him. The accused was arrested and was sent to judicial custody. Since the efforts for arrest of Rushisekhar @ Rushi failed, charge sheet has been laid against the accused.

2) Cognizance was taken for the offences under Sec.457 and 380 or 411 of IPC and process was issued against the accused. On appearance of the accused, copies of documents were furnished to 3 him under Section 207 of Criminal Procedure Code. After hearing the parties and basing on the material placed on record by the prosecution, a charge under Sec.411 of IPC has been framed against the accused, read over and explained to him. The accused pleaded not guilty claming to be tried.

3) In order to prove the guilt of the accused, the prosecution has examined PWs1 to 6 and marked Exs.P1 to P5 and MOs.1 to 3 on its behalf. Then the accused has been examined under Sec.313 of Criminal Procedure Code. He denied the incriminating evidence available against him. No evidence has been adduced on behalf of the accused.

4) Heard both sides.

5) Now the point for consideration is, whether the prosecution is able to establish the charge levelled against the accused beyond all reasonable doubts.

6) PW1 D.Champalal gave evidence that he is running an electronic shop at Nethaji Road, Tirupati, residing at Karnala street,

Tirupati. He stated that on 04.07.2008 there was theft in his shop by gaining entry into the shop through the ventilator, whereas one

I-pod, one camera, one MP3 player, two cell phones, one walkman were committed theft and he went to the police station and gave

Ex.P1 report to that effect. He identified MO1 I-pod, MO2 MP3 player and MO3 game player as the property which were committed theft. Nothing material could be elicited from the cross- 4 examination of PW1 to rebut his evidence about the occurrence of theft of property from his shop.

7) It is the evidence of PW4 V.Narayanaswamy, Sub Inspector of Police, Central Crime Station, Tirupati that on 04.07.2008 while he was at Central Crime Station, Tirupati at about 10 am, PW1 went to the police station and presented Ex.P1 report which is registered as a case in Cr.No.165/2008 under Secs.457 and 380 of IPC and

Ex.P3 first information report submitted to the court. Further PW4 stated that he visited the scene of offence, observed it and recorded the statements of the witnesses. The said evidence of

PW4 could not be rebutted in the cross-examination by eliciting any material evidence.

8) The evidence of PWs.1 and 4 coupled with Exs.P1 and P3 establishes the occurrence of house breaking and theft in the shop of PW1.

9) It is the evidence of PW5 K.Rasool Saheb, Inspector of

Police, Central Crime Station, Tirumala as on 20.02.2010 and on that day at about 8.30 am, on information, he along with staff proceeded to Gandhi Road, Tirupati by 9 am by collecting mediators and in front of Big-C mobile shop, Tirupati which was closed, the accused was found in front of the shop and when he tried to escape seeing them, he detained him and enquired him. Further PW5 stated that they found one plastic carry bag in the right hand of the accused in each there was three card board boxes containing MP4 5 digital players with head wires, MP5 player wires and head phones,

Phillips players with head phones. Further he stated that the accused made confession about the commission of offence and so he identified the property as stolen property in Cr.No.165/2008, arrested him and seized the property under cover of mahazar,

Ex.P2. Further PW5 stated that he sent the accused to judicial custody and property to the court and after completing investigation he filed charge sheet.

10) PWs2 and 3 are mediators for the arrest of the accused and seizure of the property from his possession. PW2 T.Anand is a resident of Tirupati. He stated that in the year 2010 at about 9 or 10 am while he was coming at four pillars mandapam, Gandhi

Road, Tirupati, Crime police asked him to accompany them to catch offenders in theft cases and at some distance one person was found carrying a plastic bag in his hand and seeing the police jeep the said person tried to escape, but he was detained by the police.

Further PW2 stated that on verification they found electronic goods in the bag and same was seized by the police under report Ex.P2 (admissible portion only). But PW2 is unable to identify the person who was arrested by the police. The said evidence of PW2 remained unrebutted and unchallenged. PW3 P.Ramana Babu, another mediator for Ex.P2 has given a different version. PW3 states that two years prior to his evidence, at about 8 or 9 am while he was proceeding at four pillars mandapam, Gandhi Road, Tirupati 6 police caught two persons while they were in possession of some players in a bag, arrested them and seized the said property and that PW3 signed as a witness on the report prepared by the police marked as Ex.P2. He identifies the accused as one person among the two.

11) From the cross-examination of PW3, it is clear that the house of PW3 is situated nearby the police station. PW3 does not know the designation of the police officers and he does not know who were the other persons present at the time of the said arrest.

He does not know the company of the players that were seized. He does not even know the number of players that were seized. So, the evidence of PW3 shows that he does not know what was the property that was seized. PW4 stated that there were three card board boxes, but PW3 is not at all stating about any card board boxes in which the property was found. Most important fact in this case is that only one accused was arrested by PW5 and property was seized from his possession whereas PW3 states two persons were arrested and property was seized from two persons. He identifies the accused as one among the two persons. This evidence of PW3 completely demolishes the case of the prosecution.

12) PW2 another mediator for Ex.P2 is not identifying the accused as the person who was caught by the police. In view of the discrepant evidence of PW3 and in view of the fact that PW2 is not 7 identifying the accused as the person, there is any amount of doubt in the evidence of PW5 about the arrest of the accused and seizure of the property from his possession. Even PW2 was not giving description of the property that was seized by the police in his presence.

13) The prosecution relies on the evidence of PW6

V.Somasekhar Reddy to connect the accused with the offence. As per PW6 who worked as Inspector of Police, Finger Print Unit, CID,

Chittoor on 04.07.2008 he received phone call from the Inspector of

Police for examination of the scene in Cr.No.165/2008 i.e. shop of

PW1. Further he stated that on the same day at about 10.30 am,

G.Manohar Babu, Finger Print S.I. of Finger Print Unit, Chittoor was sent for examination and development of chance prints and that he developed chance prints marked as A, B and C. Further PW6 stated that on 05.07.2008 after receiving photo copies of the chance prints marked as A, B and C they were found identical with one

Umed, worker in the shop and one chance print marked ‘C’ remained unidentified.

14) Further PW6 stated that on 10.02.2009, he received finger prints search slip of Shaik Javeed i.e. accused who was arrested in

Cr.Nos.253/2008 to 257/2008 and 259/2008 of Central Crime

Station, Tirupati and then he attended the comparison work of chance print marked ‘C’ and found it identical with left ring finger impression of Shaik Javeed i.e. accused and accordingly he 8 prepared report, Ex.P5, and sent it to investigation officer on 12.02.2009 along with photo copy of chance prints marked as ‘C’ i.e. Ex.P4.

15) From the evidence of PW6, it is clear that he is not the person who obtained the alleged chance prints from the scene of offence. The person who obtained the chance prints by name

G.Manohar Babu could not be examined by the prosecution. It is not know from which places the said chance prints were obtained by the said Manohar Babu. In this case, PWs4 and 5 who are investigation officers of this case are not at all stating about the intimating the Finger Print Bureau about the incident and making a request for observing the scene of offence for taking the chance prints. Therefore, the prosecution has failed to prove that the Ex.P4 is the chance print obtained at the scene of offence. The prosecution has not proved that the Finger Print search slip of the accused which was compared by PW6 belongs to the accused.

Accordingly, I am of the view that the evidence of PW6 is of no help to the prosecution to connect the accused with the offence.

16) In view of the above discussion about the evidence of

PWs.2, 3 and 5, it is clear that the prosecution is not able to establish the fact that the accused was found in possession of any stolen properties concerned in this case beyond all reasonable doubts and from the evidence of PW6, the prosecution is unable to 9 connect the accused with the offence. Accordingly, the accused is entitled for acquittal.

17) In the result, I find the accused not guilty of the charge under Sec.411 of IPC and he is acquitted of the said charges under Sec.248(1) of Cr.P.C. The accused has been in judicial custody from 27.02.2010 to 29.03.2010 and 18.04.2012 till this day.

The accused shall be set at liberty forthwith if he is not required in any other case.

18) MOs1 to 3 are in the interim custody of PW1. He shall hold it absolutely after the appeal time is over.

Dictated to the Personal Assistant, transcribed by him,

corrected and pronounced by me in the open court, this the 19th day of April, 2012.

Sd/- S.Nageswara Rao

II Addl. Judl. Magistrate of First Class, Tirupati.

APPENDIX OF EVIDENCE

Witnesses examined For Prosecution :- For Defence :- PW.1 Sri D.Champalal - None - PW.2 Sri T.Anand PW3 Sri T.Ramana Babu PW4 Sri V.Narayanaswamy, S.I. PW5 Sri K.Rasool Saheb, C.I. PW6 Sri V.Somasekhar Reddy, C.I., FPB Exhibits marked For Prosecution :- Ex.P.1 Dt.04.07.2008 Report of PW1 to the police Ex.P.2 Dt.27.02.2010 Mahazarnama for arrest and seizure Ex.P.3 Dt.04.07.2008 FIR in Cr.No.165/2008 of CCS., Tirupati Ex.P.4 Dt.05.07.2008 Photo copy of chance prints Ex.P.5 Dt.12.02.2009 Report of CI of Police, FP Unit, CID, Chittoor (PW6).

For Defence :- Nil. Material objects :

MO.1 one I-pod MO.2 one MP3 player 10

MO.3 one Game player.

Sd/- S.Nageswara Rao

II Addl. Judl. Magistrate of First Class, Tirupati.

1

IN THE COURT OF THE II ADDITIONAL JUDICIAL MAGISTRATE

OF FIRST CLASS :: TIRUPATI

Present:: Sri S.Nageswara Rao, B.A., LL.B., II Additional Judicial Magistrate of First Class.

Thursday, Nineteenth (19th) day of April, Two thousand Twelve

Calendar Case No. 80 of 2011

State, represented by Proh. and Excise Sub-Inspector, Proh. and Excise Station, Tirupati Urban. (Cr.No.61/2010-11) … Complainant -Versus-

D.Lakshmamma, 56 years, w/o Late Raja Reddy, D.No.1-92, S.V.Nagar, Tirupati. … Accused

This case coming before me on 17th day of April, 2012 for final hearing in the presence of Assistant Public Prosecutor for the

State and of Sri M.Hemasundar, Advocate for the accused and upon hearing on both sides and having stood over for consideration till this day this court delivered the following:

J U D G M E N T

State of Andhra Pradesh represented by the Prohibition and

Excise Sub-Inspector, Tirupati Urban laid charge sheet against the accused in Crime No.61/2010-2011 for the offence under Sec.7A r/w 8(e) of the A.P.Prohibition Act, 2005 alleging as follows :

During the raids conducted on 20.11.2010 at about 9 am in front of southern gate of Indira Priya Darshani vegetable market,

Tirupati, the accused was found in possession of one white colour polythene cover bag containing 50 illicitly distilled arrack sachets, each containing 100 ml of I.D. Arrack. Two I.D. Arrack sachets were 2 drawn as samples from the bag for the purpose of chemical analysis, sealed and labelled both the bag and sample packets and a special report was drafted. The same was registeed as

Cr.No.61/2010-11 and the accused was sent to judicial custody.

The Chemical Examiner, Chittoor opined the sample as illicitly distilled arrack, unfit for human consumption and injurious to health. The contraband was ordered to be confiscated by the

Deputy Commission for Prohibition and Excise, Chittoor.

Accordingly charge sheet has been laid.

2) Cognizance was taken for the offence under Sec.7A r/w 8(e) of the A.P. Prohibition Act against the accused and process was issued against her. On appearance of the accused, copies of documents were furnished to her under Sec.207 of Cr.P.C. The accused was examined under Sec.239 of Cr.P.C. She denied the allegations. Charge under Sec.7A r/w 8(e) of the A.P. Prohibition Act was framed against the accused, read over and explained to her.

The accused pleaded not guilty and claimed to be tried.

3) The prosecution examined PWs1 to 3 and marked Exs.P1 to

P4 on its behalf. Then the accused has been examined under

Sec.313 of Criminal Procedure Code regarding the incriminating evidence available against her. She denied the same. No evidence has been adduced on behalf of the accused.

4) Heard both sides.

3

5) Now the point for consideration is, whether the prosecution is able to establish the charge leveled against the accused beyond all reasonable doubts.

6) Out of the witnesses examined for prosecution, PW1 Smt.

B.Indira is the Sub-Inspector of Excise, PW2 M.Ramana is the Head constable of Excise and PW3 M.Krishnamurthy is the Excise Sub

Inspector, Tirupati. Pws1 and 2 are the witnesses for the alleged arrest of the accused and seizure of the property from the possession of the accused and PW3 also another Sub Inspector of

Excise who was present along with PW1.

7) As per the evidence of PW1, on 20.11.2010 at 9 am, while she was conducting raids along with staff, she found the accused standing in front of southern gate of Indirapriyadarshini vegetable market in possession of one blue and white colour polythene cover and since she tried to escape seeing them, on suspicion she detained the accused and questioned about her conduct. Further according to PW1, the accused informed that she was in possession of I.D. arrack and being afraid of, she tried to escape and on that

PW1 tried to secure mediators from the vicinity. But since nobody come forward, she deputed M.Ramana (PW2) Prohibition and Excise

Head constable to secure mediators from Tataiahgunta area, but

PW2 returned and informed that nobody come forward to act as mediators. PW1 stated that she along with staff verified the polythene cover and found 50 illicitly distilled arrack sachets, each containing 100 ml and drawn sample of two sachets, sealed and 4 labelled the sample packets and contraband and arrested the accused by drafting special report, Ex.P1.

8) Further she stated that she returned to the Excise Station, registered a case in Cr.No.61/2010-11 and issued Ex.P2 first information report to the court and then sent the accused to the judicial custody and sent the sample packets to the Chemical

Analyst and sent the contraband for orders. Further she stated that

Ex.P3 Chemical Examiner's report in which the Analyst opined that the sample is “illicitly distilled arrack, unfit for human consumption and injurious to health”. She produced Ex.P4 proceedings of the

Deputy Commissioner for Prohibition and Excise, Chittoor directing to destroy the property and stated that she filed charge sheet in this case.

9) PW2 Head Constable of Excise also gave evidence that on 20.11.2010, she was also present along with PW1, when she found the accused in front of southern gate of Indirapriyadarshini vegetable market at 9 am and seized one white plastic cover containing 50 I.D. arrack sachets of 100 ml each. Further he stated that PW1 tried for mediators, but nobody went forward and PW2 was sent to the market to get mediators and that he tried for mediators, but none come forward to act as mediators and he informed the same to PW1. PW2 also stated about PW1 drawing samples of 2 I.D. arrack sachets, sealing and labelling the sample packets and other sachets and affixing identity slips and preparing

Ex.P1 special report.

5

10) PW3 another Sub-Inspector of Excise also stated that on 20.11.2010 at 9 am during the raids conducted by himself and another Sub Inspector and staff at southern gate of

Indirapriyadarshini vegetable market, Tirupati, he found the accused in possession of one white and blue colour polythene cover in her right hand and tried to escape seeing them, but she was detained and enquired. Further PW3 stated that the accused revealed that the cover contains I.D. arrack sachets and then they examined the cover and found 50 I.D. arrack sachets, each 100 ml and have tried for mediators in the vicinity even through PW2, that

PW1 has drawn samples of 2 packets for chemical analysis and prepared special proceedings, Ex.P1. Further he stated that the accused was brought to the Excise station along with the property and PW1 registered the case. PW3 states that he sent the property to the Deputy Commissioner of Prohibition and Excise, Chittoor for orders and property was destroyed as per the order of the

Commissioner under Ex.P4 and then he filed charge sheet.

11) In this case PW1 has submitted the sample packet to

Chemical Examiner and obtained the Chemical Examiner's report.

There is no dispute about the said evidence of PW1 and about

Ex.P3 Chemical Examiner's report.

12) PW1 stated that she has sent the property to the Deputy

Commissioner for Prohibition and Excise,Chittoor and obtained

Ex.P4 proceedings, whereas PW3 also states that he sent the property to the Deputy Commissioner for Prohibition and Excise, 6

Chittoor and obtained proceedings and he filed charge sheet. In this case the charge sheet has been filed by PW3, but not by PW1.

13) As per Pws.1 and 3, the accused was found in possession of white and blue colour polythene cover, whereas PW2 states that it is white colour. All the three witnesses Pws1 to 3 are officials of

Excise Department and no independent witness is coming forth from the side of the prosecution. Admittedly the place of arrest is a busy area and alleged arrest took place at 9 am in broad day light.

It has to be seen whether there was serious effort by PW1 to secure the mediators. PW1 stated that he tried for mediators, but nobody come forward in the vicinity. She has not stated that who are the persons refused to come and act as mediators. She has not issued any summons to anybody to get their presence as mediators.

14) Coming to securing the mediators by sending PW2, PW1 has sent the PW2 to secure mediators to Tataiahgunta. But PW2 states that he was sent to the market to secure mediators, but not

Tataiahgunta. Even PW2 who was sent to secure the mediators also did not issue any summons to anybody to act as mediators. PW2 also is unable to state the names of the persons who refused to act as mediators even though requested by him. PW3 also stated that they tried to secure the mediators. Thus, the evidence of Pws.1 to 3 shows they have not made serious efforts to secure independent witness for the arrest of the accused and seizure of the property though available at the scene of offence. In view of the fact that all the three witnesses are belonging to Excise department and are 7 interested to the prosecution, therefore, I am of the view that in the absence of any independent evidence though available, their evidence cannot be relied upon. The accused is totally denying the prosecution case about her arrest and seizure of the property from her possession.

15) Ex.P4 is the proceedings of the Deputy Commissioner for

Prohibition and Excise, Chittoor ordering destruction of the property.

From a reading of Ex.P4, it is clear that the said order was made under Sec.13(2) of the A.P. Prohibition Act, 2005. No panchanama is filed into the court about the compliance of the orders passed under Ex.P4. No destruction certificate has been filed as required by the said proceedings. No evidence is placed to show that the property was destroyed in the presence of responsible officers under cover of panchanama. So, it is clear that the prosecution has failed to follow the mandatory provisions Sec.13(2) of the Act in dealing with the property. This creates doubt about the existence of the property itself.

16) In view of the aforesaid discussion, I am of the view that the prosecution is unable to establish its case against the accused beyond all reasonable doubts and therefore, the accused is entitled for acquittal.

17) In the result, I find the accused not guilty of the charge under Sec.7A r/w 8(e) of the A.P.Prohibition Act and she is acquitted of the same under Sec.248(1) Cr.P.C. Accused was in judicial custody from 01.05.2009 to 25.07.2009 and from 8 20.11.2010 to 26.11.2010. Bail bond of the accused shall be in force for a period of six months and thereafter the same shall stand cancelled.

18) The unmarked case property i.e. unspent portion of sample sachets shall be destroyed after the appeal time is over.

Dictated to the Personal Assistant, transcribed by him,

corrected and pronounced by me in the open court, this the 19th day of April, 2012.

Sd/- S.Nageswara Rao

II Addl. Judl. Magistrate of First Class, Tirupati.

APPENDIX OF EVIDENCE

Witnesses examined

For Prosecution :- For Defence :-

PW.1 Smt. B.Indira, P&E SI- None - PW.2 Sri M.Ramana, P&E HC PW.3 Sri M.Krishnamurthy, P&E SI

Exhibits marked For Prosecution :-

Ex.P.1 Dt.20.11.2010 Special Report for arrest and seizure Ex.P.2 Dt.20.11.2010 FIR in Cr.No.61/2010-2011 of P&E Station, Tirupati Ex.P.3 Dt.28.01.2011 Chemical Analysis report. Ex.P.4 Dt.22.02.2011 Proceedings of the D.C. for P&E , Chittoor.

For Defence :- Nil.

Material objects : Nil.

Sd/- S.Nageswara Rao

II Addl. Judl. Magistrate of First Class, Tirupati.