Smt. S. Premavathi

1

IN THE COURT OF THE I ADDITIONAL SESSIONS JUDGE, KARIMNAGAR

PRESENT: SMT. S. PREMAVATHI,

I ADDITIONAL SESSIONS JUDGE,

KARIMNAGAR.

Tuesday, the 08th day of April, 2019

S.C. No. 128 of 2016

Name of the complainantThe state through Sub Inspector of Police, Dharmapuri in (Cr. No. 237 of 2015 of Dharmapuri P.S.)

Name of the accusedA-1 Ganaveni Thirupathi, S/o Pedda Gangaiah, aged 24 Yrs, Golla, R/o Gopulapur village of Dharmapuri Mandal

A-2 Ganaveni Pedda Gangaiah, S/o Bhumaiah, aged 55 Yrs

A-3 Ganveni Gangamallavva, W/o Pedda Gangaiah, aged 50 yrs,

Both case by Golla and R/o Gopulapur village of Dharmapuri Mandal ChargesUnder Sections 417, 420, 376 (2) (n) of IPC, Section 5 (L) read with 6 of POCSO Act against A-1 and under Section 506 of IPC against A-2 and A-3

Plea of the accusedNot guilty

Finding of the CourtNot guilty

Sentence or orderIn the result, accused No.1 to 3 are found not guilty for the offences under Sections 417, 420, 376 (2) (n) of IPC, Section 5 (L) read with 6 of POCSO Act against A-1 and under Section 506 of IPC against A-2 and A-3 and accordingly they are acquitted under Section 235 (1) of Cr.P.C. The bail bonds of accused shall stand cancelled six months after the judgment under Section 437 (A) of Cr.P.C . Prosecution conducted byAdditional Public Prosecutor Accused defended bySri E. Madhusudhan Rao, Advocate

This case is coming on 22-03-2019 before me for final hearing, in the presence of Additional Public Prosecutor for the complainant and of

Sri E. Madhusudhan Rao, Advocate for accused, and upon perusing the 2 material evidence on record and the matter having stood over for consideration till this day, the Court delivered the following:

J U D G M E N T

01.The Sub-Divisional Police Officer, Jagtial filed Charge Sheet in Cr.

No. 237 of 2015 under Sections 417, 420, 376 (2) (n) of IPC, Section 5 (L) & 6 of POCSO Act against the accused.

02. The brief contents of the charge sheet are that :

On 05-12-2015 at 1000 hours received complaint which was referred by the Hon’ble I Additional Judicial Magistrate of First Class

Court, Jagtial in which the complainant stated that when she was pursuing Intermediate education during the year 2013-14, the A-1 developed intimacy with her and thereafter sexually exploited on various occasions by saying that he will definitely marry her and the accused

No.1 under influence of her parents postponed to marry her from one day to another day. Later, her parents performed her marriage with L.

Anil son of Gangaiah resident of Kasipet village of Dandepally Mandal of

Adilabad district on 29-01-2015 as per Hindu Customs prevailing in her community. After marriage she assumed the marital society with said

Anil and when they are leading happy marital life, the A-1 used to make frequent phone calls to her to give divorce and marry him, otherwise he will hang to death but she tried to convince the A-1 stating that it is not possible to remarry the A-1, but the A-1 continued his harassment and used to send false messages to her husband with false allegations and warned to give divorce to her. In this regard a panchayat was convened and said panchayat elders of both sides were attended and after hearing from both sides the elders warned the A-1 for not sending any false messages to her husband, but even after the binding the A-1 used to 3 send fabricated messages to her husband. Due to said ill acts of the A-1 her husband left her at her parents house and refused to continue marital ties. Thereafter she along with her parents approached the

Inspector of Police Dharmapuri to resolve the foregoing issues. Then

Inspector of Police, Dharmapuri conducted the family counselling with the senior family counselling team and requested her husband L. Anil to lead happy marital life with the victim, but her husband did not agreed to the request of the C.I of Police, Dharmapuri and other elders and gave divorce to her in the same month i.e., September 2015. After divorce the victim has been staying along with her parents house at Gopulapur village of Dharmapuri Mandal. After divorce of the victim with the L.

Anil, the A-1 used to interact with her at the outside of her house, making phone calls to her, lured sweet words that he is loving her and he will not live if she refused him and promised her that he will marry her and requested to come to Hyderabad along with Gold and net cash of Rs.50,000/- and he will make necessary marriage arrangements.

Accordingly, the victim trusted the same and went from her house on 01-11-2015 by taking the Gold and net cash of Rs.40,000/- and went to the bus stand, Dharmapuri and the A-1 came there and from there both were went to the Hyderabad in R.T.C bus. On 02-11-2015 the A-1 kept the victim in his room and introduced his friends namely one Ramesh,

Mahesh and Suresh and took her to hotel for dinner and after accused

No.1 cohabited and enjoyed her sexually continuously for three days informed her that it is the week of Gathavaram, as such said days are not good days for marriage and brought her back to Jagtial new bus stand on 05-11-2015 at 04:30 AM. After arrival the victim informed to her parents and accordingly her parents came there and picked up their daughter/victim and requested the A-1 to accept their daughter as wife, but the A-1 denied to accept as wife and warned not to contact him 4 again. Thereafter, the victim/LW-1 along with her parents LW-2 G. Ilaiah and LW-3 G. Rajavva left Dharmapuri at 07:30 AM and reached the

Gopulapur village of Dharmapuri Mandal and requested the A-1’s parents to accept their daughter as their daughter in law, but the A-1’s parents i.e., A-2 and A-3 have denied to accept their daughter as their daughter in law and also threatened them and their relatives with dire consequences. She helplessly approached to the kind Superintendent of

Police, Karimnagar on 06-11-2015 and gave a written complaint and accordingly the Superintendent of Police, Karimnagar endorsed the same petition to the C.I of Police, Dharmapuri for enquiry and take necessary action as per the law and report compliance, but the Dharmapuri police has did not do any justice to her and not gave any receipt to her.

Therefore, the complainant has requested to take necessary action against the accused and do justice to her.

3.Basing on the endorsement by the Hon’ble I Additional Judicial

Magistrate of First Class, Jagtial the LW-22 G. Buchi Reddy, A.S.I of Police,

Dharmapuri Police Station has registered a case in Cr.No.237 of 2015 under Sections 417, 420, 376, 506 of IPC and under Section 156 (3) of

Cr.P.C of P.S. Dharmapuri, issued express F.I.R., to the Hon’ble court, informed over phone to all the concerned officers for favour of information and took up the investigation. As the offence is grave in nature LW-22 G. Buchi Reddy, A.S.I of Police, Dharmapuri Police Station handed over the C.D.File to LW-23 M. Venkata Ramana, C.I of Police,

Dharmapuri for further investigation into the case.

4.Accordingly, on receiving the express F.I.R., on the same day on 05-12-2015 at 1130 hours the LW-23 M. Venkata Ramana, C.I of Police,

Dharmapuri taken up the C.D.File from LW-23 M. Venkata Ramana, C.I of 5

Police, Dharmapuri and verified the investigation done by LW-22 G. Buchi

Reddy, A.S.I of Police, Dharmapuri P.S. and found it on correct lines.

During the course of investigation LW-23 M. Venkata Ramana, C.I of

Police, Dharmapuri visited the scene of offence that is Gopalpur village where secured the complainant, examined her with the help of Women

Head Constable and recorded her statement under Section 161 Cr.P.C.

Later, LW-23 M. Venkata Ramana, C.I of Police, Dharmapuri examined and recorded the statements of LW-2 to LW-5 G. Ilaiah, G. Rajavva, G.

Laxminarsaiah, G. Narayana. After that LW-23 M. Venkata Ramana, C.I of

Police, Dharmapuri secured presence of LW-12 G. Rajanna and LW-13 N.

Vijaya and drew rough sketch of scene of offence and incorporated the same details in crime detail form before the same mediators. Later, LW- 23 M. Venkata Ramana, C.I of Police, Dharmapuri filed requisition before the Deputy Medical Officer, Government Civil Area Hospital, Jagtial for examination and report whether she sexually exploited or not. On 07- 12-2015 the LW-23 M. Venkata Ramana, C.I of Police, Dharmapuri visited the Hyderabad where he secured the presence of two mediators LW- 7Chineveni Mahesh and LW-8 Konda Suresh and draw a rough sketch of the scene of offence and incorporated the same in crime detail form in their presence and later LW-23 M. Venkata Ramana, C.I of Police,

Dharmapuri examined and recorded the statements of LW-6 to LW-9 S.

Ramesh, C. Mahesh, K. Suresh, G. Dharmaiah. Later, on 08-12-2015 the

LW-23 M. Venkata Ramana, C.I of Police, Dharmapuri visited the Jagtial and secured the presence of two mediators LW-15 S. Gangadhar and LW- 16 A. Sanjay and drew a rough sketch of the scene of offence and incorporated the same in the crime detail form in their presence. Later,

LW-23 M. Venkata Ramana, C.I of Police, Dharmapuri referred the complainant to the Professor, K.M.C.Warangal to obtain the age determination certificate to ascertain the age of the victim under the 6 escort of W.P.C.No.1354 of P.S.Dharmapuri. The LW-23 M. Venkata

Ramana, C.I of Police, Dharmapuri also filed a requisition before the

Hon’ble Judicial Magistrate of First Class Court at Metpalli with a prayer

to fix a date and issue the summons to the victim for recording the 164

Cr.P.C statement. The LW-23 M. Venkata Ramana, C.I of Police,

Dharmapuri filed a requisition to Superintendent of Police, Karimnagar with a request to depute one women police officer to record the statement under Section 161 Cr.P.C along with videography. Accordingly,

LW-17 A.B.Durga, Women Sub-Inspector of Police, C.C.S.Karimnagar examined and recorded the statements of complaint under Section 161

Cr.P.C along with videography with the help of local videographer LW-10

G. Dharmaiah.

5.On 14-12-2015 on reliable information LW-23 M. Venkata Ramana,

C.I of Police, Dharmapuri along with his staff rushed to Gopulapur village of Dharmapuri mandal at 07:00 Am and apprehended the A-1 and interrogated him thoroughly. During the course of interrogation A-1 voluntarily confessed to have committed the offence. Then Lw-23 M.

Venkata Ramana, C.I of Police, Dharmapuri brought the A-1 to police station Dharmapuri at 08:00 AM and effected his arrest and completed arrest formalities. Later, A-1 was produced before the LW-20 Dr.

Praveen, C.A.S., Government Area Hospital, Jagtial Deputy Medical

Officer, Government Civil Area Hospital, Jagtial for his medical examination and Potency test report. After his medical examination he was produced before the Hon’ble Court for his judicial remand and collected the Potency test report of the A-1 from LW-20 Dr. Praveen,

C.A.S.Government Area Hospital, Jagtial, in which the duty medical officer has opined that “there is no evidence to state that the accused is incapable of doing sexual intercourse”.

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6.Subsequently, LW-23 M. Venkata Ramana, C.I of Police, Dharmapuri collected the age determination certificate of the victim from LW-19 Dr.

K.P.Vasantha Kumar, Assistant Professor, Forensic Medicine Department,

K.M.C.Warangal in which the Assistant Professor, K.M.C.Warangal has opined that “basing on the physical, dental and radiological examination the age of the victim is 18 to 20 years”.

7.Subsequently, LW-23 M. Venkata Ramana, C.I of Police, Dharmapuri collected the final opinion from LW-18 Dr. N. Sudhakshina Devi, Civil

Assistant Surgeon, Government Area Hospital, Jagtial in which the lady duty medical officer has opined that “possibility of having had sexual intercourse cannot be ruled out”. On requisition filed by LW-23 M.

Venkata Ramana, C.I of Police, Dharmapuri, the LW-21 N. Santhosh

Kumar, Judicial Magistrate of First Class, Metpalli learned Judicial

Magistrate of First Class at Metpally recorded the statement of victim girl

under Section 164 of Cr.P.C.

8.On 04-05-2016 the LW-23 M. Venkata Ramana, C.I of Police,

Dharmapuri transferred and on the same day the LW-24 Ch. Srinivas, C.I of Police, Dharmapuri transferred and posting to Dharmapuri as

Inspector of Police, the LW-24 Ch.Srinivas, C.I of Police, Dharmapuri taken up the C.D.File from LW-23 M. Venkata Ramana, C.I of Police,

Dharmapuri for further investigation into the case and verified the investigation done by LW-23 M. Venkata Ramana, C.I of Police,

Dharmapuri.

9.On 08-06-2016 LW-24 Ch.Srinivas, C.I of Police, Dharmapuri went to Kazipet village of Dandepally Mandal of Adilabad district, examined and recorded the statement of LW-11 L. Anil. On 14-07-2016 the LW-24

Ch.Srinivas, C.I of Police, Dharmapuri went to Gopalpur village of 8

Dharmapuri Mandal and filed a requisition before Head Master LW-14 G.

Venugopal with a request to issue the Study, Conduct and Date of Birth

Certificate of the victim and collected the same and recorded his statement. After LW-24 Ch.Srinivas, C.I of Police, Dharmapuri examined and recorded the statements of LW-12 G.Rajanna and LW-13 N. Vijaya who are the victim village caste elders.

10.During the course of investigation the ingredients of Section 417, 420, 376 (2) (n), 294 (b), 506 of IPC and under Section 5 (l) and 6 of

Protection of Children from Sexual Offences Act are attracting into this case, hence, LW-24 Ch.Srinivas, C.I of Police, Dharmapuri sent the alteration memo to the Hon’ble I Additional Sessions Judge, Karimnagar.

During the course of investigation the prima-facie case made out against the accused No.2 and 3 where the parents of the accused No.1. Then on 14-07-2016 the LW-24 Ch.Srinivas, C.I of Police, Dharmapuri has served 41-A Cr.P.C notice to A-2 and A-2 to appear before the LW-24 Ch.Srinivas,

C.I of Police, Dharmapuri, accordingly, they appeared and fulfilled the documents of the notices and also executed a bond to appear before the

Hon’ble Court as and when received summons from this Hon’ble Court.

11.On 15-07-2016 as the offence is grave in nature and as per the circular this case should be investigated by not below the rank of Sub-

Divisional Police Officer, then the LW-25 S. Rajendra Prasad, Sub-

Divisional Police Officer, Jagtial taken up the C.D.File from LW-24

Ch.Srinivas, C.I of Police, Dharmapuri for further investigation into this case and verified the investigation done by LW-24 Ch.Srinivas, C.I of

Police, Dharmapuri and found it on correct lines. Thus the A-1 has committed an offence punishable under Sections 417, 420, 376 (2) (n) of

IPC and under Section 5 (l) and 6 of Protection of Children from Sexual 9

Offences Act, where as the A-2 and A-3 are liable for punishment under

Section 294 (b), 506 of IPC.

12.The case was taken on file for the offence punishable under sections 417, 420, 376 (2) (n) of IPC, Section 5 (L) read with 6 of POCSO

Act against the accused No.1 and under Section 294 (b), 506 IPC against

A-2 andA-3 by my learned Predecessor in Office. On appearance of the accused, copies of the case record relied upon by the prosecution were furnished to the accused as contemplated under Sec. 207 Cr.P.C.

13. On receipt of summons, accused appeared before this court and

Sri E. Madhusudhan Rao, Advocate filed memo of appearance on behalf of accused. While the matter stood posted for framing of charges, charges against accused under sections 417, 420, 376 (2) (n) of IPC,

Section 5 (L) read with 6 of POCSO Act against A-1 and under Section 506 of IPC against A-2 and A-3, have been framed, read over and explained to the accused, for which he pleaded not guilty and claimed to be tried. Accordingly, trial has commenced.

14.To substantiate its case, the prosecution has examined PW-1 to

PW-8 and got marked Ex P-1 to Ex P-26. Ex P-1 is the Signatures of the

Complainant on Private Complaint, Ex P-2 is the Signature of PW-5

Crime Detail Form dated 07-12-2015 at 1230 noon, Ex P-3 is the Private

Complaint, Ex P-4 is the First Information Report, Ex P-5 is the Crime detail form dated 05-12-2015, Ex P-6 is the Crime detail form dated 05- 12-2015, Ex P-7 is the Crime detail form dated 05-12-2015, Ex P-8 is the

Age determination certificate dated 05-12-2019, Ex P-9 is the Medical examination of victim, dated 05-12-2015, Ex P-10 is the Medical examination report, dated 07-12-2015, Ex P-11 is Age certificate dated 14-12-2015, Ex P-12 is Requisition of potency test dated 14-12-2015, Ex 10

P-13 is the Potency test opinion dated 16-01-2016, Ex P-14 is Final opinion dated 04-01-2016, Ex P-15 is Requisition for the record of 164

Cr.P.C of victim, Ex P-16 is Requisition for date of birth certificate of victim girl dated 14-07-2016, Ex P-17 is Date of birth certificate of victim girl dated 14-07-2016, Ex P-18 is 164 Cr.P.C Statement of the victim, Ex

P-19 is Compact Disk, Ex P-20 is 161 Cr.P.C Statement of PW-1, Ex P-21 is 161 Cr.P.C Statement of PW-2, Ex P-22 is 161 Cr.P.C Statement of PW-3,

Ex P-23 is 161 Cr.P.C Statement of PW-4, Ex P-24 is 161 Cr.P.C Statement of PW-5, Ex P-25 is 161 Cr.P.C Statement of PW-6, Ex P-26 is 161 Cr.P.C

Statement of PW-7. (Ex P-3 to Ex P-26 are marked through PW-8).The learned Addl.P.P., has given up the evidence of LW-3,4,8,10,11 and 13 to 22 and 24, 25 endorsing that “as the victim and other material

witnesses turned hostile, the examination of these witnesses

serves no useful purpose, hence, given up”.

15.After completion of the prosecution evidence, the accused was examined under Sec. 313 Cr.P.C., confronting the incriminating evidence found in the prosecution witness/PW-8 for which the accused denied the same and reported no defence evidence.

16. Heard the learned counsel appearing on both side.

17. Now the point that arise for consideration is :

Whether the prosecution has proved the guilt of the accused beyond reasonable doubt in respect of the charge laid against them?

POINT:

18.The prosecution case is that PW-1 is the victim girl, PW-2 and LW-3

G. Rajavva are the parents of PW-1 and they are residents of Gopalpur village of Dharmapuri mandal. The A-1 is the son of A-2 and A-3. When 11

PW-1 was studying Intermediate education during the year 2013-14 the

A-1 developed lust over her and evil eye to fulfill his desire. Accordingly, the A-1 developed acquaintance with the PW-1 by telling optimistic words and promised to marry her. On believing the lured words of the A- 1, the PW-1 fallen in love with the A-1 and the A-1 induced her with sweet words and enjoyed her sexually on various occasions. In this connection on 29-01-2015 the PW-1 parents PW-2 and LW-3 G. Rajavva solemnized the marriage of PW-1 with LW-11 L. Anil, but, the A-1 frequently made calls to PW-1 and threatened her to give divorce to her husband otherwise he will commit suicide. The PW-1 requested the A-1 and tried to convince him saying that she is already married, and leading her marital life with her husband. But, the accused No.1 did not change his attitude and continuously made phone calls and sending messages with false allegations to husband of PW1. It resulted into divorce to PW1 by her husband LW-11 L. Anil. Since then the A-1 started moving around the PW-1 and lured her with deceitful words that he will marry her and lead to go to Hyderabad where he will marry her.

Accordingly, on believing the optimistic words of A-1, the PW-1 fell in love with the accused No.1. On 02-11-2015 the A-1 took the victim to

Hyderabad, where he took a room along with PW-4, PW-5 and LW-8 K.

Suresh and, there he spent with the victim and enjoyed with her sexually. On the next day i.e., on 03-11-2015 the A-1 and PW-1 returned to Jagtial then the PW-1 approached the A-2 and A-3 who are the parents of A-1 and informed about their love affair. But they refused to perform the marriage of A-1 with PW-1 and also threatened her with dire consequences and abused her in filthy language.

19.In order to prove the case of the prosecution, the prosecution has got examined PW-1 to PW-8 wherein PW-1 deposed that A-1 did not 12 move around her and he never expressed his love towards her and never committed any sexual assault on her and never disturbed her family life with LW-11 L.Anil, never took her to Hyderabad and never ravished her in the friends room of A-1 at Hyderabad and did not bring her to Jagtial and she never went to the house of A-1 and, A-2 andA-3 never abused her. The prosecution version is that LW-22 G. Buchi Reddy,

A.S.I of Police, Dharmapuri has received a private complaint referred by the I Additional Judicial Magistrate of First Class Court, Jagtial in which the PW-1 is the complainant wherein she has made allegations against the A-1 herein. But, the PW-1 explicitly denied as to the factum of making private complaint against the accused and pleads ignorance about the contents in the private complaint referred by the learned I

Additional Judicial Magistrate of First Class at Jagtial. PW1 though

admitting the photographs affixed on private complaint is that of herself but at the same time explicitly pleads that advocate who filed the complaint on her behalf is not known to her.

20.Except admitting the signatures appearing on under Ex P-1 said to be of the complainant/PW-1, she pleads ignorance about the contents in the said private complaint. Going through the evidence of PW-1 it shows that accused never harassed her much less harassed sexually and she was never subjected to the offence of rape by taking her to a room at

Hyderabad. The evidence of PW-2 who is none other than the father of

PW-1 is also on the same lines of the evidence of PW-1 stating that nobody cheated PW-1 and nobody abused her. Going through the evidence of PW2 it shows that PW-1’s marriage is performed with LW-11

L. Anil but subsequently it was came to be dissolved . But, it is not the evidence PW2 that marriage of PW1 with LW11 is came to be dissoved on account of alleged acts of A1.

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21.Going through the evidence of PW-4 and PW-5, the prosecution version that A-01 took PW-1 to the Hyderabad luring her with sweet words and enjoyed her sexually in a room at Hyderabad on 02-11-2015 is remained bare allegation since PW4 and PW5 deposed that they were never informed by A1 with regard to the prosecution version and A1 never brought any women much less PW1 to their room at any point of time. Further, the evidence of PW-6 who is said to be caste village elder is also not showing any incriminating against the accused. According to him police never prepared crime detail form No1 at Gopulapur village in his presence and no panchnama was drafted. The prosecution says that

PW-7 is the friend of the A-1 at Hyderabad where accused introduced the

PW-1 to him as his lover. But, PW7 deposed that A-1 did not bring any girl to his room and he did not introduce PW1 as girl friend of the A1 and he is going to marry her.

22.Though the PW-8 shows that he conducted investigation on various dates and examined PW-1 to PW-7 and they stated before him as in Ex P- 20 to Ex P-26 showing the guilt on the part of the A-1 to A-3 for the charged offences. But, on the other hand PW-1 to PW-7 entering into the witness box explicitly states that they were never examined by any police much less by PW-8 and they never stated anything before any police much less as in Ex P-20 to Ex P-26. Therefore , much value can not be given to the evidence of PW8 and Ex.P20 to Ex.P26 since they go contrary to the evidence of PW1 to PW7. It is required to see that the learned Addl.P.P., in the present case has given up the evidence of LW- 3,4,8,10,11 and 13 to 22 and 24, 25 stating that the material witnesses i.e., PW-1 and PW-2 did not support the prosecution version, hence the examination of LW-3,4,8,10,11 and 13 to 22 and 24, 25 is not at all useful to prove the case of the prosecution. Hence, no value be given 14 to Ex P-3 to Ex P-26 since they are marked through PW8 but not the persons concerned. Therefore, on the conglomeration of the facts and evidence as referred above, there appears no single piece of evidence against the A-1 to A-3 showing the guilt of the accused for the charged offences except the evidence of PW8. Here it is required to see that

PW8 is none other than the official who conducted investigation.

23.But, in the present case it is required to see the victim examined as PW1 who is also eye witnesses to the crime said to have been committed by the accused , failed to depose any evidence against the accused. Ex P-18 marked through PW-8 shows the evidence incriminating the accused in the offences charged against him, but the

PW-1 who is said to have given the statement under Section 164 of

Cr.P.C marked under said Ex P-18 explicitly deposed that she gave said statement before Judicial Magistrate of First Class, Metpalli at the instance of police, but, not on her will. Hence, no weight can be given to

Ex P-18 considering the case of prosecution as PW-1 herself deposes that

Ex P-18 is not on her own will and it is out come of tutoring by the police.

When the victim eye witness failed to depose the acts of the accused, the other evidence on record even though corroborating the allegations of the prosecution, it could not be considered for the fact that direct eye witness did not speak any crime being committed by the accused. The evidence of PW-8 for deposing the accused committed the offences charged under Sections 417, 420, 376 (2) (n) of IPC, Section 5 (L) read with 6 of POCSO Act against A-1 and under Section 506 of IPC against A- 2 and A-3 is based on investigation done by him which is primarily connects to the report marked under Ex P-1 given by PW-1. As stated supra, when PW1 herself did not speak the case of the prosecution there can be no basis made out by the prosecution to suggest that it is able to 15 prove the guilt of the accused with which they were charged.

Therefore, it can be held that prosecution is failed to bring any evidence on record incriminating the accused with the offences charged against them. Hence, the accused are entitled to be acquitted. Thus, the point is answered against the prosecution.

24.In the result, accused No.1 to 3 are found not guilty for the offences under Sections 417, 420, 376 (2) (n) of IPC, Section 5 (L) read with 6 of POCSO Act against A-1 and under Section 506 of IPC against A- 2 and A-3 and accordingly they are acquitted under Section 235 (1) of

Cr.P.C. The bail bonds of accused shall stand cancelled six months after the judgment under Section 437 (A) of Cr.P.C.

Typed to my dictation by Stenographer on Computer, Corrected and Pronounced by me in the open Court, this the 08th day of April, 2019.

I Additional Sessions Judge, Karimnagar.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR THE PROSECUTION: FOR THE DEFENCE:

PW.1 G. Anitha- None - PW.2G. Ailaiah PW.3G. Narayana PW.4S. Ramesh PW.5Ch. Mahesh PW.6G. Rajanna PW.7M. Shekar PW.8M. Venkata Ramana

Exhibits Marked:

FOR THE PROSECUTION:

Ex.P.1Signature of the Complainant on private complaint Ex.P.2Signature of PW-5 on crime detail form dated 07-12-2015 at 1230 noon Ex.P.3Private complaint Ex.P.4First information report Ex.P.5Crime detail form dated 05-12-2015 16

Ex.P.6Crime detail form dated 05-12-2015 Ex.P.7Crime detail form dated 05-12-2015 Ex.P.8Age determination certificate dated 05-12-2015 Ex.P.9Medical examination of victim dated 05-12-2015 Ex.P.10Medical examination report dated 07-12-2015 Ex.P.11Age determination certificate dated 14-12-2015 Ex.P.12Requisition of potency test dated 14-12-2015 Ex.P.13Potency test opinion dated 16-01-2016 Ex.P.14Final opinion dated 04-01-2016 Ex.P.15Requisition of the record of 164 Cr.P.C of victim Ex.P.16Requisition date of birth certificate of victim girl dated 14- 07-2016 Ex.P.17Date of birth certificate of victim girl dated 14-07-2016 Ex.P.18164 Cr.P.C Statement of the victim Ex.P.19Compact Disk Ex.P.20161 Cr.P.C Statement of PW-1 Ex.P.21161 Cr.P.C Statement of PW-2 Ex.P.22161 Cr.P.C Statement of PW-3 Ex.P.23161 Cr.P.C Statement of PW-4 Ex.P.24161 Cr.P.C Statement of PW-5 Ex.P.25161 Cr.P.C Statement of PW-6 Ex.P.26161 Cr.P.C Statement of PW-7

FOR THE DEFENCE:

---Nil---

Material objects Marked

---NIL---

I Additional Sessions Judge, Karimnagar.

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IN THE COURT OF THE I ADDITIONAL SESSIONS JUDGE, KARIMNAGAR

PRESENT: SMT. S. PREMAVATHI,

I ADDITIONAL SESSIONS JUDGE,

KARIMNAGAR.

Monday, the 15th day of April, 2019

S.C. No. 52 of 2015

Name of the complainantThe state through Circle Inspector of Police, Sulthanabad in (Cr. No. 103 of 2014 of Julapalli P.S.)

Name of the accusedA-1 Egurala Mallikarjun, S/o Mondaiah, aged 30 Yrs, Kurma, R/o Vidyanagar, Karimnagar

A-2 Egurla @ Peddi Premaleela, W/o Thirupathi, aged 35 Yrs, Kurma, R/o Vidyanagar, Karimnagar

ChargesUnder Section 354-D of IPC, Section 12 of POCSO Act, Section 66 of I.T.Act

Plea of the accusedNot guilty

Finding of the CourtNot guilty

Sentence or orderIn the result, accused No.1 and 2 are found not guilty for the offences under Sections 354-D of IPC, under Section 12 of POCSO Act, Section 66 of I.T.Act and accordingly they are acquitted under Section 235 (1) of Cr.P.C. The bail bonds of accused shall stand cancelled six months after the judgment under Section 437 (A) of Cr.P.C. The M.O.1 and M.O.2 shall be confiscated to the State by following due procedure of Law.

Prosecution conducted byAdditional Public Prosecutor

Accused defended bySri V. Raghuraman, Advocate

This case is coming on 26-03-2019 before me for final hearing, in the presence of learned Additional Public Prosecutor for the complainant and of Sri V. Raghuraman, Advocate for accused, and upon perusing the material evidence on record and the matter having stood over for 2 consideration till this day, the Court delivered the following:

J U D G M E N T

1.The Circle Inspector of Police, Sulthanabad of P.S. Julapalli filed

Charge Sheet in Cr. No. 103 of 2014 under Section 354-D of IPC, under

Section 12 of POCSO Act and under Section 66 of Information Technology

Act against the accused.

2. The brief contents of the charge sheet are that :

On 03-09-2014 at 1600 hours the Complainant LW-1 Peddi

Rajeshwar went to Police Station Julapalli and lodged a complaint stating that his daughter Peddi Kaveri was studying Intermediate I year at

Karimnagar. Some one had created a fake account in Facebook on the name of his daughter and sending objectionable and vulgar messages and comments to his relatives, also sending postings stating that his brothers second wife married an innocent man and enjoying with three persons. Finally he requested for taking necessary legal action against the persons who created the account.

3.Basing on the above petition LW-15 M.M.Baig, A.S.I.of Police,

Julapally Police Station registered a case in Cr.No.103 of 2014 under

Section 354-D (II), 420 of IPC and issued First Information Report and took up the investigation. During the course of investigation LW-15

M.M.Baig, A.S.I.of Police, Julapally Police Station examined and recorded the statements of LW-1 P. Rajeshwar at police station. Later LW-16K.

Bhaskar Rao, Sub-Inspector of Police, Julapalli Police Station had took up investigation and recorded the statements of LW-2 to LW-9 P. Kaveri, P.

Kumara Swamy, P. Mahipal, P. Kalyani, K. Srinivas, K. Srisahith Reddy, B.

Ramesh, Chigurla Ramesh, took out print out copies of Facebook 3 comments of the pages of LW-3 to LW-6 P. Kumara Swamy, P. Mahipal, P.

Kalyani, K. Srinivas in the presence of LW-10 B. Rajesham and LW-11 G.

Linga Reddy duly obtaining their signatures. Thereafter, the LW-17 A.

Satyanarayana, the then Circle Inspector of Police, Sulthanabad took up the investigation of the case and addressed a letter to the

Superintendent of Police, C.I.D. who is Nodal Officer for Cyber Crimes requesting him to address a letter to Chief Executive Officer, Facebook to furnish the Internet Protocol address of Facebook account creator. In response to his letter the Superintendent, C.I.D., addressed a letter to

Chief Executive Officer, Facebook. They furnished the Internet Protocol mobile number of the account creator and also furnished the number as 970681075. Basing on that number LW-16 K. Bhaskar Rao, Sub-

Inspector of Police, Julapalli requested all cell providers for I.M.E.I.Search of the above numbers. On I.M.E.I.Search it is found that user of the number is E. Mallikarjun. Thereafter, LW-18 T. Srinivas Rao, the then

Circle Inspector of Police, Sulthanabad took up the investigation and filed requisition before the Court requesting to record the statement of LW-2

P. Kaveri under Section 164 of Cr.P.C. Accordingly, LW-14 Smt. R.

Sreelekha, Judicial Magistrate of First Class, Peddapalli had recorded the statement of LW-2 Peddi Kaveri under Section 164 of Cr.P.C. The LW-18

T. Srinivas Rao, the then Circle Inspector of Police, Sulthanabad filed a memo before the Hon’ble court for altering the section of law to Section 66 of Information Technology Act. Thereafter, LW-18 T. Srinivas Rao, the then Circle Inspector of Police, Sulthanabad made efforts for the apprehension of the accused. On 11-12-2014 LW-18 T. Srinivas Rao, the then Circle Inspector of Police, Sulthanabad affected the arrest of the accused in the presence of LW-12 P. Sathish and LW-13 B. Thirupathi in the presence of mediators and interrogated the accused in their presence. On interrogation the accused voluntarily confessed to have 4 committed this offence along with his sister E. Prameela/A-2. Further, A- 1 revealed he was native of Karimnagar, Vidyanagar and perused M.B.A.

He has been employed with Pencil Company. His sister marriage was solemnized with P. Thirupathi brother of LW-1 P. Rajeshwar about 7 years ago. The couple left for Australia for their livelihood. As some differences arose between the couple they returned to India. A panchayat in the presence of mediators held and his brother in law agreed to take care of his sister. Thereafter they left for Australia. Again his brother in law got subjected his sister to cruelty and necked out from the house. His sister returned to India and they lodged a complaint in

Women Police Station, Karimnagar to this effect and a case was also registered against them. His brother in law again married a girl.

Keeping this in mind himself and his sister decided to teach a lesson to his brother in law and to their family members. Accordingly they created a Facebook account on the name of Peddi Kaveri/LW-2, sent friend requests to their family members who are having Facebook accounts and started sending messages, chatings and comments against the family of his brother in law P.Thirupathi so as to defame him and his family members. Further, he revealed that the Apple tablet mobiles, sim cards used for creating this Facebook account kept in their house, if the police would follow him he would produce them. LW-18 T. Srinivas Rao, the then Circle Inspector of Police, Sulthanabad reduced the confessional statement of A-1 into writing in the presence of mediators.

Subsequently, police and panchs followed the accused. The accused produced a tablet make of Apple company, a Sim card carrying number 9704681075 and a mobile phone make of Nokia 1110. The LW-18 recovered about items in their presence under the cover of panchanama.

After due arrest formalities he was produced for judicial remand.

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4.On 12-12-2014 A-02 surrendered before LW-18 T. Srinivas Rao, the then Circle Inspector of Police, Sulthanabad and voluntarily confessed to have committed the offence along with A-1. After completion of arrest formalities she was produced for judicial remand before Hon’ble Judicial

Magistrate of First Class, Sulthanabad. Thus the accused A-1 and A-2

had committed the offence under Section 354-D of IPC, Section 66 of

Information Technology Act and Section 12 of Protection of Children from

Sexual Offences Act. Hence, the charge sheet.

5.The case was taken on file by my learned predecessor in Office for the offence punishable under section 354-D of IPC, under Section 12 of

POCSO Act and under Section 66 of Information Technology Act against the accused. On appearance of the accused, copies of the case record relied upon by the prosecution were furnished to the accused as contemplated under Sec. 207 Cr.P.C.

6. On receipt of summons, accused appeared before this court and

Sri V. Raghuraman, Advocate filed memo of appearance on behalf of accused. While the matter stood posted for framing of charges, charges against accused under section 354-D of IPC, under Section 12 of POCSO

Act and under Section 66 of Information Technology Act have been framed, read over and explained to the accused, for which they pleaded not guilty and claimed to be tried. Accordingly, trial has commenced.

7.To substantiate its case, the prosecution has examined PW-1 to

PW-13 and got marked Ex P-1 to Ex P-7 along with M.O.1 and M.O.2. Ex

P-1 is the Original report, Ex P-2 is the Confession and recovery panchanama, Ex P-3 is the Seizure panchanama, Ex P-4 is the Xerox copy of Facebook Business Record, Ex P-5 is First information report, Ex

P-6 is 161 Cr.P.C Statement of PW-2, Ex P-7 is the 161 Cr.P.C Statement of 6

PW-3. M.O.1 is Nokia Cell Phone, M.O.2 is Apple I Pad.

8.After completion of the prosecution evidence, the accused was examined under Sec. 313 Cr.P.C., by confronting the incriminating evidence found in the prosecution witnesses for which the accused denied the same and reported no evidence.

9. Heard the learned counsel appearing on both side.

10. Now the point that arise for consideration is :

Whether the prosecution has proved the guilt of the accused beyond reasonable doubt in respect of the charges laid against them?

POINT:

11.PW-1 who is the father of PW-7 deposed that at relevant time PW- 7 is aged about 15 years, studying intermediate 1st year by staying in hostel at Karimnagar and she has no mobile phone. He further deposed that A-2 herein is first wife of his younger brother (Thirupathi) and due to some mis-understandings the couple separated and thereafter his younger brother married one Mamatha belongs to Karimnagar area. So, to defame the family members of PW-1, A2 created Facebook account in the name of PW-7 and posted comments against his brother

Thirupathi by using un-parliamentary language and posted the comments that Mamatha is moving with others and also made comments against maternal aunt of PW-1 who is a old women, on that his relatives telephoned him and asked about said postings , so, he went to Julapalli police station and reported the matter through document marked under Ex P-1.

12.PW-2 who is cousin brother of PW-1 deposed that he received a 7

Facebook friend request in the name of PW7 and he accepted the same.

Later he received messages on that he asked PW7 whether she opened any Facebook account for which PW7 replied that she never opened any such account.

13.PW-3 who is cousin of PW-1 deposed that he received Facebook request from the account of PW-7 but he did not accept the message and he received a S.M.S. with regard to Thirupathi mentioned bad about him, on that he passed the information to PW-1.

14.PW-4 deposed that PW-1 is his uncle by courtesy, and he is having

Facebook account, received friend request from the account of PW-7, he accepted the same and started chatting and subsequently he has seen some obscene messages pertaining to the wife of Peddi Thirupathi who is the brother of PW-1, on that he informed the same to PW-1 and later he came to know that PW-1 gave report to the police and came to know that account in the name of PW-7 is fake one.

15.PW-5 photographer says that he took marriage photos of Peddi

Thirupathi and Prameela (A2) at Thirupathi and after marriage the couple went to Australia, later he came to know some disputes arose between the spouses on that Prameela returned to India, thereafter the couple have separated from each other. His further evidence is that he received friend request in the Facebook in the name of PW7, he accepted the same, later started chatting and the substance in the chatting is about the second marriage of Thirupathi and request to send the photos of second marriage of Thirupathi. He further deposed that later he came to know that Prameela (A2)in the name of PW7 has been chatting with him and chatting was made for want of photos if any with him pertain to Thirupathi's second marriage.

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16.PW-6 who is the resident of same village of PW-1 deposed that in between 2013 to 2014 while he was studying II year B.Tech he received friend request in the Facebook in the name of PW7, he accepted the request but the has no idea about chatting with account of PW7 and he did not receive any photos in the Facebook. His further evidence is that he informed about the friend request to PW-1 and PW-2, later PW-1 gave report to the police against the persons who created Facebook account in the name of PW7.

17.PW-7 deposed that at relevant time she was studying Intermediate

I year in Trinity College, Karimnagar by staying in hostel and her father

PW-1 asked that whether she has Facebook account, on that she replied that she has no Facebook account, Gmail account and no mobile as the hostel not permits carrying mobile phone and she never sent any

S.M.S., never posted any mail in Facebook, never sent any friend request to anybody . Her further, evidence is that PW-1 informed her that A-2 opened Facebook account in her name and sent several messages against Peddi Thirupathi. She further deposed that she was examined by the police and she also gave her statement under Section 164 of

Cr.P.C before Judicial Magistrate of First Class.

18.PW-8 deposed that he is the resident of same village of PW-1 at relevant time and PW-1 is his uncle. PW8 evidence is that he received one friend request in the name of PW7 in his Facebook, he accepted the same, used to chat in the Facebook, he received messages pertains to the second marriage of Peddi Thirupathi and he also received photos,

S.M.S. against the second wife of Peddi Thirupathi , so, he informed the same to PW-1 and came to know that PW7 has no Facebook account and she was studying by staying in hostel and later he came to know that A- 9 2 sent messages through her mobile.

19.PW-9 resident of Lalapally village deposed that nearly four years ago at about noon hours himself and B. Rajesham came to Court

Chowrastha at Karimnagar on their personal works and they met PW-1 at

Court Chowrastha and asked him why he was present at Court

Chowrastha. Then they noticed C.I of Police along with accused at Court

Chowrastha and in their presence C.I of Police questioned A-1 on that A- 1 replied that he opened Facebook account in the name of Kaveri to take revenge against the husband of A-2 Peddi Thirupathi. He further deposed that A-1 stated that for opening the account they used Tab and

Cellphone and he sent abusive messages as friend request in the name of Kaveri to two or three persons and he do not remember the names to whom he sent messages. He further deposed that a panchanama was prepared by police persons himself and one Rajesham attested the panchanama. Ex P-2 is confession Panchanama of A1. His further evidence is that C.I of Polie took them to the house of accused situated at Vidyanagar, Karimnagar and on the table of A-1, one Tab, one Cell

Phone and sim cards are available on that a seizure panchanama marked under Ex P-3 was prepared in their presence and obtained their signatures on Ex.P3 and, Police seized M.O.1 and M.O.2 from the possession of A1 in their presence under cover of Ex P-3.

20.PW-10 who is resident of Lalapally village deposed that he knows

PW-2 and PW-3. PW-10 says that Julapalli police called him to Police

Station and a copy of Facebook pages were taken out and obtained his signatures on several papers along with signatures of P. Sathish under

Ex P-4 which are the xerox copies of Facebook pages and Face book business.

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21.PW-11 the then S.I of Police Julapally P.S., deposed that

LW-15/A.S.I.Julapally P.S. who worked along with him during his tenure as

S.I., received report from PW-1(Ex.P1) and registered the same as F.I.R.

under Ex P-5 in Cr.No.103 of 2014 under Section 354-D(2),420 of IPC and submitted Ex P-5 to Hon’ble Court. He further deposed that A.S.I., examined PW-1 in police station and recorded his statement, handed over the C.D.File to him, then he examined PW-2 to PW-8 and LW-5 P.

Kalyani and recorded their statements and he took out print out copies of Facebook comments of pages of PW2,PW3 ,PW5 and LW5 in the presence of PW-10 and LW10/ B. Rajesham and handed over C.D.File to

PW-12. He further deposed that PW-2 and PW-3 have stated before him as Ex P-6 and Ex P-7.

22.PW-12 deposed that on 04-09-2014 he took up investigation from

A.S.I of Police, Julapally and verified the file and addressed a letter to

Superintendent of Police, Cyber Crimes for details of Facebook.

Thereafter, he left the station on his transfer.

23.PW-13 the then Circle Inspector of Police, Sulthanabad deposed that on 06-12-2014 he received C.D.File from PW-12 and took up the investigation. He verified the investigation done by PW-12 and found it on proper lines and got recorded the statements of PW-7 under Section 164 Cr.P.C by the learned Magistrate and he filed memo in the Court to add Section 66 of Information Technology Act in this case. His further evidence is that on 11-12-2015 he apprehended the A-1 in the presence of LW-10 B. Rajesham and PW-9 and recorded his confession statement as recorded in Ex P-2. PW-13 further deposed that A-1 lead them to his house at Jyothinagar Karimnagar where from he brought and handed over M.O.1 and M.O.2 Apple I-Pad and Nokia Cell Phone along with Sim 11

Card bearing No. 9704681075. On that they seized M.O.1 and M.O.2, there after brought the accused and property to the police station and cause produced A-1 for judicial remand. PW-13 further deposed that on 12-12-2014, A-2 surrendered before him in the Police Station so he effected her arrest and produced her for judicial custody. After completion of investigation he filed charge sheet.

24.Going through the evidence of PW-2 to PW-6 and 8, it goes to show that they have received friend request from the PW-7 face book account and on acceptance of that request they have seen obscene messages such as “Thirupathi Peddi second wife eevadithono Hyderabad lechi poi 1 yr eevadithono enjoy chesi vachindata. Pelliki Mundu 4boys tho pundukoni 3times kadipu theyunchukundata.how bad luck is ur friend?” (PW-5), “second wife character is bad, second wife is village girl, thirupathi wants a innocent girl that’s why thirupathi choose her. Just u think with 1 kidney how he will live. Thirupathi is going to spoil the girls life”. “Recently I heard thirupathi got second marriage without giving divorce to his first wife.his second wife mamatha before her marriage she elopes with her boy friend to Hyderabad & stayed with him for 1yr & she got 3times abortion.now Australian doctors confirmed that thirupathi willo not get any kids bcz his sperm count is very low.that’s why thirupathi parents & mamatha parents did a aggrement that just thirupathi will marry mamatha but she will give birth to the child with her boy friend or somebody.that’s why she is enjoying with her bodyfriend.her total family is like that only. For money matha can do any thing.actually mamatha is a prosecutor she has many cases in

Hyderabad.mamatha rate is different to different people 1day rate is different 1hour rate is different.just tell this message to ur village people.otherwise ur Lalapally village will become a broker company.just 12 think about this& share to ur friends” (PW-3), etc., from the face book account of PW-7 passing defamatory messages. As per the evidence of

PW1 he made complaint suspecting the involvement of A-2 since she was divorced wife of his brother and she had hostile terms with the family of PW1 and his younger brother. Therefore, there was strong motive for A2 who have created Face Book on the name of PW-7 and pass defamatory messages against brother of PW-1 and his second wife.

As per the investigation done by Investigating Officer examined as PW- 11, A-1 in collusion with A-2 created Face Book account of PW-7 and posted the obscene messages from her account. In order to connect the

A1 and A2 with the present offence the petitioner rely upon Ex.P4 document along with confession and seizure panchanama marked under

Ex.P2. As per the investigation A-1 created Facebook of PW7 using his apple I-pad (M.O.1) and his mobile phone (M.O.2) . The prosecution rely upon Ex.P4 which are print out copies of obscene messages and call data record of mobile phone No.9704681075 which is alleged to be that of the A1. Except the document marked under Ex.A4 thre appears no record issued by service providers of Facebook showing that Facebook account in the name of PW7 was created from IP address pertaining to the A1 or A2. Further, it is seen from the record that mobile number of which call recorded data is available with phone number 9704681075 is registered in the name of Yamd Abdulnabee. It is also seen from the record that under Panchnama Ex.P2 M.O.1 and M.O.2 are mentioned and through M.O.1 and M.O.2 Facebook of PW7 was alleged to have been created through mobile No.9704681075. However on perusal of call data record it is seen that the IMEI Nos. 012927005058938, 356636/00/662545/1 mentioned in the panchanama Ex.P3 said to be that of M.O.1 and M.O.2 are not reflected in the call data record marked under Ex.P4. Therefore, M.O.1 and M.O.2 though seized could not said to 13 be proved to be the devices through which, account of PW7 was created. In sum and substance, it is required to state that initially prosecution failed to prove that Facebook of PW7 is in fact original or

Fake account much less proving the fact that such Facebook account was created by A1 in collusion with the A2. The relevant documentary evidence that is panchanama Ex.P2, call data record and other documents under Ex.P4 coupled with MO1 and mo2 read together in conjunction with each other also could not show the involvement of the

A1 in creation of Facebook account of PW7. Therefore, on record except the confession of the A1 there remains no other credible technical evidence coming from prosecution witnesses to suggest that it is the A1 who created Facebook much less with any technical evidence in order to suggest that the evidence produced by prosecution is on the standard of beyond reasonable doubt principle. The oral evidence of PW1 to

PW5though support prosecution version, cannot be relied upon as the present offence involving proving of technical fact which is absent in the present case. For the absence of cogent and convincing documentary evidence from prosecution side supporting with expert opinion evidence it can not be said that prosecution is able to prove the guilt of the accused beyond reasonable doubt.

25.Here it is required to be observed that PW-1 says that LW-15 M.M.

Baig, A.S.I. of Police, Julapally Police Station received report from PW-1 marked under Ex P-1 and registered the same as First Information Report in Cr.No.103/2014 under document marked under Ex P-5 and LW-15 examined PW-1 and recorded his statement, handed over C.D.File to PW- 11 on that PW-11 took up further investigation and recorded the statement of PW-2, PW-3, PW-4, PW-5, PW-6, PW-7, PW-8 and LW-5 and handed over the C.D.File to PW-12. But, PW-12 deposed that he took up 14 the investigation from A.S.I of Police, Julapally Police Station i.e., LW-15.

On the otherhand, the PW-13 says that he has received C.D.File from PW-

12. At this juncture the defence took the contention that there is no clarity with regard to the evidence of PW-12 whether he has taken the case file from LW-15 M.M.Baig, A.S.I. of Police, Julapalli Police Station as stated by him or he was handed over the C.D.File by PW-11. On that discrepancy with regard to the handing over case file to PW 12 whether it was from LW-15 M.M.Baig or PW-11, the evidence of PW-12 that he addressed a letter to the Superintendent of Police, Cyber Crimes for details of Facebook creates a reasonable doubt whether PW-12 addressed a letter to Superintendent of Police, C.I.D., Cyber Crimes,

Karimnagar.

26. Further, the contention of the defence is that PW-11 says that in the presence of LW-10/B. Rajesham and PW-10 he took out print out copies of Facebook comments of pages of PW-2, PW-3, PW-5 and LW-5 P.

Kalyani, whereas the evidence of PW-10 is that copies of Facebook pages were taken out in his presence and in the presence of P. Sathish and obtained their signatures on said copies marked under Ex P-4. The entire copies marked under Ex P-4 contains the signatures of PW-10 and one Sathish. On the other hand the list of witnesses shows that LW12

P.Satish is the panch witness for confession and recovery panchanama of

A1. Hence, the defence says that the taking print out copies under Ex P- 4 is also doubtful. Therefore, in the absence of cogent and convincing documentary evidence from prosecution side supporting with expert opinion evidence it cannot be said that prosecution is able to prove the guilt of the accused beyond reasonable doubt, as such benefit of doubt can be extended to the accused. Point is answered accordingly.

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27.In the result, accused No.1 and 2 are found not guilty for the offences under Sections 354-D of IPC, under Section 12 of POCSO Act,

Section 66 of Information Technology Act and accordingly they are acquitted under Section 235 (1) of Cr.P.C. The bail bonds of accused shall stand cancelled six months after the judgment under Section 437 (A) of Cr.P.C. The M.O.1 and M.O.2 shall be confiscated to the State by following due procedure of Law.

Typed to my dictation by Stenographer on Computer, Corrected and Pronounced by me in the open Court, this the 15th day of April, 2019.

I Additional Sessions Judge, Karimnagar.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR THE PROSECUTION: FOR THE DEFENCE:

PW.1 P. Rajeshwar- None - PW.2P. Kumara Swamy PW.3P. Mahipal PW.4B. Ramesh PW.5K. Srinivas PW.6Ch. Ramesh PW.7P. Kaveri PW.8K. Sri Sahithireddy PW.9B. Thirupathi Reddy PW.10G. Linga Reddy PW.11K. Bhasker Rao PW.12A. Satyanarayana PW.13T. Srinivas Rao

Exhibits Marked:

FOR THE PROSECUTION:

Ex.P.1Original Report Ex.P.2Confession and recovery panchanama Ex.P.3Seizure panchanama Ex.P.4Xerox copy of Facebook business record Ex.P.5First information report Ex.P.6161 Cr.P.C Statement of PW-2 Ex.P.7161 Cr.P.C Statement of PW-3 16

FOR THE DEFENCE:

---Nil---

Material objects Marked

M.O.1 is Nokia Cell Phone

M.O.2 is Apple I Pad

I Additional Sessions Judge, Karimnagar.

FAIR

IN THE COURT OF THE I ADDITIONAL SESSIONS JUDGE,

KARIMNAGAR

PRESENT:- SMT. S. PREMAVATHI,

I ADDL. SESSIONS JUDGE,

KARIMNAGAR.

TUESDAY, THE 02nd DAY OF APRIL, 2019

CALENDAR CASE NO. 07 OF 2017

Name of the ComplainantThe State through Inspector of Police, Vig. & APTS/P.S., Karimnagar (Crime No.5162 of 2016)

Name of the AccusedDonuri Hanumandlu, S/o Buchaiah, aged 76 Yrs, Caste: Vadrangi, R/o H.No.4-94, Botlavanaparthy village of Dharmaram Mandal

C H A R G E SUnder Section 135 of the Electricity Act, 2003

Plea of the Accused“Not guilty”

Finding of the Court“Guilty” Sentence or order In the result, the accused is found guilty for the offence under Section 135 of Electricity Act, 2003 and accordingly he is convicted under Section 248 (2) of

Cr.P.C.

The accused is questioned with regard to quantum of sentence under Section 248 (2) of Cr.P.C.

Heard the accused with regard to proposed sentence. He submitted that he is not feeling well and he is leading his life in a very miserable condition. The offence with which the accused was charged under section 135 of the

Electricity Act while he was indulging in committing theft and a case was 2 registered against him and found guilty, the loss that was caused to the electricity department is at Rs. 3,030/-. The offence under section 135 of Electricity Act is triable in summary in nature. The presence of accused is required to his family, having taken into consideration of age, antecedents and the presence of accused to his family, I think it is a fit case to take lenient view in awarding the sentence.

In the result, the accused is sentenced to pay a fine of Rs. 18,180/- in default to pay fine amount the he shall suffer S.I for one month for the offence under section 135 of Electricity Act.

Prosecution conducted by:SriAdditionalPublicProsecutor, Karimnagar.

Accused defended by:Sri E. Madhusudhan Rao, Advocate

This case coming on before me on 26-03-2018 for final hearing in the presence of learned Additional Public Prosecutor for the state and Sri E. Madhusudhan Rao, Advocate for the accused, having been heard and stood over for consideration to this day, the Court made the following:

J U D G M E N T

1.The Inspector of Police, Vigilance & A.P.T.S. Karimnagar P.S., laid the charge sheet against the sole accused for the offence punishable under section 135 of the Electricity Act, 2003.

2.It is the case of the prosecution that on 24-06-2016 at about 1500 hours A.E/D.P.E-I/Karimnagar (PW-1) along with PW-2 A.D.E/S.D.I and LW-3 M.

Mallikarjun and LW-4 A. Sampath inspected the house premises of non- 3 consumer D. Hanmandlu in his presence which is situated near pole No.

A/15/2 at Botlavanaparthy village of Dharmaram mandal. At the time of inspection the above said person utilizing the power supply by directly tapping from nearby L.T.Over head lines by means of P.V.C insulated aluminium wire for commercial i.e., wooden works purpose. Thus, the party dishonestly indulged in the theft of energy. A panchanama was conducted in the presence of two panchas K. Balakrishna/PW-4 and D. Chandraiah/LW-7, seized about 20 meters of black service wire and videographed the inspected premises. The total load connected at the time of inspection was 746 watts and the loss sustained by the company due to theft of energy was estimated at Rs.3,030/-. A first offence case was registered in A.P.T.S.P.S.Karimnagar vide F.I.R.No.6140/15 on 09-09-2015 against D. Hanmandlu for indulged in theftofenergyandcaseenteredinM.A.T.S.as

D.P.E./D.P.K.L.R/D.K.202/11789/2016. Hence, the non consumer has indulged in theft of energy for second time. Later, PW-1 filed a complaint along with original inspection report, assessment calculation sheet, panchanama, seized wire and Video C.D., with a request to register a case against the D.

Hanmandlu and to take necessary action to LW-8/PW-5 P. Venkatachary, Sub-

Inspector of Police, Vigilance and A.P.T.S. of P.S.Karimnagar, who registered a case in Cr.No.5162/2016 under Section 135 of Electricity Act 2003. During the course of investigation PW-5 examined and recorded the statements of

PW-1, PW-2 and LW-3 M. Mallikarjun at police station itself and he visited the scene of offence where PW-1 conducted panchanama, secured the presence of LW-4 A. Sampath, examined him and recorded his statement. Later, PW-5 effected the arrest of accused and cause produced him for judicial remand.

On 19-08-2016 PW-6 Inspector of Police, assumed further investigation and verified the investigation so far done by PW-5 and found it on correct lines, he filed requisition with PW-3 Panchayat Secretary, Botlavanaparty, collected 4 residence proof certificate of the accused and recorded his statement. After completion of investigation filed charge sheet.

3.This court on receiving the charge sheet has taken it on file for the offence punishable under section 135 of the Electricity Act and proceeded with.

4.After the accused made his appearance who was on bail he is furnished with copies of documents and there after on considering the material on record examined him by explaining the charge under section 135 of the

Electricity Act. The accused pleaded not guilty and hence the case is posted for trial.

5.During the course of trial the prosecution examined PW-1 to PW-6 and got marked Ex P-1 to Ex P-9 apart from seized wire in M.O.1 and compact disk (C.D) containing film taken at the time of inspection of the scene of offence by the PW-1 in M.O.2 and closed its side evidence.

6.After the evidence of prosecution is closed, the accused is examined under section 313 of Cr.P.C. confronting the incriminating material against the accused in the evidence of prosecution witnesses, to which accused denied the same and reported that he has no defence evidence. Hence, the defence evidence is closed.

7.Heard both the learned Addl.P.P., and the learned defence counsel for the accused and perused the entire evidence brought on to record of both oral and documentary.

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8.Now the point for determination is:

Whether the prosecution established the guilt of the accused for the charge framed against him beyond all reasonable doubt ?

9.P O I N T:-

The learned Addl.P.P., contended that from the evidence of prosecution witnesses who are official witnesses it is very clear that the accused was illegally drawing power directly by tapping from L.T.Over head lines by means of P.V.C. Insulated aluminium wire for commercial purpose i.e., wooden works purpose. The learned Addl.P.P., further submitted that a first offence case was registered in A.P.T.S./P.S.Karimnagar against the accused for indulging in theft of energy and a case is registered against him and levied fine but the accused herein did not pay the same and indulged again in illegal activities by directly tapping the electricity from nearby L.T.

Overhead lines by means of P.V.C. Insulated aluminium wire and therefore prayed that the accused may be convicted.

10.The learned defence counsel seriously contended that the alleged inspection of the house of the accused, by the officials is false and there are serious differences in their version and that PW-4 in whose presence the panchanama was conducted and who is said to have acted as panch witness for the inspection of the house of the accused by PW-1 though supported the case of the prosecution, but, it was only on account of misunderstandings between the accused and PW-4. The learned counsel further submitted that

Ex P-6 furnished by the PW-3 stating that the accused is the owner of the said house but during cross examination PW-3 admitted that the said house still stands in the name of Botla Rajaiah and Botla Rajaiah is paying house tax to the panchayat, hence, with the help of Ex P-6 the accused cannot be connected with the prosecution case and prayed to acquit the accused.

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11.The case and evidence of prosecution is that on 24-06-2016 at 1500 hours PW-1 and PW-2 along with other staff i.e., LW-3 M. Mallikarjun and LW-4

A. Sampath inspected the house premises of non-consumer/accused which is situated near Pole No.A15/2 and noticed that accused was drawing power supply illegally by tapping from nearby L.T. Over head lines with black service wire marked under M.O.1 and using the power to his carpentry works.

Then PW-1 called PW-4 K. Balakrishna and LW-7 D. Chandraiah as mediators and removed the black service wire marked under M.O.1 and seized the wire

M.O.1 under cover of panchanama in the presence of accused. PW-1 prepared inspection notes and obtained signatures of PW-2, accused, signature of PW-4, signature of son of accused and PW-1 signed on it.

12.It is categorically deposed by PW-1 and PW-2 that accused drawing power supply illegally by tapping from the L.T.Over Headlines with M.O.1 and using the power to his carpentry work and the machine used for carpentry work by the accused is situated within his house compound premises.

13.Adding to that the evidence of PW-4 who is none other than the resident of Botlavanaparthy village corroborating the evidence of PW-1 and

PW-2 since deposed that he knows the accused and himself along with LW-7

D. Chandraiah were called by the PW-1 to the house of the accused and he was informed that accused was drawing energy from nearby over head

L.T.Lines on that, electricity department officials removed the M.O.1 and prepared Ex P-7 Panchanama in his presence as well as in the presence of

LW-7 D. Chandraiah who attested Ex P-7. He categorically deposed that

M.O.1 is seized in his presence and his evidence remained unshaken even after cross examination. During cross examination of PW-4 no enmity between PW-4 and the accused was brought into light since except bare 7 suggestion that there was a loan transaction between the mother of PW-4 and accused and as accused demanded to repay the same, misunderstandings arose between them as such PW-4 deposing against the accused The said suggestion is not supported with any material. However, the said suggestion was denied by PW-4. It is well settled principle that mere suggestions never takes the place of evidence as such the suggestion that on account of alleged loan transaction there were misunderstandings on that

PW-4 deposed against the accused can be ignored since it is a bare suggestion and not based on any material either oral or documentary.

14.Further, PW-3 who is Karobar of the Botlavanaparty village also deposed corroborating the version of prosecution since he says that accused is residing in door bearing No. 4-94 nearly eight years onwards by purchasing the same from one Botla Rajaiah and to that effect he has issued Ex P- 6.Evidence of PW-6 corroborating with evidence of PW-3 since he deposed that he has collected Ex P-6 from PW-3. The contents in Ex P-6 are corroborating in toto with the oral evidence of PW-3. At this juncture, the learned counsel for the accused took contention that PW-3 during his cross examination categorically deposed that the said door bearing No. 4-94 is still standing in the name of Botla Rajaiah and Botla Rajaiah is paying house tax to the panchayat. As such says that prosecution failed to prove that the accused is the owner of the said door bearing No.4-94 and the oral evidence of PW-3 as well as Ex P-6 cannot be taken into consideration to say that accused is owner of the premises at the relevant time of inspection by PW-1.

Here it is required to see the language envisaged in sec.135 of Electricity

Act. Sec.135 Electricity Act says that occupant of the premises will be held liable for theft of energy irrespective of the ownership of the premises. In the present case it is required to see whether the prosecution has able to 8 prove the accused is occupant of house bearing door No.4-94 by maintaining carpentry machinery at the place attached to the house and thereby drawing energy from the nearby L.T.over Head Lines to the said carpentry machinery work. Here it is to be observed that accused did not suggest to PW-3 that accused is not occupant of the house bearing door No.

4-94 and he is no way connected with the said house. Hence, the elicitation that ownership of the house bearing door No.4-94 is not transferred in the name of the accused and the ownership still remains in the name of Botal

Rajaiah no way renders the prosecution case fatal since the evidence in chief of PW3 that last eight years onwards the accused has been residing in the house bearing door No. 4-94 remained intact and unshaken. PW3 is the public servant appointed under Gram Panchayat casting duty of maintaining

Gram Panchayat Records. Hence, his evidence under Ex.P6 can not be doubted. Further, the evidence of PW-1 and PW-2 that the accused was maintaining carpentry work at the place attached to the house bearing No.4- 94 is also remained unshaken, as there is no suggestion putforth before PW-1 and PW-2 to that effect.

15.In the present case PW-1 deposed that he prepared Ex P-1 to Ex.P5 and handed over the property M.O.1 and M.O.2. The PW-5 says that basing on Ex P-5 he has issued Ex P-8 and visited the scene of offence and prepared rough sketch under Ex P-9 and as the accused voluntarily surrendered before him at Karimnagar on 11-08-2016 by following due procedure he arrested him and cause produced for judicial remand and handed over the case file to

PW-6. Even in cross examination his evidence as to his visit to the scene of offence and preparing rough sketch marked under Ex P-9 remained unshaken.

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16.Here the accused did not deny the signatures appear on inspection notes marked under Ex P-1 by saying that the said signatures are not that of himself and his son. His only contention is that by misleading them their signatures were obtained on inspection notes marked under Ex P-1. Here, it is not the version of defence that accused and his son are illiterates and without knowing the contents they have signed on Ex P-1. Except stating that they were mis-leaded by the officials , they did not say in what way they were subjected to mislead by the officials of the department concerned.

Hence, the defence of mislead has no legs to stand. Therefore, in view undisputed fact as to the signatures in Ex.P1 are of the accused and his son obtained at the scene of offence, the evidence of PW1 &PW2 that along with staff they have visited the scene of offence at relevant time and entire proceedings were conducted in the presence of the accused is required to be considered.

17.The other contention that was taken by the learned counsel for the accused is that the PW-1 and PW-2 have categorically admitted that there is a lineman and he inspected the service connection of the accused and he never made any complaint about illegal drawing of energy by the accused, as such in the absence of any complaint from the lineman, the prosecution case is required to be held false one. But, failure on part of the lineman in lodging complaint prior to the date of offence, it cannot be said that there was no theft of energy by the accused for the period from 31-08-2015 to 24- 06-2016 in the said premises. The absence of vigilant duty on the part of the line man in performing his duties no way precludes the officials of department concerned from conducting inspection in order to know the pilferage of electricity. Merely for absence of oral or written complaint by the line man, the action of inspection officials of the electricity department can not be in validated. There is nothing brought on record that line man has 10 duty to give complaint of pilferage of electricity and only on such complaint inspection officials are required to inspect the house for tracing the pilferage of electricity. In view of this understanding of factual and evidential aspect, the argument of the learned counsel that for absence of complaint from line man the evidence of PW1 and PW2 is required to be discarded from the consideration is required to be held negatived .

18. Another contention that was taken by the learned counsel for the accused is that prosecution did not file single piece of paper establishing that the accused committed first offence earlier to the present case and the present offence is second offence committed by the accused. Here it is to be observed that PW-1 as well as PW-2 categorically deposed in their chief examination that accused was indulged in malpractice in the year 2015 and against him a case was registered in F.I.R.No.6140/2015 earlier and levied fine, but the accused did not pay the same and indulged again in present case. The record contains the attested copy of Chalan vide No.3905 paid in the month of June 2016 to the tune of Rs.7,000/- in Cr.No.6140/2015.

Further, Ex P-5 Report filed by PW-1 clinchingly shows a recital stating that “A first offence case was registered in APTSPolice Station/Karimnagar vide

F.I.R.No.6140/2015 on dated 09-09-2015 against Sri Donuri Hanmandlu S/o

Buchaiah, R/o Botlavanaparthy (V), Dharmaram (M) for indulging in theft of energy and case entered in MATS as DPE/DPKNR/DK202/11789/16”. It is to be observed that though the accused took contention that there was no piece of evidence showing that indulgence of the accused for theft of electricity earlier to this case, but inspite of clinching evidence from the mouth of PW-1 and PW-2 as to the F.I.R.No.6140/2015 dated 09-09-2015 against the accused herein put any suggestion to PW-1 and PW-2 stating that no such F.I.R. was registered against him alleging first offence against 11 him. Further, the recital in Ex P-5 is also remained undisputed by the accused. Hence, when there is no challenge to the oral evidence of PW-1 and PW-2 coupled with documentary evidence under Ex P-5 the evidence showing the guilt of the accused under F.I.R.No.6140/2015 is required to be believed by this Court.

19.The learned counsel for the accused at the time of marking of M.O.2 took an objection for want of Certificate under Section 65-A and 65-B of

Indian Evidence Act. But, going through the oral and documentary evidence referred above, there appears no material contradictions, variations or any discrepancies which are material in part among the evidence of PW-1 to PW- 6 and even in cross examination of PW-1 to PW-6 no worthy elicitations could be elicited by the accused entertaining the doubt much less reasonable doubt suspecting the prosecution case, in these circumstances even if M.O.2 is kept aside from consideration for want of Certificate under Section 65-A and 65-B of Indian Evidence Act, on account of above referred evidence in the present case, it can be held that prosecution has positively established that on 24-06-2016 at 1100 hours PW-1 and PW-2 along with their staff inspected the premises of the accused, found that the accused was drawing energy illegally with M.O.1 from the period 31-08-2015 to 24-06-2016 and

PW-1 assessed the loss to the department by way of assessment of energy statement marked under Ex P-4 for Rs.3,030/-. Therefore, considering the documents marked under Ex P-1 to Ex P-3, P-5 & Ex P-6 and M.O.1 coupled with oral evidence which is corroborating with the each other about the raid conducted by PW-1 and PW-2 and found that the accused committed theft of energy to the tune of Rs.3,030/- showing in Ex P-4 it can be safely held that prosecution is able to prove the guilt of the accused which attracts Section 135 of Electricity Act.

20.In view of aforementioned discussion, I am of the considered opinion 12 that the prosecution is able to establish the guilt of the accused for the offence under section 135 of the Electricity Act, therefore, it is to be held that the accused is found guilty for the offence under Section 135 Electricity Act, 2003 and accordingly he is convicted under Section 248 (2) of Cr.P.C.

Typed to my dictation by Stenographer on Computer, corrected and

pronounced by me in the open Court on this the 02nd day of April, 2019.

I Additional Sessions Judge, Karimnagar.

21.The accused is questioned with regard to quantum of sentence under

Section 248 (2) of Cr.P.C.

22. Heard the accused with regard to proposed sentence. He submitted that he is not feeling well and he is leading his life in a very miserable condition. The offence with which the accused was charged under section 135 of the Electricity Act while he was indulging in committing theft and a case was registered against him and found guilty, the loss that was caused to the electricity department is at Rs. 3,030/-. The offence under section 135 of Electricity Act is triable in summary in nature. The presence of accused is required to his family, having taken into consideration of age, antecedents and the presence of accused to his family, I think it is a fit case to take lenient view in awarding the sentence.

23.In the result, the accused is sentenced to pay a fine of Rs. 18,180/- in default to pay fine amount the he shall suffer S.I for one month for the offence under section 135 of Electricity Act.

Typed to my dictation by Stenographer on Computer, corrected and

pronounced by me in the open Court on this the 2nd day of April, 2019.

I Additional Sessions Judge, Karimnagar.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR THE PROSECUTION: FOR THE DEFENCE:

PW-1 K. Mallaiah- None - PW-2M. Ramkumar PW-3B. Buchi Ramulu PW-4K. Balakrishna PW-5P. Venkatachary PW.6B. Srinivas

EXHIBITS MARKED

FOR THE PROSECUTION:

Ex.P-1 Inspection note, dated 24-06-2016 Ex.P-2Seizure Panchanama Ex.P-3Inspection Report Ex.P-4Assessment Calculation Memo Ex.P-5Original Report to A.P.T.S. P.S.Karimnagar Ex.P-6Certificate issued by PW-3 Ex.P-7Panchanama dated 24-06-2016 Ex.P-8First information report Ex.P-9Rough sketch prepared by PW-5

FOR THE DEFENCE:- -NIL-

MATERIAL OBJECTS MARKED

M.O.1 Wire M.O.2 Compact Disk

I Additional Sessions Judge, Karimnagar.

1

IN THE COURT OF THE I ADDITIONAL SESSIONS JUDGE, KARIMNAGAR

PRESENT: SMT. S. PREMAVATHI,

I ADDITIONAL SESSIONS JUDGE,

KARIMNAGAR.

Tuesday, the 16th day of April, 2019

C.C. No.9 of 2017

Name of the complainantThe state through Inspector of Police, Vigilance and A.P.T.S/P.S./Karimnagar in (Cr. No. 3868 of 2016 of Vigilance and A.P.T.S/Karimnagar P.S.)

Name of the accusedRatnam Ramesh, S/o Ramaiah, aged 31 Yrs, Caste: Nethakani, R/o H.No.2-195, Gaddagudem house of Yamanapalli village of Advi-Mutharam Mandal

ChargesUnderSection 135 of Electricty Act

Plea of the accusedNot guilty

Finding of the CourtNot guilty

Sentence or order In the result, accused is found not guilty for the offences under Section 135 of Electricity Act 2003 and accordingly he is acquitted under Section 248 (1) of

Cr.P.C. The bail bonds of accused shall stand cancelled six months after the judgment under Section 437 (A) of Cr.P.C.

M.O.1 shall be destroyed after expiry of appeal period. M.O.2 Compact Disk shall be placed in the file treating it as part of record.

Prosecution conducted byAdditional Public Prosecutor

Accused defended bySri P. Rajender Kumar, Advocate

This case is coming on 12-04-2019 before me for final hearing, in the presence of Additional Public Prosecutor for the complainant and of

Sri P. Rajender Kumar, Advocate for accused, and upon perusing the 2 material evidence on record and the matter having stood over for consideration till this day, the Court delivered the following:

J U D G M E N T

01.The Inspector of Police, Vigilance and A.P.T.S/P.S/Karimnagar filed

Charge Sheet in Cr. No. 3868/2016 under Section 135 of Electricity Act against the accused.

02. The brief averments of the case are that:

On 13-05-2016 at 1800 hours LW-1 M. Mallikharjuna Rao, AE/DPE-I/

KNR lodged a complaint before LW-8 P. Venkata Chary, S.I of Police,

Vigilance and A.P.T.S/PS/Karimnagar stating that on 13-05-2016 at 1245 hours he along with LW-2 to LW-4 K. Mallaiah, M. Ram Kumar, B.

Anjaneuyulu inspected the premises of the house of the accused R.

Ramesh (non consumer) and found that he was using the power supply directly by tapping from nearby L.T.Overhead lines by means of P.V.C.

insulated wire for commercial purpose. Thus he indulged in the theft of energy dishonestly for commercial/carpentry purpose. The connected load at the time of inspection was found to be 2811 watts and the loss sustained by the company due to the theft of energy was estimated at

Rs.13,776/-. He conducted a panchanama in the presence of 2 panchas

LW-5 A. Raji Reddy and LW-6 P. Ravinder and seized 60 meters of service wire under cover of said panchanama. The first time offence was registered on 26-02-2015 in A.P.T.S/P.S/KNR vide F.I.R.No.1266/2015 against the accused herein for indulging in theft of energy and case entered in M.A.T.S as KNR/NTH/KTR/1852/15. Hence, the party again intentionally indulged in second time theft of energy. Later, he filed the complaint along with original inspection report, assessment calculation sheet, panchanama, video recorded crime C.D., and seized wire with a 3 request to register a case against the accused and to take necessary action.

3.Based on the above said complaint, the LW-8 P. Venkata Chary, S.I of Police, Vigilance and A.P.T.S/PS/Karimnagar registered a case in

Cr.No.3866/2016 under Section 135 of Electricity Act 2003 and investigated into. During the course of investigation, the LW-8 P.

Venkata Chary, S.I of Police, Vigilance and A.P.T.S/PS/Karimnagar examined LW-1 to LW-4 M. Mallikharjuna Rao, K. Mallaiah, M. Ram Kumar,

B. Anjaneyulu at A.P.T.S/P.S./KNR and recorded their statements. He visited the scene of offence on the next day, examined it, where the LW- 1 M. Mallikharjuna Rao conducted panchanama in the presence of two mediators LW-6 P. Ravinder and LW-7 O. Ratnakar and seized the wire.

4.On 20-06-2016 at 0815 hours the LW-8 P. Venkata Chary, S.I of

Police, Vigilance and A.P.T.S/PS/Karimnagar arrested the accused R.

Ramesh on his surrender at Vigilance and A.P.T.S, P.S., Karimnagar.

When interrogated the accused has voluntarily admitted to have committed first offence vide Cr.No.1266/2015 and again committed this offence for the second time. The accused remitted an amount of

Rs.7,000/- towards compounding fees in S.T.O., Karimnagar vide Challan

No.14035, dated 20-06-2016 and compounded the case. Thus, the accused committed theft of energy for the second time and liable for punishment under Section 135 of Electricity Act, 2003.

5.The case was taken on file for the offence punishable under section 135 of Electricity Act against the accused by my learned

Predecessor in Office. On appearance of the accused, copies of the case record relied upon by the prosecution were furnished to the accused as contemplated under Sec. 207 Cr.P.C.

4

6. On receipt of summons, accused appeared before this court and

Sri P. Rajendra Kumar, Advocate filed memo of appearance on behalf of accused. While the matter was stand posted for framing of charges,

Charges against accused under section 135 of Electricity Act have been framed, read over and explained to the accused, for which he pleaded not guilty and claimed to be tried. Accordingly, trial has commenced.

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

PW-1 to PW-7 and got marked Ex P-1 to Ex P-10. Ex P-1 is the Inspection notes, Ex P-2 is the Seizure panchanama, Ex P-3 is Inspection Report, Ex

P-4 is Calculation assessment sheet, Ex P-5 is Report given to Police marked through PW-1, Ex P-6 is Residential Certificate of accused by PW- 3, Ex P-7 is Signature on the document said to be seizure panchanama

dated 13-05-2016 by PW-4, Ex P-8 is Signature on the document said to

be the seizure panchanama dated 13-05-2016 by PW-5, Ex P-9 is

Registered First information report by PW-6, Ex P-10 is Rough sketch of scene of offence by PW-6. M.O.1 is the Seized wire by PW-1, M.O.2 is the

C.D. by PW-1.

8.After completion of the prosecution evidence, the accused was examined under Sec. 313 Cr.P.C. confronting the incriminating evidence found in the prosecution witnesses for which the accused denied the same and reported no evidence.

9. Heard the learned counsel appearing on both sides.

10.Now the point that arise for consideration is :

Whether the prosecution has proved the guilt of the accused beyond reasonable doubt in respect of the charge laid against him?

POINT:

11.The learned Addl.P.P., contended that from the evidence of 5 prosecution witnesses who are official witnesses it is very clear that the accused was illegally drawing power directly by tapping from

L.T.Overhead lines by means of P.V.C insulated aluminium wire for commercial purpose i.e., for carpentry work. The learned Addl.P.P., further submitted that first case was registered in A.P.T.S.P.S.Karimnagar against the accused for indulging in theft of energy and a case is registered against the accused in Cr.No.1266/2015 under Section 135 of

Electricity Act and the accused has remitted an amount of Rs.7,000/- towards compounding fee in S.T.O., Karimnagar vide Challan No.14035,

dated 20-06-2016 and compounded the case. But, again the accused

indulged in illegal activities by directly tapping the electricity from nearby over head L.T.Lines by means of P.V.C insulated aluminium wire and therefore prayed that the accused may be convicted.

12.The learned defence counsel seriously contended that the alleged inspection of the house of the accused by the officials is false and there are serious differences in their version and that PW-4 and PW-5 in whose presence panchanama was conducted and who is said to have acted as panch witness for the inspection by PW-1 did not support the case of the prosecution, as such lack of corroboration from the panch witnesses PW- 4 and PW-5, basing on the only evidence of PW-1, PW-2, PW-3, PW-6 and

PW-7 conviction cannot be given since the said witnesses are official witnesses and they are interested witnesses. The learned counsel for the accused submitted that Panchayat Secretary PW-3 is not competent to issue Ex P-6 since the residence proof certificate has to be issued by the M.R.O., but not by the Panchayat Secretary. It is further contended by the learned counsel appearing on behalf of the accused that initially it is not stated that from which shop the M.O.1 is being purchased and no carpentry material was seized by the officials though their case is that 6 accused was using electricity power supply to the carpentry work. The learned counsel for the accused further contended that taking advantage of the payment of fine in the first offence, the present case is filed against the accused for statistical purpose. Hence, prayed to acquit the accused.

13.The prosecution case is that on 13-05-2016 at 1200 hours PW-1 along with PW-2, LW-3 M. Ram Kumar and LW-4 B. Anjaneyulu inspected the premises of the accused R. Ramesh (non-consumer) and found that he was utilizing the power supply directly by tapping it from nearby over head L.T.Lines by means of P.V.C insulated wire and is using for commercial purpose/Dugoda machine motor. The connected load at the time of inspection was found at 2811 watts and the loss sustained by the company due to the theft of energy was estimated at Rs.13,776/-. Thus, the accused indulged in second time theft of energy dishonestly.

14.The evidence of PW-1 and 2 is on the same lines that on 13-05- 2016 PW1 along with PW-2, LW-3 M. Ram Kumar and LW-4 B. Anjaneyulu went to Yamanapalli village to the house of the accused at 1245 Pm and found the presence of wife of the accused by name Swaroopa and brother of the accused by name Sadavali. At the time of inspection the officials have found that the accused using power supply directly by tapping from nearby L.T.Over head lines with P.V.C insulated wire for his carpentry work and connecting load is 2811 watts. Then PW-1 prepared inspection notes at the house of the accused and obtained the statement of wife of accused on inspection notes under Ex P-1 at column

No.9 and she affixed her thumb mark. In the presence of two mediators

PW-4 and PW-5 seizure panchanama under Ex P-2 was conducted and wire under M.O.1 was seized. PW-1 recorded the scene of offence 7 through his cell phone. PW2 deposed that they have obtained the signature of one R. Ganesh who is neighbour of the accused on the inspection notes. Then they returned to Office, PW1 prepared inspection report under Ex. P-3 and also assessment calculation under Ex P-4.

According to the assessment the loss of Rs.13,776/- is sustained to the

Electricity Department. Then PW-1 prepared C.D., in his Office under

M.O.2 and also prepared report under Ex P-5 and went to A.P.T.S/P.S/KNR and presented report under Ex P-5 along with Ex P-1 to Ex P-4 and M.O.1 & M.O.2.

15.The evidence of PW-3 who is then Panchayat Secretary of

Yamanapalli village shows that on requisition of A.P.T.S.Police,

Karimnagar he has issued residential certificate of the accused by verifying the house tax payment register stating that accused is residing in the house bearing door No.2-195 of Yamanapalli village for the last four years and to that effect he has issued Ex P-6 certifying that accused has been residing in the said house.

16.PW-4 and PW-5 panch witnesses for seizure of M.O.1 deposed that they have never called by the electricity department officials to the scene of offence and they never witnessed anything and in their presence nothing was seized. Except admitting their signatures on Ex P- 8 and Ex P-9 they denied the entire prosecution version.

17.PW-6 evidence is that on 13-05-2016 PW-1 lodged a complaint/Ex

P-5 along with Ex P-1 to Ex P-5 and M.O.1 and M.O.2 and basing on Ex P- 1 to Ex P-5 he registered a case under document Ex P-9 and took up the investigation and examined PW-1 and PW-2, LW-3 M. Ram Kumar and

LW-4 B. Anjaneyulu and recorded their statements and on the next day he visited the scene of offence situated at Yamanapalli village at the 8 house of the accused and prepared the rough sketch of the house of the accused marked under Ex P-10, then he handed over the C.D.File to PW- 7.

18.The evidence of PW-7 is that on 15-05-2016 he took up the investigation from PW-6, verified the investigation done by him and found it on correct lines, so he filed requisition before PW-3 for collecting residential proof certificate and he recorded the statement of PW-3 and on the same day he collected certificate from PW-3.

19.Thus, it is seen from the evidence of PW1 and PW2 that on 13-05- 2016 at 1245 hours they along with LW-3 M. Ram Kumar and LW-4 B.

Anjaneyulu proceeded for routine inspection and while they were inspecting the house premises of R. Ramesh (non-consumer)/accused they noticed that accused was drawing power supply illegally by tapping directly from L.T. over head lines with P.V.C insulated copper wire marked under M.O.1 and using the power/electricity to his carpentry work, then

PW-1 called PW-4 and PW-5 as mediators and removed the M.O.1 and seized the M.O.1 under cover of panchanama in the presence of PW-4 and PW-5 and also in the presence of wife and brother of the accused.

PW-1 prepared the inspection notes and obtained thumb impression of wife of the accused and signatures of brother of the accused and of one

Ganesh who is neighbour of the accused. Thus, according to the evidence of PW-1 and PW-2 accused drawing power supply illegally by tapping from L.T. over head lines with M.O.1 and using the power to his carpentry work in a shed situated at a distance of 15 to 20 feet from the house of the Accused and he is a non-consumer as such PW1 and PW2 seized MO1 at place of incident under cover of panchanama Ex P-2 in the presence of PW4 and PW5. The evidence of PW3 Panchayat Secretary 9 corroborates the Prosecution case as well as evidence of PW1 and PW2 to the effect that accused is residing in door No.2-195 since four years as PW3 deposed that after verifying the house tax payment register he has issued Ex P-6 residential certificate stating that accused is residing in the said door number at relevant time. Ex P-6 also corroborating in toto with the oral evidence of PW-3. At this juncture the learned counsel

for the accused took contention that PW-3 is not competent to issue Ex

P-6 and M.R.O., alone is the competent person to issue residential certificate. Hence, submits that evidence of PW-3 coupled with Ex P-6 cannot be taken into consideration to state that accused has been residing in the house bearing door No.2-195. But, the learned counsel

for the accused failed to place on record any provision or rule showing

that it is only the M.R.O. who is competent to issue residential certificate.

It is required to be observed that Panchayat Secretary is a public servant appointed under Gram Panchayat Act casted with the duties of maintaining Gram Panchayat records. Therefore, the certificate issued by Panchayat Secretary showing that the accused is the resident of house bearing No. 2-195 is required to be considered by this court.

20.Here the counsel for the accused contends that PW-1 failed to state that which hand thumb impression of wife of the accused was affixed at the column No.2 (b) and also column No.9 of inspection notes.

Hence, denies the thumb marks appearing on inspection notes are that of the wife of the accused. The tenor of the suggestion shows that accused wife was not present at the time of inspection and the thumb impression appears on Ex P-1 are not belongs to the wife of the accused.

However, there is positive evidence lead by the PW-1 and PW-2 that at the time of inspection apart from the wife of the accused the brother of the accused by name Sadavali and one R. Ganesh who is said to be 10 negibour of the accused is also present and they have obtained their signatures on Ex P-1(Inspection Report). On perusal of Ex P-1, it shows the signatures purported to be of Sadavali and R. Ganesh. It is not suggested that R. Sadavali is not brother of the accused and he was not present at the time of inspection. Hence, the chief evidence of PW-1 and

PW-2 that brother of the accused Sadavali and R. Ganesh neighbour of the accused are present at the time of inspection and in their presence

Ex.P1 is prepared is required to be deemed as proved. Be that as it may.

21.it is required to see the main contention of the accused that witnesses PW-4 and PW-5 to the seizure panchanama are not belongs to the same village of the accused and the same is admitted by PW-1. It is further contented that there is chance to involve the local inhabitants of the accused , but, PW-1 taken PW-4 and PW-5 who are residents of 20

K.M.s away from Yamanapally village. Hence, failure on part of the

Inspection Party in taking the local inhabitants as mediators is fatal to the prosecution case. Here it is required to see the explanation submitted by PW-2 that as PW4 and PW5 are available at the place of incident they were taken as mediators. This explanation shows that

PW1 and PW2 have not made any efforts to secure the presence of local inhabitants of the accused complying the mandatory provision of Law under Section 100 (5) of Cr.P.C. Further, it is not the version of Inspecting officials that there are no residential houses and no local inhabitants are available or even their efforts none from local inhabitants come forward to stand as mediators. PW1 evidence is manifest that there is chance to take the local inhabitants of the place of incidents as mediators. Further, going through the evidence of PW2 who testifies that when he saw with his naked eyes that by using MO1 accused was drawing power supply directly from near by LT Overhead, there is no need of complying 11 mandatory provision contemplated u/s.100(5) of Cr.P.C. during search and seizure proceedings. But the mandate duty casts on the inspecting party under Section 100 (5) of Cr.P.C in securing the local inhabitants to act as mediators to see that the search and seizure proceedings are proper and fair and that there is no scope for planting witnesses to act as panch witnesses to the seized properties. But, in the present case going through the evidence of PW1 and PW2, which shows glaring procedural defect in conducting search and seizure proceedings in the presence of non local inhabitants who live far away (20 kms) from the place of incident. In the light of legislation intention for securing local inhabitants to act as panch witnesses it is incumbent upon PW-1 to have secure local inhabitants as panch witnesses. But, as already stated supra ,in the present case, PW-1 and PW2 failed to comply the mandatory provision of law. Therefore, the seizure (M.O.1) proceedings conducted by PW-1 is against Section 100 (5) of Cr.P.C., as such seizure of MO1 cannot be considered by this Court.

22.The case of the prosecution is based on the seizure of M.O.1 from the house premises of accused in the presence of PW-4 and PW-5 with whom the accused allegedly indulged in commission of offence of pilferage of electricity but for the failure in following the mandatory provision under Section 100 (5) of Cr.P.C., by the officials PW-1 and PW-2 and also no support from said panch witnesses PW-4 and PW-5 it can be held that the seizure (M.O.1) proceeding are not proved. When the seizure of M.O.1 itself is not proved for the violation of procedure contemplated under Section 100 (5) of Cr.P.C., there remains nothing to state that prosecution has proved the guilt of the accused beyond reasonable doubt as such benefit of doubt can be extended in favour of the accused.

12

23.In the result, accused is found not guilty for the offences under

Section 135 of Electricity Act, 2003 and accordingly he is acquitted under Section 248 (1) of Cr.P.C. The bail bonds of accused shall stand cancelled six months after the judgment under Section 437 (A) of Cr.P.C.

M.O.1 shall be destroyed after expiry of appeal period. M.O.2 Compact

Disk shall be placed in the file treating it as part of record.

Typed to my dictation by Stenographer on Computer, Corrected and Pronounced by me in the open Court, this the 16th day of April, 2019.

I Additional Sessions Judge, Karimnagar.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR THE PROSECUTION: FOR THE DEFENCE:

PW.1 M. Mallikarjun- None - PW.2K. Mallaiah PW.3A. Raji Reddy PW.4P. Ravinder PW.5O. Rathnakar PW.6P. Venkata Chary PW.7B. Srinivas

Exhibits Marked

FOR THE PROSECUTION:

Ex.P.1 Inspection notes by PW-1 Ex.P.2Seizure Panchanama by PW-1 Ex.P.3Inspection Report by PW-1 Ex.P.4Calculation assessment sheet by PW-1 Ex.P.5Report given to Police by PW-1 Ex.P.6Residential Certificate of accused by PW-3 Ex.P.7Signature on the document said to be the seizure panchanama dated 13-05-2016 by PW-4 Ex.P.8Signature on the document said to be the seizure panchanama dated 13-05-2016 Ex.P.9Registered First information report by PW-6 Ex.P.10Rough sketch of scene of offence by PW-6

FOR THE DEFENCE:

13 ---Nil---

Material objects Marked

M.O.1Seized wire by PW-1 M.O.2Compact Disk by PW-1

I Additional Sessions Judge, Karimnagar.

1

IN THE COURT OF THE I ADDITIONAL SESSIONS JUDGE, KARIMNAGAR

PRESENT: SMT. S. PREMAVATHI,

I ADDITIONAL SESSIONS JUDGE,

KARIMNAGAR.

Tuesday, the 09th day of April, 2019

S.C. No. 110 of 2015

Name of the complainantThe state through Sub Divisional Police Officer, Karimnagar in (Cr. No. 82 of 2015 of Bejjanki P.S.)

Name of the accusedA-1 Burra Koteshwar, S/o Anjaiah, aged 25 Yrs, Goud

A-2 Jila Madhu, S/o Ailaiah, aged 22 Yrs, Golla

Both are R/o Ganneruvaram village of Bejjanki Mandal

ChargesUnder Section 354-D of IPC, Section 12 of POCSO Act, Section 3 (1) (xi) of SC/ST (POA) Act, 1989

Plea of the accusedNot guilty

Finding of the CourtNot guilty

Sentence or orderIn the result, accused No.1 and 2 are found not guilty for the offences under Sections 354-D of IPC, under Section 12 of POCSO Act, Section 3 (1) (xi) of SC/ST (POA) Act, 1989 and accordingly they are acquitted under Section 235 (1) of Cr.P.C. The bail bonds of accused shall stand cancelled six months after the judgment under Section 437 (A) of Cr.P.C.

Prosecution conducted byAdditional Public Prosecutor

Accused defended bySri S. Ramesh, Advocate

This case is coming on 26-03-2019 before me for final hearing, in the presence of learned Additional Public Prosecutor for the complainant and of Sri S. Ramesh, Advocate for accused, and upon perusing the material evidence on record and the matter having stood over for 2 consideration till this day, the Court delivered the following:

J U D G M E N T

1.The Sub Divisional Police Officer, Karimnagar of P.S. Bejjanki filed

Charge Sheet in Cr. No. 82 of 2015 under Section 354-D of IPC, under

Section 12 of POCSO Act and under Section 3 (1) (xi) of SC/ST (POA) Act, 1989 against the accused.

2. The brief contents of the charge sheet are that :

On 29-04-2015 at 1700 hours the complainant V. Kanukamma went to Bejjanki Police Station and lodged a telugu written petition stating that she is resident of Ganneruvaram village and eaking out her livelihood by doing coolie work, her husband had been to Abroad for their livelihood. Since then she along with her daughter/victim LW-2

Victim aged about 15 years residing at their house. The complainant submissions are that on 06-03-2015 on the eve of Holi festival her villager A-1 entered into her house to throw an egg on the head of LW-2

Victim, on that LW-2 Victim ran into the house by requesting him not to throw egg on her, A-1 ran behind her and caught hold the hand of LW-2

Victim and asked LW-2 Victim to fulfill his desire. Immediately, she escaped from his clutches and came out from the house. A-2 who is resident of Ganneruvaram village came to know the matter and came to the house of LW-1 V. Kanukamma, asked LW-2 Victim about the arrival of

A-1 into her house and later caught hold her hand and asked to meet his desire. When A-2 noticed LW-1 V. Kanukamma entering into the house, he left LW-2 Victim and fled away from her house. Due to humiliation by both of them on the same day at 1600 hours LW-2 Victim vexed over her life and jumped into their domestic well. On noticing the same A-2 jumped into the well and rescued her with the help of LW-4 V. Balaiah 3 and LW-5 V. Ilaiah. As LW-1 V. Kanukamma and LW-2 Victim belongs to lower caste community, A-1 and A-2 tried to rape LW-2 Victim as no male responsible person with them. Immediately, after the arrival of her husband from Abroad, LW-1 V. Kanukamma came to Police Station and lodged a report.

3.On receipt of complaint, Sub-Inspector of Police LW-10 B.

Koteshwar, S.I of Police, Bejjanki registered a case in Cr.No.82/2015 under Section 354 of IPC, Section 3 (1) (xi) of SC/ST’s (POA) Act, 1989 and under Section 12 of POCSO Act and on the proceedings of

Superintendent of Police, Karimnagar vide C.No.31/KNR/07/DCRB/14

dated 30-04-2015 appointing LW-10 B. Koteshwar, S.I of Police, Bejjanki

to investigate the case, LW-10 B. Koteshwar, S.I of Police, Bejjanki visited the scene of offence, secured the presence of LW-1 to LW-5 V.

Kanukamma, Victim, V. Yellaiah, V. Balaiah, V. Ilaiah, examined and recorded their statements, later secured the presence of panch witnesses, drafted the sketch map of the scene before LW-6 K. Ravi and

LW-7 R. Bhoomaiah. LW-10 B. Koteshwar, S.I of Police, Bejjanki arrested the A-1 and A-2 after following due arrest formalities LW-8 issued caste certificate of the victim and the accused. The statement under Section 164 Cr.P.C of the victim girl has been recorded by learned Additional

Judicial Magistrate of First Class, Huzurabad LW-9. Thus, the A-1 and A-2

are liable for the offence punishable under Section 354 IPC, Section 3 (1)

(xi) of SC/ST’s (POA) Act, 1989 and Section 12 of POCSO Act.

4.The case was taken on file by my learned predecessor in Office for the offence punishable under section 354-D of IPC, under Section 12 of

POCSO Act and under Section 3 (1) (xi) of SC/ST (POA) Act, 1989 against the accused. On appearance of the accused, copies of the case record 4 relied upon by the prosecution were furnished to the accused as contemplated under Sec. 207 Cr.P.C.

5. On receipt of summons, accused appeared before this court and

Sri S. Ramesh, Advocate filed memo of appearance on behalf of accused.

While the matter stood posted for framing of charges, charges against accused under section 354-D of IPC, under Section 12 of POCSO Act and under Section 3 (1) (xi) of SC/ST (POA) Act, 1989 have been framed, read over and explained to the accused, for which they pleaded not guilty and claimed to be tried. Accordingly, trial has commenced.

6.To substantiate its case, the prosecution has examined PW-1 to

PW-9 and got marked Ex P-1 to Ex P-10. Ex P-1 is the Report, Ex P-2 is the Signature on Crime detail form, Ex P-3 is the Caste Certificate, Ex P-4 is the First information report, Ex P-5 is the Crime detail form, Ex P-6 is the 161 Cr.P.C Statement of PW-2, Ex P-7 is the 161 Cr.P.C Statement of

PW-3, Ex P-8 is the 161 Cr.P.C Statement of PW-4, Ex P-9 is the 161 Cr.P.C

Statement of PW-5, Ex P-10 is the Birth Certificate. The learned Addl.P.P., given up the evidence of LW-9. The docket proceedings shows that evidence of LW-7 is given up as died and the record contains the Death

Certificate of LW-7.

7.After completion of the prosecution evidence, the accused was examined under Sec. 313 Cr.P.C., by confronting the incriminating evidence found in the prosecution witnesses for which the accused denied the same and reported no evidence.

8. Heard the learned counsel appearing on both side.

9. Now the point that arise for consideration is :

Whether the prosecution has proved the guilt of the accused beyond reasonable doubt in respect of the charges laid against them?

5

POINT:

10.It is the case of the prosecution that PW-1 to PW-3 are the residents of Ganneruvaram village and members of the Scheduled Caste

Community. PW-2 is the minor victim girl and received injuries to her both legs. The accused No.1 and 2 are the residents of same village and they are the non members of the SC/ST Community. On 06-03-2015 on the eve of Holi Festival, the accused No.1 came to the house of PW-1 and followed the victim girl PW-2 to pelt egg on her head. PW-2 noticed the movements of A-1 and tried to avoid the A-1 but the A-1 followed her, caught hold her hand and forced her to fulfill his desire. When the A-1 tried to outrage her modesty, PW-2 Victim girl escaped from his clutches and came out of the house. On that A-1 fled away from the scene.

Knowing the same on the same day at about 1600 hours the A-2 came to the house of PW-1 as he is love with PW-2 and asked the PW-2 about the entry by A-1 into her house and admonished PW-2 for allowing the A- 1 into the house, as PW-2 and A-2 are in love. With the acts of A-1 and A- 2 the victim girl PW-2 vexed over her life and jumped into her domestic well and she sustained severe injuries to her legs. In order to prove the guilt of the accused the prosecution has examined PW-1 to PW-9.

11.Going through the evidence of PW-1, it shows that PW-2 was subjected to outrage of her modesty for the alleged acts of A-1 and A-2, on that PW-2 vexed with the alleged acts A-1 and A-2 jumped into the well, resulted into the injuries to her back bone and also to her lower limbs.

12.But, during the cross examination of PW-1 it is elicited that at the time of A-1 entered into the house of PW1 she was present infront of her house at a distance of 0-10 guntas from her house. So, there appears no 6 chance of witnessing by PW1 while A1 allegedly caught holding the hand of PW-2 since PW-1 version is that on seeing A-1, PW-2 ran inside the house. Hence, witnessing the alleged act of A-1 caught holding the hand of PW-2 is not possible to PW-1 as she is outside of the house and that to at a considerable distance from house. It is also not the evidence of PW-1 that she witnessed the A-1 while he caught hold the hand of PW-2 through a window or through some medium if any present to her house. Further, in respect of the allegations against A-2 that he came to the house of PW-1 and PW-2, it is elicited during cross- examination of PW-2 that PW-1 was not all present in the house and except PW2 no body was present in the house. According to PW1 no one witnessed the incident.

13. According to the evidence of PW-2 to PW-6 there appears no corroboration to the evidence of PW-1. PW-2 by entering into the witness box openly deposed that no body entered into the house, nobody outraged her modesty by caught holding her hand and pulled her, insulted and humiliated her. she deposed before this court that she gave her statement under Section 164 Cr.P.C., before learned

Magistrate, Huzurabad as she was tutored by the police. Even after

lengthy cross examination by learned Additional Public Prosecutor also nothing come out from the mouth of PW-2 showing single piece of evidence against the accused regard to the offences charged against them. The evidence of PW-3 also going contrary to the evidence of PW-1.

According to prosecution that immediately after the incident on 6-3- 2015, PW-1 telephoned to PW-3 informing the alleged acts of A-1 and A- 2, and due to the humiliation, PW-2 jumped into the well and sustained injuries. But PW-3 denied the same and testified that PW-1 did not state any thing to him and he only came to know that PW-2 is suffering with ill 7 health and admitted in hospital. Here it is required to be observed that

PW-3 is the husband of PW-1 and father of PW-2. Even from his mouth also did not come any evidence showing the guilt of the accused No.1 and 2 even after cross examination by learned Additional Public

Prosecutor. So also there is no testimony from the evidence of PW-4 and

PW-5 who are said to be assisted A-2 in picking up PW-2 from the well since they deposed that they never witnessed PW-2 jumping into the well and retrieved PW-2 herein. Notable point in this case is that even

Crime detail form is also not proved by the prosecution since the PW-6 said to be panch witness for crime Detail Form stated that no such crime details mentioned in Crime Detail Form are conducted in his presence and while he signed the document under Ex P-5 it was not filled with contents.

14.As already stated supra that PW-1 testified that for the alleged acts of A-1 and A-2 , PW-2 vexed and jumped into well and received injury to her back bone and to her both lower limbs. So, she taken PW-2 to the hospital and admitted in Surya Nursing Home at Karimnagar for treatment and PW-2 was remained in hospital for more than 20 days and thereafter she was discharged from the hospital and undergone physiotherapy. But, no medical record showing treatment to the PW-2 in so called Surya Nursing Home is brought on record showing that PW-2 was given treatment to the injuries to her both limbs and back bone. It is not the version of PW-1 that she handed over medical record showing alleged treatment to PW-2 to the police, but, police failed to file the same before this court. During her cross examination she admitted that she did not handover so called medical record to the police along with report under Ex P-1. The Investigation Officer examined as PW-9 during his cross examination categorically stated that PW-1 did not state either 8 in Ex P-1 or in her statement under Section 161 of Cr.P.C. before him that

PW-2 was admitted in hospital and got treated by the Doctor. PW-9 further evidence is that PW1 did not produce any medical treatment record before him . No explanation come from the mouth of PW1 as to the circumstances prevented her in handing over any medical record showing alleged treatment to PW9 during investigation. Had PW-2 was undergone treatment for period of more than 20 days in the so called

Hospital on account of the alleged acts of A1 and A2 certainly there would be medical record showing such treatment to PW2 and the same can be given to the PW-9 and recital in respect of the treatment would found place in Ex.P1 since Ex.P1 is came to be lodged more than one month after the date of offence. But, in the present case Ex.P1 does not show the recital regard to the treatment to PW-2 in any hospital much less in Surya Nursing Home, Karimnagar. Here it is required to be observed the evidence of PW2 regard her non functioning of her both legs. She categorically deposed that due to ill health her both legs are not functioning. But, it is not her evidence that due to the acts of A1 and

A2 her both legs are not functioning. Hence, in the absence of any medical record from so called hospital and absence of mentioning in

Ex.P1 regard to the treatment in the so called hospital by the PW-1 which is came to be filed more than one monthafter the alleged discharge fromthe so called Surya Nursing Home, the evidence of PW1 regard to the injuries to PW-2 is on account of the alleged acts of A1 and

A2 becomes doubtful.

15.It is needless to say that in criminal cases delay in lodging the report is not at all fatal to the prosecution case if such delay is satisfactorily explained. But in the present case, as already stated supra that Ex P-1 is came to be lodged with a considerable delay without any 9 convincing explanation for such delay. Basing on said report, PW-8 has registered case in Cr.No. 82/2015 of P.S.Bejjanki. Therefore, in the light of admitted factum of abnormal delay in lodging report under Ex P-1 without satisfactory explanation much weight can not be given to the contents in Ex.P1. PW-9 says that during the investigation he recorded the statement of PW-2 to PW-5 marked under Ex P-6 to P-9 and deposes that PW-2 to PW-5 stated before him as in Ex P-6 to P-9. But, the evidence of PW-2 to PW-5 shows other wise and they explicitly pleads ignorance about the prosecution version and openly states that no such incident as stated by PW-1 is happened. In these circumstances, no weight can be given to the evidence of PW-9 regard to the exhibits marked under P-6 to P-9 as they are contrary to the evidence of PW2 to

PW5.

16.PW-1 states that at relevant time PW-2 was aged about 15 years.

Where as PW-2 states that she was aged about 14 years at relevant time. Ex P-10 shows the date of birth of PW-2 is 28-4-2001. It is elicited that Ex P-10 is not supported by the evidence of Head Master who issued it and PW-9 did not verify Gram Panchayat records to ascertain the date of birth of PW-2. Here it is required to see the cross examination of PW-1 that date of birth of PW-2 was reported in Gram Panchayat of her village.

Even then no efforts put forth by the Investigation officer PW-9 to ascertain date of birth of PW-2. Further it is elicited during cross examination of PW-9 that he did not made any investigation about the prior education of PW-2 prior to obtain Ex P-10 and on which material Ex

P-10 is given and he did not examine Head Master who issued Ex P-10.

Hence, in these circumstances, mere oral evidence of PW-1 and PW-2 it can not be said that prosecution has proved that PW-2 is the girl comes with in the purview of P.O.C.S.O.Act, 2012.

10

17.There is no dispute with regard to caste particulars of the PW-2 as well as the caste particulars of A1 and A-2 since evidence of PW-7 the then Thahasildar of Benjanki Mandal remained un- disputed. It is settled principle that prosecution has to prove the guilt of the accused beyond reasonable doubt. But, in the present case with the evidence discussed above there is no witness much less eye witness to the alleged acts of

A1 and A2 attracting the offence under Sec.354-D of IPC. No evidence from the mouth of PW2 who is said to be victim in the hands of A1 and

A2. For the discussion taken above, PW1 evidence is doubtful regard to the factum of non functioning of lower limbs of PW2 is due to the alleged acts of A1 and A2 . Hence, without having corroboration it can not be said that for the alleged acts of A1 and A2, PW2 jumped in to the well situated within limits of her house and there by sustained injuries resulting into disability to her both legs. Therefore, mere proving that A- 1 and A-2 are belongs to the caste other than SC/ST Community and

PW-2 belongs to Schedule Caste Community, it can not be said that prosecution is able to prove the guilt of the accused for the offence under Section 3 (1) (xi) of SC/ST’s (POA) Act. Therefore, for the aforementioned discussion , it is required to be state that prosecution is failed to prove the guilt of the accused for the offences charged against the A1 and A2. Therefore, the A-1 and A-2 are entitled to be acquitted under Section 235 (1) of Cr.P.C of the offences charged against them.

Thus, the Point is answered accordingly.

18.In the result, accused No.1 and 2 are found not guilty for the offences under Sections 354-D of IPC, under Section 12 of P.O.C.S.O. Act,

Section 3 (1) (xi) of SC/ST (P.O.A.) Act, 1989 and accordingly they are acquitted under Section 235 (1) of Cr.P.C. The bail bonds of accused shall stand cancelled six months after the judgment under Section 437 11 (A) of Cr.P.C.

Typed to my dictation by Stenographer on Computer, Corrected and Pronounced by me in the open Court, this the 09th day of April, 2019.

I Additional Sessions Judge, Karimnagar.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR THE PROSECUTION: FOR THE DEFENCE:

PW.1 V. Kanakamma- None - PW.2Victim PW.3V. Yellaiah PW.4V. Balaiah PW.5V. Ilaiah PW.6K. Ravi PW.7T. Eshwaraiah PW.8V. Koteshwar PW.9J. Rama Rao

Exhibits Marked:

FOR THE PROSECUTION:

Ex.P.1Report Ex.P.2Signature in Crime detail form Ex.P.3Caste Certificate Ex.P.4First information report Ex.P.5Crime detail form Ex.P.6161 Cr.P.C Statement of PW-2 Ex.P.7161 Cr.P.C Statement of PW-3 Ex.P.8161 Cr.P.C Statement of PW-4 Ex.P.9161 Cr.P.C Statement of PW-5 Ex.P.10Date of Birth Certificate

FOR THE DEFENCE:

---Nil---

Material objects Marked

---NIL---

I Additional Sessions Judge, Karimnagar.