Sri S. Siva Sankar Reddy

C.C.No.16/2019 1/14 AJFCM Court, Gdv

IN THE COURT OF THE ADDL. JUDL. MAGISTRATE OF I CLASS;GUDIVADA

PRESENT: Sri.S.Siva Sankar Reddy, Addl. Judl. I Class Magistrate

MONDAY, THIS THE 20 TH DAY OF MARCH, 2020

C.C.No.16 of 2019

Between: State, represented by Sub Inspector of Police, Gudivada II Town Police Station.… Complainant.

And

1. Tadikonda Seshagiri Rao, S/o Venkateswara Rao, aged about 50 years, R/o Mareeduvari veedhi, Gudivada

2. Sk.Subhani, S/o Kasim, aged about 58 years, Shadi kana, Gudivada

3. Syed Irfan, S/o Ismail, aged about 26 years, R/o near Lanjala Dibba, Gudivada

4. Boreddy Naga Mohan Reddy, S/o Nagireddy, aged about 31 years, R/o behind Balaji Theater, Satyanarayanapuram, Gudivada

... Accused.

This case is coming on 17.03.2020 for final hearing before me and upon perusing the entire material available on record and upon hearing the arguments of APP for the Prosecution and on Sri B. Satyanarayana, Advocate for A1, Sri M.Rajesh, Advocate for A2; Sri Ch.K.R. Advocate for A3 and A4; and having stood over for consideration till this day, this Court delivered the following;

J U D G M E N T

1.The Sub Inspector of Police, Gudivada II Town Police Station filed charge sheet against A1 to A4 in Cr.No.214/2018 for the offences punishable under sec.270, 273 of Indian Penal Code, 1860 ( in short “IPC”) and Section 5(1), 22 of Cigarette and others product ban Act, 2003.

2. The brief facts of the charge-sheet are as follows:-

(a) On 23.10.2018 at about 11.00 A.M., on reliable information

P.W.2/ASI of police conducted raid against the buddy shops belongs to A1 to A4 with the assistance of P.Yedukondalu, P.C. and A.Veerababu, P.C. in the presence of mediators i.e., P.W.1 and L.W.2/Bogadi Arjuna Rao and seized noxious food 1) V1 jarda sample packets 18, 2) 24 carat chan masala 27 packets 4, 3) Vimal pan masala 11 packets from A1; 1) Vimal pan masala

C.C.No.16/2019 2/14 AJFCM Court, Gdv packets 8, 2) Raja Kaini packets 4, 3) 24 carat pan masala packets 18, 4) Babu jarda small packets 20 from A2; 1) RMD pan masala big packets 48, 2) RMD pan masala small packets 8, 3) RMD pan masala with jarda packets 79, 4)

Chaini kaini packets 5, 5) Vimal pan masala with Jarda packets 100, 6) 24 carat pan masala packets 21 from A3 and 1) RMD pan masala big packets 30, 2)

RMD pan masala small packets 15, 3) Vimal pan masala with jarda packets 30,

4) 24 carat pan masala packets 3 from A4; which prohibited by the A.P.

Government in view that it causes harm to the health of the public while they were in possession of them under cover of mediators report 1 to 4 and a pouch from each for chemical examination and affixed slips on them. Basing on the mediators report, dated 23.10.2018 L.W.6/Md.Shabbir Ahmed, S.I of police registered a case in Crime No.214/2018 under Sections 270, 273 IPC and

Section 5 and 22 of Cigarette and others producted ban Act, 2003 and took up investigation.

During the course of investigation, L.W.6/S.I of police visited the scene of offence and prepared rough sketch examined the listed witnesses and recorded their statements, issued notice to A1 to A4 under Section 41-A Cr.P.C., sent samples to the Senior Scientific Officer & food analyst for chemical examination. Later L.W.7/D.Venkateswara Rao, Inspector of Police took up further investigation and after completion of investigation LW.7/Inspector of police filed charge sheet against A1 to A4.

3. This case was taken cognizance for the offences under Sec. 270, 273 r/w 34 IPC and Sections 5, 22 of COTPA Act and issued summons to A1 to A4.

4. On appearance of A1 to A4 before this Court, copies of documents as contemplated under Sec.207 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C') were furnished and when they were examined under Sec.251 Cr.P.C by explaining the accusation against them for the offences Under Sections 270,

C.C.No.16/2019 3/14 AJFCM Court, Gdv 273 r/w 34 of IPC, for which A1 to A4 pleaded not guilty and claimed to be tried.

5. On behalf of prosecution, PWs.1 and 2 were examined and Exs.P1 to

P8, M.Os.1 to 17 were got marked on their behalf. Consequently prosecution side evidence is closed.

6. After closure of the prosecution side evidence, A1 to A4 were examined under sec.313 Cr.P.C. by explaining the incriminating evidence of prosecution witnesses, they denied the same. A1 to A4 did not choose to examine any defence witnesses nor marked any documents.

7. Heard arguments of learned APP for the prosecution and the learned counsel for the accused.

8.Now the point that arose for determination is as follows:-

Whether the prosecution has proved the guilt of A1 to A4 beyond all reasonable doubt for the offences punishable under Sec. 270, 273 r/w 34 IPC?

9.POINT: According to the case of the prosecution, the offences levelled against A1 to A4 are under sec.270, 273 r/w 34 IPC. In order to prove the same, the prosecution has examined P.Ws.1 and 2 and got marked Exs.P1 to

P8 and also marked M.Os.1 to 17. P.W.1 is the VRO cum complainant in this case. P.W.2 is the ASI/ Investigating Officer in this case. The learned APP has given up the evidence of Bogadi Arjuna Rao, P.Yedukondalu, P.C., A.Veerababu,

P.C., Md.Shabbir Ahmed, S.I of police and D.Venkateswara Rao, Inspector of police (L.Ws.2 to 4, 6 and 7).

10.As per charge sheet contents, A1 to A4 are selling banned Gutkha and Khaini packes illegally for gaining profits and thereby A1 to A4 has committed an Act of malignant likely to spread infection of diseases dangerous

C.C.No.16/2019 4/14 AJFCM Court, Gdv to life and intentionally sold and also sold noxious food which are punishable under Sections 270 and 273 r/w 34 IPC.

11.In order to prove the case of the prosecution against A1 to A4 for the offence under Sections 270 and 273 r/w 34 IPC, the prosecution has mainly relied on the evidence of P.Ws.1 and 2. P.W.1 is the VRO/Complainant and PW.2 is ASI of police/Investigating Officer and all the remaining witnesses were given up by the learned APP. P.Ws.1 and 2 in one voice deposed that on 23.10.2018 at about 11.00 A.M, they proceeded to the shop of A1 situated at

Yarrabaddi centre, Gudivada and there they seized M.O.1 V1 jarda sample packets 17, M.O.2 24 carat pan masala pacekts 26, M.O.3 Vimal pan masala packets 10 from the possession of A1 under a cover of mediators report in the presence of mediators. Ex.P1 is mediators report, dated 23.10.2018 at 11.00

A.M.

Further P.Ws.1 and 2 also deposed in one voice that thereafter they proceeded to the shop of A2 situated at Shadikhana, Gudivada and there PW.2 seized M.O.4 Vimal pan masala packets, M.O.5 Raja Khaini packets 3, M,O.6 24 carat pan masala packets 17, M.O.7 Babu jarda small packets 19 from the possession of A2 under a cover of mediators report in the presence of mediators. Ex.P2 is mediators report on 23.10.2018 at 12.00 noon.

Further, P.Ws.1 and 2 also deposed in one voice that they proceeded to the shop of A3 situated at Alpha Tea stall, Gudivada and seized M.O.8 RMD pan masala big packets 47, M.O.9 RMD pan masala small packets 7, M.O.10 RMD pan masala with jarda packets 78, M.O.11 Chaini kaini packets 4, M.O.12 Vimal pan masala with jarda packets 99, M.O.13 is 24 carat pan masala packets 20 from the possession of A3 under a cover of mediators report. Ex.P3 is mediators report on 23.10.2018 at 1.00 P.M.

C.C.No.16/2019 5/14 AJFCM Court, Gdv

P.Ws.1 and 2 further deposed that thereafter they proceeded to the shop of A4 situated at Golden Tea Stall, Gudivada and seized M.O.14 RMD pan masala big packets 29, M.O.15 RMD pan masala small packets 14, M.O.16

Vimal pan masala with jarda packets 298, M.O.17 24 carat pan masala packets 2 from the possession of A4 under the cover of mediators report in the presence of mediators. Ex.P4 is mediators report on 23.10.2018 at 1.45 P.M.

12.P.Ws.1 and 2 deposed in one voice that A1 to A4 confessed before them in the presence of mediators under Ex.P1 to P4 mediators report that they have been selling said Gutkha and Khaini packets illegally which are banned by the Government for gaining profits. P.W.1 further deposed that he gave Ex.P5 mediator report to Gudivada II Town P.S., dated 23.10.2018. P.W.2 who is the ASI of police further deposed that he returned to the police station along with A1 to A4 and seized contraband i.e., M.O.s1 to 17 and Ex.P5 report and handed over the same to his S.I of police/L.W.6/Md.Shabir Ahamed.

13.P.W.2 further deposed that as per record, his S.I of police registered

Ex.P5 report as a case in Crime No.214/2018 under Sections 270, 273 IPC and

Sections 5, 22 of COTPA Act to Gudivada II Town Police Station. Ex.P6 is FIR.

P.W.2 further deposed about further investigation made by his S.I of police.

Ex.P7 is rough sketchs 4)in number. P.W.2 further deposed that as per record, his S.I of police also sent the sample packets to the Chemical Analyst for analysis and report and later his Inspector of Police i.e., LW.7 received chemical analysis report. Ex.P8 is Chemical Analysis report, dated 03.01.2019. P.W.2 further deposed that after completion of investigation his S.I of police filed charge sheet in this case.

14.The learned counsel for A1 to A4 cross-examined P.Ws.1 and 2, but nothing useful was elicited except putting denial suggestions. P.Ws.1 and 2 categorically denied in their cross-examination that Exs.P1 to P4 mediators

C.C.No.16/2019 6/14 AJFCM Court, Gdv reports were prepared by sitting in the police station and the mediators are stock mediators for the police. Basing on the above cross-examination of

P.Ws.1 and 2, the learned counsel for A1 to A4 argued that the prosecution has not examined the independent mediators in this case and thereby Exs.P1 to P4 mediators report cannot be considered. The learned counsel for A1 to A4 further argued that M.Os.1 to 27 are easily available in the open market and the evidence of P.W.1 being VRo/Governmentservant and the evidence of

P.W.2/ASI of police cannot be believed as they are interested witnesses. The learned counsel for A1 to A4 further argued that M.Os.1 to 24 are not seized from the possession of A1 to A4 and they did not commit any offence and prays to acquit the accused.

15.On the other hand, the learned APP vehemently opposed the argument of the accused counsels and submitted that there is no need to examine all the mediators to prove to Ex.P1 to P4 as the prosecution has already examined P.Ws.1 who is none other than the VRO and independent mediator. The learned APP further argued that there is no hard and fast rule that the evidence of P.W.2 Police Officer cannot be believed and there is no necessity for PW.2 to plant M.Os.1 to 17 to foist a case against A1 to A4, with whom PW.2 has no enmity or relationship. The learned APP further argued that the evidence of P.Ws.1 and 2 is not shaken in the cross-examination and the same is quite believable and prays to convict A1 to A4. In this regard, the learned APP has relied on the decision of our Hon'ble Supreme Court held in between Anil @ Andya Sadashiv Nandoskar vs. State of Maharashtra on 19 February, 1996 reported in 1996 (2) 589, wherein his lordship was pleased to held that " Indeed all the 5 prosecution witnesses who have been examined in support of search and seizure were members of the raiding party. They are all police officials. There is, however, no rule of law that the

C.C.No.16/2019 7/14 AJFCM Court, Gdv evidence of police officials has to be discarded or that it suffers from some inherent infirmity"............... " the police officials do not suffer from any disability to give evidence and the mere fact that they are police officials does not by itself give raise to any doubt about their credit worthiness."............

Further the learned APP has relied upon the findings given by the Hon'ble

High Court of Telangana held in between V.Balaiah vs. The State of A.P.

represented by its PP. Hyderabad, 7th February, 2019 Criminal Appeal No.1617 of 2009 wherein the Hon'ble High Court of Telangana was pleased to held that :

"............ Therefore, wherever the evidence of police officials, after careful scrutiny, inspires and is found to be trustworthy and reliable, it can form basis of conviction, even in absence of corroboration with the independent witnesses. No infirmity attaches to the testimony of the police officials, merely because they are police officials and there is no rule of law or evidence, which lays down that conviction cannot be recorded on the sole testimony of the police officials".......................

16.Having considered the argument on both the sides and on perusal of the above two decisions relied by the learned APP, it is crystal clear that the argument of the accused counsel is not sustainable. Why because, as rightly argued by the learned APP, P.W.1 is a VRO and PW.2 is ASI of police has no enmity with A1 to A4. Furthermore, there is no single reason assigned by the accused counsels attributing any malafidies to P.Ws.1 and 2 to foist a case against A1 to A4 by procuring M.Os.1 to 17 from the market on their expenditure to foist a case against A1 to A4. Furthermore, as rightly argued by the learned APP in order to prove the prosecution case and Exs.P1 to P4 mediators report, there is no need to examine all the mediators. As per

Section 134 of Indian Evidence Act the Court has to consider the quality of the evidence but not quantity of the evidence. In the instant case, PW.1 being one of the mediator who was present at the time of the raid and seizure of M.Os.1

C.C.No.16/2019 8/14 AJFCM Court, Gdv to 17 categorically deposed that M.Os.1 to 17 are seized from the possession of A1 to A4 respectively in his presence under a cover of Exs.P1 to P4. In addition to that, as per above two decisions relied by the learned APP also it is crystal clear that there is no bar under the law to believe the testimony of

P.W.2 police officer until and unless any infirmity is proved against him. In the instant case, no infirmity is made out by the accused counsel against PW.2 to disbelive his evidence. As such, the above said two decisions are squarely applicable to the present case on hand and thereby the argument of the accused counsel is not at all sustainable.

17.On consideration of the evidence of P.Ws.1 and 2 coupled with Exs.P1 to

P5, it is clearly proved by the prosecution beyond all reasonable doubt that

M.O.1 V1 jarda sample packets 17, M.O.2 24 carat pan masala pacekts 26,

M.O.3 Vimal pan masala packets 10 were seized from the possession of A1,

M.O.4 Vimal pan masala packets, M.O.5 Raja Khaini packets 3, M,O.6 24 carat pan masala packets 17, M.O.7 Babu jarda small packets 19 from the possession of A2, M.O.8 RMD pan masala big packets 47, M.O.9 RMD pan masala small packets 7, M.O.10 RMD pan masala with jarda packets 78, M.O.11

Chaini kaini packets 4, M.O.12 Vimal pan masala with jarda packets 99, M.O.13 is 24 carat pan masala packets from the possession of A3 and M.O.14 RMD pan masala big packets 29, M.O.15 RMD pan masala small packets 14, M.O.16

Vimal pan masala with jarda packets 298, M.O.17 24 carat pan masala packets 2 from the possession of A4 beyond all reasonable doubts.

18.As per the evidence of P.Ws.1 and 2, it is crystal clear that M.Os.1 to 17 are Gutkha and Khaini packets which were banned by the Government and A1 to A4 are selling the same illegally for gaining profits. As per the evidence of

PW.2, his S.I of police also sent the sample packets for analysis report and

Ex.P8 is the analysis report. On perusal of M.Os.1 to 17 it is categorically

C.C.No.16/2019 9/14 AJFCM Court, Gdv mentioned thereon that they are the tobacco products and consumption of the same is injurious to health. Further, on perusal of Ex.P8 analysis report, the chemical analyst clearly opined that the said samples are Gutkha and Khaini packets and they contain Nicotine and hence they are unsafe under Section 3.1(ZZ) (V) of FSS Act 2006. As such, M.Os.1 to 17 are unsafe to health of public and cause infection of diseases to public. So, through the evidence of

P.Ws.1 and 2 coupled with Ex.P6 analysis report, it is clearly made out by the prosecution are that A1 to A4 are selling banned Gutkha and Khaini packets illegally for gaining profits and thereby A1 to A4 are responsible for spreading of infection of diseases dangerous to life and intentionally sold noxious food to the public.

19.On thorough consideration of the evidence of P.Ws.1 and 2 coupled with

Exs.P1 to P8 and M.Os.1 to 17, it is clearly proved by the prosecution that

M.Os.1 to 3 were seized from the possession of A1, M.Os.4 to 7 are seized from the possession of A2, M.Os.8 to 13 are seized from the possession of A3 and

M.Os.14 to 17 are seized from the possession of A4. Furthermore, inspite of thorough cross-examination by the accused counsels, nothing was elicited from P.Ws.1 and 2 to discord their evidence. In addition to that on perusal of

Ex.P8 analysis report clearly goes to prove that the seized Gutkha and Khaini packets from the possession of A1 to A4 are injurious to health and they are contain Nicotine. As per the evidence of P.Ws.1 and 2, it is proved by the prosecution that A1 to A4 knowingly sold the said banned Gutkha and Khaini products to the public for gaining profits and thus A1 to A4 has committed an

Act of Malignant resulting to cause spread infection of diseases dangerous to the life of public. So as per the above discussion, it is clearly proved by the prosecution that A1 to A4 has committed the offences under Sections 270, 273 r/w 34 IPC and accordingly this point is answered.

C.C.No.16/2019 10/14 AJFCM Court, Gdv

20.In the light of aforesaid reasons and discussions, it is crystal clear that the prosecution has able to bring home the guilt of A1 to A4 for the offences under Sections 270, 273 r/w 34 IPC beyond all reasonable doubt and

A1 to A4 are liable to be convicted.

21.In the result, A1 to A4 are found guilty for the offences punishable under Sections 270, 273 r/w 34 IPC and they are convicted under

Section 255(2) of Cr.P.C.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in open Court, this the 20thday of March, 2020.

Addl. J.F.C. Magistrate, Gudivada

When questioned about the quantum of sentence to be imposed against

A1 to A4, all of them pleaded in one voice that they are breadwinners of their families and and if they sent to jail, their entire family will be starved for bread and prayed for mercy of the Hon’ble Court in imposing the sentence.

Having considered the facts and circumstances of the case, I am of the opinion that it is not a fit case to invoke the benefit under P.O. Act. However, having considering the nature and gravity of the offence, facts and circumstances of the case, this Court is of the considered opinion that imposing fine instead of sentencing A1 to A4 to jail, will meet the ends of justice.

Accordingly, A1 to A4 are sentenced to pay a fine of Rs.9,000/- (Rupees nine thousand only) each for the offence under Section 270 r/w 34 IPC IDSI for three month each.

Further, A1 to A4 are sentenced to pay a fine of Rs.1,000/- (Rupees one thousand only) each for the offence under Section 273 r/w 34 IPC IDSI for three months each.

C.C.No.16/2019 11/14 AJFCM Court, Gdv

As A1 to A4 are imposed fine only, they are not at all entitled for set off under Section 428 Cr.P.C.

Further A1 to A4 are informed about their right to prefer appeal against the Judgment of this Court before the Hon’ble District Court, Machilipatnam and also about the free Legal Aid.

The case property in C.P.No.2/19 i.e., M.Os. 1 to 17 shall be destroyed after expiry of the appeal time.

Addl. J.F.C. Magistrate, Gudivada

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION: DEFENCE

PW.1: M.Lakshmeswara Rao, V.R.O - None –

PW.2: M.Srihari, A.S.I of police

DOCUMENTS MARKED FOR PROSECUTION

Ex.P.1: Mediators report, dated 23.10.2018 at 11.00 A.M.

Ex.P.2: Mediators report, dated 23.10.2018 at 12.00 noon

Ex.P.3: Mediators report, dated 23.10.2018 at 1.00 P.M.

Ex.P.4: Mediators report, dated 23.10.2018 at 1.45 P.M.

Ex.P.5: Report, dated 23.10.2018 at 2.45 P.M.

Ex.P6: FIR

Ex.P7: Rough sketches four in number

Ex.P8: Chemical analysis report, dated 03.01.2019

DOCUMENTS MARKED FOR DEFENCE

-Nil-

MATERIAL OBJECTS

M.O.1 V1 jarda sample packets 17

M.O.2 24 carat pan masala pacekts 26

C.C.No.16/2019 12/14 AJFCM Court, Gdv

M.O.3 Vimal pan masala packets 10

M.O.4 Vimal pan masala packets

M.O.5 Raja Khaini packets 3

M,O.6 24 carat pan masala packets 17

M.O.7 Babu jarda small packets 19

M.O.8 RMD pan masala big packets 47

M.O.9 RMD pan masala small packets 7

M.O.10 RMD pan masala with jarda packets 78

M.O.11 Chaini kaini packets 4

M.O.12 Vimal pan masala with jarda packets 99

M.O.13 is 24 carat pan masala packets 20

M.O.14 RMD pan masala big packets 29

M.O.15 RMD pan masala small packets 14

M.O.16 Vimal pan masala with jarda packets 298

M.O.17 24 carat pan masala packets 2

Addl. J.F.C. Magistrate,

Gudivada.

C.C.No.16/2019 13/14 AJFCM Court, Gdv

CALENDER AND JUDGMENT

IN THE COURT OF THE ADDL. JUDL. I CLASS MAGISTRATE; GUDIVADA

C.C.No.16 OF 2019

Date of

OffenceComplaintApprehension ofCommenceClose ofSentence or accusedment of trialtrialorder 23.10.1823.10.1823.10.201818.02.202010.03.2020.03.2020 Between: State, represented by Sub Inspector of Police, Gudivada II Town Police Station.… Complainant.

And

1. Tadikonda Seshagiri Rao, S/o Venkateswara Rao, aged about 50 years, R/o Mareeduvari veedhi, Gudivada

2. Sk.Subhani, S/o Kasim, aged about 58 years, Shadi kana, Gudivada

3. Syed Irfan, S/o Ismail, aged about 26 years, R/o near Lanjala Dibba, Gudivada

4. Boreddy Naga Mohan Reddy, S/o Nagireddy, aged about 31 years, R/o behind Balaji Theater, Satyanarayanapuram, Gudivada

... Accused.

Offence: Under Sections 270, 273 r/w 34 IPC

Pleading:”Pleaded Not Guilty”

Finding:“FOUND GUILTY”

SENTENCE: In the result, A1 to A4 are found guilty for the offences punishable under Sections 270, 273 r/w 34 IPC and they are convicted under Section 255(2) of Cr.P.C. When questioned about the quantum of sentence to be imposed against A1 to A4, all of them pleaded in one voice that they are breadwinners of their families and and if they sent to jail, their entire family will be starved for bread and prayed for mercy of the Hon’ble Court in imposing the sentence. Having considered the facts and circumstances of the case, I am of the opinion that it is not a fit case to invoke the benefit under P.O. Act. However, having considering the nature and gravity of the offence, facts and circumstances of the case, this Court is of the considered opinion that imposing fine instead of sentencing A1 to A4 to jail, will meet the ends of justice. Accordingly, A1 to A4 are sentenced to pay a fine of Rs.9,000/- (Rupees nine thousand only) each for the offence under Section 270 r/w 34 IPC IDSI for three month each. Further, A1 to A4 are sentenced to pay a fine of Rs.1,000/- (Rupees one thousand only) each for the offence under Section 273 r/w 34 IPC IDSI for three months each. As A1 to A4 are imposed fine only, they are not at all entitled for set off under Section 428 Cr.P.C.

C.C.No.16/2019 14/14 AJFCM Court, Gdv

Further A1 to A4 are informed about their right to prefer appeal against the Judgment of this Court before the Hon’ble District Court, Machilipatnam and also about the free Legal Aid. The case property in C.P.No.2/19 i.e., M.Os. 1 to 17 shall be destroyed after expiry of the appeal time.

EXPLANATION FOR DELAY:

This case was taken on file on 25.01.2019. On 22.03.2019 on appearance of A1 to A4, they furnished with the copies of documents as contemplated under Sec.207 Cr.P.C. A1 to A4 were examined under Sec.251

Cr.P.C. for the offences under Sections 270, 273 r/w 34 IPC and the substance of the same are read over and explained to them in Telugu, for which they denied, pleaded not guilty and claimed to be tried. On behalf of prosecution from 18.02.2020 to 10.03.2020 P.Ws.1 and 2 were examined and Ex.P.1 to P8,

M.Os.1 to 17 are marked. On 13.03.2020 A1 to A4 were examined under sec.313 Cr.P.C. by explaining the incriminating evidence appearing against them, they denied and reported no defence evidence on their behalf. On 17.03.2020 Heard arguments on both the sides. On 20.03.2020 Judgment

pronounced in open Court. Hence, the delay.

Copy submitted to: Addl. J.F.C. Magistrate, The Hon’ble I Addl.Dist.& Sessions Gudivada.

Judge, Krishna, Machilipatnam.

C.C.144/2017 1 II-AJFCM Court, MTM

IN THE COURT OF THE II-ADDL. JUDL. MAGISTRATE OF I CLASS;

MACHILIPATNAM

PRESENT; Sri.S.Siva Sankar Reddy,

II-Additional Judicial 1 st Class Magistrate, MTM

FRIDAY, THIS THE 23 rd DAY OF FEBRUARY, 2018

C.C.No.144 of 2017

Between:

State, represented by Station House officer, Mahila Police Station. … Complainant.

And

1. Megada Simhadri, S/o Ravindra, Age 33 years, R/o Korukollu Village, Kalidindi Mandal.

2. Megada Ravindra, S/o Krishna Murthy, Age 60 years, D.No.9/543, Uppuluri Vari veedhi, Korukollu Village, Kalidindi Mandal.

3. Megada Pushpalatha, W/o Ravindra, Age 55 years, D.No.9/543, Uppuluri Vari Veedhi, Korukollu Village, Kalidindi Mandal.

4. Mode Lakshmi, W/o Rajesh, Age 29 years, Kanuru, Vijayawada.

... A1 to A4.

This case is coming on 04.01.2018 for final hearing before me and upon perusing the entire material available on record and upon hearing the arguments of Senior APP for the Prosecution and on Sri.K.Chandra Sekhar Rao, Advocate for the accused and having stood over for consideration till this day, this Court delivered the following;

J U D G M E N T

1.The Station House officer, Mahila Police Station filed charge sheet against A1 to A4 in Cr.No.19/2016 for the offence punishable under sec.498-A of Indian Penal Code, 1860 ( in short “IPC”) and Sec.3 & 4 of Dowry Prohibition

Act.

2. The brief facts of the charge-sheet are as follows:-

(a) LW.1/Meegada Revathi marriage was held with A1 on 14.02.2013 at Venkateswara Swamy Temple, Sri Dwaraka Tiumala as per Hindu Caste

Customs in the presence of both side elders. At the time of marriage

LW.2/B.Venkateswaramma & LW.3/B.Harsha Pradeep had given an amount of

Rs.5 lakhs towards Pasupu Kumkuma, gold worth Rs.1 lakh to A1 to A3, and

Rs.50,000/- towards aadapaduchu lanchanam. After the marriage LW.1 went to the house of accused and lead happy marital life for few days. Then A1 o A3 asked Rs.5,00,000/- on the pretext that they would develop that money. On believing the words LW.1/M.Revathi and her brother paid Rs.5 lakhs to A1 to A3.

C.C.144/2017 2 II-AJFCM Court, MTM

Later A1 addicted vices, harassed LW.1 with the support of A2 to A4, demanded to bring additional dowry as they spent the money for their luxuries. The accused harassed LW.1 both physically and mentally. A4 harassed LW.1 that she have got insufficient adapaduchu lanchanam, if LW.1 bring additional dowry, they will agree for conjugal life with A1. Due to unbearable torture, LW.1 informed the same to her mother and they pacified the matter and instructed

A1 to put separate Kapuram at Machilipatnam. LW.1/M.Revathi and A1 put separate Kapuram at Rustumbad, Machilipatnam in the year 2015. But, A1 did not change his attitude and did not attend any work. A1 demanded LW.1 to bring money from her parents house and A1 suspected her fidelity and harassed her mentally. LW.2 put the matter before elders and given an amount of Rs.2 lakhs to the accused in the presence of elders. But, the accused did not change their attitude and continued harassment. During the month of June, 2016 all the accused harassed LW.1 and necked out her. The elders (Lws.4 to

7) try to settle the matter but the accused demanded additional dowry, if the complainant failed to fulfill their demand, they will perform another marriage to

A1. As there is no othergo, finally on 15.09.2016 at 16.30 hours LW.1/M.Revathi presented a report to the police, in turn LW.8/A.Vimala Kumar (WHC) registered a case in Cr.No.19/2016 under sec.498-A IPC and Sec.3 & 4 of Dowry Prohibition

Act of Mahila Police Station and investigated into.

(b) During the course of investigation, LW.8/WHC examined the witnesses and recorded their detailed statements and also prepared rough sketch of the scene of offence. As per the statements of the witnesses, LW.8/WHC deleted the name of A5 Maganti Tulasi as no case is made against her. LW.8/WHC served notices under sec.41-A Cr.P.C. to A1 to A4 and obtained their explanation. After completion of investigation LW.8/A.Vimala Kumar (WHC) filed the charge sheet against A1 to A4 under sec. 498-A IPC and Sec.3 & 4 of D.P.

Act. Hence, the charge.

3. This case was taken cognizance for the offence under Sec.498-A IPC and Sec.3 & 4 of D.P. Act and issued summons to A1 to A4.

C.C.144/2017 3 II-AJFCM Court, MTM

4. On appearance of A1 to A4 before this Court, copies of documents as contemplated under Sec.207 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C') were furnished and when they were examined under Sec.239 Cr.P.C for which they denied the charge sheet allegations, thereafter charge under sec.498-A r/w 34 IPC and Sec.3 & 4 of D.P. Act was framed, read over and explained to them in Telugu for which they pleaded not guilty and claimed to be tried.

5. On behalf of prosecution, Pws.1 to 6 were examined and got marked

Ex.P.1 to P.4 on their behalf. Accordingly prosecution side evidence is closed.

6.After closure of the prosecution evidence A1 to A4 examined under

Sec.313 Cr.P.C. by putting the incriminating evidence appearing against them from the evidence of prosecution witnesses. A1 to A4 denied the same. The accused did not choose to examine any witnesses nor mark any documents.

7. Heard arguments of learned APP for the prosecution and the learned counsel for the accused.

8.Now the point that arose for determination is as follows:-

Whether the prosecution bring home the guilt of accused beyond

all reasonable doubt for the offence under Sec.498-A r/w 34 IPC and

Sec.3 & 4 of D.P. Act?

9.POINT: According to the case of the prosecution the offences leveled against A1 to A4 are under sec.498-A IPC and Sec.3 & 4 of Dowry Prohibition

Act. In order to prove the same the prosecution has examined Pws.1 to 6 and got marked Ex.P.1 to P.4. PW.1 is the defacto complainant and victim, PW.2 is the elder brother of PW.1, Pws.3 to 5 are the elders and mediators and PW.6 is the investigating officer in this case.

10. As seen from the testimony of PW.1 her marriage with A1 peformed on 14.02.2013 in Dwaraka Tirumala according to Hindu Caste Customs. PW.1 further testified that at the time of her marriage her mother and brother presented an amount of Rs.5 lakhs to her towards Pasupukumkuma and also

C.C.144/2017 4 II-AJFCM Court, MTM gold articles worth Rs.1 lakh to her. PW.1 further deposed that her mother also gave Rs.50,000/- to A4 towards Aadapaduchulanchanam. PW.2 who is elder brother of PW.1 also deposed in the same lines of PW.1 in respect of the payment of Rs.5 lakhs, gold articles worth Rs.1 lakh to PW.1 at the time of her marriage and also Rs.50,000/- towards Aadapaduchu Lanchanam. PW.1 further deposed that one month after her marriage at the request of A1 to A3 she gave her Pasupukumkuma amount of Rs.5 lakhs to them in the presence of PW.4 for developing the said amount. PW.1 further deposed that later A1 addicted to vices and expended her Pasupukumkuma amount to meet his vices. PW.2 also deposed in the same lines of PW.1 about handing over of Rs.5 lakhs to the accused and utilization of the same by the accused.

11. In the cross examination PW.1 denied the suggestion that she never handed over Rs.5 lakhs to A1 to A3 and her mother and brother has no capacity to give Rs.5 lakhs to her towards Pasupukumkuma. PW.2 also denied the suggestion that they never gave Rs.5 lakhs towards Pasupukumkuma to PW.1 and in turn by PW.1 to the accused. On consideration of the above evidence of

Pws.1 & 2, it is crystal clear that they categorically deposed in their chief examination itself that an amount of Rs.5 lakhs was given to PW.1 only towards her Pasupukumkuma, but not towards dowry to the accused. From the above evidence of Pws.1 & 2, it is crystal clear that they did not gave any dowry amount to the accused at the time of marriage of Pw.1. As such the offence under sec.3 & 4 of Dowry Prohibition Act is not at all made out against the accused, from the evidence of crucial and material witnesses i.e., Pws.1 & 2.

The only case of the Pws.1 & 2 is that the Pasupukumkuma amount given to

PW.1 was later handed over to accused Nos.1 to 3 for development, but the same was utilized by A1 to meet his vices. As per the above evidence of PW.1, she handed over the said cash of Rs.5 lakhs to accused Nos.1 to 3 in the presence of one B.Uma Maheswara Rao who is examined as PW.4 in this case.

But, on perusal of the evidence of PW.4, he did not whisper anything about such handing over of cash of Rs.5 lakhs by PW.1 to A1 to A3 in his presence.

C.C.144/2017 5 II-AJFCM Court, MTM

Moreover on perusal of the evidence of Pws.1 & 2 they did not give any specific date when they alleged to be handed over the cash of Rs.5 lakhs to A1 to A3.

As such the testimony of Pws.1 & 2 that the Pasupukumkuma amount of PW.1 i.e., Rs.5 lakhs given to A1 to A3 and A1 utilized the same to meet his vices is not at all believable.

12. The further evidence of PW.1 is that 4 or 5 moths herself and A1 lived happily and later A1 addicted to vices and expended all her Pasupukumkuma amount and than A1 to A4 started harassing her demanding additional dowry of

Rs.2 lakhs. PW.1 further deposed that as she could not bring the additional dowry as demanded by A1 to A4, A1 beat her without providing food to her.

PW.1 further deposed that later in the mediation at the advise of elders A1 and herself put up their separate family in Machilipatnam and there also A1 harassed her to bring amount for maintenance of house from her parents. PW.2 who is the brother of PW.1 also deposed that accused harassed PW.1 for

additional dowry of Rs.2 lakhs, abused her in filthy language and as per the

settlement before the elders PW.1 and accused shifted their family from

Korukollu to Machilipatnam. PW.2 also deposed that, even then also there is no change in the attitude of A1 and again harassed PW.1 for additional dowry.

PW.1 further deposed that in the month of November, 2015 her mother and brother borrowed and gave Rs.2 lakhs to A1 as demanded by him. Further PW.2 deposed that in the year 2016 himself and his mother gave Rs.2 lakhs of

additional dowry to A1 to A3 in Korukollu village in the presence of PW.4. PW.2

further deposed that in the year 2016 the accused necked out PW.1 from her matrimonial house.

13. As seen from the cross examination of PW.1, the marriage of A4 was performed even prior to her marriage and A4 went to her in-laws house and residing in Vijayawada. With the above admission of PW.1, it clearly goes to show that A4 who is the sister of A1 was already married prior to the marriage of PW.1 and residing along with her husband in Vijayawada. In such a case the

C.C.144/2017 6 II-AJFCM Court, MTM evidence of PW.1 that A4 also demanded and harassed her for additional dowry of Rs.2 lakhs is far fetched from the truth and it is only a hypothicated and imaginary version. In addition to that as per the evidence of PW.1, in the month of November, 2015 her mother and brother gave Rs.2 lakhs to A1 towards

additional dowry, but contra to the same PW.2 deposed that in the year 2016

they gave additional dowry of Rs.2 lakhs to A2 & A3. So, from the above evidence of Pws.1 & 2 it is crystal clear that their evidence is contradictory in respect of date of payment of the alleged amount of Rs.2 lakhs and also contradictory in respect to whom they paid the alleged additional dowry of Rs.2 lakhs i.e., either A1 or A2 & A3. Certainly the said contradiction in the evidence of Pws.1 & 2 is material in nature and it will touches the core of the prosecution case. Why, because, the very case of the prosecution is that accused harassed

Pw.1 demanding additional dowry, but as per the evidence of Pws.1 & 2 there is a material contradiction in respect of payment of alleged additional dowry and also the names of the persons to whom the alleged additional dowry was paid.

14. Apart from the above, as per the evidence of PW.2, the alleged

additional dowry of Rs.2 lakhs was given to A1 to A3 in Korukollu village in the

presence of PW.4. But, on perusal of the evidence of PW.4, he categorically deposed that an amount of Rs.2,50,000/- to A1 in Korukollu village was paid by the mother of PW.1 and PW.2 towards additional dowry. Furthermore PW.4 categorically deposed in his chief examination itself that PW.1 is his daughter by courtesy and he also attended the marriage of PW.1 and A1. A conjoint reading of the evidence of Pws.1, 2 & 4 clearly goes to show that on one hand

Pws.1 & 2 deposed that the additional dowry of Rs.2 lakhs was given to A1 in the presence of PW.4, but on the other hand PW.4 deposed that an amount of

Rs.2,50,000/- was given to A1 towards additional dowry. Thus, thereby the evidence of Pws.1, 2 & 4 is quite contradictory in respect of the quantum of alleged payment of additional dowry. Moreover as discussed above, the evidence of Pws.1, 2 & 4 is quite contradictory in respect to whom the alleged

additional dowry was paid. Hence, the above evidence of Pws.1, 2 & 4 is

C.C.144/2017 7 II-AJFCM Court, MTM material contradictions and not supported with any other cogent evidence about the payment of alleged additional dowry, as such their evidence is not all believable.

15. PW.1 further deposed that A1 also suspected her fidelity and harassed her. But, the brother of PW.1 who is examined as PW.2 did not whisper anything about the alleged harassment of A1 towards PW.1 suspecting her fidelity and character. Apart from that in the cross examination PW.1 admitted that one Ch.Ayyappa is their close relative. PW.1 also admitted that her cell phone No.9247282383 and also 7731729366. PW.1 also admitted that the cell number of said Ch.Ayyappa is 9985248754. PW.1 denied the suggestion that prior to her marriage with A1, herself and the said Ch.Ayyappa were in love, but not marry him as he is not an educated person. PW.1 also denied the suggestion that even after her marriage also she used to telephone to the said Ayyappa from her mobile number very frequently and for number of times. In the cross examination of PW.2 also he admitted that one Ch.Ayyappa is her maternal uncle. PW.2 denied the suggestion that the marriage of PW.1 with A1 was performed against the consent of PW.1.

16. To support and corroborate the evidence of PW.1, the prosecution has mainly relied on the evidence of PW.3. PW.3 deposed that PW.1 is his relative and he came to know that accused has got suspicion over the character of PW.1 and also harassed her by demanding additional dowry. In the cross examination PW.3 deposed that he cannot say the specific date when he made mediation with the accused and he has no personal knowledge about the disputes between PW.1 and accused and he came to know through PW.1 only.

From the above admissions of PW.3 it is crystal clear that PW.3 is close relative of PW.1 and he is not at all a direct eye witness to the alleged harassment of A1 towards PW.1 suspecting her character. As such the hearsay evidence of PW.3 is not much helpful to the case of the prosecution to connect the accused with the alleged offence. No doubt, the offence under sec.498-A IPC is being a

C.C.144/2017 8 II-AJFCM Court, MTM family offence and it will naturally occur within the four walls of a house, as such Courts cannot expect direct evidence in respect of the intricacies between the wife and husband at all times. But, that does not mean the sole testimony of PW.1 is a gaspel truth and Court can act believing the sole testimony of PW.1.

It is for the PW.1 at least to give a specific overtacts of the accused and the evidence of PW.1 must be trustworthy. Mere throwing blames or allegations against accused in the absence of any trustworthyness cannot be believed.

Though PW.1 deposed in the instant case that A1 also suspected her fidelity and harassed her, but the vague allegation of PW.1 cannot be believed in the absence of support and corroboration by other substantial evidence or at least the manner and time when A1 is harassed her like that. It is for the PW.1 to depose from what time and in what manner A1 harassed her suspecting her fidelity. No doubt suspecting the character of woman in the absence of proof is also amounts to cruelty. But, in the instant case it is for the prosecution to prove with cogent evidence that A1 harassed PW.1 suspecting her character.

But, unfortunately in the instant case except the bold allegations of Pw.1, there is no trustworthy evidence on record to support her content. As such the evidence of PW.1 is not at all believable in respect of the alleged harassment of

A1 suspecting her character.

17. The remaining evidence on record is the evidence of Pws.5 & 6.

PW.5 deposed that he came to know through his mother-in-law i.e., the mother of PW.1 that A1 is harassing Pw.1. PW.5 further depsoed that he along with others made mediation with A1, but the same was futile. PW.5 further deposed that in the month of March, 2013 he handed over Rs.5 lakhs to A1 to A3 towards Pasupukumkuma for development. But as per the evidence of PW.1, she herself gave her Pasupukumkuma amount of Rs.5 lakhs to A1 to A3.

Furthermore PW.1 did not whisper in her evidence about the presence of PW.5 at the time of alleged handing over of Rs.5 lakhs to A1 to A3. Thus, the evidence of Pws.1 to 5 is quite contradictory about the handing over of alleged cash of Rs.5 lakhs and thereby the evidence of PW.5 is not believable. Apart

C.C.144/2017 9 II-AJFCM Court, MTM from that as seen from the evidence of PW.5 he also came to know that PW.2 has given Rs.2 lakhs to A1 as additional dowry. Whereas in the cross examination he categorically deposed that he cannot give the exact date when he acted as mediator for mediation with A1. PW.5 further deposed that in the cross examination that he cannot give the name of the person through whom he came to know that PW.2 gave Rs.2 lakhs to A1 towards additional dowry. If really PW.5 is speaking the truth, certainly he might be able to give the name of the person through whom he came to know about the payment of Rs.2 lakhs and at the same time PW.2 would also be mention in his evidence about the presence of PW.5 at the time of alleged payment of Rs.2 lakhs. Thus, the evidence of PW.5 is inconsistent and not at all supported and corroborated by other witnesses. Hence, the evidence of PW.5 which is only hearsay evidence is not at all believable and trustworthy.

18. The investigating officer who was examined as PW.6 deposed about receipt of Ex.P.1 report, registration of case in Cr.No.19/2016 under sec.498-A

IPC and Sec.3 & 4 of D.P. Act. Ex.P.2 is the FIR. PW.6 further deposed about examination of witnesses, investigation and filing of charge sheet. Ex.P.3 is rough sketch of scene of offence in Rustumbad, Machilipatnam and Ex.P.4 is rough sketch of scene of offence in Korukollu Village. In the cross examination

PW.6 admitted that she has not examine the neighbors at Korukollu and

Hyderabad. Pw.6 also admitted that the listed witnesses are relatives of PW.1.

With the above admissions of PW.6, as to why she did not examine the neighbors of the PW.1 at Hyderabad and Korukollu where the alleged harassment was done by accused towards PW.1. The neighbors of PW.1 are the right persons to depose the real facts about the alleged harassment. In spite of that PW.6 categorically admitted that all the listed witnesses are relatives of

PW.1. In such a case certainly it will give raise to a doubt about the trustworthyness of the evidence of Pws.1 to 5. As such the official evidence of

PW.6 is not much helpful to the case of the prosecution in the absence of support and corroboration by the independent witnesses.

C.C.144/2017 10 II-AJFCM Court, MTM

19. On thorough consideration of the evidence of Pws.1 to 6, it is crystal clear that Pws.1 & 2 has made some allegations against A1 to A4 about payment of dowry and about the harassment towards PW.1, but the said evidence of Pws.1 & 2 is quite contradictory in respect of the material aspects of the payment of additional dowry and about the specific overtacts of the accused and thereby their evidence is not at all believable. Apart from that as per the admission of PW.6 investigating officer all the listed witnesses are the relatives of PW.1 and she did not examine any single witness i.e., neighbors of

PW.1 at Hyderabad or at Korukollu village to support and corroborate the case of the prosecution for the reasons best known to investigating officer. That apart the evidence of Pws.1 & 2 is quite contradictory in respect of the material aspect of the quantum of the amount of additional dowry alleged to be paid by them and also contradictory to which accused the said additional dowry amount was alleged to be paid. Furthermore as discussed above, PW.1 did not give any specific overtacts against A1 to A4 in respect of their alleged harassment towards her. Apart from that as seen from the evidence of PW.1 herself admitted that A4 was already married and lived along with her husband at

Vijayawada and thereby the evidence of PW.1 that A4 was also participated along with A1 to A3 in the harassment against her is nothing but an exaggerated version and far fetched from the truth.

20. On the earnest consideration of the evidence of Pws.1 to 6, no doubt none of the witnesses deposed about the payment or receipt of the dowry at the time of the marriage of PW.1 to accused. The only case of the Pws.1 & 2 is that the Pasupukumkuma amount of Rs.5 lakhs was handed over by PW.1 to A1, but the same was misused by A1. But, the said evidence of Pws.1 & 2 is not at all supported and corroborated any oral evidence or documentary evidence. In the absence of any cogent evidence on record about the payment of Rs.5 lakhs to accused, the mere allegation of PW.1 is not believable. On consideration of the entire evidence of Pws.1 to 6 and from the above discussion it is crystal clear that there is no case is made out by the prosecution against A1 to A4 to

C.C.144/2017 11 II-AJFCM Court, MTM prove that A1 to A4 has committed any act towards PW.1 which is amounting to cruelty as defined under sec.498-A IPC or any case under sec.3 & 4 of D.P. Act.

So viewed from any angle there is no tenable evidence on record to base a conviction against A1 to A4.

21. In the light of aforesaid reasons and discussions, this Court is of the considered opinion that prosecution has failed to bring home the guilt of the accused for the offence under sec.498-A r/w 34 IPC and Sec.3 & 4 of D.P. Act beyond all reasonable doubt and that A1 to A4 are entitled for acquittal.

22 In the result, A1 to A4 are found not guilty for the offence punishable under Section 498-A r/w 34 IPC and Sec.3 & 4 of D.P.Act and they are acquitted under Sec.248(1) of Cr.P.C. The bail bonds of A1 to A4 and their sureties shall be in force for a period of six months as per sec.437-A Cr.P.C. In this case no property was seized and produced before this Court, as such no order with regard to property.

Dictated to Stenographer, transcribed by her, corrected and pronounced

by me in open Court, this the 23rd day of February, 2018.

Sd/-S.Siva Sankar Reddy,

II-Addl. J.F.C. Magistrate, Machilipatnam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION: DEFENCE

PW.1: Meegada Revathi - None – PW.2: Boyina Harsha Pradeep PW.3: N.Srinivasa Rao PW.4: B.Uma Maheswara Rao PW.5: K.Yesu Babu PW.6: A.Vimala Kumari (WHC)

DOCUMENTS MARKED FOR PROSECUTION

Ex.P.1: Report given by PW.1 to the police, dt:15.09.2016. Ex.P.2: FIR. Ex.P.3: Rough sketch of the scene of offence at Rustumbad, Machilipatnam. Ex.P4: Rough sketch of the scene of offence at Korukollu village.

DOCUMENTS MARKED FOR DEFENCE

­-Nil- -

MATERIAL OBJECTS

-Nil -

Sd/-S.Siva Sankar Reddy,

II-Addl. J.F.C. Magistrate,

Machilipatnam .

C.C.No.91/2017 1 II-AJFCM Court, MTM

IN THE COURT OF THE II-ADDL. JUDL. MAGISTRATE OF I CLASS;

MACHILIPATNAM

PRESENT; Sri.S.Siva Sankar Reddy,

II-Additional Judicial 1 st Class Magistrate, MTM

MONDAY, THIS THE 19 th DAY OF FEBRUARY, 2018

C.C.No.91 of 2017

Between:

State, represented by Sub Inspector of Police, Inaguduru Police Station. … Complainant.

And

Shaik Ibrahim, S/o Mustapha @ Achaba, Age 27 years, Muslim, D.No.5/372, Nooruddinpet, Machilipatnam.

... Accused.

This case is coming on 15.02.2018 for final hearing before me and upon perusing the entire material available on record and upon hearing the arguments of Senior APP for the Prosecution and on Sri.K.Chandra Sekhar Rao, Advocate for the accused and having stood over for consideration till this day, this Court delivered the following;

J U D G M E N T

1.The Sub Inspector of Police, Inaguduru Police Station filed charge sheet against sole accused in Cr.No.135/2012 for the offence punishable under sec.420 of Indian Penal Code, 1860 ( in short “IPC”).

2. The brief facts of the charge-sheet are as follows:-

(a) The accused is resident of Nooruddinpet, Machilipatnam and he is a bullion merchant at Koneru Center, Machilipatnam and he is maintaining gold shop in the name and style as “Nice diamons” at gold shops lane, Koneru

Center, Machilipatnam. The accused went to the Manappuram Finance

Company, Godugupet, Machilipatnam and tendered two spurious gold bangles and obtained gold loan of Rs.89,500/- on 28.08.2011. Again the accused with a fraudulent intention of cheating the Manappuram Finance Company, went to the company on the next day i.e., 29.08.2011 and tendered another two spurious gold bangles and obtained gold loan of Rs.89,500/-. In total the accused had pledged four gold bangles on 28.08.2011 and 29.08.2011 weighing about 93.3 grams vide pledge No.01123507000030 and availed the loan facility by cheating the Finance Company. On 27.10.2012, internal

C.C.No.91/2017 2 II-AJFCM Court, MTM auditor Manappuram Finance Limited LW.5/P.Venkata Durga Prasad while conducing auditing found the mischievous act committed by the accused and informed the same to the company higher officials. The accused with a fraudulent intention of cheating the Finance Company, pledged four spurious gold bangles, before the Machilipatnam Branch and availed loan of

Rs.1,79,000/-, causing loss to the company. On the report given by

LW.1/Chintala Audisehsu, Area Head, Vijayawada Manappuram Finance

Company, LW.11/M.Gangadhara Rao (S.I) registered the same as FIR in

Cr.No.135/2012 under sec.420 IPC on 28.11.2012 at 18.00 hours and investigated into.

(b) During the course of investigation the investigation officer examined the listed witnesses and recorded their statements. He visited the scene of offence and have prepared the rough sketch of the scene of offence.

He seized the four spurious gold bangles handed over by LW.1 under cover of mediators report, dt:19.12.2.012. On 04.01.2013 LW.11/S.I arrested the accused and recorded the confessional statement of the accused before the mediators and sent him to judicial remand to the Court. LW.11/S.I forwarded the seized bangles to the FSL, Hyderabad. After completion of investigation and after receipt of all necessary documents LW.11/M.Gangadhara Rao, S.I of

Police filed charge sheet against the accused under sec.420 IPC. Hence, the charge.

3. This case was taken cognizance for the offence under Sec.420 IPC and issued summons to accused.

4. On appearance of accused before this Court, copies of documents as contemplated under Sec.207 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C') were furnished and when he was examined under Sec.239 Cr.P.C for which he denied the charge sheet allegations, thereafter charge under sec.

420 IPC was framed, read over and explained to him in Telugu for which he pleaded not guilty and claimed to be tried.

C.C.No.91/2017 3 II-AJFCM Court, MTM

5.In support of the prosecution case P.Ws.1 to 6 were examined,

Ex.P.1 t P.6 and Mo.1 were marked on their behalf.

6.After closure of the prosecution evidence accused examined under

Sec.313 Cr.P.C. by putting the incriminating evidence appearing against him from the evidence of prosecution witnesses. The accused denied the same.

The accused did not choose to examine any witnesses nor mark any documents.

7. Heard arguments of learned APP for the prosecution and the learned counsel for the accused.

8.Now the point that arose for determination is as follows:-

Whether the prosecution bring home the guilt of

accused beyond all reasonable doubt for the

offence under Sec. 420 IPC?

9.POINT: According to the case of the prosecution the offence leveled against sole accused is under sec.420 IPC. In order to prove the same the prosecution has examined PWs.1 to 6 and got marked Ex.P.1 to P.6 and Mo.1.

PW.1 is the defacto complainant and also Branch Manager of Manappuram

Finance Limited, Machilipatnam Branch during the relevant period. PWs.2 to 4 are also the alleged eye witnesses and employees of the said company. PW.5 is the mediator who is VRO and PW.6 is the investigating officer in this case.

10. As seen from the charge sheet contents, the case of the prosecution is that the accused pledged total four spurious gold bangles as if it is a genuine gold bangles on two different dates and obtained total loan of

Rs.1,79,000/- (Rs.89,500/- + Rs.89,500/-). Further as seen from the charge sheet contents one year after pledge of the said bangles it was noticed in the 3rd audit that they are not gold bangles and accused cheated the

Manappuram Finance Company. Thus, PW.1 gave report against the accused for the offence under sec.420 IPC.

C.C.No.91/2017 4 II-AJFCM Court, MTM

11. In order to prove the case of the prosecution, the defacto complainant who was examined as PW.1 deposed that he worked as Area

Manager in Manappuram Finance Limited, Machilipatnam Branch during the relevant period. PW.1 further deposed that on 28.08.2011 and also on 29.08.2011 the accused approached their branch at Machilipatnam and pledged two gold bangles on each occasion and obtained a loan of Rs.89,500/- on two occasions which total into Rs.1,79,000/-. PW.1 further deposed that the then Branch Manager i.e., PW.2 and appraiser verified about the genuenity of the gold articles offer for pledge and after satisfying that it is gold the loan amount will be sanctioned by the Branch Manager. PW.1 further deposed that every quarter the gold pledged in the Branch will be audited and verified by the auditing officers. PW.1 further deposed that in respect of the four bangles pledged by the accused, in the 3rd audit it was found that the said four bangles were spurious gold. PW.1 further deposed that himself and the then Branch

Manager i.e., PW.2 asked the accused about pledging of spurious gold bangles, then accused sought one month time to repay the amount, but in spite of laps of one month time the accused did not repay the said amount.

PW.1 further deposed that he informed the same to his higher authorities as accused refused to repay the loan amount and he gave report to Inaguduru

Police. Ex.P.1 is his report. PW.1 further deposed that during the course of investigation police seized the four spurious gold bangles and sent the same to the Lab for testing. Mo.1 is four spurious gold bangles (C.P.No.24/2017).

12. To support and corroborate the above testimony of PW.1, the employees of Manappuram Finance Company Limited, Machilipatnam Branch were examined as PWs.2 to 4. PW.2 is the then Branch Manager,

Machilipatnam. PW.3 is the then gold appraiser No.2 in Manappuram Finance

Company, Machilipatnam, PW.4 was the then Assistant Manager in

Manappuram Finance Limited, Machilipatnam. PWs.2 to 4 also fully supported and corroborated the testimony of PW.1 about pledging of MO.1 spurious gold bangles with Manappuram Finance Company by the accused on 28.08.2011

C.C.No.91/2017 5 II-AJFCM Court, MTM and 29.08.2011 and obtaining loan of Rs.89,500/- each on two occasions. As seen from the testimony of PW.2, MO.1 bangles were checked and verified by

PWs.3 & 4 when they were offered by the accused for pledge and further satisfying about the genuinity of the gold they forwarded the same to him for sanction of the loan along with necessary certificates. PW.2 further deposed that he sanction loan of Rs.89,500/- on 28.08.2011 and also another

Rs.89,500/- on 29.08.2011 basing on Mo.1 bangles. PW.2 specifically deposed in his chief examination that subsequently MO.1 i.e., four bangles were against tested and audit by the quarterly audit, but in the 1st & 2nd quarter audit the auditors did not raise any objections. But, in the 3rd audit conducted by the central office staff, it was found that the said MO.1 bangles pledged by accused are spurious and not the gold articles. PW.3 deposed that MO.1 bangles were tested and certified by one D.V.V.Satyanarayana as gold bangles and he just pack the said bangles as per company norms. PW.4 also deposed that MO.1 bangles were tested and verified by the then appraiser by name

D.V.V.Satyanarayana and also by PW.3 and thereafter they were forwarded to

PW.2 for sanction of loan. PW.4 deposed that himself and PW.2 pack the said bangles in separate packets and kept the same in safe locker. PW.4 further deposed that later he came to know that MO.1 bangles pledged by accused are not the gold.

13. On consideration of t he above chief examination of the PWs.1 to 4 they are quite inconsistent in respect of the material aspects. Why, because, as per the evidence of PW.1 himself and PW.2 asked the accused about pledging of spurious gold bangles, for which accused sought one month time to repay the loan amount. But, PW.2 did not depose about the presence of

PW.1 and asking the accused by PW.1 about repayment of loan. Apart from that in the cross examination PW.1 denied the suggestion that he did not state

before the police that himself and PW.1 asked the accused to repay the loan

amount, but accused failed to repay the same. But, on perusal of sec.161

Cr.P.C. statement of PW.1, there is no such mention in it as deposed by PW.1.

C.C.No.91/2017 6 II-AJFCM Court, MTM

As such the evidence of PWs.1 & 2 in respect of the demand of accused for pledging of spurious gold bangles and for repayment of loan is nothing but an exaggeration. Apart from that as seen from the testimony of PW.2, Mo.1 bangles were tested and verified by PW.3 & PW.4, but Pws.3 & 4 deposed that the said bangles were tested and verified by one D.V.V.Satyanarayana, but not by them. So, the evidence of Pws.2 to 4 is quite contradictory with regard to who tested and verified the genuinity of the MO.1 bangles at the time of alleged pledge by the accused.

14. In the cross examination PW.1 admitted that after satisfying with the quality of gold and other formalities only PW.2 has sanctioned the loan to the accused. PW.1 also admitted in the cross examination that in the instant case also the bangles pledged were tested by their two gold appraisers by name M.Subrahmanyam i.e., PW.3 and LW.4/Ch.Krishna Chaitanya. PW.1 also admitted that in the 1st & 2nd quarterly audit made by their auditors, it was not reported that the said bangles are spurious gold. PW.1 also admitted in the cross examination that after pledging the gold their Branch Manager and other authorities will have access to the pledged gold items. PW.1 denied the suggestions that accused came to repay the loan amount, then the Branch

Manager try to return the spurious gold bangles, for which accused questioned and asked about his original gold bangles, then this case was foisted against him. PW.2 also admitted in his cross examination that at the time of sanction of loan their two appraisers and himself have to satisfy and after satisfaction only they will sanction loan to anybody. PW.2 further admitted that himself and their Assistant Branch Manager will have access to open the safe locker where the gold articles kept in the Branch. Pws.2 to 4 further admitted that accused has filed a private complaint which was registered as Cr.No.36/2013 against him and their gold appraisers and the same is pending. PW.3 also admitted that after satisfying with the genuinity of the gold only they sanction loan to the accused. PW.2 also admitted that after pledging of MO.1 there is inspections for the genuinity of the gold were pledged and certified that they

C.C.No.91/2017 7 II-AJFCM Court, MTM are genuine gold at the time of inspection. PW.4 also admitted that at the time of first audit they did not raise any objection about the genuinity of MO.1 bangles. PW.4 further admitted that himself and PW.2 are having locker keys and authority to access the safe locker, in which all the mortgaged gold used to kept. PW.4 also admitted that after satisfying with the genuinity of the gold, the company will grant loan to anybody.

15. Basing on the above admissions of the Pws.1 to 4 in their cross examination, the counsel for the accused vehemently argued that accused has pledged original gold bangles and obtained loan from the Manappuram

Finance Company, but the authorities of the Finance Company has changed his original gold bangles with MO.1 spurious gold bangles. The counsel further argued that when accused went to discharge of the said loan, the Finance

Company authorities forced him to take the MO.1 spurious gold bangles, for which the accused questioned them and this case is foisted against him. The counsel further argued that he also filed a case in Cr.No.36/2013 against

Pws.2, 4 and others and the same is pending and this is a case foisted by the

Finance Company for wrongful gain and prays to acquit him.

16. Considering the argument of the accused counsel coupled with the admissions of the Pws.1 to 4, the argument of the accused counsel is having force and sustainable. Why, because, as seen from the admissions of

Pws.1 to 4 in their chief and cross examinations that at the time of obtaining loan by the accused by pledging two gold bangles on two occasions i.e., total four, they tested and verified the genuinity of the gold and after satisfying with the genuinity of the gold only they sanctioned loan to the accused on two occasions total Rs.1,79,000/-. Furthermore as per the admissions of Pws.1 to 4, subsequently two quarterly audits were conducted by their company auditors in respect of the genuinity of the MO.1 bangles along with other articles and in that audits also they did not disputed the genuinity of the gold bangles pledged by the accused. But, in the 3rd audit only they found that

C.C.No.91/2017 8 II-AJFCM Court, MTM

MO.1 bangles are spurious gold bangles i.e., after laps of around one year from the date of pledge. At the same time as per the own admissions of Pws.1 to 4, Pws.2 & 4 are having the locker keys and also having access to the gold pledged by the parties with the Company. Though, PW.1, Pws.2 & 4 denied the suggestions in their cross examination that accused pledged original gold, but the same was removed and placed Mo.1 spurious gold bangles, but the admitted access to Pws.2 & 4 to open the locker and have removed and kept gold articles in the said locker is clearly gives raise to a reasonable doubt about the trustworthyness of the evidence of Pws.1 to 4. It is common prudence that if any persons are having access to the valuable property, there is every possibility to change the original with a duplicate one.

17. Apart from that as seen from the testimony of Pws.1 to 4, MO.1 bangles were not kept in a sealed bag or packet. So there is every possibility to remove the original gold and place the spurious gold by any of the persons having access to the said gold articles. Even according to the own admissions of the Pws.1 to 4, at the first instance they have satisfied with the genuinity of the gold offered by the accused for pledge and thereafter only they sanction loan. Furthermore subsequently also in two audits, no disputes was raised with regard to the genuinity of the gold by the audit parties. Thus, the version of the Pws.1 to 4 that after laps of one year they found that Mo.1 bangles were spurious gold in the 3rd audit is not at all trustworthy and not believable.

18. The remaining evidence on record is the evidence of VRO- cum -mediator as PW.5 and the investigating officer as PW.6. As sen from the testimony of PW.5 on 14.12.2012 at the request of PW.6 he acted as mediator and in his presence police seized MO.1 spurious gold bangles in the possession of the Manappuram Finance Company, Machilipatnam under Ex.P.2 mediators report. PW.5 further deposed that on 04.01.2013 at the request of

S.I of Police, he accompanied them to Railway Station and there they found the accused in suspicious circumstances, and on questioning the accused confessed that he mortgaged the four bangles and obtained loan from

C.C.No.91/2017 9 II-AJFCM Court, MTM

Manappuram Finance Company. Ex.P.3 is mediators report. Whereas in the cross examination PW.5 admitted that he came to know through police only that accused alleged to be mortgaged the MO.1 bangles. PW.5 further admitted that he has not signed on Ex.P.3 as a scribe. PW.5 denied the suggestion that he is a stock mediator and he is signed on Ex.P.2 & P.3 mediator nama in the police station at the request of police.

19. On consideration of the above evidence of PW.5 it clearly goes to show that though he deposed in his chief examination that accused confessed that he pledged MO.1 bangles with Manappuram Finance Company, but the admission of PW.5 that he do not know the loan account number of the accused and he came to know the same through police is clearly falsefice his evidence. Moreover admittedly PW.5 did not sign on Ex.P.3 mediators report as a scribe and it is also clearly gives raise to a bonafide doubt in the mind of the Court about the trustworthyness of the evidence of the PW.5. Why, because, if really PW.5 has acted as mediator and accused has confessed

before him as in Ex.P.3 mediator nama, certainly PW.5 being a mediator and

working as VRO, he should have been signed as scribe of the same. As such the evidence of PW.5 is not at all trustworthy.

20. The remaining evidence on record is the evidence of investigating officer PW.6 who deposed about receipt of Ex.P.1 report, registration of

Cr.No.135/2012 under sec.420 IPC and submission of FIR to all concerned.

Ex.P.4 is the FIR. PW.6 further deposed about his investigating, examination of witnesses, visiting of scene of offence, seizure of Mo.1 and sending of MO.1 to the FSL, Hyderabad. Ex.P.5 is the rough sketch. PW.6 further deposed that later he received FSL report opined that MO.1 is not a gold. Ex.P.6 is FSL report, dt:4.02.2015. PW.6 further deposed that after completion of investigation his successor has filed the charge sheet in this case. In the cross examination PW.6 deposed that he do not know whether the seal was affixed on Mo.1 at the time of pledging the same by the accused and the seal present at the time of his inspection on 19.12.2012 are one and the same. PW.6

C.C.No.91/2017 10 II-AJFCM Court, MTM investigating officer has also admitted that accused has filed a complaint against PW.1 and the same was registered in Cr.No.36/2013 for return of his gold ornaments. PW.6 further admitted that PW.2 and other Manappuram

Company official has tested and verified about the genuinity of the gold at the time of pledge and then only they sanction loan to the accused. PW.6 also admitted that after pledging of Mo.1 bangles, three audits were completed and at that time nothing contra was noticed by them in respect of Mo.1. The above admissions of the PW.6 investigating officer has also categorically supports the argument of the accused counsel discussed above. Even according to the own admission of the PW.6 investigating officer he is not sure about the alleged seal on the Mo.1 at the time of pledge of accused and about the seal present at the time of his inspection.

21. It is common prudence that if any article was kept in a sealed pack and later to test the same invariably the sealed has broken and removed the same from pack and then only it is possible to test the same. In the instant case the bangles pledged by the accused were tested for three times in the quarterly audit after pledging the same by the accused. In such a case certainly the Manappuram Finance Authorities have removed the seal and tested the said bangles and again put the seal. In such a case there is every possibility to change the original bangles with spurious bangles by any of the persons having access with it. As such the admissions of PW.6 also clearly goes to show that the company officials has open the seal of the pack containing the pledged bangles for three times in the absence of accused.

22. On thorough consideration of the above evidence of Pws.1 to 6, it is clearly made out that the evidence of Pws.1 to 4 is inconsistent in respect of the persons who tested the bangles offed by the accused at the time of his pledge. Apart from that the evidence of Pws.1 & 2 is in an exaggerative nature by giving a new version in their evidence that they demanded the accused for repayment of the loan. But, as per the tone and tenor of the cross examination and also as per the admissions of the Pws.2 & 6 the accused

C.C.No.91/2017 11 II-AJFCM Court, MTM himself has filed a case in Cr.No.36/2013 for return of his bangles against PW.1 company officials. On careful scrutiny of the evidence of Pws.1 to 6, this Court is of the opinion that the case of the prosecution is highly doubtful. When there is any doubt in the case of the prosecution, then the benefit of such doubt must be rendered in favour of the accused.

23. In the light of aforesaid reasons and discussions, this Court is of the considered opinion that prosecution has failed to bring home the guilt of the accused for the offence under sec.420 IPC beyond all reasonable doubt and that accused is entitled for acquittal.

24. In the result, accused is found not guilty for the offence punishable under Section 420 IPC and he is acquitted under Sec.248(1) of

Cr.P.C. The bail bonds of the accused and his sureties shall be in force for a period of six months as per sec.437-A Cr.P.C. The case property Mo.1 i.e., four rold gold bangles shall be destroyed after expiry of appeal time.

Dictated to Stenographer, transcribed by her, corrected and pronounced

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

Sd/-S.Siva Sankar Reddy,

II-Addl. J.F.C. Magistrate, Machilipatnam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION: DEFENCE

PW.1: Ch.Adiseshu - None – PW.2: M.B.Sekhar Babu PW.3: M.Subrahmanyam PW.4: R.Suresh PW.5: D.Venkata Chalam PW.6: M.Gangadhara Rao

DOCUMENTS MARKED FOR PROSECUTION

Ex.P.1: Report of PW.1, dt:29.11.2012. Ex.P.2: Mediator report, dt:19.12.2012. Ex.P.3: Mediator report, dt:04.01.2013. Ex.P.4: Original FIR. Ex.P.5: Rough sketch of the scene of offence. Ex.P.6: FSL report, dt:04.02.2015.

DOCUMENTS MARKED FOR DEFENCE

­-Nil- -

MATERIAL OBJECTS

Mo.1: Four rold gold bangles.

Sd/-S.Siva Sankar Reddy,

II-Addl. J.F.C. Magistrate,

Machilipatnam .

C.C.No.91/2017 12 II-AJFCM Court, MTM

C.C.No.650/2019 1/11 AJFCM Court, Gdv

IN THE COURT OF THE ADDL. JUDL. MAGISTRATE OF I CLASS;GUDIVADA

PRESENT: Sri.S.Siva Sankar Reddy, Addl. Judl. I Class Magistrate

MONDAY, THIS THE 20 TH DAY OF MARCH, 2020

C.C.No.650 of 2019

Between: State, represented by Sub Inspector of Police, Gudivada I Town Police Station.… Complainant.

And

Dalapathi Naresh Raju, S/o Venkateswara Rao aged about 28 years, R/o Bethavolu,

Gudivada Mandal, Krishna District... Accused.

This case is coming on 17.03.2020 for final hearing before me and upon perusing the entire material available on record and upon hearing the arguments of APP for the Prosecution and on Sri D.Satyanarayana, Advocate

for accused; and having stood over for consideration till this day, this Court

delivered the following;

J U D G M E N T

1.The Sub Inspector of Police, Gudivada I Town Police Station filed charge sheet against sole accused in Cr.No.178/2019 for the offences punishable under sec.420, 406, 270, 273 of Indian Penal Code, 1860 ( in short “IPC”) and Section 5(1), 22, 24 of the Cigarettes and other Tobacco products (Prohibition of Advertisement and Regulation of Trade and Commerce,

Production Supply and Distribution Act, 2003.

2. The brief facts of the charge-sheet are as follows:-

(a) On 23.07.2019 at 11.00 A.M., on reliable information P.W.4/A.S.I of police along with P.W.1 and other staff and mediator P.W.3, conducted raid in the buddy shop belong to the accused situated near Lakshmi Rama theater,

Vijayawada road, Gudivada and seized noxious food 1) Raja Tobacco packets 10, 2) MC Gutka packets 8, Swagat kaini packets 2, RMD pan masala 55 all worth Rs.672/- which prohibited by the A.P. Government in view that it causes harm to the health of the public in the presence of mediators under cover of mediators report and registered the said mediator report as a case in Crime

C.C.No.650/2019 2/11 AJFCM Court, Gdv

No.178/2019 under Sections 420, 406, 270, 273 r/w 34 IPC and Sections 5, 22 and 24 of CTPPARTCPSD Act, 2003 and took up investigation.

During the course of investigation, P.W.4/A.S.I of police visited the scene of offence and prepared rough sketch examined the listed witnesses and recorded their statements, issued notice to accused under Section 41-A Cr.P.C.

and later L.W.8/V.Venkateswara Rao, S.I of police took up investigation and after completion of investigation L.W.8/S.I of police filed charge sheet against the accused.

3. This case was taken cognizance for the offences under Sec. 406, 420, 270, 273 IPC and Sections 5, 22, 24 (1) of CTPPARTCPSD Act and issued summons to accused.

4. On appearance of accused before this Court, copies of documents as contemplated under Sec.207 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C') were furnished and when he was examined under Sec.251 Cr.P.C by explaining the accusation against him for the offences Under Sections 270, 273 of IPC, for which accused pleaded not guilty and claimed to be tried.

5. On behalf of prosecution, PWs.1 to 4 were examined and Exs.P1 to

P4, M.Os.1 to 4 were got marked on their behalf. Consequently prosecution side evidence is closed.

6. After closure of the prosecution side evidence, accused was examined under sec.313 Cr.P.C. by explaining the incriminating evidence of prosecution witnesses, he denied the same. Accused did not choose to examine any defence witnesses nor marked any documents.

7. Heard arguments of learned APP for the prosecution and the learned counsel for the accused.

C.C.No.650/2019 3/11 AJFCM Court, Gdv 8.Now the point that arose for determination is as follows:-

Whether the prosecution has proved the guilt of accused beyond all reasonable doubt for the offences punishable under Sec. 270, 273 IPC?

9.POINT: According to the case of the prosecution, the offences levelled against sole accused are under sec.270, 273 IPC. In order to prove the same, the prosecution has examined P.Ws.1 to 4 and got marked Exs.P1 to P4 and also marked M.Os.1 to 4. P.W.1 is Police Constable. P.W.2 eyewitness. P.W.3 is

VRO. P.W.4 is A.S.I of police/Investigating Officer in this case. The learned APP has given up the evidence of B.Ramu, P.C., LW.4/Sonti Srinivas Rao, LW.6/Sk.

Jhony Shareef and V.Venkateswara Rao, S.I of police (L.Ws.2, 4, 6 and 8).

10.As per charge sheet contents, accused is selling banned Gutkha and Khaini packes illegally for gaining profits and thereby accused has committed an Act of malignant likely to spread infection of diseases dangerous to life and intentionally sold and also sold noxious food which are punishable under Sections 270 and 273 IPC.

11.In order to prove the case of the prosecution against accused for the offence under Sections 270 and 273 IPC, the prosecution has mainly relied on the evidence of P.Ws.1, 3 and 4. P.W.2 is eyewitness turned hostile and he deposed that on 23.07.2019 he along with police and VRO raided the shop of the accused and later he came to know that some gutkha and khaini packets were seized from the possession of the accused and he cannot say the names and quantity of the said packets alleged to be seized from the possession of the accused and he was not present at the time of the said raid. P.W.2 further deposed that he do not know anything about this case and that he was not examined by the police. As such, the learned APP treated PW.1 as hostile and put questions in the nature of cross-examination, but nothing useful was elicited except marking his Section 161 Cr.P.C. statement as Ex.P1. The

C.C.No.650/2019 4/11 AJFCM Court, Gdv remaining witnesses i.e., Police Constable/P.W.1, V.R.O./P.W.3 and

Investigation/A.S.I of police/P.W.4 deposed in one voice that on 23.07.2019 at about 11.00 A.M, they proceeded to the shop of accused situated near Lakshmi

Rama Theatre, Gudivada and there they seized M.O.1 Raja Khaini packets 10,

M.O.2 MC Gutkha packets 8, M.O.3 Swagat khaini packets 2, M.O.4 RMD pan masala packets 55 from the possession of accused under a cover of mediators report in the presence of mediators. Ex.P2 is mediators report, dated 23.07.2019 at 11.00 A.M.

12.P.Ws.1, 3 and 4 deposed in one voice that accused confessed

before them in the presence of mediators under Ex.P2 mediators report that he

has been selling said Gutkha and Khaini packets illegally which are banned by the Government, for gaining profits. P.W.3 further deposed that he gave Ex.P2 mediator report to Gudivada I Town P.S. P.W.4 who is the ASI of police/Investigating Officer further deposed that he returned to the police station along with accused and seized contraband i.e., M.Os.1 to 4 and Ex.P2 mediator report and registered Ex.P2 report as a case in Crime No.178/2019 under Sections 270, 273 IPC and Sections 5, 22, 24 of COTPA Act. Ex.P3 is FIR.

P.W.4 further deposed about issuance of Section 41-A Cr.P.C. notice to the accused, preparation of rough sketch. Ex.P4 is rough sketch. P.W.4 further deposed that later his S.I of police/L.W.8/T.Venkateswara Rao took up further investigation and after completion of investigation his S.I of police filed charge sheet.

13.The learned counsel for accused cross-examined P.Ws.1, 3 and 4, but nothing useful was elicited except putting denial suggestions. P.Ws.1, 3 and 4 categorically denied in their cross-examination that Ex.P2 mediator report was prepared by sitting in the police station and the mediators are stock mediators for the police. Basing on the above cross-examination of P.Ws.1, 3

C.C.No.650/2019 5/11 AJFCM Court, Gdv and 4, the learned counsel for accused argued that the prosecution has not examined the independent mediators in this case and thereby Ex.P2 mediators report cannot be considered. The learned counsel for accused further argued that M.Os.1 to 4 are easily available in the open market and the evidence of

P.W.3 being VRO/Government servant and the evidence of P.W.1/P.C. and

P.W.4/A.S.I. of police cannot be believed as they are interested witnesses. The learned counsel for accused further argued that M.Os.1 to 4 are not seized from the possession of accused and he did not commit any offence and prays to acquit the accused.

14.On the other hand, the learned APP vehemently opposed the argument of the accused counsel and submitted that there is no need to examine all the mediators to prove to Ex.P2 as the prosecution has already examined P.W.3 who is none other than the VRO and independent mediator.

The learned APP further argued that there is no hard and fast rule that the evidence of P.Ws.1 and 4 Police Officers cannot be believed and there is no necessity for PW.4 to plant M.Os.1 to 4 to foist a case against accused, with whom PW.4 has no enmity or relationship. The learned APP further argued that the evidence of P.Ws.1, 3 and 4 is not shaken in the cross-examination and the same is quite believable and prays to convict the accused. In this regard, the learned APP has relied on the decision of our Hon'ble Supreme Court held in between Anil @ Andya Sadashiv Nandoskar vs. State of Maharashtra on 19 February, 1996 reported in 1996 (2) 589, wherein his lordship was pleased to held that " Indeed all the 5 prosecution witnesses who have been examined in support of search and seizure were members of the raiding party. They are all police officials. There is, however, no rule of law that the evidence of police officials has to be discarded or that it suffers from some inherent infirmity"............... " the police officials do not suffer from any disability to give

C.C.No.650/2019 6/11 AJFCM Court, Gdv evidence and the mere fact that they are police officials does not by itself give raise to any doubt about their credit worthiness."............

Further the learned APP has relied upon the findings given by the Hon'ble

High Court of Telangana held in between V.Balaiah vs. The State of A.P.

represented by its PP. Hyderabad, 7th February, 2019 Criminal Appeal No.1617 of 2009 wherein the Hon'ble High Court of Telangana was pleased to held that :

"............ Therefore, wherever the evidence of police officials, after careful scrutiny, inspires and is found to be trustworthy and reliable, it can form basis of conviction, even in absence of corroboration with the independent witnesses. No infirmity attaches to the testimony of the police officials, merely because they are police officials and there is no rule of law or evidence, which lays down that conviction cannot be recorded on the sole testimony of the police officials".......................

15.Having considered the argument on both the sides and on perusal of the above two decisions relied by the learned APP, it is crystal clear that the argument of the accused counsel is not sustainable. Why because, as rightly argued by the learned APP, P.W.1 is a Police Constable P.W.3 is a VRO and PW.4 is ASI of police has no enmity with accused. Furthermore, there is no single reason assigned by the accused counsel attributing any malafidies to P.Ws.1, 3 and 4 to foist a case against the accused by procuring M.Os.1 to 4 from the market on their expenditure to foist a case against the accused. Furthermore, as rightly argued by the learned APP in order to prove the prosecution case or

Ex.P2 mediators report, there is no need to examine the mediators. As per

Section 134 of Indian Evidence Act the Court has to consider the quality of the evidence but not quantity of the evidence. In the instant case, PW.3 being one of the mediator who was present at the time of the raid and seizure of M.Os.1 to 4 categorically deposed that M.Os.1 to 4 are seized from the possession of the accused in his presence under a cover of Ex.P2 mediator report. In addition

C.C.No.650/2019 7/11 AJFCM Court, Gdv to that, as per above two decisions relied by the learned APP also it is crystal clear that there is no bar under the law to believe the testimony of P.Ws.1 and 4 police officers until and unless any infirmity is proved against them. In such a case, no enmity is made out by the accused against PWs.1 and 4. As such, the above said two decisions are squarely applicable to the present case on hand and thereby the argument of the accused counsel is not at all sustainable. On consideration of the evidence of P.Ws.1, 3 and 4 coupled with

Exs.P1 to P4, it is clearly proved by the prosecution beyond all reasonable doubt that M.O.1 Raja Khaini packets 10, M.O.2 MC Gutkha packets 8, M.O.3

Swagat khaini packets 2, M.O.4 RMD pan masala packets 55 from the possession of accused beyond all reasonable doubts.

16.As per the evidence of P.Ws.1, 3 and 4, it is crystal clear that M.Os.1 to 4

Gutkha and Khaini packets were banned by the Government and accused is selling illegally for gaining profits. On thorough consideration of the evidence of P.Ws.1, 3 and 4 coupled with Exs.P1 to P4 and M.Os.1 to 4, it is clearly proved by the prosecution that M.Os.1 to 4 were seized from the possession of accused and. Furthermore, inspite of thorough cross-examination by the accused counsel, nothing was elicited from P.Ws.1, 3 and 4 to discord their evidence. As per the evidence of P.Ws.1, 3 and 4, it is proved by the prosecution that accused selling the said banned Gutkha and Khaini products to the public for gaining profits and thus accused has committed an Act of

Malignant resulting to cause spread infection of diseases dangerous to life and intentionally sold and also sold noxious food. So as per the above discussion, it is clearly proved by the prosecution that accused has committed the offence under Sections 270, 273 IPC and accordingly this point is answered.

17.In the light of aforesaid reasons and discussions, it is crystal clear that the prosecution has able to bring home the guilt of accused for the

C.C.No.650/2019 8/11 AJFCM Court, Gdv offences under Sections 270, 273 IPC beyond all reasonable doubt and liable to be convicted.

18.In the result, sole accused is found guilty for the offences punishable under Sections 270, 273 IPC and he is convicted under Section 255(2) of Cr.P.C.

Typed my dictation by Stenographer, corrected and pronounced by me in open Court, this the 20thday of March, 2020.

Addl. J.F.C. Magistrate, Gudivada

When questioned about the quantum of sentence to be imposed against accused, he pleaded that he is the sole breadwinner of his family and if he sent to jail, his entire family will be starved for bread and prayed for mercy of the Hon’ble Court in imposing the sentence.

Having considered the facts and circumstances of the case, I am of the opinion that it is not a fit case to invoke the benefit under P.O. Act. However, having considering the nature and gravity of the offence, facts and circumstances of the case, this Court is of the considered opinion that imposing fine instead of sentencing the accused to jail will meet the ends of justice.

Accordingly, sole accused is sentenced to pay a fine of Rs.9,000/- (Rupees nine thousand only) for the offence under Section 270 IPC IDSI for three months.

Further, sole accused is sentenced to pay a fine of Rs.1,000/- (Rupees one thousand only) for the offence under Section 273 IPC IDSI for three months.

As accused is imposed fine only, he is not at all entitled for set off under

Section 428 Cr.P.C.

C.C.No.650/2019 9/11 AJFCM Court, Gdv

Further the accused is informed about his right to prefer appeal against the Judgment of this Court before the Hon’ble District Court, Machilipatnam and also about the free Legal Aid.

The case property in C.P.No.189/19 i.e., M.Os. 1 to 4 shall be destroyed after expiry of the appeal time.

Addl. J.F.C. Magistrate, Gudivada

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION: DEFENCE

PW.1: Shaik Aslam, P.C. - None –

PW.2: Sk.John Shaida

P.W.3: G.Lakshmana Rao, VRO

P.W.4: S.Swamy Das, A.S.I of police

DOCUMENTS MARKED FOR PROSECUTION

Ex.P.1: Section 161 Cr.P.C. statement of P.W.2

Ex.P.2: Mediators report, dated 23.07.2019

Ex.P.3: FIR

Ex.P.4: Rough sketch

DOCUMENTS MARKED FOR DEFENCE

-Nil-

MATERIAL OBJECTS

M.O.1 Raja Khaini packets 10

M.O.2 MC Gutkha packets 8

M.O.3 Swagat Khaini packets 2

M.O.4 RMD pan masala packets 55

Addl. J.F.C. Magistrate,

Gudivada.

C.C.No.650/2019 10/11 AJFCM Court, Gdv

CALENDER AND JUDGMENT

IN THE COURT OF THE ADDL. JUDL. I CLASS MAGISTRATE; GUDIVADA

C.C.No.650 OF 2019

Date of

OffenceComplaintNotice issued toCommenceClose ofSentence or accusedment of trialtrialorder 23.07.1923.07.1923.07.201918.02.202010.03.202020.03.2020 Between: State, represented by Sub Inspector of Police, Gudivada I Town Police Station.… Complainant.

And

Dalapathi Naresh Raju, S/o Venkateswara Rao aged about 28 years, R/o Bethavolu,

Gudivada Mandal, Krishna District... Accused.

Offence: Under Sections 270, 273 IPC

Pleading:”Pleaded Not Guilty”

Finding:“FOUND GUILTY”

SENTENCE: In the result, sole accused is found guilty for the offences punishable under Sections 270, 273 IPC and he is convicted under

Section 255(2) of Cr.P.C.

When questioned about the quantum of sentence to be imposed against accused, he pleaded that he is the sole breadwinner of his family and if he sent to jail, his entire family will be starved for bread and prayed for mercy of the Hon’ble Court in imposing the sentence. Having considered the facts and circumstances of the case, I am of the opinion that it is not a fit case to invoke the benefit under P.O. Act. However, having considering the nature and gravity of the offence, facts and circumstances of the case, this Court is of the considered opinion that imposing fine instead of sentencing the accused to jail will meet the ends of justice. Accordingly, sole accused is sentenced to pay a fine of Rs.9,000/- (Rupees nine thousand only) for the offence under Section 270 IPC IDSI for three months. Further, sole accused is sentenced to pay a fine of Rs.1,000/- (Rupees one thousand only) for the offence under Section 273 IPC IDSI for three months. As accused is imposed fine only, he is not at all entitled for set off under Section 428 Cr.P.C. Further the accused is informed about his right to prefer appeal against the Judgment of this Court before the Hon’ble District Court, Machilipatnam and also about the free Legal Aid. The case property in C.P.No.189/19 i.e., M.Os. 1 to 4 shall be destroyed after expiry of the appeal time.

C.C.No.650/2019 11/11 AJFCM Court, Gdv

EXPLANATION FOR DELAY: This case was taken on file on 23.09.2019. On 20.11.2019 on appearance of accused, he was furnished with the copies of documents as contemplated under Sec.207 Cr.P.C. On 18.12.2019 accused was examined under Sec.251 Cr.P.C. for the offences under Sections 270, 273 IPC and the substance of the same are read over and explained to him in Telugu, for which he denied, pleaded not guilty and claimed to be tried. On behalf of prosecution from 18.02.2020 to 10.03.2020 P.Ws.1 to 4 were examined and Ex.P.1 to P4,

M.Os.1 to 4 are marked. On 13.03.2020 accused was examined under sec.313

Cr.P.C. by explaining the incriminating evidence appearing against him, he denied and reported no defence evidence on his behalf. On 17.03.2020 Heard arguments on both the sides. On 20.03.2020 Judgment pronounced in open

Court. Hence, the delay.

Copy submitted to: Addl. J.F.C. Magistrate, The Hon’ble I Addl.Dist.& Sessions Gudivada.

Judge, Krishna, Machilipatnam.

C.C.No.102/2017 1/10 II-AJFCM Court, MTM

IN THE COURT OF THE II-ADDL. JUDL. MAGISTRATE OF I CLASS;

MACHILIPATNAM

PRESENT; Sri.S.Siva Sankar Reddy,

II-Additional Judicial 1 st Class Magistrate, MTM

FRIDAY, THIS THE 23 rd DAY OF FEBRUARY, 2018

C.C.No.102 of 2017

Between:

State, represented by Sub Inspector of Police, Robertsonpet Police Station. … Complainant.

And

Kaluva Rajendra Prasad @ Rajendra, S/o Atchutha Anand Venkata Narayana Rao, Age 40 years, Patharamannapet, Bandar. Rider of the Honda Shine bearing No.AP 16 DE 6092.

... Accused.

This case is coming on 22.02.2018 for final hearing before me and upon perusing the entire material available on record and upon hearing the arguments of Senior APP for the Prosecution and on Sri.P.Suresh Babu, Advocate for the accused and having stood over for consideration till this day, this Court delivered the following;

J U D G M E N T

1.The Sub Inspector of Police, Robertsonpet Police Station filed charge sheet against sole accused in Cr.No.80/2016 for the offence punishable under sec.304-A, 338 of Indian Penal Code, 1860 ( in short “IPC”).

2. The brief facts of the charge-sheet are as follows:-

(a) On 12.06.2016 at about 7.30 p.m. LW.1/G.Siva Naga Murali

Krishna is standing near the Ramanaidupet Center, at that time his friend

K.K.Prasanna Kumar and his brother (accused) come from Ramanaidupet

Center to Batchupet on Honda Shine bearing No.AP 16 DE 6092, and the rider of the bike drover the vehicle in a rash and negligent manner with high speed, without blowing horn, thus he lost control over the bike and dashed against the pedestrian and the rider also fell down from the vehicle. The Prasanna Kumar (deceased) received grievous injury on his head and pedestrian also received injuries. Immediately both the injured were shifted to GGH, Bandar in the auto and doctor declared the condition of K.Prasanna Kumar is very serious and

C.C.No.102/2017 2/10 II-AJFCM Court, MTM immediately K.Prasanna Kumar was shifted to Nagarjuna Hospital, Vijayawada for better treatment. At Nagarjuna Hospital, the doctor examined and declared he died while shifting to the hospital. The injured Pedestrian LW.9/S.Sakunthala

Vara Prasad received fracture injury. On 13.06.2016 at 08.30 hours

LW.15/D.V.S.R.Mohana Rao, H.C.737 was present in the PS, LW.1/G.S.N.Murali

Krishna presented a report and LW.15/H.C. registered a case in Cr.No.80/2016 under sec.304-A, 338 IPC and submitted FIR to all concerned and took up investigation.

(b) During the course of investigation LW.15/H.C. visited the Government

Hospital, Machilipatnam and secured the blood relatives of deceased, examined them and recorded their statements and also conducted inquest over the deadbody of the deceased. LW.15/H.C. sent the dead body of the deceased for postmortem. He visited the scene of offence and examined the witnesses and recorded their statements. He issued notice under sec.41-A Cr.P.C. to the accused. LW.12/Dr.P.R.Tyagi issued PM report opnied that the cause of the death of the deceased is due to head injury and its complications. After completion of investigation, after receipt of wound certificate of LW.9/S.S.Vara

Prasand and also Motor Vehicle Inspector report from LW.14/P.Sitapathi Rao,

LW.16/Md.Habeeb Basha, S.I of Police, Robertsonpet Police Station filed charge sheet against the accused under sec.304-A, 338 IPC. Hence, the charge.

3. This case was taken cognizance for the offence under Sec.304-A, 338

IPC and issued summons to accused.

4. On appearance of accused before this Court, copies of documents as contemplated under Sec.207 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C') were furnished and when he was examined under Sec.251 Cr.P.C for the offence under sec.304-A, 338 IPC , the substance of the same is read over and explained to him in Telugu for which he pleaded not guilty and claimed to be tried.

C.C.No.102/2017 3/10 II-AJFCM Court, MTM

5. On behalf of prosecution Pws.1 to 11 were examined and Ex.P.1 to

P.11 were marked. Consequently prosecution side evidence is closed.

6. After closure of the prosecution side evidence, the accused examined under sec.313 Cr.P.C. by explaining the incriminating evidence against him from the evidence of prosecution witnesses, he denied and reported no defence evidence on his behalf.

7. Heard arguments of learned APP for the prosecution and the learned counsel for the accused.

8.Now the point that arose for determination is as follows:-

Whether the prosecution bring home the guilt of accused beyond

all reasonable doubt for the offence under Sec.304-A, 338 IPC?

9.POINT: According to the case of the prosecution, the offence leveled against sole accused is under sec.338 and 304-A IPC. In order to prove the same the prosecution has examined PWs.1 to 11 and got marked Ex.P.1 to P.11.

PW.1 is the eye witness/defacto complainant, PW.2 is the wife of the deceased

K.K.Prasanna Kumar, PWs.3 & 4 are the alleged eye witnesses, PW.5 is the injured person. PW.6 is the Civil Assistant Surgeon who conducted postmortem examination over the dead body of the deceased K.K.Prasanna Kumar. PW.7 is the inquest mediator, PW.8 is the doctor who treated the injured PW.5, PW.9 is the alleged eye witness and also inquest mediator. PW.10 is the Motor Vehicle

Inspector, PW.11 is the Head Constable who registered a case and conducted investigation in this case.

10. In order to prove the offence under sec.304-A IPC, the prosecution has to prove….

(I) The identity of accused being the driver of the crime vehicle.

(II) The rash and negligent driving of the accused.

(III) The death of the deceased in the said accident.

C.C.No.102/2017 4/10 II-AJFCM Court, MTM

In order to prove the offence under sec. 338 IPC the prosecution has to prove….

(I) Accused is the driver of the crime vehicle at the time of accident.

(II) The rash and negligent driving of the accused.

(III) The grievous injuries of injured.

12. As seen from the testimony of PW.1 about two years back on one day at about 7.30 p.m. while he was present near Ramanaidupet Center, the deceased K.K.Prasanna Kumar was coming on a motor cycle as a pillion rider and the same was driven by one unknown person. PW.1 further deposed that all of sudden the driver of the motor cycle lost his control and fell down, due to that the deceased Prasanna Kumar has sustained bleeding injuries. PW.1 further deposed that while undergoing treatment at Vijayawada the deceased

Prasanna Kumar succumbed with injuries. PW.1 further deposed that Ex.P.1 is his signature on the report, but he do not know the contents therein. PW.1 further deposed that he do not know the person who drove the motor cycle at the time of accident.

13. PW.2 deposed that she is the wife of deceased K.K.Prasanna Kumar and on 12.06.2016 she came to know that her husband met with a road accident and received injuries. Immediately she rushed to Government

Hospital, Machilipatnam and found her husband with injuries and shifted him

Vijayawada for treatment and while undergoing treatment her husband

Prasanna Kumar succumbed with injuries. PW.2 deposed that she do not know how the accident was occurred and who is responsible for the accident.

14. The crucial witness for the prosecution and also the injured in the accident was examined as PW.5. PW.5 categorically deposed that on 12.06.2016 at about 07.30 p.m. while he returning from Buttaipet to his house and reached near Ramanaidupet, the motor cycle came in his opposite direction and dashed to him. Due to that, he fell down and sustained fracture injury to his right leg and scratch injuries to his left head and shoulder.

C.C.No.102/2017 5/10 II-AJFCM Court, MTM

Thereafter he fell unconscious. PW.5 deposed that the motor cycle No.AP 16 DE 6092 and accused who is present in the Court hall is the rider of the said motor cycle. PW.5 further deposed that in the said accident the pillion rider of his motor cycle by name K.K.Prasanna Kumar was sustained injuries and later died.

Whereas in the cross examination PW.5 admitted that he has no prior acquaintance with the accused. PW.5 further admitted that the scene of offene is busy locality. PW.5 further admitted that he filed MVOP for compensation and the same is pending.

15. The medical officer who treated the injured PW.5 was examined as

PW.8 and he also supported and corroborated the evidence of PW.5 in respect of the sustaining of injuries. PW.8 deposed that at present he is owrking as

Private Medical Practitioner in Sridhaatri Orthopedic and Health Center,

Vijayawada. Previously he worked as Consultant Orthopedic Surgeon, Health

Hospital, Vijayawada. On 14.06.2016 he examined PW.5 and treated him as inpatient and found the following injuries.

1. Fractures involving walls of left maxillary sinus, left zygoma.

2. Fracture involving right mastoid with haemomastoid.

3. Fracture shaft of tibia right.

4. Fracture shaft fibula right.

5. Fracture left proximal humerus and

6. Pulmonary embolism.

PW.8 further deposed that he issued Ex.P.9 wound certificate to PW.5 opining that the said injuries are grievous in nature. In the cross examination

PW.8 admitted that he has not filed any x-ray report along with Ex.P.9 report and also there is no mention in Ex.P.9 wound certificate that he took x-ray of the injuries.

16. A conjoint reading of the above evidence of PW.5 & PW.8, clearly shows that the version of them is that PW.5 has sustained injuries and PW.8 has treated the same and opined that the said injuries are grievous in nature. But, admittedly PW.8 did not file any x-ray report. Moreover as seen from the

C.C.No.102/2017 6/10 II-AJFCM Court, MTM evidence of PW.8 he did not specifically depose what are the grievous injuries and what are the simple injuries out of the six injuries mentioned in Ex.P.9 wound certificate. As such the evidence of PW.8 is become doubtful.

17. Apart from that as seen from the evidence of PW.5, it is quite silent about the manner of the accident. PW.5 did not depose any rashness or negligent act of the accused. In addition to that PW.5 did not depose the specific overtacts of accused i.e., in what speed he is going and on what side he is going and how the accident was occurred. In the absence of such specific details it is not at all possible that how alleged accident was occurred and who is responsible for the said accident. In addition to the above, as seen from the evidence of PW.5, the alleged accident was occurred at about 07.30 p.m. and after accident he fell unconscious. Though PW.5 denied the suggestion that it is not possible to identify the driver of the motor cycle and number before going to unconscious state, but the evidence of PW.5 about the identity of the accused is far fetched from the truth. Why, because, if really PW.5 has sustained any fracture and bleeding injuries in the night time at about 07.30 p.m. in the road accident, certainly he would have been in a shock and thereafter he also went unconscious. Moreover there is no whisper in the evidence of PW.5 about the availability of lights in the scene of offence.

18. Admittedly PW.5 has no prior acquaintance with the accused and the alleged accident was occurred at about two years back. Apart from that as seen from the evidence on record, no test identification parade was conducted in this case by the prosecution. In these circumstances the identity made by

PW.5 against accused being the rider of the motor cycle in a public Court after gap of two years in the absence of test identification parade is highly doubtful.

Apart from that the said evidence of PW.5 is also not at all supported and corroborated by any independent witness i.e., PWs.1, 3 & 4. Another alleged eye witness who was examined as PW.9 also did not support the version of the

PW.5. PW.9 categorically deposed that he noticed a mob in Ramanaidupet

C.C.No.102/2017 7/10 II-AJFCM Court, MTM center on 12.06.2016 and he went there and found that the deceased Prasanna

Kumar and PW.5 with injuries and also a motor cycle. PW.9 did not whisper about the 2nd motor cycle which alleged to be caused the accident. PW.9 also did not depose the presence of the accused or any other person who was rider of the opposite motor cycle. As such the evidence of PW.9 is also not much helpful to the case of the prosecution to support the evidence of PW.5. Thus, the self testimony of PW.5 that accused is the rider of the crime motor cycle and caused the accident is not at all believable in the absence of support and corroboration by other independent witnesses.

19. Further the evidence of PW.6 is that on 13.06.2016 he conducted autopsy over the dead body of the deceased K.K.Prasanna Kumar and issued

PM certificate opining that the deceased was died due to shock and hemorrhage and due to head injury. PW.7 deposed that in his presence R.Pet police observed the scene of offence situated near Ramanaidupet Center near

K.K.Apset printers, Machilipatnam under a cover of scene observation report.

PW.7 also deposed that police has conducted inquest over the deadbody of the

K.K.Prasanna Kumar. Ex.P.7 is the scene observation report and Ex.P.8 is the inquest report. PW.9 also deposed that the police has conducted inquest over the dead body of the deceased in his presence and in the presence of other mediators and blood relatives of the deceased. The above evidence of PW.6, 7 & 9 coupled with Ex.P.6 Post Mortem Certificate and Ex.P.8 inquest report categorically proves that one K.K.Prasanna Kumar was died in a road accident with injuries.

20. The remaining evidence on record is the evidence of official witnesses who were Motor Vehicle Inspector PW.10 and the Head Constable as

PW.11. PW.10 MVI deposed that he conducted road test to the crime vehicle bearing No.AP 16 DE 6092 and issued Ex.P.10 MVI report opined that the accident was not due to any mechanical defects of the crime vehicle and the break system is intact. In the cross examination PW.10 admitted that he

C.C.No.102/2017 8/10 II-AJFCM Court, MTM inspected the crime vehicle after five days of the accident. PW.11 deposed that on 13.06.2016 PW.1 came to Robertsonpet Police Station and gave Ex.P.1 report, in turn he registered the same as a case in Cr.No.80/2016 under sec.304-A, 338 IPC and submitted FIR to all concerned. Ex.P.11 is FIR. PW.11 further deposed about visiting of scene of offence, examination of witnesses, conducting of inquest over the dead body of the deceased and sending of the same to the PM examination. PW.11 further deposed that on 14.06.2016 he served sec.41-A notice to the accused and after completion of investigation his

S.I of Police verified his investigation and found it on correct lines and filed charge sheet in this case. In the cross examination PW.11 admitted that PW.5 did not state before him that accused drove the motor cycle in a rash or negligent manner. PW.11 further admitted that the scene of offence is a busy locality. The above evidence of Pws.10 & 11 is about doing their official acts only and the same does not incriminate anything against the accused.

21. On thorough consideration of the above evidence of Pws.1 to 11 coupled with Ex.P.6 PM certificate and Ex.P.8 inquest report shows that one

K.K.Prasanna Kumar met with a road accident and succumbed with injuries.

Mere proving of the death of the deceased in a road accident, does not automatically entitled the prosecution to get the conviction of the accused for the offence under sec.304-A IPC or sec.338 of the IPC, invariable the prosecution has also to prove that accused is the person who drove the crime motor cycle in a rash or negligent manner and caused the accident resulting the death of the deceased and also causing grievous injuries to PW.5. But, as discussed above, none of the prosecution witnesses has deposed about the rash or negligent act of the driver of the motor cycle or the identity of the accused being the driver of the motor cycle. Though PW.5 identified the accused being the driver of the crime motor cycle and responsible for the death of the deceased, but PW.5 evidence is not at all believable due to his admissions that after accident he fell unconscious. Apart from that the evidence of PW.5 is not at all supported and corroborated by independent eye

C.C.No.102/2017 9/10 II-AJFCM Court, MTM witnesses from the scene of offence. So also, PW.5 did not depose anything about the rashness or negligent act of the accused in the alleged driving of the motor cycle. When there is a collision in between two motor vehicles, resulting the death and injuries, it is very very difficult to assess who is fault and who is responsible for the said accident. As such the Courts must be very cautious in considering the evidence on record before come to conclusion. In the instant case except deposing by PW.5 that accused is the driver of the motor cycle, he did not depose anything about the manner of the accident and how the accused drove the motor cycle and what is the rash or negligent act of the accused. Apart from that even the said sole testimony of PW.5 in respect of identity of the accused is not at all supported and corroborated by any other independent witnesses. On consideration of the evidence on record, there is no iota of evidence on record to show that accused drove the crime vehicle in a rash or negligent manner and caused the accident. So viewed from any angle there is no tenable evidence on record to base a conviction against the accused and that the accused is entitled for acquittal.

22. In the light of aforesaid reasons and discussions, this Court is of the considered opinion that prosecution has failed to bring home the guilt of the accused for the offence under sec.304-A, 338 IPC beyond all reasonable doubt and that accused is entitled for acquittal.

23. In the result, accused is found not guilty for the offence punishable under Section 304-A, 338 IPC and he is acquitted under Sec.255(1) of Cr.P.C. The bail bonds of the accused and his sureties shall be in force for a period of six months as per sec.437-A Cr.P.C. In this case no property was seized and produced before this Court, as such no order with regard to property.

Dictated to Stenographer, transcribed by her, corrected and pronounced

by me in open Court, this the 23rd day of February, 2018.

Sd/-S.Siva Sankar Reddy,

II-Addl. J.F.C. Magistrate, Machilipatnam.

C.C.No.102/2017 10/10 II-AJFCM Court, MTM

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION: DEFENCE

PW.1: G.Siva Naga Murali Krishna - None – PW.2: K.Sravani PW.3: B.Radha Krishna PW.4: V.Rama Krishna PW.5: S.S.Vara Prasad PW.6: Dr.P.R.Tyagi PW.7: G.Madhu Sekhar PW.8: Dr.K.B.S.Srinivas PW.9: P.Venkatramaiah PW.10 P.Sithapathi Rao (MVI) PW.11: D.V.S.R.Mohana Rao (I.O)

DOCUMENTS MARKED FOR PROSECUTION

Ex.P.1: Signature of PW.1 on the report. Ex.P.2: Sec. 161 Cr.P.C statement of PW.1. Ex.P.3: Sec. 161 Cr.P.C statement of PW.2. Ex.P.4: Sec. 161 Cr.P.C statement of PW.3. Ex.P.5: Sec. 161 Cr.P.C statement of PW.4. Ex.P.6: Postmortem certificate, dt:30.06.2016. Ex.P.7: Scene observation report, dt:13.06.2016 Ex.P.8: Inquest report. Ex.P.9: Wound certificate of PW.5. Ex.P.10: Motor vehicle Inspector report, dt:18.06.2016. Ex.P.11: FIR.

DOCUMENTS MARKED FOR DEFENCE

­-Nil- - ­

MATERIAL OBJECTS

-Nil-

Sd/-S.Siva Sankar Reddy,

II-Addl. J.F.C. Magistrate, Machilipatnam.