Smt.s.sreevani

1

IN THE COURT OF VI ADDL. CHIEF METROPOLITAN MAGISTRATE: HYDERABAD

Present: MOKA SUVARNA RAJU, I Addl.Chief Metropolitan Magistrate, FAC of VI Addl.Chief Metropolitan Magistrate Hyderabad.

Friday the 31st day of March 2017

C.C No.293 of 2012

Between:

The State of A.P represented by the Inspector of police of Cyber Crimes P.S, C.I.D. Hyderabad.…Complainant

And

Mr.Dilip Kumar S/o Mr.Arun Kumar Sinha, aged 27 years Occ: LASE (Leading Aircraft Safety Equipment) at INS Shikra, Colaba Mumbai R/o Staying in the barracks of INS Shikra N/o Gangapur (Village) Narsingpur Post office, Mushahari, Muzaffarpur District, Bihar State …Accused.

This case was coming on 27-3-2017 for final hearing before me in the presence of Smt.B.Swathi in charge A.P.P of C.I.D. for the State and of Sri Gopala Krishna Kalanidhi, Advocate for the accused and having stood over for consideration till this day, this court delivered the following:-

J U D G M E NT

The State represented by the Inspector of police of Cyber Crimes P.S, C.I.D,

Hyderabad had filed charge sheet against the accused for the offence U/Secs.66(A), 67, 67-B (c)(d) of the Information Technology (Amendment) Act 2008 and Sec.509 of IPC.

2.The averments, in brief, of the charge sheet are: that on 27-02-2010 the

Flight Lieutenant Rtd, Arun Kumar Sinha S/o Late Ram Mohan Sinha R/o

LibertyApartments, Domalguda, Hyderabad had lodged a report stating that his daughter Kumari Sakshi Sinha has a profile under the name ‘sakshi sinha’ vide ID No.

1284467705656 of facebook; that on 27th February 2010 at about 09.45 hours one

Mr.Dilip Sinha with facebook profile ID name “Dilip Sinha” with ID No.556674705 sent a friend ‘add request’ to his daughters profile and in a good faith his daughter accepted the request and chat between them followed; that on scrutiny of the chat as it progressed it was noticed that Mr.Dilip Sinha has enticed his minor daughter into forced conversation leading sexual invitations despite her firm resistance; that though she vehemently refused, he continued to entice her for all most two hours; that during 2 the chat the said Dilip Sinha sent obscene chat messages “ u damn fucking gorgeous daughter of a bitch” “I will fuck u hard in ur anus” “chudegi kya bada lamba hai mera wanna suck ma dick’’; that the said Dilip Sinha while chatting revealed that he was originally a resident of Muzaffarpur now posted in Mumbai that his e-mail Ids “flynavi1983@gmail.com, dilipsnha1983@gmail.com”; that basing on the report, the

Inspector of police had registered a case as F.I.R No.09/2011 U/Secs.66(A), 67, 67-B (c)

(d) of the Information Technology (Amendment) Act 2008 and Sec.509 of IPC and investigated into; that he commenced investigation, examined the informant and his minor daughter Kumari Sakhsi Sinha and another daughter Ms Samvidha Sinha and collected obscene material and forwarded to the court along with F.I.R; that he recovered the Hard Disc from the laptop used by the victim under the cover of mediators report on 05-03-2010, deposited before the court and got it forwarded to the

A.P.F.S.L., on the letter of advice; that he collected the documents shown as D.Nos.5 and D-10 that the registration information of the culprit's facebook profile were obtained as e-mail ID dilipsinha1983@gmail.com Mobile No.918080310872 and IP address 124.124.10.30 on 29-10-2007 at 12:54:44 GMT were secured from Mr.Ted

Ullyot vice President and General Counsel Facebook, USA (Doc.No.8); that basing on this information the ownership particulars of the mobile number 8080310872 have been secured as of Mr.Dilip Kumar and the facebook profile (virtual entity) has been linked to the physical entity by name Dilip Kumar; that as per the directions of the

Hon'ble High Court the accused surrendered before the Inspector of police on 14-02-

2011; that then he arrested him and released on bail in pursuance of the anticipatory bail order and recorded the confession and recovered the e-mail hard copy sent to www.facebook.com at 7:00 P.M on the date of offence 27-02-20110, fearing to cover up his guilty and to create an impression that his profile was hacked; that the same was recovered under the cover of panchanama; that the A.P.F.S.L., report (Doc.No.13) has established that the obscene and enticing messages were received to the laptop of the complainant and that the obscene messages came from ID “Dilipsinha' to 'Sakshi

Sinha'; that the birth certificate of the victim shows her age as 16 years by the date of 3 registration of the case and thus offence U/Secs.66(A), 67, 67-B (c)(d) of the

Information Technology (Amendment) Act 2008 and Sec.509 of IPC attracts against the accused.

3.This court had taken cognizance of the offence U/Secs.66(A), 67, 67-B (c)

(d) of the Information Technology (Amendment) Act 2008 and Sec.509 of IPC against the accused.

4.On appearance of the accused, copies of case documents were furnished to him as required under Section 207 Cr.P.C., The accused was examined under Section 239 Cr.P.C., and after hearing the Spl.A.P.P for C.I.D. and the learned defence counsel the then Presiding Officer had framed charges for the offence U/Secs.66(A), 67, 67-B (c)

(d) of the Information Technology (Amendment) Act 2008 and Sec.509 of IPC against him. When the charges were read over and explained to the accused in his vernacular language, he pleaded not guilty and claimed to be tired.

5. The prosecution, to prove the charges has examined the two daughters of the informant Ms.Samvidha Sinha and Kumari Sakshi Sinha as Pws-1 and 2, one

Abraham J Menezes, Sanjay Tennysy, S.Madhusudhan Gupta, Muralidhara Sheshadri,

G.Gurappa, Tanu Shirvastava, M.Harish Goud, the Scientific officer K Narsimha Swamy and the Inspector of police as Pws-3 to 11 and got marked Exs.P-1 to P-25 and MO-1.

6. After closing the evidence, when the accused was examined under Section 313 (1) (b) of Cr.P.C., he denied having chatted with the victim girl and sent obscene messages but admitted that he used to attend the Cyber Cafe on 22-3-2010 and browsed the Internet system from 9.30 P.M to 10.03 P.M ; that the PAN card belongs to him and further admitted having visited “Vision 2000 Cyber Cafe” on 07-03-2010 and further admitted that the mobile No.8080310872 belongs to him. Further he denied the giving of any confession in the presence of the panchayatdars on 14-02-2011 but admitted that he hand over hard copy of the bounced mail. When further questioned about his conversation with the victim girl, he stated that he did not have but somebody might have misused his profile or hacked his profile. Further when questioned about the 4 version of the Inspector that the mail IDs dilipsinha1983@gmail.com, and flynavy1983@gmail and contact mobile No.9821574931 and the ID profile as 556674705 admitted being of him. Further he admitted the contents of the Exs.P-13 to

P-15 certificates and Ex.P-11 certificate. He further admitted the particulars under Ex.P- 10 certificate. When the court questioned him to say anything about this case, he submitted that he joined in Navy in 2002, his profile might have been misused by somebody and he did not commit any offence, he did not make request to the girl or made chat with the victim girl. But he did not examine anybody on his behalf or file any documents.

7.Thereafter heard the learned A.P.P. in charge and the learned defence counsel. They both submitted written arguments as well. The learned A.P.P., has argued that since laptop was handed over to the police and since they taken out the hard disk in the presence of panchatdars, there is no necessity of issuing certificate U/sec.65-

B of the Indian Evidence Act; that the learned defence counsel has not agitated the entire conversation but only agitated the date of the chat and except giving unconnected pleas, the accused did not take any substantiate plea to discard the evidence of prosecution witnesses. She further argued that the offence was occurred on 27-02-2010 and that the contradiction as pointed out by the learned defence counsel that the date of the offence in the report was mentioned as 23-02-2007 is not correct; that the evidence of Pw-6 Nodal Officer of Bharathi Airtel is sufficient to bring home the guilt of the accused; that the non collection of the senders hard disk is not fatal to the case of prosecution; that the prosecution could establish that the accused frequented the Cyber

Cafes and sent the abusive messages as in Ex.P-18 and Ex.P-19; that the prosecution has proved the case beyond reasonable doubt but the accused had not taken any tenable plea and failed to discharge his obligation, hence the accused may be convicted.

8.The learned defence counsel has argued that the investigating officer could not collect the Hard Disk from the netcafe centers run by Pws 3 and 4; that there are contradictions regarding the date of offence but there is no sufficient explanation; 5 that due to non recovery of the hard disk used by the Internet Cafe Centers, the offence cannot be said to be proved; that the Pw-3 and Pw-4 have collected data pertaining to

date 22-03-2010 but could not collect data pertaining to date 27-02-2010; that in the

instant case there is no geological position, no identification of the device from which the crime content was flashed on the alleged date of crime, no IP address through which the crime content was flashed on the alleged date of crime i.e., on 27-02-2010; that it is not the duty of the accused to admit or deny that he has or has not committed any offence; that the prosecution has failed to prove that the accused had committed the crime; that the expert says that he did not see the hard disk in the court during cross- examination; that the MO-1 hard disk was not shown to him by the Public Prosecutor; that it is proved that he does not have basic knowledge of the computers, that by Ex.P- 18 document and several annexures, the prosecution could not establish any guilt much less the IP address of the accused on 27-02-2010; that going by the hard disk of receiving end no one can attribute the crime was committed by the sender; that there is every likelihood of any person who knows the password of the accused or who can hack the account by using a spy software such as Internet Cafe Centre Administrators because they are well versed with the technology, can also send the crime content and thus the investigating officer has failed to collect sufficient material to charge the accused and the evidence so adduced by the court is not sufficient to prove the guilt of the accused, as such he is entitled to clean acquittal.

9In the light of the evidence on record, the arguments advanced now I formulate the following point for consideration.

“ Whether the prosecution could prove beyond reasonable doubt that

the accused through his face book account had chatted with the victim girl

and enticed her to have sexual relationship and that when she resisted, he

caused hurt of her feelings and insulted her modesty by transmitting

indecent words?”

10.Finding: My finding is that the prosecution could prove that the accused through his face book account had chatted with the victim girl and enticed her to have 6 sexual relationship and that when she resisted, he caused hurt of her feelings and insulted her modesty by transmitting indecent words?

11.Reas ons for my finding are as under:

The admitted facts by virtue of the answers given by the accused during the examination U/sec.313(1)(b) of Cr.P.C. are that he is having face-book profile with

ID No.556674705 AND 1284467705656 with ID name “Dilip Sinha” and with two e- mails IDs dilipsinha1983@gmail.com, and flynavy1983@gmail. He further admitted that his ID profile of his facebook as 556674705 and that he had frequently visited

Anitha Cyber Cafe Center. He further admitted that the mobile bearing

Nos.8080310872 as of him. He further admitted of his handing over the hard copy of the e-mail sent to the face-book to close his account.

12.Now I look into the report given by the father of the victim girl and the evidence of the other witnesses as to on which date the offence alleged to have been occurred.

The Pws 1 and 2 have deposed that the chat took place on 27-02-2010. Ex.P-1 report was given by the father of the victim girl but by the date of commencement of trial he died and hence the report was marked through his elder daughter (Pw-1). On the right top of the report the date 27-02-2010 was mentioned. In the second paragraph it is mentioned as under “ one Mr.Dilip Sinha with facebook profile ID name “Dilip Sinha” with vide ID No.556674705 (Appendix-A Page No.1), today 23th Feb 2010 at about 09:45 hours while she was on facebook the said Dilip Sinha sent a friend add request to his daughter's profile....” The informant at his signature had put the date “27-02-2010” and the report was lodged at 14:00 hours. As seen from the words used in the second paragraph second line of the report the intention of the informant can be gathered that he intended to show that the offence was committed on that day i.e., On 27-02-2010, if he intends to say that the offence was committed on 23-02-2010 he would have mentioned 23 rd February 2010 but the letters and words “23 th February 2010” shows that his intention to get the date typed as 27 but was not 23rd and it is purely a typographical mistake. His intention was to disclose that the offence was committed on that day. The investigating officer in clear words has deposed that the chat between the 7 accused and the victim girl took place on 27-02-2010 in between 9:00 hours and 12:00 hours. Thus the scrutiny of the documents clinchingly proves that the date of the offence as alleged was on 27-02-2010 but not 23-02-2010 as pointed out by the learned defence counsel.

13. The learned defence counsel has vehemently agitated that the investigating officer has failed to take screen shot of the chat but taken out a print out of the chat content to fix the accused which is inadmissible in evidence. As seen from the print out

Ex.P-4), the chat continued from 09:46 hours to 11.46 hours. In view of the admission of the accused about his identity on the face-book and on his mobiles and e-mail addresses there is no mush significance of the evidence of Pws 3 to 6.

14.Now I look into the evidence of the Scientific Assistant, who deposed as Pw-10.

According to him their office received one I.D.E. hard disc Hitachi Model H.P.S.

424040M9AT00 bearing S/N Q2JN26UE of capacity 40 GB from this court vide

Dis.No.804/VIACMM/10 dt.13-04-2010 for opinion; that after careful analysis of the hard disc he gave his report that Item No.1 is in working condition and that it has three partitions of capacities 17.6GB (NTFS), 16.6 GB (NTFS) and 204 MB (unknown) with

Micro Soft Windows XP operating system installed in it along with other programmes viz Tally, Mozilla Firefox, Internet Explorer etc., and that the Item No.1 contains the ID

No. 1284467705656 of Sakshi Sinha and I.D.No.556674705 of Dilip Sinha in chat conversation, obscene messages from Dilip Sinha to Sakshi Sinha with date and time stamp, Relevant content retrieved from Item No.1 along with all files list and Internet

History is given in a CD-R marked as Annexure-I, COM/37/2010, relevant data retrieved from Item No.1 is given in a hard copy marked as Annexure-II, COM/37/2010 as representative sample and that he issued report under Ex.P-18 along with Annexure-

II in 10 pages. Ex.P-19 is the compact disc COM/37/2010-Annexure-I. During the cross-examination, the expert has deposed that he mentioned that hard disc has three partitions and its capacity and when Hard disc is connected to other system the drive series may vary like ABC or CDR etc., He denied the suggestion that he had not conducted any test to the hard disc and that he issued a false report. When the learned 8 defence counsel posed a question that Mo-1 sealed packet is not opened and shown to him while giving evidence, he admitted that his signature is not found in the dispatch cover but clarified that if the MO-1 sealed packet is opened his signature with marking will be available. In view of the contention of the learned defence counsel that since the expert has not opened the MO-1 seal and identify the hard disc it cannot be said that he had analyzed the same hard disc. The expert has firmly deposed that he analyzed the same hard disc, which was sent to the F.S.L and after analysis he sent back to the court in a sealed cover but it did not contain his signature on the cover. But he stated that inside the cover his signature with marking will be available. To rule out any ambiguity

I opened the seal of the cover of hard disc (Mo-1) and when observed, I found the file

No. as COM/37/2010, Item No.1 with the signature of the Scientific Officer Mr.

K.N.Swamy with date 8-7-2010. Further there is a slip containing the signatures of the panchas and the Inspector of Police and marking COM/37/2010 with the signature of the Scientist as Item No.1. This court played the disc, marked as Ex.P19 and found the same data as taken print out to the attachment to the Ex.P18 report. Thus, it is proved beyond reasonable doubt that the Scientific officer had analyzed the hard disc that had been produced by the informant before the Inspector of police which was seized in the presence of panchayatdars. The Annexure-II attached to Ex.P-18 report of the analyst shows the chat conversation with date, time and stamp as shown in on Unallocated

Custers shown as UC-2, UC-3, UC-4, UC-5, UC-6 UC-7, UC-8 UC, 12, UC-13, UC-14 and

UC-18.

15.Mr.Abraham J Menezes (Pw-3) has deposed that the accused is a regular visitor to his Cafe and that as required by the C.I.D. police Hyderabad he issued a copy of the daily register dated 22-03-2010 and that under Sl.No.10, the mobile number of the accused is seen. The learned defence counsel has suggested to him that Mr.Dilip Kumar had never visited his cafe and never browsed system in his shop and that he is deposing falsehood at the instance of police but the accused contradicting that suggestion has admitted that he was frequent visitor to the Anitha Cyber Cafe Centre and that he visited on 22-2-2010.

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16. Mr.Sanjay Tennysy (Pw-4) has deposed that he was the Cyber Cafe owner in the name and style of Vision 2000 Cyber Cafe in Colaba, Mumbai and closed the business in the year 2013 and that in the month of October 2010 the C.I.D. police of A.P., visited their Cafe and verified the records stating that some obscene messages were sent to one girl from his cafe between 4.45 PM to 5.45 PM on 7-03-2010 and then he handed over the attested copy of his office register (Ex.P-7) the document produced by him i.e., Ex.P- 7 is an attested copy of the customer register of date 07-03-2010. It shows at Sl.No.10 at 4.45 PM to 5.45 PM there was chat by person having ID No.597959. However the chat date is not the date of the offence herein.

17.The evidence of Mr.S.Madhusudhan gupta (Pw-5) is about the address of the customer of the mobile No.8080310872. Since the accused had admitted that the above mobile number belongs to him no scrutiny of his evidence is required.

18.Mr.Muralidhara Sheshadri (Pw-6) Nodal Officer of Bharathi Airtel has deposed that he furnished the information regarding ID details of 22-03-2010 and time 21:56:28

I.P. address 122.169.9.240 and also time 21:34:03 I.P address 122.169.9.240 and 15-05- 2008 time 16:07:30 I.P address 122.169.13.111. When the evidence of this witness is posed to the accused he stated that he does not remember the details of his visit to the

Cyber Cafe but he visited in March 2010.

19.Mr.G.Gurappa (Pw-7) a mediator to the seizure of the hard disc from the laptop supplied by the informant has deposed that he and their Superintendent Mr.B.David

Raj Kumar had acted as pancyatdars and in their presence the police hd seized the hard disc from the laptop. The learned defence counsel cross-examined this witness and argued that he had no knowledge of computer and that his evidence that the hard disc seized in his presence cannot be taken into consideration. The contention of the learned defence counsel could not sustain for the reason that the slip affixed to the hard disc (MO-1) bears the signatures of Mr.G.Gurappa and B.Davi Raj Kumar, who acted as panchayatdars and thus the seizure of the hard disc from the laptop of the informant is proved beyond reasonable doubt.

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20.The evidence of Mr.Tanu Shrivastava (Pw-8) is about furnishing the details of I.P address No.59.183.173.98 on 07-03-2010 at 5.15 PM and 35 seconds. The accused during examination under section 313 (1) (b) Cr.P.C., has stated that he might have visited the Cafe on 07-03-2010.

21.Mr.M.Harish Goud (Pw-9) has deposed that he acted as panchayatdar and in his presence the Inspector Ravi Kumar Reddy had recorded confession and that the

Inspector had seized one bounced mail handed over by the accused. The confession as stated by him is not admissible in evidence since the Inspector and his staff were stated to be very much present while the accused was giving the confession. But the accused had admitted of handing over of the bounced e-mail to the Inspector against the suggestion by his counsel that it is a fabricated mail. As per the bounced mail marked as

Ex.P-17, on.27-02-2010 at 7:08 PM the accused had addressed a mail stating that his face-book account has been hacked and it is being used not in good manner please deactivate or delete his account. But the said mail was not delivered and it was bounced to the accused. As seen from the chat content retrieved by the Scientific officer marked as Annexure-II marked as Ex.P-18 the chat conversation started at 09:46 hours and continued up to 10.50 AM and at 11.28 hours Mr.Dilip Kumar came on line and again posted obscene messages and at 11.43 hours the father of Shakshi Sinha the informant herein posted a message cautioning him that he would get him arrested for committing crime against his daughter and the conversation between them continued up to 11.46 hours and at 11.48 hours the accused went off line and that he never came on line; that the message sent by the father of the victim that the whole chat is being sent to Chief of

Naval staff was not sent since the accused was off line. The bounced mail shows that on the same day on 07:08 P.M he sent mail to the face-book authority to close his account or delete his account.

22.The learned defence counsel has argued that the prosecution having set the law into motion by lodging a report and getting registered a case is burden to prove the charges and that the accused is not responsible either to admit or deny. The contention of the learned defence counsel is correct to some extent but if any fact is within the 11 knowledge of the accused, he is bound to explain the same. In this context it is necessary to have a glance at Sec.106 of the Indian Evidence Act, which reads as under:

“Burden of proving fact especially within knowledge: When any fact

is especially within the knowledge of any person, the burden of proving

that fact is upon him”. In this case whether the accused had now burdened to explain any fact or prove any fact? From the face-book account of the accused the obscene chat content was sent to the victim girl and the line of conversation shows that it was made between the accused and the victim. The moment when the father of the victim on knowing obscene content of the chat flashed a message to him and he initially took it light and chatted with him also in heckling manner as ...K...f9 (Fine)...cum (come)...she abused me firstu fucking asshole... But when the father of the victim further sent message as...hey you!...he replied as...ha...tel.. and thereafterthe accused went off line. When the court posed a question to the learned defence counsel has to how the accused could know that how his account was hacked or must used by somebody, the learned counsel replied that since chat content of the father of the victim was sent by mail to the accused he came to know that his account was misused or hacked. But this reply is not satisfactory. On seeing the conversation, one can believe that it was by Br. Dilip Sinha but none else.

23.Now the conduct of the accused is relevant. The conduct either previous or subsequent for any person of offence is relevant U/sec. 8 of the Indian Evidence

Act, if such conduct of the accused soon after the father of the victim posted message to report the matter to the Cyber Crime Police, the accused went offline and he never come on line and at 07.08 P.M sent mail to the face-book authority to close his account. If the argument of the learned defence counsel that since he came to know that his account was hacked or misused he asked the face-book authorities to close the account if taken to be a genuine act since a serious crime had been registered against him, then as a responsible citizen he should have reported the matter to the police to find out whether his account was hacked or misused by anybody. But no such step had been taken by the accused. Though the investigating officer has failed to collect the hard disc of the 12 computer system through the content was flashed, the evidence of the Scientific officer after analyzing the hard disc of the computer of the informant had given clinching report that the chat content was made from the face-book account of the accused with date, time and stamp. Since the accused claims to have reported the matter that his account was hacked or misused he has to explain what step he had taken and the result thereon within the meaning of Sec.106 of the Indian Evidence Act. Since the accused did not take any step, his conduct in asking the face-book authority to cancel or delete his account shows that he wanted to cover up his guilt and to escape from the clutches of the law. Thus it is established beyond reasonable doubt that the accused had sent the obscene content from his face-book account to the face-book account of the victim girl and thereby committed the offences as charged.

24. As a result, the accused is found guilty of the charges U/Secs.66(A), 67, 67-B (c)

(d) of the Information Technology (Amendment) Act 2008 and Sec.509 of I.P.C., and accordingly he is convicted of the same U/sec.248 (2) of Cr.P.C., The bail bonds of the accused shall be cancelled.

Dictated to the Stenographer Grade-II, transcribed by him, corrected and pronounced

by me in the Open Court on this the 31st day of March 2017.

I ADDL. CHIEF MEROPOLITAN MAGISTRATE,

FAC TO VI ACMM HYDERABAD

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25.When questioned the accused regarding sentence he submitted that he is having small children and that he is the only earning member of his family. Hence he submitted to take a lenient view. The circumstances of the case and the nature of the offence made the court to believe that this is not a fit case to invoke Section 360 of

Cr.P.C., or Section 4 of the Probation of Offenders Act. In view of the nature of the offence I am inclined to sentence him to imprisonment besides awarding fine.

26. The accused is sentenced to suffer simple imprisonment for a period of one year and to pay a fine of Rs.5000/- (Rupees Five Thousand Only), in default to suffer simple imprisonment for a period of three months for the charge U/sec.66-A of the Information Technology (Amendment) Act 2008.

He is further sentenced to suffer simple imprisonment for a period of two years and to pay a fine of Rs.5000/- (Rupees Five Thousand Only), in default to suffer simple imprisonment for a period of three months for the charge U/sec.67 of the Information

Technology (Amendment) Act 2008.

He is further sentenced to suffer simple imprisonment for a period of two years and to pay a fine of Rs.5000/- (Rupees Five Thousand Only), in default to suffer simple imprisonment for a period of three months for the charge U/sec.67 (B), (c) (d) of the

Information Technology (Amendment) Act 2008.

He is further sentenced to suffer simple imprisonment for a period of one year and to pay a fine of Rs.500/- (Rupees Five Hundred Only), in default to suffer simple imprisonment for a period of 20 days for the charge U/sec.509 of I.P.C. The total fine amount is Rs.15,500/-. (Rupees Fifteen Thousand and Five Hundred Only). The period of imprisonment awarded under all the charges shall run concurrent.

Property Order:The MO-1 Hard Disc be returned either to Pw-1 or Pw-2 after expiry of appeal time.

Dictated to the Stenographer Grade-II, transcribed by him, corrected and pronounced

by me in the Open Court on this the 31st day of March 2017.

I ADDL. CHIEF MEROPOLITAN MAGISTRATE

FAC TO VI ACMM HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

14

FOR THE PROSECUTION FOR THE DEFENCE

PW-1: Ms. Samvidha Sinha -NIL- PW-2:Kumari Sakshi Sinha, Victim PW-3:Mr Abraham j Menezes PW-4:Mr. Sanjay Tennyson PW-5:Mr. S. Madhusudhan Gupta PW-6:Mr. Muralidhara Sheshadri PW-7:Mr. G. Gurappa PW-8:Mr. Tanu Srivastava PW-9:Mr. Ms. Harish Goud PW-10:Mr. K. Narasimha Swamy PW-11:Mr. B. Ravi Kumar Reddy

EXHIBITS MARKED

FOR THE PROSECUTION FOR THE DEFENCE

Ex.P-1: Report given by father of Pw-1. -Nil- Ex.P-2: Screen shot profile of accused. Ex.P-3: Screen shot profile of Pw-2 Ex.P-4: Entire Chat conversation between the accused and Pw-2. Ex.P-5: Daily register report dt.22-3-2010. Ex.P-6: PAN Card of Dilip Kumar. Ex.P-7: Attested copy of office register of Pw-4. Ex.P-8: Copy of Customer application form of mobile No.8080310872. Ex.P-9: Copy of PAN Card of Dilip Kumar. Ex.P-10: Copy of mail recorded by Pw-5 and sent to CID Cyberabad. Ex.P-11: Letter dated 31-03-2010 addressed by CID police. Ex.P-12: Seizure Report. Ex.P-13: Attested copy of the letter furnished by Pw-8 to Mr.B.R.K.Reddy. Ex.P-14: Covering letter under which Pw-8 sent Ex.P-13 E.mail. Ex.P-15: Certificate issued by Pw-8 U/sec.65 (B) of the Indian Evidence Act. Ex.P-16: Confession panchanama dt.14-02-2011. Ex.P-17: Hard copy of the mail dt.27-02-2010. Ex.P-18: A.P.F.S.L.Report dated 9-8-2010 along with Annexure-II. Ex.P-19: Compact Disc COM/37/2010 – Annexure-I. Ex.P-20: First Information Report. Ex.P-21: Letter of Advice for forward the Hard Disc to FSL. Ex.P-22: Document received from Nodal Officer Loopmobiles through E-mail. Ex.P-23: Copy of the E-mail with attachment. Ex.P-24: Copy of the information furnished by the face book authorities via E.mail. Ex.P-25: Copy of Birth Certificate of Pw-2.

MATERIAL OBJECTS MARKED

MO-1: Hard Disc seized from Lw-1 Arun Kumar Sinha.

I ADDL. CHIEF MEROPOLITAN MAGISTRATE,

FAC TO VI ACMM HYDERABAD

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Crl.A.No.12/2023

IN THE COURT OF THE SPECIAL JUDG FOR TRIAL OF OFFENCES UNDER S.Cs

& S.Ts (POA) ACT-CUM-VI ADDL. SESSIONS JUDGE: SECUNDERABAD

Present: Smt.S.Sreevani, Spl. Judge for trial of offences under SCs & STs(POA) Act cum VI Addl.

Sessions Judge

Secunderabad

THURSDAY THE TENTH DAY OF APRIL

TWO THOUSAND AND TWENTYFIVE

CRIMINAL APPEAL No.12 of 2023

From which court this XX Addl. Chief Metropolitan Magistrate, appeal is preferredSecunderabad

No. of the case in thatCC.No.250 of 2018 court

Number of appealCA.No.12 of 2023

Name & description Smt.P.Sarala, w/o.Late P.Jaganmohan Reddy, of appellant/accused aged about 65 years, Occ:Housewife, r/o.400, Trimula Kasam Residency, Jeedimetla, Hyderabad.

Name and descriptionSmt.C.Sujatha Reddy, w/o.C.K.Reddy, aged of respondent/ about 55 years, Occ:Business, r/o.311, Sri Sai complainantResidency, New Bowenpally, Secunderabad.

The Sentence and lawAccused was convicted and sentenced to under which it was undergo Simple Imprisonment for a period of imposed in lower Six Months and that accused is directed to court.pay Rs.4,00,000/- towards compensation under section 357(3) of Criminal Procedure Code. The said compensation amount shall be given to the complainant after expiry of 2 of 15

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appeal time. The accused further directed to deposit the compensation amount into the court within Two months from the date of the Judgment. In default payment of said amount accused shall undergo simple imprisonment for a period two months as default sentence.

Whether, Allowed/ dismissed, confirmed, DISMISSED modified or reversed and if modified the modification.

Date of on or which:

Presentation:6.1.2022

Filing:7.1.2022

Notice issued by the 9.1.2023 court to appear:

Bail bonds, if --- appellant let out on bail.

Appellant order to 6.2.2023 appear

Hearing6.3.2025

Judgment10.4.2025

This Criminal appeal is coming before me for final hearing on 6.3.2025 in the presence of Sri PVV Ganesh, Counsel for the appellant and the respondent and upon perusing the petition of appeal, record of evidence and upon duly considering the same, till this day this court delivered the following:- 3 of 15

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J U D G M E N T

This is an appeal preferred by the accused in CC.250 of 2018 on the file of XX Addl. Chief Metropolitan Magistrate, Secunderabad.

2)On perusing the grounds of the appeal, the appellant submitted that :

i)the judgment of the learned trial court is against the settled principles of law and is arbitrary in nature. The trial court has failed to properly appreciate the pleas raised by the appellant and passed the judgment without due consideration of the facts and circumstances of the case.

ii)the learned trial court failed to appreciate that the respondent has not filed any supporting documents to substantiate the alleged transaction. No documentary evidence has been relied upon by the respondent to prove the existence or validity of the alleged transaction.

iii)the respondent, Smt. P. Sarala, failed to prove the transaction in question by submitting appropriate documents or independent evidence. The burden of proof, which lies upon the complainant in a case under the Negotiable Instruments Act, has not been satisfactorily discharged.

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iv) the respondent has not complied with the mandatory provision under Section 138(b) of the Negotiable Instruments Act, 1881. The statutory legal notice demanding the cheque amount was never served upon the appellant, and there is no material on record to show that the appellant received such notice, thereby rendering the prosecution under Section 138 untenable.

v)the trial court failed to consider the crucial aspect that the respondent has not proved her financial capacity to lend such a substantial amount. The respondent has not produced any income tax returns or other financial documents to show the source of funds.

vi) the respondent has failed to prove that the alleged loan amount was legally sourced and not black money. There is no evidence to show that the transaction was accounted for in her income tax returns or that it was a lawful and bona fide transaction.

vii) the trial court has erred in the appreciation of evidence on record. The findings are based on presumptions and conjectures rather than a proper evaluation of the evidence in accordance with law.

viii) the overall judgment and the findings recorded by the learned

magistrate are not legally sustainable, and the facts and

circumstances on which the court has relied are not credible or sufficient to uphold the conviction and at last prayed to set aside the judgment of the trial court.

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4)After receipt of the lower case records, both parties appeared through their counsel and submitted their respective contentions.

5)Now the points for consideration are:

i)Whether the accused has issued subject cheque and the same was dishonoured due to funds insufficient ? and ii)Whether the trial court has committed any error in convicting the accused?

6)Written arguments filed by appellant. Respondent is not ready with arguments, arguments of respondent treated as heard.

POINTS

7)On perusing the record, the complainant has filed a complaint against the accused for the offence under Section 138 of the NI Act with a background that the accused and the complainant are residing in the same complex and out of such advantage the accused has approached the complainant for a loan amount of Rs. 4 lakhs and accordingly the complainant has lent the amount of Rs. 4 lakhs to the accused in the month of August 2016 as the accused requested her the loan amount to pay to her chit customer as accused used to run private chit. The accused had promised the complainant that she will repay the same within six months, but did not repay the amount. On persistent demands, the accused had issued a cheque for Rs. 4 lakhs to the complainant, and when the complainant presented the cheque before the bank, it was 6 of 15

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dishonoured due to insufficient funds. Then the complainant has issued legal notice to the accused, it was unclaimed by the accused.

The complainant further submitted that she has also lent an amount of Rs. 12 lakhs to the son-in-law of the accused by name Ravinder

Reddy as the cheque which was issued by the accused towards legally enforceable debt was dishonoured. The complainant has filed the complaint against the accused for the offence under Section 138 of NI Act. To substantiate her contention, the complainant herself examined her Pw-1 and she reiterated the contents of the complaint.

The complainant has also got marred Exhibit P1 to P6 to substantiate her contention. The accused has not chosen to examine herself

before the court, but cross-examined Pw-1. On going through the

evidence produced by the complainant, the trial court has convicted the accused. Aggrieved by such judgment, the accused has preferred this appeal.

8)On perusing the record, the case of the complainant in a nutshell is that the accused has borrowed Rs 4 lakhs from the complainant to pay the same to her chit customer and issued the cheque for Rs 4 lakhs to the complainant towards repayment of the said loan amount but it was dishonoured due to insufficient funds. To disprove his contention, the counsel for the accused has cross- examined PW-1. On perusing the cross-examination of PW-1, the defence of the accused is on different footings as follows.

1. Financial capacity of the complainant.

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2. The complainant has not followed the provisions of income tax when lent amount to the complainant.

3. The complainant is a money lender.

4. The complainant is not having force of income to lend amount of Rs 4 lakhs to the accused.

5. The cheque was issued by the accused to the complainant towards security.

9)On perusing the cross-examination of PW-1, which was run into four pages, at no point of time a suggestion was given to PW-1 that the signature on Exhibit P1 ie cheque does not belong to the accused. More-over, on perusing the cross-examination of PW-1, a suggestion was given to PW-1 that the cheque was issued to the complainant by the accused as security. Therefore, it is clear that the signature on the cheque belongs to the accused and the accused has not disputed signature on Exhibit P1. If that is the case, when once the signatures has been accepted by the accused on the cheque, the court has to presume that the said cheque was issued to the complainant for legally enforceable debt. However, the said presumption is a rebuttable presumption and the accused can rebut the said presumption by examining herself before the court as a witness or by cross-examining the witnesses of the complainant. At this juncture, I am relying on the following citations:

i)Basalingappa vs. Mudibasappa, Criminal Appeal No.636 of 2019.

ii)Tedhi Singh vs. Narayan Dass Mahant, Criminal Appeal

No.362 of 2022.

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In the above citations, the Hon’ble Apex Court has once again reiterated the observations made in Basalingappa case regarding the presumption as follows:

“We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:

Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.

The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence.

The standard of proof for rebutting the presumption is that of prepon- derance of probabilities.

To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of pre- ponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circum- stances upon which they rely.

It is not necessary for the accused to come in the witness box to sup- port his defence.”

From a reading of the above citations, it is clear that when the accused has admitted his signature on the cheque and also admitted that he has himself issued the cheque to the complainant, a presumption can be drawn that the cheque was issued for legally enforceable debt.

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10)At this juncture, the counsel for the accused has relied on the following citations:

(i) A-decision in Krishna Janardhan Bhat Vs. Dattatraya G.Hegde;

Kamala

M.J. and another, in which it was held that: S. Vs. Vidyadharan M.J. an "Stepping into the witness box by the accused not imperative for said rebuttal. Question whether the presumptions stood rebutted or not must be determined keeping in view the other evidence on record. Where chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration.

Courts must be on guard to see that merely on the application of presumption as contemplated under Sec.139, the same may not lead to injustice or mistaken conviction.

It is further held that as per Sec.269SS of Income Tax Act provides that any transaction of loan or any kind of deposit in the amount of

Rs.20,000/- and above shall be made by account payee cheque or demand draft and non compliance of their provision attracts penalty equal to the loan or deposit amount under 271D of Income Tax Act."

(ii) Another decision reported in G.Ashok Kumar Goud Vs. P.Anjili Bai and another in which our Hon'ble High Court held that:

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"A presumption which has to be raised by Courts, as required under

Sec.139 of the Act in favour of the complainant need not be rebutted by the accused by adducing any positive evidence. It is enough on her part to show the circumstances in her favour from the material available on record and the standard of proof required is that of the preponderance of probabilities."

(iii) Another decision reported in M.S.Narayana Menon Vs. State of

Kerala and another in which our Hon'ble Supreme Court held that:

"the initial burden of proof is on accused to rebut the said presumptions by raising a probable defence. If he discharges the said burden, the onus thereafter shifts on to the complainant to prove her case."

(iv) Another decision reported in 2013 (3) SCC 86 between Vijay and

Laxman and another in which our Hon'ble Supreme Court held that "This Court upheld the acquittal the accused on the ground that the accused who was supplier of milk, was given the price of the milk in advance as per the trade practice, in acknowledgment and by way of security for which amount the accused hod issued a cheque in question."

(v) Another decision reported in 2008 (7) SCC 137 between Sudhir

Kumar Bhalla and Jagdish Chand in which our Hon'ble Supreme Court held that:

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The provisions of Sec, 138 of the N.L.Act is attracted only on account of the dishonour of the cheques issued in discharge of liability or debt, but not on account of issuance of security cheques." vi) Another decision reported in 2015 (1) SCC 527 between Vinita S.

Roa and Essen Corporate Services (P) Ltd., in which our Hon'ble

Supreme Court held that:

"the cheques which were dishonoured were issued a security and that there was no crystallised liability or outstanding dues. Thus, it is clear that no offence under Sec.138 of the N.I.Act will be made out if the cheque that has been dishonoured was issued only as a security and not for discharge of any debt or liability."

(vii) Another decision reported in 2010 (2) ALD (Crl) 734 (SC) between Rangappa and Mohan in which our Hon'ble Supreme Court held that:

"it is settled law that any filling up of blanks on the cheque or any other negotiable instrument without the permission of the drawer of such instrument amounts to material alterations and no legal liability can be attributed to such instrument or cheque."

11)At the time of cross-examination of PW-1, a suggestion was given to PW-1 about the financial capacity. PW-1 deposed before the court that she is doing fabric business in the name and style 12 of 15

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Roopam designers and she is running said business along with her friends. Therefore, it is clear that the complainant is having source of income to lend the amount to the accused. Furthe-more, the accused herself has taken a plea in the cross-examination of PW-1 that the complainant is a money lender. If that is the case, the accused cannot go back and again take a defence that the complainant is not having financial capacity to lend the amount to the accused.

Therefore, whatever the defence taken by the accused is not sustainable.

12)The other defence of the accused is that the complainant is a money lender, as such, the alleged transaction between the complainant and the accused is not sustainable in the eye of law as the complainant is not having a valid license to do money lending business. When the same suggestion was put to PW1, she has denied the same, though she has admitted that she also lent amount to the son-in-law of the accused. On perusing the cheque which was submitted by the complainant before the court, it was clear that the complainant has also not claimed the interest from the accused.

When the complainant has not demanded for interest from the accused, then the accused cannot claim that the complainant is doing money lending business. The accused has not chosen to produce any evidence before the court to show that the complainant is doing money lending business and he is getting profits out of such business. Therefore, whatever the defence taken by the accused is not sustainable.

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13)At the time of cross-examination, series of suggestions was given to PW1 that the complainant is expected to do loan transaction only by way of cheque when the loan amount is more than

Rs.20,000. However, PW1 denied the same throughout her cross- examination. As per section 299S of Income Tax Act, the borrower who borrowed the amount of Rs.20,000/- or more than has to borrow the amount by way of cheque but not by way of cash. At no point of time, it is mentioned that the person who lent the amount more than

Rs.20,000 should lend the amount only by way of cheque but not by way of cash. Therefore, whatever the defence taken by the accused is not sustainable.

14)It is also submitted by the accused that she has not received legal notice from the complainant and the accused was not at all residing in the given address which was mentioned by the complainant on the legal notice. On perusing the address of the accused in the cause title in the complaint and the address of the accused on the legal notice is one and the same. If at all the address is wrong or the accused is not residing in the address mentioned in the complaint, the postal authorities will return the registered post with the same endorsement. But on perusing Exhibit P6, the postal authorities return the legal notice with an endorsement as “unclaimed”. When once the legal notice has been returned with an endorsement as “unclaimed”, it is deemed that said legal notice was served on the accused as per Section 27 of the General Clauses Act.

Therefore, the accused cannot claim that she has not received any legal notice from the complainant.

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15)Lastly, it is the defence of the accused that she has given cheque to the complainant towards security at the time of chit transaction. That means now the accused has tried to impress upon the court that the complainant is doing chit business and she is a subscriber of the chit run by the complainant and at that time she gave cheque to the complainant as security. If that is the case it is the bounden duty of the accused to produce evidence before the court and to establish that the complainant is doing business.

However, except a suggestion to PW1, no document has been placed by the accused before the court to show that the complainant is doing private chit business. Further-more, if at all the accused wants to prove that she gave cheque to the complainant as security at the time of such transaction, then the accused should establish that she has participated in the auction and taken the amount from the complainant and at that time she gave cheque to the complainant as security. But on perusing the entire court examination of PW1, no such suggestion was put to PW1. Even the accused has not chosen to examine herself before the court to show that she has participated in the auction and taken the amount from the complainant and at that time she gave cheque to the complainant as security. A stray suggestion to PW1 itself is not sufficient for the accused to disprove the contention of the complainant or to prove that she gave cheque to the complainant as security. Therefore, accused has failed to establish that she gave cheque to the complainant as security.

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16)Though the accused has relied upon the citations while submitting the written arguments, the said citations are not helpful

for the accused as said citations are in connection with the

transaction which has to be presumed against the accused when once the accused has admitted her signature on the cheque. From the above discussion, it can safely held that the accused has issued cheque to the complainant towards legally enforceable debt and the said cheque was dishonoured due to insufficient funds. The trial court has not committed any error in convicting the accused.

17)In the result, the Criminal Appeal filed by the appellant/ accused is hereby dismissed confirming the Judgment of the learned

XX Addl. Chief Metropolitan Magistrate, Secunderabad in C.C.No.250 of 2018 dated 27.12.2022

Typed to my dictation, corrected and pronounced by me in the open Court on this the 10th day of April 2025.

SPL. JUDGE FOR THE TRIAL OF OFFENCES

UNDER S.Cs & S.Ts (POA) ACT-CUM –VI ADDL. SESSIONS JUDGE: SECUNDERABAD 16 of 15

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:: Page No.1 of 11::

VI ASJ-DT.11.04.2025 SplSc74/2018

IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF OFFENCES

UNDER S.Cs & S.Ts (POA) ACT-CUM-VI ADDL. SESSIONS JUDGE:

SECUNDERABAD

Present: Smt.S.SREEVANI, Spl. Judge for trial of offences under SCs & STs (POA) Act cum VI Addl. Sessions Judge Secunderabad

FRIDAY, THE ELEVENTH DAY OF APRIL

TWO THOUSAND AND TWENTYFIVE

SPECIAL SESSIONS CASE No.74 of 2018

Crime No. & Police StationCr.No.45 of 2017 PS Bollarum

Name of the ComplainantAssistant Commissioner of Police, Begumpet Division, Hyderabad

Name and Description of the 1) VAIHBAV VISHAL,S/o.Late accused Shashi Bushan Singh, aged 36 years, Occ:IC-71884F Major, Indian Army, r/ o.Quarter No.526/1, New Allenby Lanes, Nar RSI Club, Bollarum, Secunderabad, n/o.Krishnapali (V), near Post Office(Via), Daravli, Siwan District, Bihar State.

2)Smt.ASHA SINGH,W/o.Late Sashi Bhushan, aged 69 years, Occ:BAMS (Physician), r/o.Indira Nagar, Ward Nio.8, Tamkuhi Road, Seordhi (Post), Kushi Nagar district, Uttar Pradesh State.

3)Smt. KUSHI @ SHANTA SHASHI, W/o.Vivekand Rai @ Rahul Rai, aged :: Page No.2 of 11::

VI ASJ-DT.11.04.2025 SplSc74/2018 36 years, Occ:Housewife, r/o.Gomatinagar Extension, near Taneswar Misra Park, Lucknow, Uttar Pradesh State.

Prosecution conducted bySri R.Upender, Spl. Public Prosecutor

Accused defended bySRI M.RAMAKRISHNA & others, counsel

Offences under Secs.304 r/w.34 IPC & 3(2)(v) of the SCs & STs (POA) Act

Plea of accusedNot guilty

Finding of the CourtFOUND Not guilty

Result: Accused No.1 to 3 herein are found not guilty for the charges under Sec.304 r/w.34 IPC and Sec.3(2)(v) of the SCs & STs (POA) Act and they are hereby acquitted under Sec.235(1) Cr.P.C. The bail bonds of the accused shall stand cancelled after expiry of appeal time :: J U D G M E N T ::

1)The Assistant Commissioner of Police, Begumpet division filed charge sheet in Cr.No.45 of 2017 of PS Bollarum against the accused

No.1 to 3 alleging that they have committed offences under Sec.304 r/w.34 IPC and Sec. 3(2)(v) of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act.

2i)The brief averments of the charge sheet are that on 18-04- 2017, Bollaram PS received information about the alleged suicide of

Smt. Sandhya, wife of Major Vibhav Vishal, at their residence in

Bollarum, Secunderabad. Then the Inspector visited the scene and the deceased was found shifted to the Military Hospital mortuary and her body was then moved to Gandhi Hospital for preservation and inquest.

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Subsequently, the deceased's mother, sisters (including complainant

Kum. Uma) and other relatives from Ghaziabad arrived in Hyderabad and Kum. Uma filed a written complaint on 18-04-2017, stating that her sister Sandhya married Vaibhav Vishal on 22-09-2015 in a love- turned-arranged marriage in Ghaziabad and she alleged that Vaibhav

Vishal's family, particularly his mother Asha Singh and sister Kushi, had behaved badly with Sandhya and the complainant during a visit to

Gorakhpur, demanding dowry. The complaint further stated that

Vaibhav Vishal and his family continued to harass Sandhya for dowry, and Uma suspected that her sister was murdered by her husband, who then staged it as suicide due to Sandhya's strong emotional nature and the family's desire for Vaibhav to leave her.

iii. Based on the complaint, a case was registered in Cr.No.45 of 2017 under Section 304-B IPC and Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act, 1989, as Sandhya belonged to the Chamar (SC) community and Vaibhav Vishal was a Brahmin (OC). The crime scene was inspected and items like a chunni, phone, Hindi papers, pen drive, memory card, and identity documents of the deceased were seized and witnesses were examined and a request was sent to the Revenue

Divisional Officer for an inquest and inquest was conducted on 19-04- 2017 at Gandhi Hospital in the presence of mediators and the deceased's relatives, who reiterated the dowry harassment allegations, stated that Vaibhav Vishal had abandoned Sandhya after marriage and later along with his family, demanded dowry and a share of property and after the inquest, the dead body was sent for post- mortem examination.

iv. The post-mortem examination concluded that Sandhya's death was due to asphyxia caused by hanging. The investigation officer/

Assistant Commissioner of Police appointed by the Commissioner of :: Page No.4 of 11::

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Police conducted investigation and Vaibhav Vishal was arrested on 03- 05-2017 and produced before the court for judicial custody. However, the military authorities sought his custody under Section 475 Cr.P.C., which was granted by the court. The caste certificate of the deceased, confirming her SC status, was collected and verified. Subsequently, in

March 2018, Asha Singh, the mother of Vaibhav Vishal, was arrested in

Uttar Pradesh and brought to Hyderabad, where she was also produced for judicial custody. Kushi, the sister of Vaibhav Vishal, who had been absconding, surrendered before this court and she was granted bail.

v). The investigation revealed that Sandhya and Vaibhav Vishal had a love marriage that faced opposition from both families. After marriage,

Vaibhav left Sandhya at her parents' house without support and later, along with his mother and sister, started harassing her for dowry.

Sandhya faced continuous mental and physical harassment, including demands for money and property, and was even forced to terminate a pregnancy. Ultimately, due to this unbearable harassment, Sandhya allegedly committed suicide by hanging on 18-04-2017 and on conclusion of investigation, the investigation officer filed the charge sheet against the accused for the offences under Sec.304-B r/w.34 IPC and Sec.3(2)(v) of the SCs & STs (POA) Act.

3)Cognizance of the case was taken against the accused No.1 to 3 for the offences punishable under Sec.304 r/w.34 IPC and Sec. 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act. On appearance of the accused, copies of the case documents were furnished to them and they were examined under section 228 Cr.P.C and charges under Sec.304 r/w.34 IPC and Sec.

3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention :: Page No.5 of 11::

VI ASJ-DT.11.04.2025 SplSc74/2018 of Atrocities) Act were framed, read over and explained to them. They pleaded not guilty and claimed to be tried.

4)On behalf of prosecution, PWs.1 to 5 were examined and Exs.P1 to P9 were marked. After closure of prosecution evidence, accused were examined under Sec.313 Cr.P.C. They denied incriminating evidence adduced by prosecution and reported no defence evidence.

5)Heard the learned Special Public Prosecutor and the learned counsel for the accused.

6)Now the point for consideration is whether prosecution could establish guilt of the accused for the offence under Sec.304 r/w.34 IPC and Sec. 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act beyond all reasonable doubt?

POINT:

7)As the prosecution filed charge sheet against the accused for the above said offences, it is the duty of the prosecution to establish that all the accused have harassed the deceased Sandhya for additional dowry, due to which Sanja has committed suicide. To prove the same, the prosecution has examined PW1, who is the sister of the deceased

Sandhya deposed before court that the marriage of Sandhya with A1 is a love marriage and her parents and the parents of the accused not attended for the marriage of A1 and Sandhya but she along with her other sister has attended the marriage and as on the date of marriage, A1 was working in Indian Army as a Major and after the marriage, A1 kept her sister in her house saying that he was working at Siachen, the border of China and her her sister resided with them for three months. Out of three months, only once, A1 came to her sister on occasion of birthday and stayed with Sandhya for two :: Page No.6 of 11::

VI ASJ-DT.11.04.2025 SplSc74/2018 days and left to his work place. On 31st January 2016, A1 came to Mou of Madhya Pradesh for training program for two months. Then

Sandhya has joined him and started residing in a Cantonment confinement area and they lived conjual life happily. After completion of training, A1 left to Siachen again and her sister Sandhya again came to their house.

8. Thereafter, since April 2016 onwards, A1 has insisted Sandhya to come over to Gorakhpur and asked her to stay with his family members. Then, Sandhya has joined the mother and sister of A1 at

Gorakhpur and stayed with them. In the month of May 2016, A1 brought Sandhya from Gorakhpur to Ghaziabad and dropped her at their house. At that time, Sandhya has not disclosed anything against her husband and her in-laws and Sandhya stayed at their house for one month. On 6th June 2016, she went to Gorakhpur along with her sister Sandya to the house of A1 to know whereabouts of A1 and met

A2 and A3. Then A1 also came to Gorakhpur at that time and when he asked A1 as why he is not coming to meet her sister or not even called over phone. At the time of such discussion, A2 and A3 has pointed out for gold ornaments of her sister and started quarrelling with her sister as why she is not giving any gold ornaments. Then A1 advised her to go to Ghaziabad.

9.In the month of November 2016, A1 got posted at the

Cantonment area of Secunderabad and then Sandhya joined A1 and started residing in Cantonment area next to Secunderabad and

Sandhya joined A1 and started residing at Allenby Quarters, situated at Bollaram area. On 18th April 2017, she received a phone call from an army person from her Cantonment area. Then she along with her sister and mother and her friend came from Ghazibad to

Secunderabad and found the dead body of Sandhya mortuary.

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Suspecting the death of Sandhya that A1 and his mother and sister are responsible for death of Sandhya, she lodged a complaint before police.

10)PW2 is another sister of PW1 deposed in the lines of PW1.

However, to some extent PW2 turned hostile and learned Special

Public Prosecutor declared her hostile and cross-examined her. At time of cross-examination she hassupported the version of the prosecution. PW3 is the Tahsildar who conducted PME over the dead body of Sandhya. Pws.4 and 5 are the investigating officers who reiterated the contents of the charge sheet. Now in the light of above evidence, it is duty of the prosecution to prove the guilt of the accused beyond all reasonable doubt.

11)Though the prosecution has examined PW4 and PW5, their evidence at best will help the prosecution to prove that basing on a complaint filed by PW1, they have started conducting investigation.

The evidence of these witness itself is not sufficient for the prosecution to prove that they are not eye for the offence. Therefore, there is a need of independent corroborating evidence with the evidence of these witnesses to prove that the guilt of the accused beyond all the illegal doubt.

12)The prosecution has examined PW3 who conducted inquest over the dead body of the deceaed. However, it is an undisputed fact that the deceased Sandhya committed suicide by hanging. Therefore, the evidence of PW3 is helpful for the prosecution only to prove that deceased Sandhya committed suicide by hanging.

13)Now the remaining evidence before me is the evidence of Pws.1 and 2. In fact, to prove the guilt of the accused for the offence under :: Page No.8 of 11::

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Sec.304-B IPC, it is prima facie duty of the prosecution to establish that deceased Sandhya was subjected to dowry harassment soon

before her death. To prove the same, the prosecution has to totally

relied on the evidence of PW1 and PW2. On perusing the evidence of

Pws.1 and 2, it is clear that the marriage of A1 and Sandhya is the love marriage and at that time, A1 was posted at Siachin and after the marriage, he used to stay at Siachin and whenever he got holidays, he used to come to Ghorakpur to meet Sandya. The evidence of PW1 and 2 further reveals that when A1 came down to came to MoU of

Madhya Pradesh for training for two months. Sandhya has joined him and stayed with A1 at Mou of Madhya Pradesh without any disputes.

Even as per the chief examination of PW1, she deposed that when A1 and Sandhya stayed at Mou, there were no disputes and they lived happily and Sandhya has not disclosed anything against her husband and in-laws.

14)Now according to Pws.1 and 2 when Sandhya and PW1 went to

Gorakhpur to the house of A1 wherein she has noticed that A2 and

A3 has pointed out Sandhya as why she is not giving gold ornaments.

Except this allegation against A2 and A3, no allegation was made against A2 and A3 that they demanded for dowry or gold ornaments.

In fact, throughout the evidence of Pws.1 and 2, there was no allegations found against A1 to show that A1 has demanded dowry from deceased Sandhya. However, as Pws.1 and 2 deposed before court that deceased Sandhya has committed suicide as the accused has harassed the deceased for additional dowry. The counsel for the accused has cross-examined PW1. At the time of cross-examination,

PW1 has admitted that her sister is having two bank accounts.

However, she further deposed that she did not know whether A1 has transferred amount to the account of Sandhy, but later she came to know that A1 has transferred amount to the account of Sandhya , but :: Page No.9 of 11::

VI ASJ-DT.11.04.2025 SplSc74/2018 she do not know whether the said amount is rupees 9 lakhs in total or not. PW1 further admitted that A1 has presented Mangal Sutra, one pair of bangles and two finger rings, one pair of silver anklets to

Sandhya on the date of marriage and also admitted that A1 has spent more than Rs.2,32,900/- for jewellery of Sandhya. Even PW1 further admitted that as on the date of death of Sandhya, there is cash in the account in the name of Sandhya in SBI account and cash in Punjab and Sindh bank and the same was withdrawn by her mother as she is nominee. Though PW1 pleaded innocence that A1 has purchased one car for convenience of Sandhya, but she has further admitted that Sandhya used it to attend her job by her own car. The above part of cross-examination of PW1 shows that A1 used it to send money to Sandhya from his workplace.To further support his contention, A1 has also submitted his bank statement before court at the time of Sec.313 Cr3.P.C. examination, which shows that A1 used to send money to Sandhya. If at all A1 and A2 to A3 are greedy enough to demand dowry from Sandhya, there is no necessity for A1 to send money to Sandhya and no need to purchase gold and silver ornaments to Sandhya at the time of marriage and no need to purchase a car for Sandhya for her convenience to attend the job.

15)Further-more, on perusing the cross examination of PW2, she has admitted that she was not present at Lucknow when A1 to A3 demanded additional dowry from Sandhya and Sandhya has not directly informed her at any point of time, A2 and A3 are harassing her for additonal dowry and Sandhya has not informed her when she was at Secunderabad that A2 and 3 are instigating A1 to ask her to bring dowry. This admission by PW2 at the time of cross examination clearly shows that she is not having any knowledge whether A1 to

A3 have demanded any dowry from Sandhya. More-over, throughout the evidence of PW1 and PW2, even in the chief examination, there is :: Page No.10 of 11::

VI ASJ-DT.11.04.2025 SplSc74/2018 no cogent evidence to believe that the accused have demanded

additional dowry from Sandya. As I have already stated above, it is

duty of the prosecution to prove to prove that Sandhya was subjected to harassment for dowry soon before her death to prove the guilt of the accused for the offence under Sec.304- IPC. But on perusing in the evidence of Pws.1 and 2, there is no whisper from them that

Sandhya was subjected to harassment for dowry soon before her death. Though Pws.1 and 2 deposed before court that they have suspected A1 to A3 for the death of Sandhya, the court cannot go with the presumption and presumption, assumption and on suspicion.

Therefore, the prosecution has failed to establish the guilt of the accused for the offence under section 304 (B) IPC r/w.34 IPC and under Sec.3(2) (v) of Scs and Sts (POA) Act.

16)In the result, the accused No.1 to 3 herein are found not guilty for the charges under Sec.304 (B) r/w.34 IPC and Sec.3(2)(v) of the SCs & STs (POA) Act and they are hereby acquitted under

Sec.235(1) Cr.P.C. The bail bonds of the accused shall stand cancelled after expiry of appeal time.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in the open court on this the 11th day of April

2024.

SPECIAL JUDGE FOR TRIAL OF

OFFENCES UNDER S.Cs & S.Ts (POA) ACT-CUM-

VI ADDL. JUDGE, SECUNDERABAD

:: Page No.11 of 11::

VI ASJ-DT.11.04.2025 SplSc74/2018

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

PROSECUTION:

PW1 Uma, complainant

PW2 Pooja, circumstantial witness

PW3 Smt.Sabahna Sultana, panch witness for inquest panchanama

PW4 S.Maheshwar, then Inspector of Police, PS Bollarum, registered case

PW5 S.Ranga Rao, the then Assistant Commissioner of Police,

Begumpet division, filed charge sheet

DEFENCE: NIL

EXHIBITS MARKED

Ex.P1 Report of PW1

Ex.P2 Caste certificate of deceased Sandhya

Ex.P3 Inquest panchanama

Ex.P4 First Information Report

Ex.P5 Scene of offence panchanama

Ex.P6 Appointment proceedings in favour of PW5

Ex.P7 Section of law adding memo

Ex.P8 Caste verification report of deceased Sandhya

Ex.P9 Post Mortem Examination Report

DEFENCE: NIL

MATERIAL OBJECTS MARKED

NIL

SPECIAL JUDGE FOR TRIAL OF

OFFENCES UNDER S.Cs & S.Ts (POA) ACT-CUM-

VI ADDL. JUDGE, SECUNDERABAD

1 of 11

SplSc73/2020

IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF OFFENCES

UNDER S.Cs & S.Ts (POA) ACT-CUM-VI ADDL. SESSIONS JUDGE:

SECUNDERABAD

Present: Smt.S.Sreevani, Spl. Judge for trial of offences under SCs & STs (POA) Act cum VI Addl. Sessions Judge Secunderabad

FRIDAY THE ELEVENTH DAY OF APRIL

TWO THOUSAND AND TWENTYFIVE

SPECIAL SESSIONS CASE No.73 of 2020

Crime No. & Police StationCr.No.300 of 2020 PS Panjagutta

Name of the ComplainantAssistant Commissioner of Police, Banjara Hills Division, Hyderabad

Name and Description of theNerella Madhu, s/o.N.Ravi, aged 29 accused years, Occ:Executive Stores &

Purchase, Apollo Hospital, Kondapur,

Caste: Chakali BC-A, n/o.H.No.25-4- 338, Nr.Ganesh temple, Vishnupuri,

Khazipet, Warangal district.

Prosecution conducted bySri R.Upender, Spl. Public Prosecutor

Accused defended bySri M.Sai Chand, counsel

Offences under Secs.376(2)(n), 417 IPC & Sec. 3(1)(r) & 3(2)(v) of the SCs & STs (POA) Act

Plea of accusedNot guilty

Finding of the CourtNot guilty

Result: Accused herein is found not guilty for the charges under 376(2)

(n), 417 IPC and Sec. 3(1)(r) and 3(2)(v) of the SCs & STs (POA) 2 of 11

SplSc73/2020

Act and he is hereby acquitted under Sec.235(1) Cr.P.C. MO.1 shall be returned to accused after appeal time. The bail bond of the accused shall stand cancelled after expiry of appeal time.

J U D G M E N T

The Assistant Commissioner of Police, Banjara Hills division filed charge sheet in Cr.No.300 of 2020 of PS Jubilee

Hills against the accused alleging that he has committed offences under Secs.376(2)(n), 417 IPC & Sec. 3(1)(r) & 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act.

2i)The brief averments of the charge sheet are that Jupudi

Nagamani, aged 32 years, a staff nurse at Apollo Hospital,

Hyderabad lodged a report with the Station House Officer wherein she alleged that her colleague Tammani Boyna Sampath deceived her by taking Rs. 10 lakhs under the false promise of securing a government job. When she filed a complaint against him, another colleague, Madhu Nerella, promised to help her through his brother-in-law Naresh, claiming he had police contacts. In May 2019, Madhu took her to his residence in

Venkatagiri under the pretext of meeting Naresh, where he raped her. He pleaded with her not to report the incident and promised marriage, leading her to not file a complaint. Thereafter, Madhu and the complainant entered into a relationship, which continued for several months. In March 2020, Madhu secretly married another woman. When the complainant confronted him, he humiliated her and cited her SC (Mala) caste as the reason his 3 of 11

SplSc73/2020 family would not accept the marriage. His friends also made derogatory caste-based remarks against her, prompting her to file a complaint.

ii)Based on the complaint, a case was registered under various sections of IPC including 376(2), 417, 420, 509, 506 and relevant sections of the Sec.3(1)(r)(s) of SC & ST (Prevention of

Atrocities) Act. The investigation was taken up by the designated officer/ Assistant Commissioner of Police, who recorded the complainant’s statement, sent her for medical examination and collected supporting evidence, including witness statements from roommates and colleagues who substantiated her claims.

The accused Madhu was apprehended near the Water Tank at

Venkatagiri and during interrogation, he admitted to the allegations. His confession was recorded, and his mobile phone was seized. The accused was arrested, and a medical examination, including a potency test, was conducted. Some charges, such as 420, 506, and 509 IPC, were later dropped for lack of evidence. The final medical reports and caste verification reports confirmed that the complainant belonged to the Mala (SC) community, while the accused was from the Chakali (BC-A) community. The investigation established that the accused sexually exploited the complainant under the false promise of marriage, deceived her, and later humiliated her with caste- based remarks, thereby attracting charges under IPC Sec. 376(2)

(n), 417, and Sec. 3(1)(r), 3(2)(v) of the SC/ST (POA) Amendment

Act, 2018 and on conclusion of investigation, the investigation 4 of 11

SplSc73/2020 officer filed the charge sheet against the accused for the offences alleged against him.n .

3)Cognizance of the case was taken against the accused for the offences punishable under Secs.376(2)(n), 417 IPC and Sec.

3(1)(r) and 3(2)(v) of the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act. On appearance of the accused, copies of the case documents were furnished to him and he examined under section 228 Cr.P.C and charges under

Secs.376(2)(n), 417 IPC and Sec. 3(1)(r) and 3(2)(v) of the

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act were framed, read over and explained to him. He pleaded not guilty and claimed to be tried.

4)On behalf of prosecution, PWs.1 to 7 were examined and

Exs.P1 to P14 and MO1 were marked. After closure of prosecution evidence, accused was examined under Sec.313

Cr.P.C. He denied incriminating evidence adduced by prosecution and reported no defence evidence.

5)Heard the learned Special Public Prosecutor and the learned counsel for the accused.

6)Now the point for consideration is whether prosecution could establish guilt of the accused for the offence under

Secs.376(2)(n) 417 IPC and Sec. 3(1)(r) and 3(2)(v) of the 5 of 11

SplSc73/2020

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act beyond all reasonable doubt?

POINT:

7)As the prosecution filed charge sheet against the accused for the above said offences, it is the duty of the prosecution to establish that the accused has committed rape on the victim and cheated her. To prove the guilt of the accused, the prosecution has examined PW1, who deposed before the court that he do not know LW1 and he knew the accused who is his colleague and himself, accused and others used to reside in one room at

Venkatagiri colony on rent in the first floor. As PW1 turned hostile, learned Spl Public Prosecutor declared him hostile and cross examined him and even at the time of cross examination, he has not deposed that he knew the love affair between the accused and LW1 and whenever LW1 came to the room, they used to leave the room and later the accused has refused to marry LW1.

8)PW2 is the victim deposed before the court that in the year 2017, she gave Rs. 10 lakhs to one Sampath as he assured that he will arrange a government job to her. Thereafter, Sampath has not arranged a government job. Then she approached Police

Madhapur and filed a complaint. Meanwhile, the accused has informed that his brother-in-law by name Naresh is having influence in the police department and asked her to come to

Venkatagiri to talk with Naresh. In the month of May 2019, in the evening hours, she went to the house of the accused, but the 6 of 11

SplSc73/2020 accused has informed her that his brother-in-law Naresh went outside and he will return and asked her to wait. Later, the accused closed the door and committed rape on her. Then she informed the accused that she will file a complaint before the police. Then the accused fell on her feet and assured her that he will marry her. In the year 2020, accused left to some tour for 15 days and later she came to know that the accused has married another girl and she came to know about the marriage when she saw his cell phone for the photos.. Then the accused has damaged the cell phone. Further, the accused has insulted her as she belongs to SC community and she will not be permitted to enter into the house.

9)PW3 is the panch witness for confession of the accused deposed before the court that in the year 2018, on one day, police called him to Water works office, wherein they found the accused in the custody of police, and then police seized one

Oppo cell phone from the possession of the accused. Pw4 is the doctor who has examined the victim, i.e., Pw2, and issued report.

Pw5 is another doctor who conducted potency test on the accused. Pw6 and Pw7 are the investigation officers who reiterated the contents of the charge sheet. Now, in the light of above evidence, it is the duty of the prosecution to prove the guilt of the accused beyond all reasonable doubt.

10)Though the prosecution has examined Pw4 to Pw7, their evidence itself is not sufficient for the prosecution to prove the guilt of the accused and their evidence at best will help the 7 of 11

SplSc73/2020 prosecution to prove that basing on the complaint filed by Pw2,

Pw6 and Pw7 started conducting investigation, and as a part of investigation, the investigation officer has referred the victim to

Pw4 for medical examination and referred the accused to Pw5 for potency test. Therefore, there is a need of independent collaborating evidence with the evidence of these witnesses to prove the guilt of the accused beyond all reasonable doubt.

11)The prosecution has examined Pw3, who is panch witness for confession of the accused, but on perusing the chief examination of Pw3, he deposed before the court that police have seized one cell phone from the possession of accused. At no point of time, Pw3 has deposed that the accused has voluntarily confessed his guilt before them, and then the police has seized the cell phone i.e. MO1 from the possession of the accused, basing on such confession. Therefore, the evidence of

Pw3 is not helpful for the prosecution to prove the guilt of the accused for the charges levelled against him.

12)Now the remaining evidence before me is the evidence of

PW1 and PW2. According to the prosecution, PW1 is an eyewitness, and PW2 is the victim. On perusing the evidence of

PW1, he completely turned hostile, and no where deposed before that he has witnessed when PW2 came to their room, and at that time, by leaving PW2 and accused, they left the room. Therefore, the evidence of PW1 is not at all helpful for the prosecution to prove the guilt of the accused, though he was arraigned as an eyewitness for the offence.

8 of 11

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13)Now the crucial evidence before me is the evidence of PW2, who deposed before the court in the chief examination that the accused committed rape on her when she went to the room of accused, as accused asked her to come to his room to talk with

Naresh in connection with the complaint filed by her against one

Sampath. The chief examination of PW1 further revealed that as the accused requested her not to lodge complaint, she kept quiet as the accused has assured her that he will marry her.

14)To disprove the contents of the counsel for the accused has cross-examined PW2, and at the time of cross-examination, PW2 deposed before the court that she went to police station, as there were some disturbances between her and the accused regarding credit card, and she do not know the contents of the complaint. PW2 further admitted that no such incident taken place at Venkatagiri as deposed by her in the chief examination and accused never abused her by touching her caste and he is not having any relationship with her. Though at the time of chief examination PW1 deposed that accused has committed rape on her, but when coming to the cross-examination, PW2 completely changed her version and deposed that accused is not having any relationship with her and she simply deposed before the court that she went to police station as there were some disturbances between herself and the accused in connection with credit card.

There is a clear ambiguity in the evidence of PW2 from her chief examination to cross-examination. Under these circumstances, it is not safe to rely on the evidence of PW2 to come to conclusion 9 of 11

SplSc73/2020 that the accused has committed rape on PW2 and later refused to marry her and not married her and married another girl, and thereby the accused has cheated her. Hence the prosecution has failed to establish the guilt of the accused for the charges leveled against him and the accused is entitled for acquittal.

15)In the result, the accused herein is found not guilty for the charges under 376(2)(n), 417 IPC and Sec. 3(1)(r) and 3(2)

(v) of the SCs & STs (POA) Act and he is hereby acquitted under

Sec.235(1) Cr.P.C. MO.1 shall be returned to accused after appeal time. The bail bond of the accused shall stand cancelled after expiry of appeal time.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in the open court on this the 11th day of April

2024.

SPECIAL JUDGE FOR TRIAL OF

OFFENCES UNDER S.Cs & S.Ts (POA) ACT-CUM-

VI ADDL. JUDGE, SECUNDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

PROSECUTION:

PW1 Krishna Mohan, witness PW2 Smt.J.Nagamani, complainant/ victim PW3 Md.Shoeb, panch witness for confession panchanama of accused PW4 Dr.B.Madhavi, Medical Officer, Bharosa Center, collected material objects of Nagamani 10 of 11

SplSc73/2020

PW5 Dr.M.Sugatha, Medical Officer, Osmania Medical College, conducted potency test of Nerella Madhu PW6 K.Sattaiah, the then Inspector of Police, PS Jubilee Hills, registered case PW7 K.Srinivasa Rao, the then Assistant Commissioner of Police, Banjara Hills filed charge sheet

DEFENCE: NIL

EXHIBITS MARKED

Ex.P1 Relevant portion of Sec.161 Cr.P.C. statement of PW1 Ex.P2 Report of PW2 Ex.P3 Relevant portion of confession panchanama of accused Ex.P4 Clinical examination report Ex.P5 FSL report Ex.P6 Final opinion Ex.P7 Potency test of Nerella Madhu Ex.P8 First Information Report Ex.P9 Appointment proceedings in favour of PW7 Ex.P10 Scene of offence panchanama and rough sketch Ex.P11 Section alteration memo Ex.P12 Caste certificate of PW1 Ex.P13 Caste verification report of PW1 Ex.P14 Caste verification report of accused

DEFENCE: NIL

MATERIAL OBJECTS MARKED

MO1 Oppo mobile phone

DEFENCE : NIL ` SPECIAL JUDGE FOR TRIAL OF OFFENCES UNDER S.Cs & S.Ts (POA) ACT-CUM-

VI ADDL. JUDGE, SECUNDERABAD

1

IN THE COURT OF VI ADDL. CHIEF METROPOLITAN MAGISTRATE :

HYDERABAD

Present :MOKA SUVARNA RAJU

I ADDL.CHIEF METROPOLITAN MAGISTRATE

FAC to VI ACMM.HYD

Tuesday the 6th day of December 2016.

C.C No.127 of 2016

Between:

The State, represented by the Sub-Inspector of police, Tappachabutra Police Station, Hyderabad.…Complainant

And

1. Syed Abdul hai Azeem Mendi @ Zingada S/o Syed Ahmed Saleem, aged 23 years Occ: Catering events R/o H.No.17-8-91/3, Chanchalguda, Dabeerpura, Hydeabad.

2. Akshay Sharma @ Jabbar S/o Indra Kumar Sharma, aged 20 years, Occ: Prop of Sri Rama Ayurvedic Shop, near Old Gandhi Hospital, Secunderabad R/o H.No.5-5-1011/1, Gosha Mahal Hindinagar, Hyderabad.

3. Sumeet Kumar Jaa @ Sumit S/o Arvind Jha, aged 21 years Occ: Catering events, R/o H.No.5-2-640/641, New Osmangunj, Hyderabad.

4. Vairal Datta hari Dass S/o Shankar Rao, aged 21 years Occ: Pvt. Business, R/o H.No.5-5-991/1, Hindnagar, Goshamahal, Hyderabad.

...Accused.

This case was coming on 30-11-2016 for final hearing before me in the presence of Smt.B.Swathi Asst., Public Prosecutor for the State and of M/s G. Chandra Mohan, Associates & Advocates for the accused and having stood over for consideration till this day, this court delivered the following:-

J U D G M E NT

The State, represented by the Sub-Inspector, Tappachabutra police station, Hyderabad had filed charge sheet against the A-1 to A-3 for the offence under Section 382 and against A4 u/sec.411 of IPC

2.The averments, in brief, of the charge sheet are: that on 18-04-2015 at 08:30 hours, one Mr.Bheemi Reddy Mohan Reddy (Lw-1) S/o Late B.Pichi

Reddy R/o Uppar Basthi, Karwan, Hyderabad had lodged a report, stating that on the same day at about 06:45hours while his daughter B.Aparna (Lw-2),, while returning from temple, near main gate of his house, three unknown persons came on black colour motorcycle from back side and snatched her 2 gold chain wg. 1 ½ tulas and sped away towards Ramsinghpura main road.; that on the strength of the report, the Sub-Inspector of police had registered a case as F.I.R No.70/2015 for the offence U/sec.382 of IPC and examined the informant; that while the matter was pending on 27-08-2015 the Sub-

Inspector of police of P.S Narayanaguda Mr.J.Krishnai (Lw-5) had arrested the accused No. 1 to 3 in other crimes; that they confessed to have committed the offence concerning in this case; that as led and shown by them the Sub-

Inspector of police had seized gold chain wg.15.080 grams from the possession of the A-4; that the Sub-Inspector of police of P.S Tappachabutra had arrested the A1 to A-4 on P.T warrant; that later conducted Test Identification Parade, wherein the witness had identified the accused; that after completion of investigation he filed charge sheet.

3.This court had taken cognizance of the offence under Sections 382 of I.P.C against the A-1 to A-3 and 411 of I.P.C against the A-4.

4.After appearance of the accused, copies of case documents were furnished to them as required under Section 207 Cr.P.C., After hearing the

A.P.P and the defence counsel, a charge U/Sec.382 of IPC has been framed against all the accused. When the charge was read over and explained to them, in their vernacular language, they pleaded not guilty and claimed to be tried. It is noticed that a separate charge under section 411 of IPC has not been framed against the A4 though mentioned in the examination substance that A4 is a receiver. Hence to cure the defect I hereby frame a separate charge under section 411 of I.P.C against the A4.

5.The prosecution, to prove the charges has examined one of the mediators Mr.T.Vidya Sagar, the then VII Addl.Cheif Metropolitan Magistrate,

Hyderabad Sri Mohde Nizamuddin, who conducted the Test Identification

Parade, the Sub-Inspector of police of P.S.Narayanaguda Mr.J.Krishnaiah, who apprehended the accused and recorded the confession of the accused, the informant Mr.Bheemi Reddy Mohan Reddy, the victim B.Aparna and the Sub- 3

Inspector of police of P.S.Tappachabutra Mr.A.Nagaraju as Pws 1 to 6 and got marked Exs.P-1 to P-14 and Mo-1.

6. After closing the evidence, when the accused were examined under

Section 313 Cr.P.C., they denied the evidence and when called upon to enter defence, reported no defence evidence. Thereafter, heard the learned

Asst.Public Prosecutor and the defence counsel.

7.In the light of the evidence on record and the arguments advanced

I formulate the following point for consideration:

“Whether the prosecution could prove beyond reasonable doubt that the accused No.1 to 3 have snatched the gold chain from the neck of B.Aparna and that the same was recovered from the possession of the A4, if so, they be punished?”

8.Finding: My finding is that the prosecution has proved that the accused

No.1 to 3 have snatched the gold chain from the neck of B. Aparna and that the same was recovered from the possession of the A4.

9.Reasons for my finding are as under: The informant of the offence has deposed about snatching of gold chain from the neck of his daughter Aparna (Pw-5) by three unknown culprits and that he had lodged a report with the

Sub-Inspector of police of P.S Tappachabutra; that the police had informed about recovery of his daughter's gold chain, then he took the same from the court and that in the Test Identification Parade conducted in the Central

Prison, he had identified the A-2 and A-3. He has also identified the same accused before the court. The learned defence counsel in the cross- examination has pointed out that he did not specifically mention in the report the features of the culprits. He denied the suggestion that the accused have not snatched his daughter's gold ornament from her neck and that the police had shown him the photographs of the accused before going to the Test

Identification Parade. The victim Aparna (Pw-5) has corroborated the evidence of her fathe the Pw-4 about snatching of gold chain from her neck by three 4 unknown persons and chasing of her father for culprits, filing of report with the police, recovery of gold chain by the police from culprits and receipt of gold chain from the court by her father. She deposed that she had identified the A-2 and A-3 among the culprits in the Test Identification Parade. She has also identified the same accused before the court.

10.About conducting of Test Identification Parade Sri.Mohd Nizamuddin, the then VII Addl.Chief Metropolitan Magistrate, Hyderabad has deposed that on 17-10-2015 in the Central Prison at 4.40 P.M he had conducted Test

Identification Parade, wherein the witnesses have identified the culprits and that he had followed the procedure prescribed by law while conducting the

Parade and that before conducting the Parade he recorded the statement of witnesses. Though it is suggested that he had not followed the procedure while conducting the Parade, the learned counsel did not specifically point out the lapses, if any, committed, hence the suggestion remained a normal suggestion.

Hence much weight be given to the evidence of the learned Magistrate, who conducted the Test Identification Parade.

11.With regard to the arrest of the accused nos. 1 to 3 and recovery of the gold chain from the possession of A4, one of the Panchayatdars Mr.Thota

Vidyasagar (Pw-1) has supported the case of the prosecution in toto without any deviation and that in pursuance of the confession of the A-1 to A-3, the

Sub-Inspector of police had seized the gold chain from the house of the A-4. He further deposed about the recovery of other stolen properties from various places, which are not concerned to this case. The learned defence counsel has pointed out that the mediator has deposed the that while the accused were giving the confession a constable had noted down in a paper and that such paper was not produced before the court. The confession which ran into 18 pages concerning various items recovered from various places from different persons. Since voluminous panchanama was prepared, it is not possible to get it hand-written then and there. It is required to get it print out, as system is 5 required and much time will be consumed and in such context the evidence of the mediator that after they returned to the station the Sub-Inspector of police got printed the matter from the system, after print outs were taken they put their signatures there in is a possible explanation, which can be accepted unhesitatingly. This witness has categorically denied that he act as police informer and that at the instance of police he signed in prepared papers in the police station and that he was deposing falsehood. The admissible portion in the confession panchanama about seizure of gold chain is in consonance with the evidence of the mediator and the Sub-Inspector of police, who effected the arrest of the accused and recovery of the property

12. The accused are not known persons to the victim and one cannot assume that the informant give false report against unknown persons for wrongful gain or to punish innocent persons. The learned defence counsel has pointed out that the Sub-Inspector of police, who said to have arrested the accused and recovered the stolen property did not secure the local panchayatdars and that he had utilized the services of the stock panchayatdars. It is not always possible to the investigating officer to secure local persons, where multiple places have to be visited as part of the investigation and recovery and it is not always mandatory to secure local persons. The learned defence counsel further pointed out that the signatures of the accused have not been obtained in the panchanama or in the seizure reports. Though it is a flaw committed by the Sub-Inspector of police, who effected the arrest of the accused and seizure of the property. In view of the consistent evidence of the mediator and identification of the culprits by the victim, this flaw can be over come and the accused would not be given any benefit of doubt of such flaw. Having considered the evidence on record, I am of the considered view that the prosecution could prove the charges levelled against the accused No.1 to 4 beyond reasonable doubt. As such, the accused are liable to be convicted. Accordingly I answered the point.

6

13. As a result, the A-1 to A-3 are found guilty of the charge U/sec.382 of

I.P.C and the A-4 is found guilty of the charge U/sec.411 of IPC and accordingly, they are convicted of the same U/sec.248 (2) of Cr.P.C.

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

pronounced by me in the Open Court on this the 6th day of December 2016.

I ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

FAC to VI ACMM.HYD 7

14.When the court questioned the A-1 to A-4 regarding sentence, they submitted that they are the only earning male members of their respective family; that A-1 to A-3 further stated that they are detained in prison for more than a year and the A-4 stated that he was detained for 5 months in prison and prayed the court to take a lenient view.

15.This is not a fit case to invoke Section 360 of Cr.P.C., or Section 4 of the Probation of Offenders Act. Hence, the A-1 to A-3 are sentenced to suffer

Rigorous Imprisonment for a period of Two years and to pay a fine of Rs.200/- each (Rupees Two hundred only). In default to suffer Rigorous Imprisonment for a period of Fifteen (15) Days for the charge U/sec.382 of IPC. The A-4 is sentenced to suffer Rigorous Imprisonment for a period of Two years and to pay a fine of Rs.200/- (Rupees Two hundreds only). In default to suffer

Rigorous Imprisonment for a period of Fifteen (15) days for the charge

U/sec.411 of IPC. The sentence of imprisonment imposed in C.C No.125/2016 against A-1 to A-3 shall run concurrent with the sentence imposed herein. The remand period of the A-1 from 16-09-2015 to till date, the A-2 from 16-09- 2015 to 23-09-2015 and 14-07-2016 to 03-11-2016, the A-3 from 16-09-2015 to 23-09-2015 and 14-07-2016 to till date and the A-4 from 16-11-2015 to 10- 12-2015 shall be set off U/sec.428 of Cr.P.C.,

Property Order: The M.O-1 gold chain 15.080 grams which was given for interim custody to Mr.Bheemi Reddy Mohan Reddy (P.W-4) shall be made absolute after the appeal time is over.

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

pronounced by me in the Open Court on this the 06th day of December 2016.

I ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

FAC to VI ACMM.HYD

8

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR THE PROSECUTION FOR THE DEFENCE

Pw-1:Mr.T.Vidya Sagar, Panch witness.-NIL- Pw-2:Mr.Mohd Nizamuddin, VII ACMM, Hyd. Pw-3:Mr.J.Krishnaiah, SI, Narayanaguda PS. Pw-4:Mr.Bheemi Reddy Mohan Reddy, informant. Pw-5:B.Aparna, victim Pw-6:Mr.A.Nagaraju, SI, IO.

EXHIBITS MARKED

FOR THE PROSECUTION FOR THE DEFENCE

Ex.P1: Attested copy of Panchanama of A-1 -Nil- Ex.P2: Attested copy of Panchanama of A-2 Ex.P3: Attested copy of Panchanama of A-1 Ex.P4: Attested copy of Seizure report Ex.P5: Attested copy of Seizure report Ex.P6: Attested copy of Seizure report Ex.P7: Attested copy of Seizure report Ex.P8: Attested copy of Seizure report seizure of motorcycle. Ex.P9:Requisition for TI Parade filed by SI Tappachabutra PS. Ex.P10: Test Identification Parade conducted by Pw-2. Ex.P11: Report lodged by Pw-2, victim. Ex.P12: First Information Report. Ex.P13: CC of Admissible portion of Confession-cum-recovery panchanama. Ex.P14: CC of Admissible portion of Confession-cum-recovery panchanama.

M.Os MARKED

MO-1: Gold chain of Pw-5.

I ADDL. CHIEF MEROPOLITAN MAGISTRATE,

HYDERABAD

FAC to VI ACMM.HYD