Sri Shaik Abdul Sharif, B.Com., B.L.,

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CC No.187 of 2016

Spl. Mobile, Eluru

CALENDAR & JUDGMENT

WEST GODAVARI DISTRICT

CALENDAR AND JUDGMENT IN C.C.NO:187 of 2016 ON THE FILE OF

JUDICIAL MAGISTRATE OF I CLASS, SPECIAL MOBILE COURT:: W.G.,ELURU

Date of Offence Complaint ApprehensRelease on Commence-Close of Sentence or report ion of bail ment of trial trial of Order accused 13/10/15 13/10/15 25/10/15 25/10/15 18/10/16 17/04/17 27/04/17

Explanation for delay: Received by transfer to this court on 26/03/2016 from II Addl. Judicial Magistrate of I Class, Eluru.

Cr.NO : 446/2015 of Eluru II Town Police Station

Complainant : Sub Inspector of Police,Eluru II Town P.S.

Offence : Under section 324, 323 r/w 34 IPC

Name of the accused:

1. Musunuri Naga Venkata Rajendra Prasad @ Chinni, S/o Narayanarao, 38 years, C/Kamma, Koppulvarigudem, Pedavegi Mandal.

2.Kodali Naga Sudheer, S/o Nageswara Rao, 39 years, C/Kamma, C/Kamma, Koppulvarigudem, Pedavegi Mandal.

3.Alladi Bhaskararao, S/o Satyanarayana, 48 years, C/Kamma, Koppulvarigudem, Pedavegi Mandal.

4.AlladiSathish S/o Bhaskara Rao, 27 years, C/Kamma, Koppulvarigudem, Pedavegi Mandal.

5.Challagolla Taraka Ramanath Chowdary @ Teja, S/o Venkateswara Rao, 22 years, C/Kamma, Rayannapalem village, Pedavegi Mandal.

Finding: Found not guilty

Result: In the result, A.1 to A.5 are not found guilty for the offence punishable under section 324, 323 r/w 34 IPC and accordingly, the accused are acquitted of the said offence under section 248(1) Cr.P.C. The bail bond of accused shall stand cancelled. The unmarked property, if any, is ordered to be destroyed after the appeal time is over.

JUDICIAL MAGISTRATE OF I CLASS,

SPECIAL MOBILE COURT, ELURU.

Copy submitted to:

1. The Hon’ble I Addl. District & Sessions Judge, W.G., Eluru

2. The Superintendent of Police, Eluru.

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IN THE COURT OF THE JUDL. MAGISTRAE OF I CLASS::

SPECIAL MOBILE COURT, ELURU

Present:- Sri Shaik Abdul Shariff,

Judicial Magistrate of I Class,

Dated, this the 27th day of April, 2017

C.C.NO.187 of 2016

Between: State represented by the Sub-Inspector of Police, Eluru II Town Police Station, Cr.No.446/2015 -- Complainant - Vs -

1.Musunuri Naga Venakta Rajendra Prasad @ Chinni

2.Kodali Naga Sudheer

3.Alladi Bhaskararao

4.AlladiSathish

5.Challagolla Taraka Ramanath Chowdary @ Teja…. Accused

This case coming before me for final hearing on 17/04/2017 in the presence Smt.T.Madhavi garu, APP for the state and Sri M Suryanarayana garu,

Advocate for Accused and having stood over consideration till this day, this court delivered the following:

J U D G M E N T

1. The genesis of the prosecution case as traceable from the FIR which is as follows:

L.W.1, Sri.Madala Subba Rao, states in the report that on 12/10/2015 at about 11.00 AM Musunuri Raghunandini, Musunuri Rajendra Prasad, Allada

Bhaskararao, Allada Satish picked quarrel with his wife and assaulted her, whereupon she was taken her to Government hospital for treatment, the aforementioned persons visited the hospital and while he was getting off the bike, A.1 to A.5 pounced upon him and A.1 took out the knife and threatened him that he would kill him and he sustained injury on the right side of the eye, due to the scratching, A.1 hit him on his right side ribs, A.2 to A.5 hit him with hands and legs and the border of the saree of his wife was pulled, whereupon 3

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Spl. Mobile, Eluru himself and his wife were admitted in the hospital, while undergoing treatment his statement was recorded and after completion of investigation the case was culminated into charge sheet under section 324, 323 r/w 34 IPC.

2. The Court took cognizance of the offence under sections 324, 323 r/w 34

IPC.

3. When A.1 to A.5 are put in appearance before the court and they are supplied with all copies of documents as contemplated under section 207 Cr.P.C.

4. When A.1 to A.5 are examined under section 239 Cr.P.C. with regard to offences alleged against them, for which, they did not plead guilty of the offence under sections 324, 323 r/w 34 IPC and thus, the charges are framed under sections 324, 323 r/w 34 IPC against them and whereupon, the accusation was read over and explained to them in Telugu, for which, they denied to have committed the offence and claimed to be tried.

5. When A.1 to A.5 are examined under section 313(1)(a) Cr.P.C. by explaining the incriminating material appearing from the evidence of prosecution witnesses, for which, they denied and reported no defence evidence.

6. The prosecution in order to prove the complicity of the accused examined

PW1 to P.W.7 got Ex.P1 to Ex.P.8 and Ex.D.1 marked.

7. The learned prosecution counsel, Smt. T.Madhavi garu brought the attention of this court through the multiple dimensions of the prosecution case and inter-alia maintains that P.W.1 and the accused are not getting along well due to the property feuds, in order to grab the property, A.1 to A.5 ganged up together and carried out the brutal assault upon P.w.2 with a knife and upon

P.W.2 with hands and foot, the Ex.D1 contradiction pointed out by the learned 4

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Spl. Mobile, Eluru counsel for accused is harmless in nature, thus it is highly illogical to blow the minor contradiction i.e., Ex.D.1 out of proportions, corroboration is not a condition precedent for judicial reliance, no law which says that the relative testimony has to be thrown to over board, the medical evidence is only a corroborative piece of evidence and it is not a conclusive proof, therefore non examination of the doctor does not impact the very fabric of the prosecution case, therefore, fastening criminal liability against the accused is wholly sustainable in law.

8. The learned counsel for the accused, Sri. M.Srinivas garu assailed the arguments advanced by the learned APP and inter-alia maintains that a heavy responsibility devolves upon the investigating officers to see that the innocent persons are not charged on irresponsible and false implication, however in the case on hand the investigation is shoddy, defective and dishonest and the investigating officer did unskilled job and made A.1 to A.5 to suffer the ordeal of the prosecution without any tenable reason, the prosecution did not examine the medical officer nor offered any plausible explanation for his non-examination, except interested testimony no other independent evidence came to the fore,

Ex.D.1 contradiction weakens the testimony of P.W.6 in a great measure, therefore A.1 to A.5 are entitled to seek exculpation from criminal liability.

9. Now the question that arises for the consideration whether the prosecution proved the guilt of the accused beyond reasonable doubt.

10. P.W.1, Sri.M.Subba Rao, who is the defacto complainant testifies in chief examination that the incident occurred on 12/10/2015 at about 11.00 AM in the field belongs to him, on the date of occurrence while he was getting the land tilled, his wife came to the land and stood on the bund of the filed, at that time 5

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A.1, A.3, A.4 and one Musunuri Raghunandini came to the field and picked quarrel with L.W.2 and assaulted her with hands and foot, on seeing the incident he immediately rushed to the crime scene and noticed that L.W.2 was laying on the ground, thereupon he took L.W.2 to Government hospital for treatment on the motor bike, when he was about to take L.W.2 into the hospital, at that time,

A.1 to A.5 visited the hospital and pounced upon him, A.4 hacked him with a knife on his left eye resulting bleeding injury, A.1 hit him with a hand on his left ribs, A.3 and A.4 hit him with hands, on seeing the incident, L.W.2 intervened, whereupon A.1 pulled the border of the saree and assaulted her, due to which

L.W.2 fell off, on seeing the incident the neighbors thereat intervened and pacified the quarrel, during the quarrel he lost his gold chain, while he was undergoing treatment, the police officials came and recorded the statement vide

Ex.P.1.

11. On the aforementioned evidential backdrop, it is the larger contention of the learned counsel for the accused that in criminal cases the degree of proof is very stricter, therefore the court should be watchful that the conjecture and suspicion do not take the place of proof, in the case on hand, the evidence of

P.W.1 is not in tune with the recitals of Ex.P.1, P.W.1 states during chief examination that A.4 caused wound with the knife, whereas in Ex.P.1 he maintains that A.1 inflicted injury with the knife, this discrepancy strike the very foundation of the prosecution case and placing confidence is bound to be eroded in the light of the discrepancy, therefore it is not safe enough to place implicit reliance upon the testimony of P.W.1.

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12. In order to test the correctness and competence of the arguments advanced by both the learned counsels, now at this juncture, it is worth noticing the material emanated in the cross examination of P.W.1 and the recitals of

Ex.P.1.

13. Whether the discrepancy pointed out by the learned counsel for

the accused impacts the substance and salience of the case of the

prosecution.

The logic of the argument of the learned prosecution counsel is that merely because some trivial discrepancy occurred in the verbal narration of P.W.1 that itself is not a weighty ground to discard the entire case of the prosecution and the other attended circumstance have to be given pre-eminence, therefore there is no legal embargo in placing absolute trust upon the testimony of P.W.1.

14. Now in this context, I am back to the recitals of Ex.P.1 report. The genesis of the prosecution case as traceable from the FIR is that on the date of occurrence A.1 to A.5 pounced upon P.W.1 and A.1 took out the knife and threatened him that he would kill him and he sustained injury on the right side of the eye, due to the scratching.

15. The settled norms of appreciation of evidence requires the court to be on guard while evaluating the testimonial ability of a witness. P.W.1 states in FIR that A.1 held a knife in his hand due to which the scratching occurred, however during cross examination he completely took "U" turn and states that A.4 hacked him with a knife.

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16. It is the settled canons of criminal jurisprudence that in a case where the prosecution endeavors to introduce at trail a new version or a version which is materially different from the original as narrated from the FIR, the testimony of witness looses its credibility. In this context, the prosecution could not offer any credible explanation much less satisfactory with respect this discrepancy. Thus, in the teeth of the material, the irresistible conclusion is that Ex.P.1 is masterminded to keep the accused in the gallows.

17. Whether the version of P.W.1 that none intervened when the quarrel was going on does inspire any confidence.

In this backdrop, it is relevant to quote the cross examination of P.W.1.

During cross examination P.W.1 maintains that " Around 10 persons collected at the crime scene, however none intervened to pacify the quarrel". In general, if any wordy brawl takes place in a public place, the on lookers who are present do not stand as a spectators and immediately rush up and tried to calm down the situation. This probability makes me cognizant that the head of P.W.1 is full of lies.

18. Whether the civil disputes in between P.W.1 and the accused breaded animosity to wreck vengeances.

In this backdrop, the material portion of the cross examination of P.W.1 needs extraction. During cross examination P.W.1 maintains that " I filed ATC

bearing number 04/2013 against Raghu Nandini and A.1 and after trail

it was ended in dismissal, I preferred appeal and the same was

dismissed, I filed writ petition on the file of Hon'ble High Court against

A.1 and his family members for seeking mandamus, myself and the

accused placed our disputes before the MLA by name Chinthamaneni

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Prabhakar and during mediation it was resolved that the criminal cases

have to be withdrawn". Therefore this material, purports to convey a message that the accused and P.W.1 are carrying vengeances against each other in view of the civil disputes. Thus there is every likelihood that P.W.1 might have to resorted to shortcut methods in order to bring the accused into the negotiation table.

19. Whether the absentation of the scientific witness Sri M.C.Sekhar from the witness box creates incurable dent in prosecution case

It is alleged by the prosecution that after the brutal attack, P.W.1 was admitted into the hospital and Sri Dr.M.C.Sekhar attended on him and issued wound certificate. However, Dr.M.C.Sekhar was not examined and the prosecution cannot escape from being blamed for his non-examination.

20. In the wake of the aforementioned material, I am of the unhesitant opinion, the evidence of P.W.1 failed to satisfy the test as enjoined under section 3 of Indian Evidence Act.

21. P.W.2, Smt.M.Uma Devi, states in her deposition that the incident occurred on 12/10/2015 at about 11.00 AM in her field, on the date of occurrence while

P.W.1 was getting the land tilled with the tractor, she visited the land taking tea and stood on the bund of field, at that time A.1, A.3, A.4 and one Musunuri

Raghunandini came to the filed and picked quarrel, during the quarrel A.1, A.3,

A.4 and one Musunuri Raghunandini assaulted her with hands and foot, on which she sustained injuries, on seeing the incident P.W.1 immediately rushed to the crime scene, whereupon she took him to the government hospital, Eluru for treatment on a motor bike, when P.W.1 was about to take her to the hospital, at that time A.1 to A.5 visited the hospital and pounced upon P.W.1, P.W.1 pulled 9

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Spl. Mobile, Eluru the border of her saree and assaulted due to which she fell off.

22. As to why the prosecution did not place the earlier complaint lodged by P.W.2 in Pedavegi Police Station.

In this regard, I may restate the cross examination of P.W.2. P.W.2 states during cross examination that "I visited Pedavegi PS and lodged the complaint." However the prosecution could not supplement any credible explanation as to why the earlier report was not placed before the court and as to why it was disguised.

23. As to why P.W.2 maintained delightful silence in her chief

examination with respect to inflicting of injury to P.W.1 by A.4 with

knife.

If indeed the occurrence took place in the manner alleged by P.W.1, by all means P.W.2 would have spelled out in her deposition the use of weapon by A4.

This circumstance purports to convey a message that no such occurrence took place in the manner alleged by prosecution.

24. In view of the above reasons, I am not inclined to place any reliance upon the testimony of P.w.2.

25. P.W.3, Sri M Prasad who is the son of P.W.1 and P.W.2 deposes in evidence that the incident occurred on 12/10/2015 at about 11.00 AM in their field, on the date of occurrence while he was present in the house, he came to learn that

A.1 to A.5 assaulted P.W.2, immediately he rushed to the field and noticed P.W.2 was laying on the ground, thereupon himself and P.W.1 took P.W.2 to the police station, whereupon the police referred P.W.2 to the Government hospital, Eluru when P.W.1 was about to take P.W.2 into hospital, A.1 to A.5 carried out the 10

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Spl. Mobile, Eluru assault upon P.W.1 and P.W.2, on seeing the incident, he intervened to pacify the quarrel, A.4 hacked P.W.1 with a knife resulting injury, then P.W.1 and P.W.2 were admitted in the hospital.

26. Whether P.W.3 mentioned the name of the labour workers through whom he got to know about the alleged occurrence.

The counsel for the accused confronted P.W.3 how he got to know about the incident, on which he states that he came to learn the incident through his labour workers. However, the name of the labour workers were not reflected in his 161 (3) Cr.P.C statement.

27. Whether the testimony of P.W.3 is interested testimony.

P.W.3 who is no other than son of P.w.1 and P.W.2, therefore it is likely that he may support his parents.

28. P.W.4, Sri D Prabhakar Rao, P.W.5, Sri S Kiran Kumar who claimed to have seen the occurrence gone back from the contents of 161 (3) Cr.P.C. statement.

The learned public prosecutor cross examined the witness, however no material worth the name came out in favor of the prosecution.

29. P.W.6, Sri.K.Venkateswara Rao, deposes in evidence that the incident occurred on 12/10/2015 at about 3.30 PM at Government Hospital, Eluru and on the date of occurrence while he was available at the hospital, he noticed A.1 to

A.5 were assaulting P.W.1, during the assault P.W.1 sustained injuries on his right eye, immediately he intervened and pacified the quarrel and took P.W.1 to the

Government hospital for getting treated.

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30. Whether the Ex.D1 contradiction renders the testimony of P.W.6 unreliable

It is quiet vivid from the recitals of Ex.D1 that P.W.6 stated before the police that “in the meanwhile one person took out a small knife and hacked him”. In the similar context, when the counsel confronted P.W.6 by drawing his attention to the recitals of Ex.D1, on which the witness went in denial mode. From this material, it apparently follows that P.w.6 is a die-hard loyalist of P.W.1.

31. P.W.7, Sri T Rama Krishna who is the investigating officer deposes in evidence that on receipt of Ex.P.1 he issued FIR vide Ex.P.5 and examined the witnesses and after termination of investigation he laid charge sheet.

32. Whether the investigating officer focused his attention with respect to the civil disputes in between P.w.1 and the accused.

The tone and tenor of the cross examination suggests that a considerable civil litigation ensued in between P.W.1 and accused with respect to the landed property. However, the investigating officer did not bestow his attention upon the civil disputes.

33. Whether there are any variant versions from the testimony of

P.W.2 and P.W.7.

P.W.2 states during cross examination that she visited Pedavegi P.S after the occurrence, whereas the investigating officer states that P.w.2 did not visit to his police station.

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34. Whether the investigating officer conformed who is the aggressor of the crime:

The material available on record demonstrates that a case and counter case ensued out of the same transaction ie., crime No.448/2015 and 446/2015.

35. It is not incumbent upon the investigating officer to file separate charge sheet in both the cases, the investigating officer is expected to file a charge sheet against only a person who is the aggressor. In the background of this principle, the investigating officer states that he did not decide who is the aggressor in this case and in counter case. It is settled cannons of criminal jurisprudence that when two views are possible on the evidence adduced by the prosecution, the view which is favorable to the accused has to be taken into consideration and confer benefit of doubt to the accused.

36. In the wake of the aforementioned material, I am of the unhesitant opinion the prosecution failed to prove the guilt of the accused as per the evidential standard i.e. proof beyond reasonable doubt.

37. In view of the above material, I hold that the prosecution could not establish the guilt of the accused beyond reasonable doubt succinctly to the hilt.

38. In the result, A.1 to A.5 are not found guilty for the offence punishable under sections 324, 323 r/w 34 IPC and accordingly, the accused are acquitted of the said offence under section 248(1) Cr.P.C. The bail bond of accused shall stand cancelled. The unmarked property, if any, is ordered to be destroyed after the appeal time is over.

Prepared on the computer to my direct dictation and after correction and pronounced in open court on this the 27th day of April, 2017.

Judicial Magistrate of I Class,

Special Mobile Court, Eluru.

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APPENDIX OF EVIDENCE

Witnesses Examined for

PROSECUTION: DEFENCE:

PW1: M Subba Rao - NIL –

PW2: M Uma Devi

PW3: M Prasad

PW4: D Prabhakara Rao

PW5: S Kiran Kumar

PW6: K Venkateswara Rao

PW7: T Rama Krishna

EXHBITS MARKED

For Prosecution:

Ex.P1: Statement of P.W.1

Ex.P.2: 161(3) Cr.P.C. statement of P.W.4

Ex.P.3: 161(3) Cr.P.C. statement of P.W.5

Ex.P.4: Hospital intimation

Ex.P.5: FIR

Ex.P.6: Rough sketch

Ex.P.7: Wound certificate of P.W.1

Ex.P.8: Wound certificate of P.W.2

DEFENCE:

Ex.D.1: Marked portion in 161 (3) Cr.P.C. statement of P.W.6.

MOS marked: NIL

J.F.C.M. SMC, Eluru

1 DVC No.15 of 2016 Spl. Mobile, Eluru

IN THE COURT OF THE JUDL. MAGISTRATE OF I CLASS:

SPECIAL MOBILE COURT, ELURU, WEST GODAVARI DISTRICT.

Present:- Sri Shaik Abdul Shariff,

Judicial Magistrate of I Class,

Special Mobile Court, Eluru.

Dated, this the 04th day of May, 2017

D.V.C. No.15 of 2016

Between: Smt. Mylapalli Hemalatha W/o Naresh, Hindu, Female, 24 years, House wife- R/o Kathepu street, 2nd Street, Door No.7E-9-4, Indira Colony, Near Venkanna Cheruvu, Eluru. …. Complainant -Vs –

1.Mylapalli Naresh, S/o Nagu, Hindu, Male, Aged 30 years, Auto Driver, Kancharapalem Metta Door NO.61A-1-12, Chakaligadda, Dayand Nagar, Rajiv Colony, Diesel Quarters, 43rd Division, Visakhapatnam.

2.Smt. Mylapalli Simhachalam, W/o Nagu, Hindu, Female, Aged 48 years, Kancharapalem Metta Door NO.61A-1-12, Chakaligadda, Dayand Nagar, Rajiv Colony, Diesel Quarters, 43rd Division, Visakhapatnam.

3.Mylapalli Nagu, S/o Kanakaiah, Hindu, Male, Aged 55 years, Kancharapalem Metta Door NO.61A-1-12, Chakaligadda, Dayand Nagar, Rajiv Colony, Diesel Quarters, 43rd Division, Visakhapatnam.

4.Mylapalli Ramesh,S/o Nagu, Hindu, Male, Aged 28 years, R/o Indira Colony, Door NO.7E-6-5, Neqr Venkanna Cheruvu, Kathepuveedhi, Eluru.

5.Mylapalli Kanaka Raju, S/o Nagu, Hindu, Male, Aged 32 years, Kancharapalem Metta Door NO.61A-1-12, Chakaligadda, Dayand Nagar, Rajiv Colony, Diesel Quarters, 43rd Division, Visakhapatnam.

6.Tirlagi Ramana, S/o Lakshmayya, Hindu, Male, Aged 50 years, Kancharapalem Metta Door NO.61A-1-12, Chakaligadda, Dayand Nagar, Rajiv Colony, Diesel Quarters, 43rd Division, Visakhapatnam.

7.Mylapalli Suryanarayana, S/o Kanakaiah, Hindu, Male, Aged 52 years, R/o Indira Colony, Door NO.7E-6-5, Neqr Venkanna Cheruvu, Kathepuveedhi, Eluru.

8.Smt. Mylapalli Lakshmi, W/o Suryanarayana, R/o Indira Colony, Door No.7E-6-5, Neqr Venkanna Cheruvu, Kathepuveedhi, Eluru.

---Respondents This case is coming before me for final hearing on 26/04/2017 in the presence of Sri. V.Amar Srinivas garu, Advocate for the complainant and Sri.

J.Prasada Rao garu, Advocate for the Respondents having heard arguments and the matter having stood over consideration till this day, this court delivered the following:

2 DVC No.15 of 2016 Spl. Mobile, Eluru

O R D E R

1. The factual narrative reveals from the complaint as well as from the counter of the respondents which are as follows:

That the complainant, Smt.Mylapalli Hemlatha states in the complaint that her parents got her wedded with R.1 on 21/06/2014 following the vedic rituals, at the time of marriage her parents parted with an amount of Rs.1,50,000/- towards dowry to R.1 and also presented gold ornaments, after the wedding she joined R.1 to lead marital life at Visakapatnam, the martial relationship was cordial for a short span, thereafter all the respondents began maltreating her for

additional dowry, R.1 developed illegal intimacy with one woman by name

Lakshmi and adopted insensitive attitude towards her, the matter was placed

before the elders, however there is no change in the attitude of the accused and

assaulted her very badly, whereupon the complaint was lodged, R.1 earns an amount of Rs.50,000/- by running the auto and in-spite of that he is not providing maintenance, therefore she is entitled to claim all the reliefs sought in the complaint.

2. Refuting the averments made in the complaint, the 1st respondent filed counter and the same is adopted by R.2, R.4, R.6 to R.8 wherein R.1 inter alia maintains that he married the complainant without any dowry amount since she is her nearer relative, after the wedding the complainant began insisting him to come down to Eluru, however he refused, whereupon the complainant left the matrimonial home and lodged a false case against him under Sec.498-A of IPC, due to the unberable ill treatment he became sick and not able to do any job, therefore the complainant is not entitled to claim any reliefs sought in the complaint.

3 DVC No.15 of 2016 Spl. Mobile, Eluru 3. Basing on the above factual matrix and upon the oral arguments canvassed by the learned counsel for the complainant and the written and oral arguments addressed by the learned counsel for the respondent, the following core points that germen for consideration.

4. P O I N T S:

1. Whether the complainant established by substantive competent

evidence that her parents parted with an amount of

Rs.1,50,000/- towards dowry to R.W.1 at the time of marriage, if

so whether she is entitled to claim back.

2. Whether R.1 inflicted physical and physiological ordeal to P.W.1

without providing any sustenance to P.W.1 in-spite of having

financial resources, if so, whether she is entitled to claim

monetary relief from the first respondent by living separately?

3.Whether the complainant is entitled to claim co mpensation for the m ental agony, sorrow and p ain due to the dom estic violence.

4.Whether the complainant is entitled to claim the p rotection orders.

5.Whether the comp lainant is entitled for separate residence orders.

6.Whether the complainant is entitled to claim the cost of the litigation.

4 DVC No.15 of 2016 Spl. Mobile, Eluru

5. P O I N T NO: 1.

Whether the complainant established by substantive competent evidence that her parents parted with an amount of

Rs.1,50 ,000/ - tow ards dow ry to R.W .1 at the time of m arriag e, if so whether she is entitled to claim back.

P.W.1/ Complainant, Smt. Mylapalli Hemaltha filed proof affidavit in lieu of chief examination and reiterated by and large all the averments made in the complaint and in order to buttress her contention got herself examined as P.W.1 and examined P.W.2 to P.W.3 and got Ex.P1 marked on her behalf, while the first respondent in order to fortify his contention filed proof affidavit and got himself examined as R.W.1 and examined R.W.2 and R.W.3 and nothing was marked on his behalf.

6. On this evidential backdrop, it is canvassed in extenso by the learned counsel for the complainant, Sri.V.Amar Srinivas garu, that every parent expects the marital life of their daughter in a happy high forever, however the hopes of the parents of P.W.1 were very badly shattered and P.W.1 got struck into lifeless and abusive marriage and the parents of P.W.1 are not weak on financial front, it is customary in every community that the parents of the bride make bridal gifts and part with the amounts to the groom as a gesture of goodwill and every parent of a daughter does that only, the marriage of P.W.1 with R.W.1 is not a love marriage and it is an arranged marriage and nonetheless there is a close affinity, the parents of P.w.1 parted with the dowry amount, no agreement is reduced into writing at the time of marital talks with respect to the payment of amounts, thus insisting P.W.1 to cite evidence with respect to the payment of the amounts and presentation of gold ornaments is highly preposterous, P.W.3 who 5 DVC No.15 of 2016 Spl. Mobile, Eluru is an independent witness cogently spoke in his proof affidavit the payment of dowry amount and other articles at the time of marriage, P.W.1 to P.W.3 withstood the test of cross examination without loosing credibility, the welfare provision i.e., section 19(8) of DVC Act is enacted with a commandable object to wipe out the injustice caused to the wife in the absence of documentary evidence, therefore, holding the issue in favour of the complainant is highly justified in the facts and circumstances.

7. The learned counsel for the respondents, Sri. J.Prasada Rao garu repelled the arguments advanced by the learned counsel for the complainant and inter alia maintains that P.W.1 categorically admits in the cross examination that no proof is advanced with respect to the payment of dowry amount, in the absence of any positive and dependable proof, it is highly unjustified to enter in to the arena of conjunctures, P.W.3 is a planted witness and placing implicit reliance upon his testimony is highly unjustified, therefore ordering the respondent to return the dowry amount and other articles mentioned in the proof affidavit is wholly unsustainable in law.

8. In order to test the correctness and competence of the rival stances, now at this juncture, I think it apt to refer to the material emanated from the testimony of P.W.1 to P.W.3 and R.W.1 to R.W.3.

9. Whether the p robability factors and the custom p revalent in the society can be given due-credence and pre-eminence in adjudging the point in issue.

In this backdrop, I would like to press into service section 11 of Indian

Evidence Act. Section 11 (ii) of Indian Evidence Act in substance lays down that “

Facts not otherwise relevant are relevant, if by themselves or in 6 DVC No.15 of 2016 Spl. Mobile, Eluru connection w ith the other facts they m ake the ex istence or non existence of any fact in issue or relevant fact highly probable or improbable”. This section enjoins the court that in cases where it is not possible to prove certain facts by means of direct evidence, the court has to be guided by the probability factors.

10. In the structure of the Indian families, the parents always have a ardent desire that their daughters live in the matrimony with a great fun and recreation, keeping in view that they part with the amounts as per their financial status at the time of marriage to get over from the financial exigencies which they may encounter them in the future, nonetheless no demand is made. In the case on hand, it is not the case of the R.W.1 that himself and P.W.1 loved each other and married and indisputably it is an arranged marriage, no compelling and impelling reasons are assigned in the cross examination so as to doubt the testimony of

P.W.2 and P.W.3, therefore, there is every likelihood that the parents of P.W.1 must have paid the dowry amount to R.W.1 at the time of marriage.

11. In the wake of this material, I am of the unhesitant opinion that the parents of P.W.1 paid the dowry amount of Rs.5,00,000/- to R.W.1 at the time of marriage, thus it is liable to be restituted.

12. Whether the P.W.1 produced any positive and dependable proof

to show that her parents presented gold ornaments to R.W.1 at the

time of marriage, if so, whether she is entitled to claim back from

them.

It is not quite evident from the testimony of P.w.1 to whom the gold ornaments are presented, how many sovereigns were presented, whether they are in the custody of R.W.1 or not. It is settled law that pleading does not 7 DVC No.15 of 2016 Spl. Mobile, Eluru constitute any evidence, unless it is substantiated by irrefutable proof. In the case on hand, P.W.1 did not produce any solid proof to show that her parents bought the gold ornaments.

13. In view of the above discussion, I did not find any persuasive reason to defer with the argument of learned counsel for the complainant.

14. POINT NO.2:

Whether R.W.1 inflicted physical and physiological ordeal to

P.W.1 without p roviding any sustenance to P.W .1 in -spite of having financial resources, if so, whether she is entitled to claim monetary relief from the first respondent by living separately?

On this point, it is vehemently canvassed by the learned counsel for the complainant that after the wedding P.W.1 and R.W.1 shared healthy equations in the matrimony for some time, thereafter R.1 to R.8 began pestering and persisting P.W.1 to bring additional dowry amount from her parents, however

P.W.2 could not pay the amount, due to that R.W.1 is very much annoyed and began ill-treating P.W.1, R.W.1 developed sexual liasion with one woman by name Lakshmi, P.W.1 is humbly modest and tradition ridden lady, R.2 to R.8 are devoid of human feeling and contributed to the tensions and nourished the ill- feelings of R.W.1, the matrimonial feuds were placed before the elders and the elders advised R.W.1 to amend his conduct, however he steadfast in his stance,

P.W.1 endured all the trauma, sorrow and pain with a profound hope that the good days will in store for her, however her hopes were badly tattered, thus

P.W.1 has solemn reason to quit the matrimonial home, right now P.W.1 is jobless and she is not able to make both ends meet while R.W.1 is owns autos and doing money lending business, however he is not shifting his focus over a responsive 8 DVC No.15 of 2016 Spl. Mobile, Eluru mode, therefore the granting relief to P.W.1 is highly warranted.

15. The learned counsel for the respondent controverted the arguments advanced by the learned counsel for the complainant and inter-alia maintains that after the wedding P.W.1 and R.W.1 managed to strike a fine balance in conjugal front hardly for some time, P.W.1 is rude and arrogant lady and used to fly in rage on flimsiest reasons, while R.W.1 is very modest in his approach, due to the erratic behaviour of P.W.1, peace and happiness in the family shattered,

P.W.1 abandoned the matrimonial home on her own accord without any legitimate reason, therefore she is not entitled to claim any monitory relief.

16. In order to appreciate the contentious issues, now at this juncture, I think it apt, to refer to the material emanated from the testimony of P.W.1 to P.W.3 and R.W.1 to R.W.3.

17. As to w hy R.W.1 did not invoke the coercive provision i.e., sec 9 of Hindu Marriage Act for restitution of conjugal rights when P.W.1 herself snaps the legal tie.

It is the case of the R.W.1 that P.W.1 herself is the deserter from the matrimonial obligations, therefore, she is not entitled to claim any monitory reliefs.

18. If indeed P.W.1 walks out from the marriage on her own volition, in such a case what actuated R.W.1 not to take any recourse to the provisions of Sec 9 of

Hindu Marriage Act. It seems that R.W.1 has no transparent sincerity to keep up the facade of the marriage intact.

9 DVC No.15 of 2016 Spl. Mobile, Eluru

19. As to why the respondent did not place the m atter before the elders.

In this context the material portion of para 13 of the counter needs extraction. R.W.1 maintains in his counter that "The first respondent d ropped the complainant at her house and requested her family members and convince her to lead marital life with him at Visakhapatnam, however

P.W.1 d id not join and later he number of times tried to convince her to join him but in vain. "

20. In the normal scheme of things when there is a incompatibility in between the spouses, the matrimonial disputes will be placed before the elders, the elders broker the deal and tried to bridge up the gap and bring the troubled marriage in to right track. However, no such material emanated from the side of the R.W.1 that he placed the matter before the elders.

21. As to why P.W.1 did not pay any maintenance to P .W .1 during the pendency of the proceedings.

It is the case of the R.W.1 that he has intense love towards P.W.1 and he wants to have a reunion.

22. Assume for a moment and for the sake of argument, if R.W.1 is very caring husband, by all means he would been in sending amount to P.W.1. However,

R.W.1 did not assign any reason where his love vanished.

23. Now turning to the financial affluence of P.W.1 and R.W.1 .

24. Whether R.W.1 p roduced any wo rthwhile proof to show that

P.W.1 is p rofitably employed .

10 DVC No.15 of 2016 Spl. Mobile, Eluru

The cardinal principle of law of evidence is that who he asserts the burden is on him and he has to prove affirmatively the fact in issue by producing reliable material. In the case on hand, no proof is cited to show that P.W.1 is employed in a private firm. It is the rule of essential justice that the opponent declines to avail the opportunity and failed to put his essential case in the cross examination, it is deemed that it is admitted.

25. Whether R.W.1 has sufficient financial means to p rovide sustenance to P.W .1.

R.W.1 maintains in his proof affidavit that due to unbearable ill treatment he is down with sickness and he is not able to do any work and he depends upon his parents for his sustenance. Except averring verbally no iota of proof is produced to show that he has health issues.

26. It is fundamental and natural duty of a man to maintain his wife and children. If a man is healthy and able bodied he must be presumed to have capacity to support his wife and children. An insolvent, beggar or a monk must support his wife and children so long as he is able bodied. R.W.1 states in the cross examination that he has no avocation and he did not state anywhere that he has health issues. Therefore, he is under legal and moral obligation to maintain the daughter. In this context, it is not out of place for me to revisit the decision of the Hon'ble High Court of Andhra Pradesh reported in ALD (CRI.) 2010 (2) 391 in between Sikakollu Chandramohan Vs Srikakollu Saraswathi Devi.

The legal ratio laid down in this decision is that the economic abuse includes deprivation of economic resources pertains to the aggrieved party. The principal adumbrated by the Hon'ble High Court squarely applies to the present factual matrix in all four corners.

11 DVC No.15 of 2016 Spl. Mobile, Eluru

27. In view of the analysis and aforementioned legal environment, I am constrained to hold this point is answered in favour of P.W.1 and as against the

R.W.1. In the facts and circumstance of the case as the granting of monthly maintenance of Rs.5,000/- to the complainant will meet the ends of the justice.

28. P O I N T No: 3 Whether the complainant is entitled to claim comp ensation for the m ental agony, sorrow and p ain due to the dom estic violence.

The monitory releifs which are to be granted in favor of the agreived party should not be usurious, extortinate or irrational, but it should be fair and reasonable bifiting to the status of the wife, the monetary relief which is to be ordered, it should not make the respondent a downright beggar, however the quantum has to be fixed basing on the income of the respondent. The evidence availabe on record exposes that R.W.1 has no other worthwhile properties except his employment, in-spite of that, if this releifs are granted, it would be very difficult for R.W.1 to obey the order of the court. In view of the aforementioned reason, these releifs are denied.

29. POIN T NO.4 :

Whether the co mplainant is entitled for sep arate residence orders.

Maintenance includes food, clothing and shelter. Thus, separate residential orders need not be granted.

12 DVC No.15 of 2016 Spl. Mobile, Eluru

30. POIN T NO.5 :

Whehter the complainant is entitled to claim the cost of the litigation.

No proof is cited by the complainant to show that she spent so and so amount towards litigation.

31. P O I N T NO: 5.

Whether the protection orders can b e passed restraining the respondents from ever interfereing in to the freedom and personal liberty of P.W.1 .

The material available on record discloses that there are bitter ill feelings in between the family members of P.W.1 and R.W.1. In such a case, there is every likely that the respondents may interfere into the personal liberty of P.W.1 and her family members. Therefore, it is highly warranted to grant preventive relief.

32. In the result, the complaint partly succeeds and accordingly, the

first respondent is directed to return the dowry amount of

Rs.1,50,000/- to the complainant within six months and further he is

directed to pay the monthly maintenance of Rs.5,000/- to the

complainant from the date of this order and he is further directed to

pay the amount on first day of every succeeding month while the relief

with respect to compensation, Residential orders, litigation expenses

are denied and further the respondents 1 to 8 are directed not to

interfere in to the personal freedom and liberty of P.W.1.

Prepared on the computer to my direct dictation and after correction and

pronounced in open Court on this the 04th day of May, 2017.

Judicial Magistrate of I Class,

Special Mobile Court, Eluru.

13 DVC No.15 of 2016 Spl. Mobile, Eluru

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

FOR COMPLAINANT :: FOR RESPONDENT ::

P.W.1: M Hema Latha R.W.1: M Naresh

P.W.2: B Radha R.W.2: M Simhachalam

P.W.3: N Rama Lakshmi R.W.3: P Dhanujay

EXHIBITS MARKED

FOR COMPLAINANT::

Ex.P.1: Marriage Photo

FOR RESPONDENT :: NIL

JFCM, SMC, Eluru

1

CC 382 of 2014

Spl.Mobile, Eluru.

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRAE OF I CLASS::

(EXCISE), ELURU.

Present:- Sri Shaik Abdul Shariff,

Judicial Magistrate of I Class,

Special Mobile Court, Eluru. FAC. Spl. Judicial Magistrate of I Class (Excise), Eluru

Dated, this the 28th day of February, 2015

C.C.NO.382 of 2014

Between: State Rep. by Inspector of Police, Pedavegi Police station. Cr. No.144 & 156/2014 …. Complainant - Vs – Choudary Srikanth …. Accused

This case coming before me on 26/02/2015 for final hearing on this day in the presence of Smt. A Suneetha, learned APP for complainant and Sri Kamatam

Subbarao Garu, Advocate for Accused, and having stood over consideration till this day, this court delivered the following:

J U D G M E N T

1. It is necessary to briefly note the facts in the context and which are as follows:

L.W.1 Smt. Pilla Manikyam who hails from Pedavegi states in the complaint that some unknown miscreants broke into her house from back side and committed theft of three gold rings, Lump of gold, silver coins and cash of

Rs.3,000/- all worth of Rs.23,500/- from iron safe and thereafter, the complaint was lodged vide Cr. No.144/2014 and after termination of investigation the charge sheet was laid under section 380 IPC.

L.W.2 Sri Vakulabharanam Santhosh who hails from Vegiwada states in the complaint that some unknown miscreants gained entered into his house and committed theft of gold necklace, gold chain, two gold rings, one cell phone all worth of Rs.48,300/- from iron safe and thereafter, the complaint was lodged vide Cr. No.156/2014 and after termination of investigation the charge sheet was laid under section 380 IPC.

2. The Court took cognizance of the offence under section 411 IPC.

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3. When the accused is put in appearance before the Court and he is supplied with all copies of documents as contemplated U/sec.207 Cr.P.C.

4. When the accused is examined U/sec.239 Cr.P.C. with regard to offences alleged against him, for which, he did not plead guilty of the offence under section 411 IPC and thus, the charge is framed under section 411 IPC, against him and whereupon, the accused was read over and explained to him in Telugu, for which, he denied to have committed the offence and claimed to be tried.

5. When the accused is examined U/sec.313(1)(a)Cr.P.C. by explaining the incriminating material appearing from the evidence of prosecution witnesses, for which, he denied and reported no evidence to be adduced on his behalf.

6. The prosecution in order to prove the complicity of the accused examined

PW1 to P.W.7, and got Ex. P1 to P.4 and MO1 to MO4 are marked.

7. The learned prosecution counsel, Smt. A Suneetha brought the attention of this court through the testimony of P.W.1 to P.W.7 and inter alia maintains that the accused has no ostensible means of livelihood and he indulged in umpteen number of theft cases and the entire case of the prosecution hinges upon the recovery evidence and P.W.3 to P.W.7 spoke in one accord the retrieval of material objects from the possession of the accused and the property pertains to one person, when another is in possession of the property, the presumption comes in to play and operates in favour of the prosecution and against the accused and the accused has to offer credible explanation as to how he came into the possession of the property for which he is not the owner and in the case on hand the accused did not offer any facile explanation and non examination of independent persons of the locality where seizure is effected does not impact the very fabric of the prosecution case and the investigating officer did not flout the mandatory provisions contemplated under section 100(4) Cr.P.C. and therefore, pronouncing the verdict of conviction is highly sustainable.

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8. The learned counsel for the accused, Sri K. Subbarao garu assailed the arguments advanced by the learned APP and inter alia maintains that P.W.3 is a pocket witness to the police and implicit reliance cannot be placed upon his testimony and the place of seizure is located in busy locality however, the investigating officer did not try to secure the presence of independent mediators and he ought to have followed religiously the mandatory provisions laid down under section 100(4) Cr.P.C. and the recovery is stage managed one and does not inspire any confidence and therefore, pronouncing the verdict of conviction is highly unsustainable.

9. Now the question that arises for the consideration whether the prosecution proved the guilt of the accused beyond reasonable doubt.

10 P.W.1, Smt. P Manikyam who is the defacto complainant testifies in chief examination that on 23/06/2014 she went out for shopping and after the shopping got over she got back to home and noticed that some unknown miscreants broke into the house and committed theft of three gold rings three silver coins and cash of Rs.3,000/- and whereupon, Ex.P.1 complaint was lodged.

11. P.W.2, Sri V Santhosh deposes in evidence that on 05/07/2014 he got to know that some unknown offendars gained entry into his house and committed theft of MO3 and MO4 and whereupon Ex.P.2 complaint was lodged.

12. Section 60 of the Indian Evidence Act enacts that in all the cases oral evidence must be direct and hearsay evidence is excluded. From the testimony of

P.W.1 and P.W.2, it is quite explicit that they are not the ocular witnesses to the occurrence and their evidence is useful to the prosecution to the extent of setting the criminal law in motion.

13. Now turning to the recovery evidence available on board.

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14. P.W.3 Sri shaik Karimulla who is one of the panch witness states in the chief examination that on 03/09/2014 he was summoned by the police personnel of Eluru I Town PS and accordingly, himself and Sub Inspector proceeded to clock tower situated in Eluru and there at they noticed the accused and on seeing he made an attempt to run away from there whereupon, they caught hold the accused and interrogated and during interrogation he made disclosure statement with respect to his complicity in the crime and then he produced plastic cover from his pant pocket which contained MO1 to MO4 and then the same was seized under the cover of panchanama.

15. During cross examination P.W.3 admits that the place of seizure is surrounded by the commercial establishments and the Sub Inspector did not try to procure the presence of independent mediators before effecting the seizure of

MO1 to MO4. On his own showing when the place of seizure is located in a busy locality, what precluded the investigating officer not to procure the presence of independent mediators.

16. P.W.4, Sri P Ch Raghu Rao who worked as ASI of police deposes in evidence that on 23/06/2014 at about 7.00 PM while he was present in the police station, P.W.1 turned up to police station and lodged Ex.P.1 complaint and whereupon he registered the crime and issued FIR vide Ex.P.4 and he took up investigation and examined P.W.1, L.W.3 P Kasivisweswararao and L.W.4 P Sureh

Kumar in the police station and on the next day i.e., 24/06/2014 he visited the sc ene of offence which is situated at the hosue of P.W.1 and prepared the rough sketch vide Ex.P.5 and on 12/07/2014 at 6.00 PM while he was present in the

Police station P.W.2 turned up to police station and lodged Ex.P.2 complaint and he registered the crime and issued FIR vide Ex.P.6 and he examined P.W.2and on the next day he visited the house P.W.2 and observed the scene of offence and prepared rough sketch vide Ex.P.7 and there at he examined L.W.7 V Rekha Rani 5

CC 382 of 2014

Spl.Mobile, Eluru.

and L.W.8 K Satyanarayana and L.W.9 Ch. Durgarao.

17. During cross examination he admitted that he did not seize any property pertaining to this case and he did not conduct any test identification of property and he did not see the accused.

18. P.W.5, Sri A Venkataraja Goud who is the SI of police deposes in evidence that on 20/09/2014 while he was present in the police station, the SI of police, pedavegi visited his police station and examined him and in the presence of panch witnesses the accused confessed his complicity with respect to the other crime numbers and not pertaining to this crime number and he handed panchanama to the SI of Pedavegi PS vide Ex.P.10 is the confession statement.

19. Section 25 prohibits admission of confessional statement made by the accused during the course of investigation . Inview of the legal mandate the evidence of P.W.5 has no material baring on the fact in issue.

20. P.W.6 Sri K Nagendra Prasad who worked as Sub Inspector deposes in evidence that on 03/09/2014 at about 5.00 PM he received credible information about the movements of the accused and whereupon, himself and his staff proceeded to the clock tower center, Eluru and there at he noticed the accused and on seeing he made an attempt to run away from there and whereupon, his staff caught hold the accused and interrogated and during interrogation he made disclosure statement with respect to his complicity in this crime and then he produced the cover containing MO1 to MO4 by taking out from the pant pocket and the same was seized under the cover of panchanama and the accused was arrested and produced before this court for being remanded to judicial custody.

21. During cross examination the investigating officer admits that he did not examine any independent witness from the vicinity of the place of seizure. In this regard the investigating officer did not offer any cogent and convincing 6

CC 382 of 2014

Spl.Mobile, Eluru.

explanation as to why he failed to examine the independent witnesses.

22. The counsel for the accused questioned the investigating officer whether the crime scene is surrounded by the commercial establishments on which he answers positively. It appears that the investigating officer did not make any endeavor for procuring the presence of independent mediators.

23. It is settled canons of criminal jurisprudence that when the statute provides a particular safeguard, it compliance in letter and spirit has to be ensured. In view of the mandate of 100(4) Cr.P.C. it is prudent exercise to insist the presence of two reliable witnesses to vouchsafe the recovery however, in the case on hand no independent witnesses are associated before retrieving the contraband from the possession of the accused. Not following the mandatory rules results in prejudice and miscarriage of justice.

24. P.W.7 Sri K Swamy who works as SI of police, Pedavegi PS deposes in evidence that on 26/06/2014 he took up further investigation in this case and after termination of investigation he filed charge sheet by receiving the property from Eluru I Town PS and before filing charge sheet he filed PT warrant and secure the presence of accused.

25. The evidence of P.W.7 is useful to the prosecution for seizure of property and arresting the accused regarding the commission of cognizable offence.

26. In view of the foregoing reasons, this court is of the view that basing on the available evidence it is unsafe to convict the accused.

27. In the result, the accused is not found guilty for the offence punishable under section 411 IPC and accordingly, the accused is acquitted of the said offence under section 248(1) Cr.P.C. The bail bond of accused, shall stands canceled. The Superintendent, District Jail, Eluru is hereby directed to release the accused forthwith if he is not required in any other case.

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CC 382 of 2014

Spl.Mobile, Eluru.

MO1 and MO2 are gold rings were already given to P.W.1 as per the orders in

Crl.M.P. 4121/2014 dated 29/12/2014 for interim custody will be made absolute

after appeal time is over. MO3 and MO4 are gold chain and gold ring were already given to P.W.2 as per the orders in Crl.M.P. 3975/2014 dated 11/12/2014 for interim custody will be made absolute after appeal time is over.

Prepared on the computer to my dictation and after correction and

pronounced in the open Court on this the 28th day of February, 2015.

Judicial Magistrate of I Class,

Special Mobile Court, Eluru. FAC.Spl. Judl.Magistrate of I Class (Excise),Eluru.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION: DEFENCE: PW1: P Manikyam PW2: V Santhosh -NIL- P.W3: Shaik Karimullah PW4: P Ch.Raghurao PW5: K V Rajarao PW6: K Nagendra Prasad PW4: K Swamy

EXHBITS MARKED

For Prosecution: For Defence: Ex.P.1: Original Report of P.W.1 Ex.P.2: Original report of P.W.2 NIL Ex.P.3: Mediator report Ex.P.4: FIR in Cr. No.144/2014 Ex.P.5 : Rough sketch in Cr. No.144/2014 Ex.P.6: FIR in Cr. No.156/2014 Ex.P.7: rough sketch in Cr.No.156/2014 Ex.P.8: FIR in Cr. No.222/2014 Ex.P.9: Remand report Ex.P.10: Mediator report

Defence: NIL

MOS marked: MO1 and MO2: Gold rings- 2 nos MO3 Gold chain MO4 : Gold ring J.F.C.M., SMC, Eluru. FAC. SJFCM(Excise), Eluru.

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Spl.Mobile, Eluru.

CALENDAR & JUDGMENT

WEST GODAVARI DISTRICT

CALENDAR AND JUDGMENT IN C.C.NO:382/2014 ON THE FILE OF

SPECIAL JUDICIAL MAGISTRATE OF I CLASS (EXCISE)COURT:: W.G.,ELURU

Date of

Offence Complaint or Apprehension Release on Commence-Close of trial Sentence of report of accused bail ment of trial Order 23/06/14 23/06/14 11/11/14 Accused is 29/12/14 26/02/15 28/02/15 05/07/14 05/07/14 in District Jail,Eluru

Explanation for delay: NIL

Cr.NO : 144 & 156/2014 of Pedavegi Police Station

Complainant : Sub Inspector of Police, Pedavegi Police Station.

Offence : Under section 411 IPC

Name of the accused:

Choudary Srikanth, s/o Raju, 21 yrs, Madiga, Mason, Indira colony, Sanivarapupeta, Eluru Finding: Found not Guilty.

Result: In the result, the accused is not found guilty for the offence punishable under section 411 IPC and accordingly, they are acquitted of the said offence under section 248(1) Cr.P.C. The bail bond of accused, shall stands canceled. The Superintendent, District Jail, Eluru is hereby directed to release the accused forthwith if he is not required in any other case.

MO1 and MO2 are gold rings were already given to P.W.1 as per the orders in Crl.M.P. 4121/2014 dated 29/12/2014 for interim custody will be made absolute after appeal time is over. MO3 and MO4 are gold chain and gold ring were already given to P.W.2 as per the orders in Crl.M.P. 3975/2014 dated 11/12/2014 for interim custody will be made absolute after appeal time is over.

JUDICIAL MAGISTRATE OF I CLASS,

SPECIAL MOBILE COURT, ELURU.

FAC. Spl.Judl. Magistrate of I Class (Excise), Eluru.

Copy submitted to:

1. The Hon’ble I Addl. District & Sessions Judge, W.G., Eluru

2. The Superintendent of Police, Eluru.

1

CC No.399 of 2016

Spl. Mobile, Eluru

IN THE COURT OF THE JUDICIAL MAGISTRAE OF I CLASS::

SPECIAL MOBILE COURT, ELURU

Present:- Sri Shaik Abdul Shariff,

Judicial Magistrate of I Class,

Dated, this the 01st day of May, 2017

C.C.NO.399 of 2016

Between:

State represented by the Sub-Inspector of Police, Eluru III Town Police Station, Cr.No.232/2015 -- Complainant - Vs - Dasari Jesuran Prem Kumar …. Accused

This case coming before me for final hearing on 27/04/2017in the presence of A.P.P.Smt.T.Madhavi garu, APP for the state and Sri B P Chandra

Sekhar garu, Advocate for Accused and having stood over consideration till this day, this court delivered the following:

J U D G M E N T

1. The factual narrative has a narrow compass:

L.W.1, Sri K.V.S.V.Prasad states in the complaint that on 13.11.2015 while he was discharging duties, he noticed the accused who was riding on the bike without helmet, whereupon he was stopped and asked to pay an amount of

Rs.100/-, however he did not oblige, whereupon the complaint was lodged and after termination of investigation the charge sheet is laid under section 353 IPC.

2. The Court took cognizance of the offence under sections 353 IPC.

3. When the accused is put in appearance before the court and the accused are supplied with all copies of documents as contemplated U/sec.207 Cr.P.C.

4. When the accused is examined U/sec.251 Cr.P.C. with regard to offences alleged against him, for which, he did not plead guilty of the offence under sections 353 IPC and thus, the charge sheet allegations are read over and 2

CC No.399 of 2016

Spl. Mobile, Eluru explained to the accused in Telugu, for which, the accused denied to have committed the offence and claimed to be tried.

5. When the accused is examined under section 313(1)(a)Cr.P.C. by explaining the incriminating material appearing from the evidence of prosecution witnesses, for which, he denied and reported no evidence to be adduced on his behalf.

6. The prosecution in order to prove the complicity of the accused examined

PW1 to P.W.5 and got Ex.P1 to Ex.P.5 marked.

7. The learned prosecution counsel, Smt.T. Madhavi garu brought the attention of this court through the multiple dimensions of the prosecution case and inter alia maintains that the evidence placed by the prosecution in the form of P.W.1 and P.W.2 is cogent, convincing and credible, there is no injunction in law that the testimony of a police officials cannot be relied upon, no man would be willing to spare the real culprit and framed a false case against an innocent person, non seizure of C.C footage available at the crime scene does not impact the very fabric of the prosecution case, therefore pronouncing the verdict of conviction is wholly sustainable in law.

8. The learned counsel for the accused, Sri.B.P.Chandra Sekhar garu assailed the arguments advanced by the learned APP and inter alia maintains that in criminal cases life and personal liberty of the accused is at stake, therefore a positive duty is cast on the investigating officer to investigate the crime very meticulously and it is not mere ipse dixt of the investigating officer, in the case on hand the investigation is one sided and guided, the investigating officer did not seize the C.C footage available in the camera, therefore pronouncing the verdict of conviction is wholly sustainable in law.

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9. Now the question that arises for the consideration whether the prosecution proved the guilt of the accused beyond reasonable doubt.

10. P.W.1, Sri K.V.S.V.Prasad works as S.I of police, Regional Intelligence testifies in chief examination that on 13.11.2015 while he was in Traffic

Enforcement duty noticed the accused coming on a motor bike without wearing helmet, whereupon his staff members stopped him and asked him to pay a fine of Rs.100/-, however he did not pay and made an attempt to attack him, whereupon the complaint was lodged vide Ex.P1.

11. On the aforementioned evidential backdrop, it is the larger contention of the learned counsel for the accused that the testimony of P.W.1 is beset with numerous flaws and inconsistency boarding on the line of falsehood, P.W.1 did not state either in Ex.P1 or in his 161 (3) Cr.P.C statement that the accused made an attempt to attack him, this excessive assertion which are not cropped up either in 161 (3) Cr.P.C statement as well as in Ex.P1 creates incurable dent in prosecution case, therefore it is not safe enough to rely upon the testimony of

P.W.1.

12. Whether the inord inate assertion m ade by P .W .1 during chief examination strikes the very foundation of the p rosecution case.

The main thrust of the argument of the learned prosecution counsel is that the minor discrepancy which does not distort the substratum of the prosecution story and would not make the case of the prosecution unreliable, thus there is no legal embargo in placing implicit reliance upon the testimony of P.W.1.

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13. In order to test the correctness and competence of the rival contentions, now at this juncture, I think it apt to advert to the material emanated from the cross examination of P.W.1 and P.W.2 and the recitals of Ex.P.1.

14. P.W.1 maintains during chief examination that "the accused threatened me that he would see me and tried to attack me" . However this fact was not reflected either in Ex.P.1 or in 161 (3) Cr.P.C statement pertains to him.

15. It is the settled principal of law that testimony of a witness is materially and substantially different from the facts stated in the former statements, the testimony of a witness cannot be relied upon and the discrepancy speaks against the case of the prosecution. In this backdrop, no cogent explanation is emanated from the side of P.W.1 as to why he did not state before the police that the accused scared him and attacked him.

16. As to what actuated P .W.1 not to file any charge sheet ag ainst the accused for violating 129 of M.V. Act.

In this context, the material portion of the cross examination of P.w.1 needs extraction. During cross examination P.w.1 maintains that "I did not register any case against the accused under M.V. Act, if the violator does not pay the amount, the challan will be sent to the house of the violator".

17. If really, the accused deterred P.W.1 while discharging his official duties, in such a case, what actuated P.W.1 not to file charge sheet against the accused for violating the provisions of M.V.Act.

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18. In the wake of the aforementioned reasons, I am of the opinion the testimony of P.W.1 does not inspire any confidence. Therefore, I am not inclined to believe the testimony of P.W.1.

19. P.W.2 Sri Md.Anwaruddin deposes in his evidence that on 13.11.2015 himself and P.w.1 were discharging their duties, at that time they noticed the accused coming on a motor bike without helmet, whereupon he was stopped and asked to pay the amount, however he did not pay.

20. Whether the testimony of P.W.2 matches w ith the testimony of

P.W.1 .

P.W.1 states in his deposition that when he asked the accused to pay the fine amount, on which the accused turned aggressive and made an attempt to carry out the assault, whereas P.W.2 did not state in his examination-in-chief about the accused getting wild and making an attempt to hit P.w.1. This circumstance purports to convey a message that no such incident took place as alleged.

21. P.W.3 Sri K.Durgarao, P.W.4 Sri Y.Uma who claimed to have seen the occurrence gone back from the contents of 161 (3) Cr.P.C statement, the learned

Public Prosecutor cross examined the witness, however no worthwhile material emerged out in favour of the prosecution.

22. P.W.5, Sri M.Sagarbabu who is the investigating officer deposes in his evidence that on the strength of Ex.P1 the FIR was drawn up vide Ex.P4 and after termination of investigation the charge sheet is laid.

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23. As to why the investigating officer did not produce the footage of the C.C cam ers installed at the crime scene.

It is the case of P.W.2 that C.C camera is installed at the crime scene. In such a case, is it not incumbent upon the investigating officer to seize the inculpatory material available in the C.C camera which tends to establish the complicity of the accused.

24. In view of the above material, I hold that the prosecution could not establish the guilt of the accused beyond reasonable doubt succinctly to the hilt.

25. In the result, the accused is found not guilty for the offence punishable under section 353 Indian Penal Code and the accused acquitted under section 251 (1) Cr.P.C. The bail bonds of the accused, if any shall stand cancelled. The unmarked property, if any, is ordered to be destroyed after appeal time is over.

Typed to my dictation by the personal assistant, corrected and pronounced by me in open court, this the 1st day of May, 2017.

JUDICIAL MAGISTRATE OF I CLASS,

SPECIAL MOBILE COURT, ELURU.

APPENDIX OF EVIDENCE

Witnesses Examined for PROSECUTION: DEFENCE: PW1: K V S V Prasad - NIL – PW2: Md.Anwaruddin PW3: K Durga Rao PW4: Y Uma PW5: M Sagar Babu

EXHBITS MARKED

For Prosecution: Ex.P1: Complaint. Ex.P2: 161(3) Cr.P.C. statement of P.W.3 Ex.P3: 161(3) Cr.P.C. statement of P.W.4 Ex.P4: FIR Ex.P5: Rough Sketch

Defence: NIL

MOS marked: NIL J.F.C.M. SMC, Eluru 7

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CALENDAR & JUDGMENT

WEST GODAVARI DISTRICT

CALENDAR AND JUDGMENT IN C.C.NO:399 of 2016 ON THE FILE OF

JUDICIAL MAGISTRATE OF I CLASS, SPECIAL MOBILE COURT:: W.G.,ELURU

Date of Offence Complaint ApprehensRelease on CommenClose of Sentence or report ion of bail ce-ment trial of Order accused of trial 13/11/15 13/11/15 13/11/15 13/11/15 07/04/17 27/04/17 01/05/17

Explanation for delay: Received by transfer to this court on 21/07/2016 from II Addl. Judicial Magistrate of I Class, Eluru.

Cr.NO : 232/2015 of Eluru III Town Police Station

Complainant : Sub Inspector of Police, Eluru III Town Police Station

Offence : Under sections 353 IPC

Name of the accused: Dasari Jesuram Prem Kumar, S/o Rajarao, 29 year, C/Christian, R/o D.No.24C-4-12A Near R/o Opp. Post ffice, Vengalarao Nagar, Hyderabad. Rider of Honda Activa No.AP 37 BA-3917.

Finding: Found not guilty

Result: In the result, the accused is not found guilty for the offence punishable under sections 353 IPC and the accused is acquitted under section 255(1) Cr.P.C.

The bail bonds of the accused, if any, shall stands cancelled after expiry of appeal time. The unmarked property if any is ordered to be destroyed after appeal time is over.

JUDICIAL MAGISTRATE OF I CLASS,

SPECIAL MOBILE COURT, ELURU.

Copy submitted to:

1. The Hon’ble I Addl. District & Sessions Judge, W.G., Eluru

2. The Superintendent of Police, Eluru.

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IN THE COURT OF THE JUDICIAL MAGISTRAE OF I CLASS::

SPECIAL MOBILE COURT, ELURU

Present:- Sri Shaik Abdul Shariff,

Judicial Magistrate of I Class,

Dated, this the 03rd day of May, 2017

C.C.NO.791 of 2016

Between:

State represented by the Sub-Inspector of Police, Eluru III Town Police Station, Cr.No.181/2014 -- Complainant - Vs - Polisetti Anil Kumar …. Accused

This case coming before me for final hearing on 02/05/2017 in the presence of A.P.P.Smt.T.Madhavi garu, APP for the state and Sri V. Amar Srinivas garu, Advocate for Accused and having stood over consideration till this day, this court delivered the following:

J U D G M E N T

1. The factual sco re that is necessary to be exposited w hich is hereund er:

L.W.1, Sri.Geddala Anand states in the report that on 23/05/2014 at about 8.00 A.M. while he was heading towards his house on his two wheeler, when he reached near to the St.Anns College, the crime vehicle which was coming in a opposite direction hit him, due to which he fell off resulting bleeding injuries, whereupon he was shifted to Govt. Hospital, Eluru for treatment and after termination of investigation the case was culminated into charge sheet under section 338 IPC.

2. The Court took cognizance of the offence under sections 338 IPC.

3. When the accused is put in appearance before the court and the accused are supplied with all copies of documents as contemplated U/sec.207 Cr.P.C.

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4. When the accused is examined U/sec.251 Cr.P.C. with regard to offences alleged against him, for which, he did not plead guilty of the offence under sections 338 IPC and thus, the charge sheet allegations are read over and explained to the accused in Telugu, for which, the accused denied to have committed the offence and claimed to be tried.

5. When the accused is examined under section 313(1)(a)Cr.P.C. by explaining the incriminating material appearing from the evidence of prosecution witnesses, for which, he denied and reported no evidence to be adduced on his behalf.

6. The prosecution in order to prove the complicity of the accused examined

PW1 to P.W.5 and got Ex.P1 to Ex.P.7 marked.

7. The learned prosecution counsel, Smt.T Madhavi garu brought the attention of this court through the multiple facets of the prosecution case and inter alia maintains that the evidence placed by the prosecution is consistent with the guilt of the accused and inconsistent with his innocence, rough sketch drawn at the crime scene is only a corroborative piece of evidence, no noticeable infirmity is pointed out during cross examination which creates a doubt as to the authenticity of the case of the prosecution, therefore pronouncing the verdict of conviction is wholly sustainable in law.

8. The learned counsel for the accused, Sri V Amar Srinivas garu assailed the arguments advanced by the learned APP and inter alia maintains that the investigation is perfunctory and lackadaisical, the defective investigation leads to manifest miscarriage of justice, there is a contributory negligence on the part of the P.W.3, therefore pronouncing the verdict of conviction is wholly unsustainable in law.

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9. Now the question that arises for the consideration whether the prosecution proved the guilt of the accused beyond reasonable doubt.

10. P.W.1 A Siva Rama Prasad, P.W.2, Sri V Narasimha Murthy who claimed to have seen the occurrence gone back from the contents of 161 (3) Cr.P.C statement, the learned Public Prosecutor cross examined the witness, however no worthwhile material emerged out in favour of the prosecution.

11. P.W.3, Sri G Anand deposes in evidence that the accident occurred on 23/05/2014 at about 8.00 PM at St.Anns College, Eluru and on the date of occurrence while he was heading towards his house on motor bike, when he reached near to the crime scene, at that time the accused came in his opposite direction on a Hero Honda Activa and dashed him, due to which he fell off resulting injury, whereupon he was shifted to ASRAM hospital, while he was undergoing treatment the police officials recorded his statement vide Ex.P.3 and the accused is the driver of the offending vehicle.

12. On the aforementioned evidential backdrop, it is the larger contention of the learned counsel for the accused that the prosecution suppressed the genesis of the occurrence and gave distorted version, in order to bring the culpability of the accused under Sec.338 IPC, the prosecution is obliged to prove that the accused did not exercise due diligence and due vigilance while driving the crime vehicle, in the case on hand P.w.3 did not state in his examination-in-chief the manner of the occurrence, therefore it is not safe enough to rely upon the testimony of P.W.3.

13. Whether the testimony of P.W .3 satisfies the ing redients as enjoined under Sec.338 I PC.

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The sum and substance of the argument of the learned prosecution counsel is that in road mishap cases direct evidence cannot be had, the case of the prosecution banks upon circumstantial evidence, merely because P.W.3 did not state in his chief examination the manner of the occurrence that itself is not a credible ground to throw out the case of the prosecution, therefore there is no legal embargo in placing implicit reliance.

14. In order to appreciate the rival contentions, now at this juncture, I am obliged to advert to the material emanated from the cross examination of P.W.1 and the recitals of Ex.P1.

15. In this context, the material portion of chief examination of P.W.3 needs extraction. During chief examination, "P .W .3 maintains that the accused came in opposite direction and d ashed him , due to which he fell off resulting injury".

16. To make the accused amenable to the prosecution under Sec.338 IPC, a broad test as enjoined is that the accused drove the vehicle with a culpable rashness and with culpable negligence which endangers the life of the others.

However, P.w.3 did not clearly assert in his examination-in-chief the manner of the occurrence. In the wake of this material, I am of the unhesitant opinion the evidence of P.W.3 is not of sufficient caliber to hold the accused guilty.

17. P.W.5, Sri D Rama Chandra Murthy who is the investigating officer deposes in evidence that on receipt of Ex.P.1 he issued FIR and after termination of investigation the charge sheet is laid.

18. As to what actuated the investig ating officer not to ex amine the constable w ho reco rded the statement of P.W.1 5

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The learned counsel for the accused confronted P.W.5 whether he examined the constable who recorded the statement of P.W.3, on which he is very passive and not assertive. In this context, P.W.5 did not offer any cogent explanation for his non-examination.

19. Whether Ex.P7 rough sketch gives any iota of indication with respect to the manner of the occurrence.

P.W.5 affirms during chief examination that he visited the venue of the offence and drew the prosecution map.

20. On perusal of the prosecution map which does not disclose the complicity of the accused.

21. From the evidence discussed, the situation which is obtained is that the prosecution could not prove the guilt of the accused beyond reasonable doubt.

22. In view of the above material, I hold that the prosecution could not establish the guilt of the accused beyond reasonable doubt succinctly to the hilt.

23. In the result, the accused is found not guilty for the offence punishable under section 338 Indian Penal Code and the accused acquitted under section 251 (1) Cr.P.C. The bail bonds of the accused, if any shall stand cancelled. The unmarked property, if any, is ordered to be destroyed after appeal time is over.

Typed to my dictation by the personal assistant, corrected and pronounced by me in open court, this the 03rd day of May, 2017.

JUDICIAL MAGISTRATE OF I CLASS,

SPECIAL MOBILE COURT, ELURU.

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APPENDIX OF EVIDENCE

Witnesses Examined for

PROSECUTION: DEFENCE:

PW1: A Sivaram Prasad - NIL –

PW2: V Narasimha Murthy

PW3: G Anand

PW4: C C Satyanarayana

PW5: D R Ch.Murthy

EXHBITS MARKED

For Prosecution:

Ex.P1: 161(3) Cr.P.C. statement of P.W.1

Ex.P2: 161(3) Cr.P.C. statement of P.W.2

Ex.P.3: Statement

Ex.P.4: Wound certificate

Ex.P.5: Hospital Intimation

Ex.P6: FIR

Ex.P7: Rough Sketch

Defence: NIL

MOS marked: NIL

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CALENDAR & JUDGMENT

WEST GODAVARI DISTRICT

CALENDAR AND JUDGMENT IN C.C.NO:791 of 2016 ON THE FILE OF

JUDICIAL MAGISTRATE OF I CLASS, SPECIAL MOBILE COURT:: W.G.,ELURU

Date of Offence Complaint ApprehensRelease on CommenClose of Sentence or report ion of bail ce-ment trial of Order accused of trial 23/05/14 25/05/14 30/05/14 30/05/14 16/03/17 02/05/17 03/05/17

Explanation for delay: Received by transfer to this court on28/11/2016 from

II Addl. Judicial Magistrate of I Class, Eluru.

Cr.NO : 181/2014 of Eluru III Town Police Station

Complainant : Sub Inspector of Police, Eluru III Town Police Station

Offence : Under sections 337 IPC

Name of the accused: Polisetti Anil Kumar, S/o Venkateswara Rao, 22 years, Kapu Guraj Chowk, Dakalavari Street, Eluru, Rider of Hero Honda Activa Black color Motorcycle No.AP 37 AN 3746.

Finding: Found not guilty

Result: In the result, the accused is not found guilty for the offence punishable under sections 337 IPC and the accused is acquitted under section 255(1) Cr.P.C.

The bail bonds of the accused, if any, shall stands cancelled after expiry of appeal time. The unmarked property if any is ordered to be destroyed after appeal time is over.

JUDICIAL MAGISTRATE OF I CLASS,

SPECIAL MOBILE COURT, ELURU.

Copy submitted to:

1. The Hon’ble I Addl. District & Sessions Judge, W.G., Eluru

2. The Superintendent of Police, Eluru.